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3220 M Street Telephone: (916) 492-6555 Facsimile: (916) 492-6556 ©2007 The Ison Law Group |
Women in the
Modern Workplace
In
21st century
New Theories of Sex-Based
Discrimination
As
women play a more significant role in the workforce, particularly in
high-earning positions, it might seem as though the "old days" of
women being discriminated against are over. After all, the statistics show that things are
just about equal, right? Not
really. Sure, the instances of
intentional discrimination against women - such as in the case of an employer
offering a certain job only to men because it requires heavy lifting - have
decreased drastically in recent years.
However, there are new forms of sex-based discrimination that, while not
discriminatory on the surface, negatively impact female employees much more
frequently than they impact male employees.
Employment policies that place a disproportionate negative impact on
women are said to create a "disparate impact" and are prohibited
under Title VII of the federal Civil Rights Act of 1964, known simply as Title
VII.
There
are two new disparate impact theories of sex-based discrimination, which have
emerged prominently in the federal courts during the past decade: family
responsibility discrimination and sex-stereotyping. In this article, we will take a closer look
at the form that these claims take, how they are viewed by various federal
courts, and what impacts they may have on the modern workplace.
Family Responsibility
Discrimination Claims
There
is a rapidly growing trend in lawsuits filed by workers claiming that they were
discriminated against because of their responsibilities to care for their
families. This form of sex-based
discrimination, dubbed "family responsibility discrimination" in
recent years, was first identified as a legitimate basis for a claim under
Title VII by the United States Supreme Court in 1971. In the case of Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971), the Supreme
Court found that an employer policy which barred mothers of school-aged
children from applying for certain jobs constituted gender discrimination even
though it allowed fathers and childless women from applying for the same
jobs.
In
the Phillips case, it is obvious how
women would be disparately impacted by a policy that prohibits mothers from
obtaining certain employment because only women can be mothers. It seems straightforward, right? Apparently not because employers are facing
an exponentially higher number of family responsibility discrimination claims.
According
to a study published by the Center for WorkLife Law, during the ten-year period
from 1996-2005, 481 claims of this type were filed. That is a 400% increase from the previous ten
-year period when only 97 family such claims were made against employers. (See
www.uchastings.edu/?pid=3624.) Clearly, employers are not getting it when it
comes to what constitutes an employment policy that has a disparate impact on
women.
Though
family responsibility discrimination claims take various forms, many arise when
an employer becomes aware that an employee is pregnant. Most employers know (or should know) that it
is illegal under federal and state law to fire an employee because she is
pregnant. However, employers may not
realize that may also open themselves up to a Title VII claim if they fire the
employee or treat her differently when she returns from maternity leave. In 2004, the Second Circuit Court of Appeals
found in favor of an employee, a tenure-track school psychologist, who alleged
sex-discrimination by her employer following her return from a three-month maternity
leave. In Back v. Hastings on the
Hudson Union Free School District, 365 F.3d 107 (2d Cir. 2004), the court
agreed that the comments made to the employee regarding her family
responsibilities and, ultimately, the decision to deny her tenure, constituted
gender discrimination.
There
are other situations in which an employee could claim family responsibility
discrimination. In 2004, a jury awarded
$1.1 million to a sales representative who expressed interest in being promoted
but was told by her manager that he would not consider her for a management
position because he did not think she would want to relocate her family. On appeal by the employer, the Seventh
Circuit Court of Appeals upheld the jury's decision for the employee but
reduced the damages to $301,500. Lust v. Sealy, Inc., 383 F.3d 580 (7th
Cir. 2004). Such claims could
conceivably be raised where the employer attempts to create a legitimate reason
to terminate female employees by scheduling them for evening shifts only -
-knowing that the employees have young children to care for and that they will
be unable to work.
Because
family responsibility discrimination is a relatively new theory of
sex-discrimination, there are few easy answers to the question of what
employment practices are prohibited under such a framework. We will provide you with some guidelines for
avoiding such claims at the end of the article and will encourage you to keep
checking our website for relevant court decisions.
Sex-Stereotyping Claims
The
other "new" form of sex-based discrimination that has made headlines
recently involves challenges to employer grooming and appearance policies that
incorporate "sex-stereotypes".
This type of claim is most clearly illustrated in a case that was
recently decided by the Ninth Circuit Court of Appeals. In Jespersen
v. Harrah's Operating Co., 392 F.3d 1076 (9th Cir. 2006), a female
bartender claimed that the casino’s requirements that female employees wear
their hair down and styled and that they wear makeup and lip color violated
Title VII. The plaintiff's theories of
the case were that the grooming policies forced her to adhere to a sex
stereotype and that they were discriminatory because they imposed a heavier
burden on women then men in the same job.
In
its ruling, the Ninth Circuit found that the plaintiff did not produce evidence
sufficient to prove that the grooming regulations were designed to force female
employees to conform to stereotypical images of how a woman should appear and
that the requirements imposed did not impede the plaintiff's ability to perform
her job. However, the court emphasized
in its holding that this decision would not preclude a claim of sex
stereotyping based on dress or appearance code where the evidence was
sufficient to support the claim. As for
the claim that grooming requirements placed a heavier burden on female
employees, the court examined the amount of time and money that was required
for male and female employees to comply with their respective grooming
requirements and found that the petitioner submitted no evidence to show higher
burdens to women. Again, the court
emphasized that it would not preclude a claim based on disparate impacts in
this context, provided that the employee submitted the evidence to support the
claim.
How to Steer Clear of the "New" Sex-Based
Discrimination
Especially
for employers who have been in business for a long time, it may be very
confusing to determine what assumptions are and are not acceptable to make
based on the gender of an employee. The
short answer is that no assumptions can be made with regard to an employee
simply because he or she is male or female.
So throw out all of your old presumptions and ideas and consider the
following in drafting employment policies:
- In hiring and
promoting employees, do not inquire whether the employee's family schedule
or responsibilities will interfere with his or her ability to do the job -
base decisions on job qualifications.
- Do not make it more
difficult for employees with children to meet job requirements - if
employees must work at nights or on weekends, make certain that all
employees bear an equal burden in this regard. In other words, do not create
"pretexts" for firing employees who have family responsibilities.
- In adopting dress and
grooming policies, do not impose a greater burden in terms of time or
money on employees of one gender and be sure that such policies will not
impede an employee's ability to perform his or her job duties.
- Consider making your
workplace more family-friendly - instead of thinking of employees with children
as potential burdens consider the value they add to your workplace in
terms of their qualifications. Many
mothers and fathers have been forced to learn how to adapt quickly, deal
with stress, and think outside the box by virtue of parenting - consider
how you can utilize these skills in the employment setting!