Gender and Family Issues

1
Gender and Family Issues

• Chapter 4

2
Gender Myths

• Women are better suited to repetitive, fine motor
  skill tasks
• Women are too unstable to handle jobs with a
  great deal of responsibility or high pressure
• Men are better in the workplace because they are
  more aggressive
• Men do not do well at jobs requiring nurturing
  skills

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• When women marry they will get pregnant and leave
  their jobs
• When women are criticized at work, they will
  become angry and cry
• A married womans income is only extra family
  income
• It is inappropriate for a male employee to take
  leave to deal with the arrival of a new child.

4
Statutory Basis

• It shall be an unlawful employment practice for
  an employer
• (1) to fail or refuse to hire or to discharge
  any individual, or otherwise to discriminate
  against any individual with respect to his
  compensation, terms, conditions, or privileges of
  employment, because of such individuals . . .
  Sex gender. . . . Title VII of the Civil Rights
  Act of 1964, as amended. 42 U.S.C. 2000e-2 (a).
• (1) No employer . . . shall discriminate between
  employees on the basis of sex by paying wages to
  employees . . . at a rate less than the rate at
  which he pays wages to employees of the opposite
  sex . . . for equal work on jobs the performance
  of which requires equal skill, effort, and
  responsibility, and which are performed under
  similar working conditions, except where such
  payment is made pursuant to (i) a seniority
  system (ii) a merit system (iii) a system which
  measures earnings by quantity or quality of
  production or (iv) a differential based on any
  other factor other than sex. . . . Equal Pay Act,
  29 U.S.C.A. 206(d).

5
Statutory Basis (continued)

• (k) The term because of sex or on the basis of
  sex includes, but is not limited to, because of
  or on the basis of pregnancy, childbirth, or
  related medical conditions and women affected by
  pregnancy, childbirth, or related medical
  conditions shall be treated the same for all
  employment-related purposes, including receipt of
  benefits under fringe benefit programs, as other
  persons not so affected but similar in their
  ability or inability to work. . . . Pregnancy
  Discrimination Act, 42 U.S.C. 2000e.

6
Statutory Basis

• Title VII prohibits discrimination in employment
  against any individual based on his or her sex
• Equal Pay Act prohibits discrimination in pay for
  equal work unless based on a seniority system, a
  merit system, quantity or quality of production,
  or any other factor other than gender

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• Pregnancy Discrimination Act states gender
  discrimination includes actions based on
  pregnancy, childbirth or related medical
  conditions and prohibits discrimination in fringe
  benefits for pregnant employees

8
Does It Really Exist?

• Gender discrimination can be difficult to
  recognize
• Although gender discrimination covers both males
  and females, most claims are filed by women
• From 1997-2000 gender suits accounted for the
  highest percentage of cases brought under Title
  VII
• Gender discrimination is found in many
  organizations and in many types of claims
• Many women report job discrimination as their
  biggest problem

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• Nearly half the workforce is female
• Females represent two-thirds of all poor adults
• Only 15 percent of women work in jobs typically
  held by men
• Women earn about 77 percent of mens pay
• The gender-based wage gap is present in every
  profession

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• Segregation by gender widespread among executives
  and management
• Civil Rights Act of 1991 established Glass
  Ceiling Commission
• Workplace decisions must be based on ability to
  perform, not on gender
• Gender discrimination is bad business
• Employers should be aware of both subtle and
  overt discrimination

11
Gender Discriminationin General

• Laws cover full scope of employment process,
  unless there is a BFOQ
• Advertising for available positions
• Asking gender specific questions on applications
  or interviews
• Requiring one gender to work different hours or
  positions
• Disciplining one gender but not the other for the
  same act
• Not providing training for one gender

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• Establishing different seniority systems
• Paying different wages
• Providing different benefits
• Providing differing terms or conditions of
  employment
• Terminating employment for different reasons
• Decisions are made on a case-by-case basis

13
Recognizing GenderDiscrimination

• Employers should first look for obviously
  discriminatory policies
• Other cases may be more difficult to recognize
• For example, height and weight requirements may
  exclude women

14
Gender-Plus Discrimination

• Employment discrimination based on gender and
  some other factor such as marital status,
  pregnancy, children or age
• Policies like these obviously do not apply to men
• While BFOQs are permitted, the courts construe
  them very narrowly

15
Gender Issues

• Gender stereotyping workplace decisions based
  on ideas of how a certain gender should act
• Grooming codes can be discriminatory if they hold
  different genders to different standards
• Customer or employee preferences are not
  legitimate reasons to treat employees differently

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• Logistical considerations cannot be used to forgo
  hiring a certain gender unless unreasonable
  financial burden can be shown
• Equal pay and comparable worth
• Equal pay for equal worth required under the
  Equal Pay Act
• Comparable worth is addressed under Title VII

17
Equal Pay and Comparable Worth

• Despite the Equal Pay Act, women earn on average
  77 cents for every dollar earned by men.
• Womens salaries may be equal by the year 2050.
• The EPA overlaps with Title VIIs general
  prohibition against discrimination in employment
  on the basis of gender.
• EPA is concerned with the content of the job

18
Comparable worth

• A Title VII action for pay discrimination based
  on gender, in which jobs held mostly by women are
  compared with comparable jobs held mostly by men
  who are paid more than the women, to determine if
  there is gender discrimination.

19
Gender as a BFOQ

• BFOQ is a bona fide occupational qualification
• Title VII permits gender to be used as a BFOQ
• Most attempts to use gender as a BFOQ have failed
  in the courts

20
Pregnancy Discrimination

• Supreme Court determined that pregnancy
  discrimination was not gender discrimination
  under Title VII
• 182 percent increase in the filing of pregnancy
  discrimination charges over the past 10 years
• Pregnancy Discrimination Act amended Title VII to
  include pregnancy discrimination
• Includes pregnancy, childbirth, or related
  medical conditions

21
Defining Sexual Harassment

• Sexual Harassment is a form of sexual
  discrimination that is prohibited by state and
  federal law.

22
Defining Sexual Harassment

• EEOC Definition
• Unwelcome sexual advances, requests for sexual
  favors, and other verbal or physical conduct of a
  sexual nature constitute sexual harassment when
• 1. Submission to such conduct is made either
  explicitly or implicitly a term or condition of
  an individuals employment or academic
  advancement

23
Defining Sexual Harassment

• 2. Submission to or rejection of such conduct by
  an individual is used as the basis for employment
  or academic decisions affecting such individual
  or
• 3. Such conduct has the purpose or effect of
  unreasonably interfering with an individuals
  work or academic performance or creating an
  intimidating, hostile, or offensive working or
  learning environment.

24
Statutory Basis

• Title VII prohibits discrimination in employment
  based on gender
• EEOC Sexual Harassment Guidelines defines sexual
  harassment
• Civil Rights Act of 1991 permits jury trials and
  compensatory and punitive damages

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• Although sexual harassment is not new, it has
  come into the limelight in recent years
• It is still new in the legal sense
• Sexual harassment is illegal, expensive,
  unnecessary and bad business
• EEOC established guidelines on sexual harassment
  in 1980

26
Sexual Harassmentin General

• Sexual harassment actions can be brought under
  two theories
• Quid pro quo requests for sexual activity in
  exchange for workplace benefits
• Hostile environment creation of an offensive
  work environment for one gender but not the other
• Harassers and harassees can be of either gender

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Quid Pro Quo Sexual Harassment

• Most obvious type of sexual harassment
• Generally easy to recognize (sometimes hard to
  prove)
• Employers should select supervisory employees
  carefully
• Systems should be in place to check and monitor
  environment
• Occurs when a supervisor makes acquiescence to
  requests for sexual favors a basis for an
  employment decision.
• The demands may result in punishment or rewards.

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• Hostile Environment harassment involves
• an atmosphere or climate that unreasonably
  interferes with an employees ability to work.

29
Hostile Environment Sexual Harassment

• More difficult to identify
• General requirements include
• Harassment unwelcome to harassee
• Harassment must be based on gender
• Harassment must create abusive working
  environment
• Harassment must affect term, condition or
  privilege of employment
• Employer had to have knowledge and not taken
  prompt or adequate action

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• Unwelcome activity may be direct or indirect
• Harassees need to make it clear that activity is
  unwelcome
• Severe and pervasive requirement requires
  harassment be serious enough to unreasonably
  interfere with employees ability to perform
• Perspective used to determine severity
• Reasonable person standard
• views activity from perspective of a reasonable
  person in society at large

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• Reasonable victim standard
• views activity from perspective of a reasonable
  person in the victims position
• Sexual requirement does not mean that activity
  must involve sex
• Rather, the harassment must be based on gender
• Antifemale animus refers to acting in a
  derogatory way to women and can constitute sexual
  harassment
• Employers should be aware of electronic harassment

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• A single incident may constitute sexual
  harassment if it is linked to an employment
  benefit, or if it is unusually severe.
• A sexual harassment charge might apply in a
  constructive discharge case.

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Examples of Possible Sexual Harassment

• The constant or frequent touching of someone on
  their back, breasts or buttocks.
• Unwanted, constant or frequent attempts to kiss a
  person.
• Sexually suggestive sounds or gestures. Ogling
  or leering.

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Examples of Possible Sexual Harassment

• Sexually suggestive or demeaning name-calling.
  Letters, telephone calls or e-mail messages of a
  sexual nature.
• A employee is promised a better performance
  review or a promotion if s/he goes to bed with a
  supervisor.

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Examples of Possible Sexual Harassment

• Frequent jokes about sex or about one gender or
  the other.
• Stalking
• Attempted or actual assault.
• Degrading, insulting or suggestive comments that
  are sexual in nature or directed toward a
  particular sex

36
Employer Liability for Sexual Harassment

• Employer is liable for harassment by a
  supervisory employee whether or not the employer
  was aware of the harassment
• Employer is liable for harassment by a
  non-supervisory employee if the employer knew or
  should have know and took no remedial action
• Employers can also be liable for harassment by
  non-employees

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Other Important Considerations

• Determining the truth of allegations
• Employer must thoroughly investigate all
  allegations
• Retaliation and employee privacy
• Although alleged harasser must be notified,
  retaliation should not be tolerated

38

• Corrective action
• Action should be immediate and appropriate
• Damages and jury trials
• Employees can ask for up to 300,000 in
  compensatory and punitive damages
• May also receive unlimited medical damages
• This greatly increases potential liability to
  employers

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• Tort and criminal liability
• Harassees may also bring civil actions
• Tort actions may include
• Assault
• Battery
• Intentional infliction of emotional distress
• False imprisonment
• Intentional interference with contractual
  relations

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Problems

• Does the conduct in the following examples
  constitute sexual harassment?
• Patty goes bowling every Thursday night with
  friends, and she comes to work on Friday with a
  new supply of jokes that she emails to everyone
  in her department. Many of the jokes are
  off-colored or sexual in nature, and some of the
  employees, mostly women, begin to complain.
  Also, a number of the jokes might be described as
  male bashing with titles such as, Why is
  having a cat better than having a man? and Why
  is a candy bar better than a man?
• Would it matter that Patty claims she had no idea
  that anyone would take offense nor did she have
  an intention of harassing anyone?

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Problems

• Mr. Witherspoons secretary was bringing him some
  coffee when she tripped and the coffee went
  flying and landed on the papers on his desk. The
  secretary was mortified and apologetic. Mr.
  Witherspoon realized that this was only an
  accident, and gave her a playful slap on the
  buttock saying that she needed to be spanked for
  such carelessness.
• Would it matter that Mr. Witherspoon claimed that
  he only meant this as a joke?

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15 Suggestions for Handling Complaints

• Have a sexual harassment policy which is
  disseminated.
• Designate qualified individuals to investigate.
• Investigate immediately.
• Obtain written statement from complainant.
• Reassure complainant of companys sincerity.
• Honor victims anonymity request (to the extent
  possible), however, you must investigate.
• Identify witnesses.
• Conduct personal interviews.

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15 Suggestions for Handling Complaints

• Get written statements from witnesses.
• Prepare written account.
• Confidentially interview accused.
• Speak to complainants and accuseds supervisors.
• Keep records confidential.
• Take immediate corrective action, including
  appropriate discipline.
• Tell victim action was taken.

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Dont Overreact! Claims by Alleged Harassers

• 1983 claim for a violation of the alleged
  harassers civil rights
• Usually based on a free speech or equal
  protection claim
• Wrongful discharge
• Breach of contract
• Due Process violation
• Defamation
• Conspiracy
• Discrimination

45
Affinity Orientation Discrimination

• Definition Sexual affinity describes whom one is
  attracted to for personal and intimate
  relationships

46
Statutory Basis

• Title VII of the Civil Rights Act of 1964 does
  not prohibit discrimination based on sexual
  affinity
• Title VII does not include same gender affinity
  orientation, bi-gender affinity orientation,
  transsexuals or effeminacy in males

47
Statutory Basis

• Gay and lesbian employees have also brought
  action under the 1st, 5th, or 14th amendment
• Where there is government action, the Equal
  Protection clause may provide protection.

48

• Although not covered in Title VII, many state
  laws and local ordinances include affinity
  orientation as a prohibited basis for employment
  discrimination
• Employers may still be liable under gender
  discrimination and gender stereotyping

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May also bring tort actions

• Intentional infliction of emotional distress
• Intentional interference with contractual
  relations
• Invasion of privacy
• Defamation

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• Courts have not upheld the position that those
  who change their gender from male to female are
  protected

51
Same-Gender Sexual Harassment

• U.S. Supreme Court ruled that harassment of an
  employee by someone of the same gender is
  prohibited unless shown that the harassment was
  based on affinity orientation

52
Transsexual Discrimination

• One of the fastest growing issues related to
  affinity orientation
• Some state and local laws include transsexuals in
  their protection for gays and lesbians
• Suits for gender discrimination have been
  unsuccessful
• Suits filed under the Americans With Disabilities
  Act have been unsuccessful

53

• See Smith v. City of Salem, Ohio, 378 F.3d 566,
  2004 U.S. App. LEXIS 16114 (6th Cir. 2004)

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Parental Leave Policies The Family and Medical
Leave Act

• Entitlement to leave
• FMLA guarantees employees who have been on the
  job at least a year up to 12 weeks of unpaid
  leave per year for
• A birth
• An adoption
• Care of sick children, spouses, parents or their
  own illness
• Requirements
• Employer
• Vacation
• Medical confirmation
• Affects about 5 percent of U.S. employers and
  about 40 percent of U.S. employees
• Employer confusion