Gender Discriminations

Related Terms: Equal Employment Opportunity Commission; Sexual Harassment

Gender discrimination, also known as sexual discrimination, is any action that specifically denies opportunities, privileges, or rewards to a person (or a group) because of gender. The practice of letting a person's gender become a factor when deciding who receives a job or a promotion, is gender discrimination. When gender is a factor in other decisions about employment opportunities or benefits, that too is gender discrimination. While most discrimination charges claim that a woman (or women) was discriminated against in favor of a man (or men), there have also been cases where males have claimed that they have been discriminated against on the basis of gender. These cases are usually referred to as "reverse discrimination."

Court rulings handed down through the years have determined that a company's responsibility not to discriminate based on sex begins even before an individual is hired. Companies can be held liable if pre-employment screening or testing is determined to be discriminatory, if applications ask unacceptable questions designed to screen for sex, or if the overall selection process is deemed to be unfair. One of the main indicators that gender discrimination has occurred in the hiring process involves the qualifications of the job applicants. While a slight difference in qualifications between a female and a male candidate does not automatically indicate gender bias (if a lesser qualified male candidate is hired instead of a female candidate, that is), a drastic difference in qualifications has almost always been upheld by the courts as a sure sign of gender discrimination. For example, if a male who dropped out of high school without receiving a diploma is hired in an administrative position over a female who had obtained her master's degree, then it is likely bias was a factor.

In addition to gender discrimination in hiring and other circumstances, there is a particular form of sexual discrimination called sexual harassment. This form of discrimination involves inappropriate words or actions of a sexual nature directed at one employee by another. To meet the criteria for harassment, the behavior in question must be both unwanted and sexual in nature. The U.S. legal system has determined that there are two main types of sexual harassment, the first being "quid pro quo," or "this for that," which occurs when one employee offers another employee a job or benefit in exchange for sexual favors, or threatens to deny that job or benefit unless sexual favors are granted. The second type of sexual harassment is referred to as "hostile work environment." In these types of cases, an employee, or a group of employees, repeatedly make lewd comments or suggestive noises, make unwanted sexual advances, or otherwise use sex to create a work environment that is intimidating or threatening to others.

FEDERAL LAWS STRONGLY PROHIBIT GENDER DISCRIMINATION

Since the social unrest of the 1960s, the federal government has been actively involved in preventing gender discrimination in the workplace. One of the most important laws covering gender discrimination on the job is the Civil Rights Act of 1964—specifically, Title VII of that act, which strictly prohibits all forms of discrimination on the basis of race, color, religion, sex, or national origin in all aspects of employment. Written during a tumultuous period in American history when many people expected the federal government to right social wrongs, the law was a monumental piece of legislation that changed the American employment landscape.

The law was passed after heated debate in both the Senate and the House of Representatives. It stated that it was unlawful for an employer to "fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges or employment, because of such individual's race, color, religion, sex, or national origin." The law covers hiring, dismissals, compensation, and all other aspects of employment, while also covering actual employment opportunities that are available. Examples of gender discrimination or sexual harassment that would fall under the scope of the act include:

1. An employee who alleges that his or her manager only promotes male employees and keeps females in entry-level positions.
2. An employee who alleges that a manager or other person in power tells jokes or makes statements that are demeaning, insulting, or offensive to women.
3. A manager who makes it clear, either through his actions or words, that he wants to have sexual relations with a female employee.
4. A manager who asks inappropriate and unnecessary questions about a female employee's sex life.
5. A manager who touches his female employees in inappropriate ways without consent.

The law covers business with 15 or more employees, and applies to all private, federal, state, and local employers. In many states, businesses with fewer than 15 employees face the same rules thanks to local or state statutes. In addition to the hiring provisions, the law dictates that employers cannot limit or segregate employees based on sex in any way that would adversely affect their chances at promotions. It does allow for two narrow exceptions to the law—businesses may use a "bona fide" seniority or merit system to measure performance and earnings based on a quantity or quality measuring system, and employers may use ability tests to determine the most qualified candidates for a job as long as the test does not discriminate by gender in any way.

The Civil Rights Act was originally intended to address only racial discrimination. Just as the law was about to be passed, however, Representative Howard Smith of Virginia added the word "sex" to one of the opening sentences, meaning the law would also prevent sexual discrimination. This was a controversial action, as many people actually saw it as an attempt to kill the bill. The argument made by critics was that Smith added the word sex to the law knowing that many people would oppose the addition and the bill would be defeated, thus preventing racial protection from occurring as well. Smith denied this accusation and swore he had added the provision after working with the National Women's Party. Whatever his motivation, thanks to the efforts of Representative Martha Griffiths and others, the revised bill was passed into law.

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