Gender Discrimination

The Equal Pay Act of 1963 prohibits employers that are engaged in an industry affecting commerce from discriminating against their employees on the basis of sex, with respect to the payment of wages. In essence, the act mandates equal pay when members of both sexes have jobs which require the comparable execution of skill, effort, and responsibility and which are performed under similar working conditions. Wages established on any of the following methods are exempt from the "equal pay for equal work" rule: (1) a seniority system; (2) a merit system; (3) a system that measures earnings by either quantity or quality of production; or (4) a differential that is based on a consideration other than sex. However, none of the above methods would justify an employer's practice of paying married women less than either men or single women when all three categories of employees have substantially similar positions.

Title VII of the Civil Rights Act of 1964 bars employers from discriminating against individuals on the ground of sex. To fall within the parameters of the act, an employer must be engaged in an industry which affects interstate commerce and must have 15 or more employees. State discrimination laws govern employers that do not come under Title VII. The term "sex" includes pregnancy, childbirth, and related medical conditions. However, Title VII's protections are not limited to females. Both men and women have pursued sex discrimination claims under Title VII. An employer is prohibited from advertising for help in a sexually discriminatory manner, as well as from making a hiring decision that is based on an applicant's sex. Furthermore, an employer is precluded from denying a promotion to an employee or from deciding to discharge an employee on the basis of gender. An employee who has been treated differently than similarly situated employees of the opposite sex, with respect to a term, condition, or privilege of employment, may sue the employer under a "disparate treatment" theory. In defense, the employer will attempt to articulate a legitimate, nondiscriminatory reason for its conduct. By way of example, an employer may contend that the employee had been discharged for poor job performance or failure to comply with company policies. After the employer offers an explanation for its action, the employee will be given an opportunity to show that the reason was merely a pretext for a discriminatory motive.

Alternatively, an employee may commence suit under a "disparate impact" theory if the employer has a policy or rule which has a disproportionate impact on members of that employee's gender. For example, the employer may have a rule which has the effect of promoting or perpetuating discrimination against females even though the rule does not apparently discriminate against women. An employer may restrict a job routine to people who meet a certain height requirement. If a majority of women in the general population do not meet that requirement, then the law can be found to have a disparate impact on female employees.

Sexual harassment is another form of prohibited sex discrimination under Title VII. This typically involves unwelcome sexual advances, requests for favors of a sexual nature, or other offensive verbal or physical conduct of a sexual nature. A female employee may claim sexual harassment by a male employee, and, in turn, a male worker may allege unwanted sexual advances by a female worker. The United States Supreme Court recognized same-sex sexual harassment in Oncale v Sundowner Offshore Services, Inc. (1998), which involved a male worker's claim that he had been forcibly subjected to sex-related, humiliating conduct by male co-workers, including a physical assault and the threat of rape.