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H&R Weekly

H&R Weekly

Topic of the Week  Sex / Gender Discrimination

  • What is sex or gender discrimination?
  • Can an employer pay me less because I'm a woman? Can I be paid less because I'm a man?
  • Is it illegal to give different benefits to male and female employees?
What is sex or gender discrimination?

Sex or gender discrimination is treating individuals differently in their employment specifically because an individual is a woman or a man. If you have been rejected for employment, fired, or otherwise harmed in employment because of your sex or gender, then you may have suffered sex or gender discrimination.

In everyday language as well as in the law, the terms “gender” and “sex” are used inter-changeably, but the two terms have different meanings. Social scientists use the term “sex” to refer to a person's biological or anatomical identity as male or female, while reserving the term “gender” for the collection of characteristics that are culturally associated with maleness or femaleness. Discrimination is generally illegal regardless of whether it is based on sex, or gender, or both sex and gender.

Here are some examples of potentially unlawful sex/gender discrimination that women, for example, may face:

  • Hiring/Firing/Promotions: You apply for a job for which you have experience and excellent qualifications, but you are not hired because some of the company's long-time clients are more comfortable dealing with men; you are told that you are laid off due to company cutbacks and reorganization, while men in the same job and with less seniority than you keep their jobs; you have worked for your company for several years, receiving exemplary reviews and an employee-of-the-year award, yet each of the five times you have applied for promotions, the positions you applied for are instead filled by less qualified men.
  • Pay: You worked your way up from the position of cook's helper to chef. A male chef with similar training and work experience was recently hired, and you find out that he will be paid more than you; you are a top salesperson for your company, but are moved to a less desirable territory while a man with much lower sales is given your territory and client base, enabling him to make much more in commissions than you will make for several years.
  • Job Classification: You work at a company for four years and put in many hours of overtime. After you return from having a baby, you tell your employer that you will not be able to put in as many hours of overtime. Your position is then changed to a lower level and you get less pay, while male coworkers in similar positions are allowed to cut back their overtime hours for personal reasons without any changes to their positions or pay.
  • Benefits: Your company's health insurance policy does not cover your spouse, because it is assumed that he will have his own benefits, while your male coworkers have their wives covered by the policy. Because your husband is between jobs, you have to pay increased health benefits on his behalf that your coworkers do not pay for their wives.

If any of these things have happened to you on the job, you may have suffered sex or gender discrimination. Sex or gender discrimination may be accompanied by other forms of illegal discrimination as well, such as age, race, or disability discrimination. Pregnancy discrimination and sexual harassment are also considered forms of sex discrimination under the law.

Can an employer pay me less because I'm a woman? Can I be paid less because I'm a man?

No. Both Title VII and the Equal Pay Act (EPA) make it illegal to discriminate on the basis of sex in the payment of wages or benefits. The laws against discrimination in compensation cover all forms of compensation, including salary, overtime pay, bonuses, stock options, profit sharing and bonus plans, life insurance, vacation and holiday pay, cleaning or gasoline allowances, hotel accommodations, reimbursement for travel expenses, and benefits.

The EPA requires that men and women be given equal pay for equal work in the same establishment. The jobs need not be identical, but they must be substantially equal. It is the content of the job, not job titles, that determines whether jobs are substantially equal. Unlike the EPA, Title VII does not require that the job of the person claiming discrimination be substantially equal to that of a higher paid person of the other sex, nor does Title VII require the person claiming discrimination to work in the same establishment as the higher paid person. However, Title VII, unlike the EPA, requires proof of intent to discriminate on the basis of sex, while the EPA does not require proof of discriminatory intent.

Under the EPA, employers are prohibited from paying unequal wages to men and women who perform jobs that require substantially equal skill, effort and responsibility, and that are performed under similar working conditions within the same establishment. The law defines these terms as follows:

  • skill: measured by factors such as the experience, ability, education, and training required to perform the job. The key issue is what skills are required for the job, not what skills the individual employees may have.
  • effort: the amount of physical or mental exertion needed to perform the job.
  • responsibility: the degree of accountability required in performing the job.
  • working conditions: encompasses two factors: (1) physical surroundings like temperature, fumes, and ventilation, and (2) hazards.

Note that:

  • Employers may not reduce wages of either sex to equalize pay between men and women.
  • A violation of the EPA may occur where a different wage is or was paid to a person who worked in the same job before or after an employee of the opposite sex.

While there are some differences between Title VII and the Equal Pay Act, the federal laws are enforced by the same administrative agency, the EEOC.

Is it illegal to give different benefits to male and female employees?

Yes. As discussed above, even though differences between the sexes may result in different benefit costs to an employer, it is against the law for an employer to discriminate between men and women with regard to benefits.

Employers are also not allowed to condition benefits available to employees and their spouses and families on whether the employee is the “head of the household'” or “principal wage earner” in the family unit, since that status bears no relationship to job performance and discriminatorily affects the rights of women employees.

An employer cannot make benefits available:

  • for the wives and families of male employees where the same benefits are not made available for the husbands and families of female employees;
  • for the wives of male employees which are not made available for female employees; or
  • for the husbands of female employees which are not made available for male employees.

It is also against the law for an employer to have a pension or retirement plan which establishes different optional or compulsory retirement ages based on sex, or which differentiates in benefits on the basis of sex.

 

Thought of the Week

"The masculine structure of the workplace — having men there for as many hours as [bosses] wanted — depends on the olden days, when men had someone at home who was taking care of all their needs. Definitions of fatherhood are changing, and definitions of motherhood are changing more quickly in our social worlds than they are in our work worlds. "

–Ann McGinley, co-director of the University of Nevada Las Vegas Workplace Law Program and author of Masculinity At Work: Employment Discrimination Through A Different Lens

Weekly Comic by Jerry King

Weekly Comic by Jerry King

Blog of the Week

Reckoning With the Hidden Rules of Gender in the Tax Code: How Low Taxes on Corporations and the Wealthy Impact Women’s Economic Opportunity and Security

Reckoning With The Hidden Rules of Gender in the Tax Code, tackles some aspects of the tax code that shape corporate and individual behaviors in ways that have negative downstream effects on women and especially women of color.

Top Five News Headlines

  1. New Overtime Rules Start 1 January 2020. Are You Ready?
  2. LinkedIn Just Revealed 3 Surprising Things Bosses Do to Make Employees Really Happy (According to 32 Million LinkedIn Profiles)
  3. Gen Z is the most accommodating generation on religion in the workplace: report
  4. “Knowledge workers” could be the most impacted by future automation
  5. EEOC, Advocates to Grapple With Gender Pay Gap at Hearing

List of the Week

from National Woman's Law Center

Equal Pay for Latinas

  • The wage gap between Latinas and white, non-Hispanic men is far larger than the wage gap between all women and all men.
  • Latinas nationally are typically paid just 54 cents for every dollar paid to white, non-Hispanic men.
  • Latinas’ share of high-wage jobs (defined as those in the 40 highest-paying jobs) is staggeringly low, at 3.1 percent

Archive