Gender Discrimination in Employment: Law and Policy

Introduction to Gender Discrimination

Despite the best efforts of courts and lawmakers, a tremendous amount of discrimination continues to exist in employment situations. Gender discrimination involves any type of sex-based discrimination and may be the area that has been most difficult to combat through legal measures. This difficulty has at least two roots. First, like in all areas of discrimination, people have had to learn that gender stereotypes are harmful. Second, people have had to learn that gender stereotypes are incorrect — which is more difficult, because much of society continues to be invested in the gender status quo in a way that differs from other types of oppression.

The elevation of the traditionally feminine role plays a major part in gender discrimination, with prospective employers historically taking a protectionist stance against women in non-traditional jobs, and sometimes against women working outside the home at all. In addition, unlike racial discrimination, the biological differences between men and women mean that some professions will remain highly gender-biased despite intervening legislation and changing social mores. A further complicating factor is that gender discrimination can take many forms. It can involve employers instituting policies aimed at limiting the participation of one gender in a particular job. It can also involve sexual harassment, which can make sexual identity a liability in the workplace.

Establishing a Prima Facie Case

In order to understand gender discrimination, one must examine the legal hurdles a litigant faces when seeking to establish a prima facie case. First, a litigant must demonstrate that he or she is a member of the protected class. Because both men and women are protected from gender discrimination, this hurdle is easy for most litigants, but it has prevented some who base discrimination claims on sexual orientation from establishing a prima facie case. Second, a litigant must demonstrate that he or she experienced an adverse employment action. Third, the litigant must demonstrate that the adverse action was related to his or her protected status. Litigants do not have to show facially discriminatory laws or policies; they can also demonstrate how facially neutral policies have impacted them in a discriminatory manner to satisfy this burden.

The most overt form of gender discrimination is disparate treatment discrimination. Under Equal Employment Opportunity guidelines, "disparate treatment occurs where members of a race, sex, or ethnic group have been denied the same employment, promotion, membership, or other employment opportunities as have been available to other employees or applicants." In essence, this means that gender generally cannot be used as a selection criterion for jobs or promotions.

Disparate Treatment and Disparate Impact

An example of how gender discrimination ties into cultural stereotypes and protectionist instincts is when pregnancy — a strictly female condition — is used as a basis for job discrimination. In International Union, UAW v. Johnson Controls, Inc., the union challenged the employer's policy of barring women from certain jobs because of potential damage to fetuses. While other courts had determined that fetal protection policies were not discriminatory, the Supreme Court disagreed and found that the policy was facially discriminatory because it required "only a female employee to produce proof that she is not capable of reproducing." Furthermore, the Court reiterated that danger to a woman herself was not sufficient to justify discriminatory treatment. The Court therefore determined that Title VII forbids sex-specific fetal protection policies.

Even facially neutral job qualifications can be applied in a biased manner, which is the essence of disparate impact discrimination. "Even where an employer is not motivated by discriminatory intent, Title VII prohibits an employer from using a facially neutral employment practice that has an unjustified adverse impact on members of a protected class." Disparate impact can be difficult to prove; it involves demonstrating how a particular policy has negatively affected a broader class of people than just the individual litigant in order to establish a prima facie case.

While more and more women are joining the armed forces, that has not always been the case. Many companies nonetheless maintain hiring policies that favor veterans over equally qualified applicants. One side effect of these policies is that more men than women benefit from them. At first glance, such a policy might appear to be an example of disparate impact discrimination. However, for a law to be discriminatory, it must have been motivated, at least in part, by a discriminatory purpose. Even though the law benefited more men than women, it was applied to veterans regardless of gender. More importantly, the law was created in spite of, rather than because of, its disparate impact. The Court therefore determined that such a law did not constitute discrimination (Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 1979).