A great deal of progress was made in the women’s movement for equality in the workplace during the 1970s and 1980s.
However, it seems since the mid-1990s, that progress has sputtered, given that, among full-time employees, women earn 77 percent the salaries of their male counterparts. This is true even when we account for the fact that women tend to work in differing occupations, which pay less on the whole.
When women who are as equally qualified as their male counterparts are systematically paid less, overlooked for promotions or given less desirable job assignments, this is unquestionably a form of gender discrimination, barred under Title VII of the Civil Rights Act of 1964.
However, there are many other manifestations of gender discrimination that may be more subtle and tougher to recognize. For example, the EEOC defines sexual harassment as a form of gender discrimination. Also, adverse actions taken on the basis of pregnancy and related conditions (i.e., childbirth recovery, nursing, etc.) are considered a form of gender discrimination, barred under provisions of the Pregnancy Discrimination Act of 1978, the Americans with Disabilities Act and portions of the Family Medical Leave Act. In some cases, targeting workers on the basis of weight or appearance could also be a form of gender discrimination if such action focuses solely on the female employees.
With regard to pregnancy discrimination, this is defined as unfavorable treatment based on pregnancy, childbirth or related condition. It’s worth noting that while pregnancy is not considered a “disability,” a woman who temporarily must refrain from performing certain job duties because of a medical condition stemming from pregnancy or childbirth must be treated by the employer the same way the company would treat any employee who is temporarily disabled. Also, pregnancy-related ailments such as pregnancy-induced hypertension, gestational diabetes and preeclampsia may well be considered disabilities under the Americans with Disabilities Act.
Sexual harassment, meanwhile, is defined as harassment a person is made to endure because of his or her sex. Either gender can bring a claim in this regard, and actionable offenses include unwelcome sexual advances, physical or verbal harassment of a physical nature and requests for sexual favors. Employers are also forbidden to engage in, promote or fail to address offensive remarks about a person’s sex.
Many municipalities and states have also been actively updating their own policies and statutes to keep up with our ever-evolving standards of fairness regarding gender equality. Recently, the city of Rochester voted to expand the state definition of discrimination to include “gender identity and expression.” While Title VII bars transgender discrimination, there is not state law barring employers from taking action against transgender workers. A recent Empire State Pride Agenda survey indicated nearly three-fourths of all transgender workers had been harassed or mistreated at work.
Still, claims of gender discrimination involving wage gaps are the most common type of claim in this realm. Just recently in Vermont, three female workers with the state department of corrections – all business managers – filed a federal lawsuit asserting they are paid thousands of dollars less each year than their male counterparts, some of whom were hired later and were less qualified.
Lawsuits based on pay disparity are more successful now than ever, due to the 2009 passage of the federal Lilly Ledbetter Fair Pay Act. The law, retroactive to May 2007, bars pay discrimination on the basis of gender, and allows claims to accrue whenever a worker receives a discriminatory paycheck. In other words, each discriminatory paycheck – as opposed to simply the original decision to discriminate – resets the 180-day limit in which to file a claim. The measure, which followed the EEOC’s Equal Pay Act of 1963, also has provisions that ensure workers aren’t penalized if they were initially unaware of the discrimination, and reserves worker rights to challenge pay discrimination compounded by loss of raises, pensions and other contributions.
Employers would do well to bear in mind the hefty consequences that could result from gender discrimination when setting company policies on pay grade, sexual harassment and accommodations for pregnant workers. Workers, meanwhile, should educate themselves as well with the knowledge that gender discrimination violates federal, state and municipal laws, and being a target may entitled you to compensation.
The Law Offices of Ira S. Newman provides employment litigation representation in New York City, Long Island, Great Neck and throughout the area. Call 516-487-7375 or send us an e-mail.
Sex-Based Discrimination, U.S. Equal Employment Opportunity Commission
More Blog Entries:
New York Employment Discrimination Not Always Easily Recognizable, July 10, 2012, New York City Gender Discrimination Lawyer Blog