3 Ways Your Company May Be Engaging in Sex Discrimination

Sex discrimination blog picture
XpertHR, March 2018

March is Women’s History Month, and it marks 55 years since the Equal Pay Act was enacted and 54 years since Title VII of the Civil Rights Act has been the law of the land. And yet women continue to experience discrimination, sexism and harassment in the workplace at alarming rates.

The issue of sexual harassment has been brought to the forefront thanks to the #metoo movement and the countless women coming forward with stories of facing harassment and inappropriate conduct at work. In addition, companies are starting to change their policies and practices with a renewed awareness and emphasis on training.

There also has been a push, particularly on the state and municipal level, for laws aimed at increasing pay equity and eradicating wage discrimination based on sex. Several states and cities have enacted laws banning employers from prohibiting discussions regarding wages and from inquiring about a job applicant’s salary history.

But even beyond these measures, women still face persistent discrimination and unfair treatment at work. Thus, it is essential to take a long, hard look to see if your company is engaging in any conduct, which could constitute sex discrimination and lead to an EEOC claim landing on your desk Monday morning.

Pregnancy Discrimination and Accommodation

Managing a pregnant employee may be one of the most challenging aspects for those in HR. While a pregnant employee may want to continue working up until her last day before giving birth, this may not be physically possible and may involve risks for the employer if the employee is in a safety sensitive position.

What’s more, a pregnant employee may request an accommodation and changes to her workspace or work schedule, leaving the employer to decide if it is able to grant such requests and still run a productive and efficient business.

Four tips for employers to keep in mind when it comes to managing pregnant employees include:

  1. Complying with any relevant federal, state or municipal laws prohibiting pregnancy discrimination and requiring pregnancy accommodations. The employer should have a policy and firm process in place for handling such requests.
  2. Providing reasonable accommodations (i.e. leave, light duty, alternative assignments, additional breaks) if doing so would not create an undue hardship for the employer’s business.
  3. Training supervisors to handle accommodation requests and engage in an interactive process as to whether the employer is able to provide such accommodations.
  4. Making sure to avoid requiring pregnant women or women who have just given birth to take leave. An employer cannot force a pregnant employee to take leave from her job for pregnancy-related reasons as long as she can perform her job (even if the employer believes it is acting in the employee’s or the employer’s best interest).

Steering and Gender Stereotyping

When it comes to recruiting and hiring as well as managing employees in their daily duties and responsibilities, it is critical for an employer to avoid steering and gender stereotyping. “Steering” is the deliberate act by an employer of steering women or other individuals in a protected class to jobs with lower long-term potential and advancement opportunities than other similar jobs.

In recent years, various federal agencies such as the Equal Employment Opportunity Commission (EEOC), the Department of Labor (DOL), and the Office of Federal Contract Compliance Programs (OFCCP) have brought steering claims of sex discrimination against employers. To avoid being hit with such a claim, an employer should:

  1. Consider all applicants for open positions and all employees for advancement regardless of their sex and base decisions on an individual’s merit, skills, experience and qualifications.
  2. Review all recruiting, hiring and job placement policies, documents and procedures, including ensuring that your job advertisements and job descriptions are not discriminatory.
  3. Avoid outdated stereoptypes of what a woman is capable of based on pregnancy, family and medical leave or caregiving responsibilities.
  4. Carefully preserve employment records, documents and information that will allow an employer to document that it has engaged in nondiscriminatory employment practices and analyze if any recruiting, hiring or promotional processes are having an adverse impact on women or any other protected class. Such records may be required in case of a lawsuit or audit.

Unequal Leave Policies

The EEOC brought a case against Estee Lauder claiming that the cosmetics company enacted and administered a paid parental leave program that automatically provided male employees who are new fathers with less parental leave benefits than it provided to female employees who are new mothers.

While Estee Lauder provided new mothers with six weeks of paid parental leave for child bonding, it only provided two weeks of paid leave to new fathers. Further, new mothers had the option of returning to work with flexible hours and new fathers were denied this opportunity. While Estee Lauder settled with the EEOC, the case offers the following important lessons for employers:

  • If your company goes beyond federal and state leave requirements, make sure you are not engaging in unlawful discrimination, as federal law requires equal pay and benefits for equal work for both men and women.
  • Scrutinize your policies regarding leave, part-time work, telecommuting and flex time and make sure these policies do not discriminate and have an adverse impact on one sex over another
  • Consider all types of families, including those with same- sex parents or grandparents as caregivers, when administering such policies.
  • Ensure that your policies and practices do not reinforce traditional gender roles and stereotypes and send a message to new mothers that they should stay home as caregivers while new fathers should return to work as breadwinners.