Title VII makes it unlawful “to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's sex․" 42 U.S.C. § 2000e-2(a)(1). The Courts have recognized two bases on which an aggrieved employee may proceed in a sex discrimination claim: disparate treatment and disparate impact. Disparate treatment arises when an employer “treats some people less favorably than others because of their ․ sex.” Disparate treatment is permissible under Title VII only if justified as a bona fide occupational qualification (“BFOQ”). A BFOQ is a qualification that is reasonably necessary to the normal operation or essence of an employer's business. See 42 U.S.C. § 2000e-2.
An employer's policy amounts to disparate treatment if it treats men and women differently on its face. For
example, in UAW v. Johnson Controls, 499 U.S. 187 1991), defendant Johnson Controls barred fertile women, but not fertile men, from jobs entailing high levels of lead exposure. The Court concluded this was disparate treatment: “Johnson Controls' policy is not neutral because it does not apply to the reproductive capacity of the company's male employees in the same way as it applies to that of the females.” The Court has made it clear that such an “explicit gender-based policy is sex discrimination under § 703(a) [of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e-2(a) ] and thus may be defended only as a BFOQ.”
However, an appearance standard that imposes different but essentially equal burdens on men and women is not disparate treatment and does not give rise to a gender discrimination claim. For example, in Fountain v. Safeway Stores, Inc., 555 F.2d 753 (9th Cir.1977), the court held that a store may impose different hair length requirements on men and women, and may require men but not women to wear neckties. In that case, the court noted that regulations promulgated by employers which require male employees to conform to different grooming and dress standards than female employees is not sex discrimination within the meaning of Title VII.
On the other hand, a sex-differentiated appearance standard that imposes unequal burdens on men and
women is disparate treatment that must be justified as a BFOQ or it will be found an unlawful discrimination. Thus, an employer can require all employees to wear sex-differentiated uniforms, but it cannot require only female employees to wear uniforms. See Carroll v. Talman Fed. Sav. & Loan Ass'n of Chicago, 604 F.2d 1028 (7th Cir.1979). An airline can require all flight attendants to wear contacts instead of glasses, but it cannot
require only its female flight attendants to do so. (See Laffey v. Northwest Airlines, Inc., 366 F.Supp. 763 (D.D.C.1973).
In one recent case United Airlines was found to have engaged in gender discriminatoin when it had a weight policy with respect to its flight attendants, that imposed stricter standards on women than on men.
For more information about different kinds of discrimination, please visit our San Francisco Employment Lawyer Blog.
Recently, one employee of Caltrans contacted me in what seemed to be an urgent need for help and legal representation, as she was subjected to egregious harassment by her supervisor, and could not get any help from the higher management or human resources department. Her supervisor openly and repeatedly disregarded her disability limitations in t he most humiliating manner.
The same Caltrans employee kindly shared with me a rather disturbing article about the discrimination and harassment that's taking place in the Caltrans Oakland office. Unfortunately, this kind of treatment of employees in large public offices is not as uncommon as one might think. One reasons for this seems to be the impunity which some of the managers enjoy for such violations. The perpetrators of discrimination and their superiors are rarely terminated and usually get a slap on the wrist in the form of a confident reprimand letter or a warning, while costing the city, county or state department many thousands of dollars in legal fees and in settlement.
You have a job that you value and enjoy, and it seems that you get along with everyone at the company except those few "bad apples" - your manager who harasses or retaliates against you and his superiors who are either reluctant to take action because they are biased and side with your manager no matter what, or because they want to "play it safe" by sweeping your reported problems under the rug.
If you are not ready to quit and you believe that the situation can be remedied, it is very important that you don't become a victim of your anger. You should not allow yourself to lose your cool, to act or talk in a rude or offensive manner to your superiors, whether they are guilty of unlawful misconduct or not and not give them legitimate, legal reason to suspend or terminate you. This is the time to act like a true diplomat - to voice your concerns in a compelling but courteous manner to all those who have the authority to address your issues without yelling at anyone or threatening your employer with a lawsuit.
As tempted as you might be to give your boss a piece of your mind - anger never serves any employee's best interests before litigation or after the lawsuit is filed, when treating the situation like business rather than personal battle is even more important for successful prosecution of a case in court.
Often, an employee is subjected to unlawful discrimination and retaliation while still employed and weeks or even months before being terminated. Although very "tempting," suing an employer while still employed is problematic. First, you are very likely to lose a job (just because it's unlawful to terminate an employee who exercises his legal rights to bring legal actions, doesn't mean that the employer simply can't violate the law and do it). Secondly, your recovery in any case is likely to be insignificant because you have not sustained any loss of wages, which is at the core of any settlement or judgment.
Under California law, an employer is required to promptly and thoroughly investigate any claim of harassment, discrimination, or retaliation. The obligation to investigate arises out of the affirmative duty under the Fair Employment and Housing Act, Cal. Gov. Code section 12940(j) and (k) to take all reasonable steps necessary to prevent discrimination and harassment from occurring. The duty to investigate a harassment claim promptly and throughly exists whether or not the claimant consents to an investigation or cooperates with one. Further, neither an employee’s failure to report harassment nor the fact that the harassment stopped before the investigation began conclusively absolve an employer from liability for discrimination and harassment. Moreover, it is not enough for an employer to conduct an investigation without also taking measure to protect the employee from retaliation.
Several laws protect California women from pregnancy discrimination at workplace. These laws interact with each other in complex ways. Each law and protection may or may not apply depending on the size of the employer, the employee’s length of service, and other facts. Some leaves run concurrently, while others don’t.