Sex Discrimination

Chapter Checklist

· Understand the need for a prohibition against sex discrimination to counteract historical stereotypes.

· Learn that men are also protected against sex discrimination.

· Appreciate that women are often discriminated against not solely because they are women but also because they have small children or elderly parents—that is, sex plus discrimination.

· Be aware of the limited exceptions for bona fide occupational qualifications.

· Be apprised of potential violations of the Equal Pay Act.

· Be familiar with the impracticability of comparable worth.

· Appreciate the wide latitude given to employers in setting dress codes and grooming standards.

· Learn that customer preferences are not a valid reason to discriminate on the basis of sex.

In the News

Kyle Hunter, a weatherman for Fox 5 in San Diego, sued CBS when he was passed over for job openings at KCBS in San Francisco and at KCAL in Los Angeles. He claimed that television stations placed more value on feminine attraction than on meteorology competence in the selection of television weather broadcasters.

CBS countered that Hunter’s claims are without merit.

Hunter retorted that his years of broadcasting the weather for several known weather stations as well as his membership in the Royal Meteorological Society render his credentials far superior to those of the two women hired. In fact, Hunter claimed that the two women hired to broadcast the weather had no experience at all.

1 A spokesman for CBS said that the company was well aware of Hunter’s background and decided to hire other qualified individuals. Is CBS’s preference for young, attractive women to serve as announcers of the weather forecast a form of sexual stereotyping?

Source: “Storm as Experienced TV Weatherman Sues CBS for Sex Discrimination Claiming They Favour ‘Unqualified attractive young women,’” Daily Mail (London), March 18, 2012, http://www.dailymail.co.uk/news/article-2116751/TV-weatherman-Kyle-Hunter-sues-CBS-sex-discrimination.html#ixzz1qWdAJOZM

Introduction

Case 10.1, 10.5

In the past, a person’s sex was considered a bona fide occupational qualification. Stereotypes ruled. Men were physicians, lawyers, construction workers, and police officers. Women were nurses, flight attendants, secretaries, and teachers. This arrangement had the effect of discriminating against men and women in certain job classifications. The effect on women, particularly with regard to higher-paying positions, was noticeable. Women and men must be treated equally in all aspects of employment, hiring, compensation, training, transfer, and promotions. For example, prescribing limits for lifting or carrying weight just for women or for working before or after childbirth are prohibited. Any provisions or benefits must be provided to both sexes. Job requirements must be the same for male and female candidates.

Employment Perspective

Eric Freeman is a vice president at Bulls and Bears, Inc., an investment banking firm. There is an opening for an assistant vice president to work directly underneath Freeman. There are two in-house candidates: Tom Folino, a competent securities trader with 2 years of experience, and Mary Michaels, a senior bond trader with 7 years of experience. Michaels’ experience and competence are clearly superior, but Freeman selects Folino because they have common interests. They go to the hockey games after work and have a few beers together. Freeman and Folino are both single, whereas Michaels is married with children. Freeman and Michaels have nothing in common outside of work. Does this qualify as sexual discrimination? Yes! Freeman’s decision is not based on job performance but rather on personal interests he shares with one candidate.

Men are also protected against sex discrimination, which occurs when individuals of one gender are favored in employment decisions over the other gender, under Title VII. Although men are not victimized as often as women, there are occasions when men have been treated unfavorably because of their gender.

Sex discrimination

occurs when individuals of one gender are favored in employment decisions over the other gender.

Sex Plus Discrimination

Case 10.2

Discrimination may occur against an individual not solely because of his or her gender, but that fact coupled with another may be its cause. This is sex plus discrimination. Women with small children, women in childbearing years, and women taking care of elderly parents are all examples.

Sex plus discrimination

may occur against an individual not solely because of his or her gender, but that fact coupled with another circumstance, such as women with small children, women in their childbearing years, and women taking care of elderly parents.

As part of their interview process, some employers endeavor to discover if a female applicant has small children. It has been their experience that mothers are preoccupied with worrying about their children. In addition, many employers believe if the child becomes ill or gets hurt, the mother will leave work immediately. This behavior can be disruptive to the workplace. For that reason, the employer may nonchalantly ask the female applicant where her children go to school. The response will indicate whether the woman has children and, if so, what their ages are. The employer can then generally refuse her or deny her for another reason. This is discriminatory behavior.

Bona Fide Occupational Qualification (BFOQ)

Case 10.3, 10.4

The bona fide occupational qualification (“BFOQ”) operates as a defense to a suit for discrimination with regard to religion, national origin, gender, or age. The first three defenses are found in Title VII, while the age BFOQ is found in the Age Discrimination in Employment Act (“ADEA”). The courts have narrowly construed this defense, limiting it to job requirements that are essential to the job or are at the core purpose of the business. Mere job relatedness is not sufficient.

Bona fide occupational qualification (“BFOQ”)

operates as a defense to a suit for discrimination with regard to religion, national origin, gender, or age. The courts have narrowly construed this defense, limiting it to job requirements that are essential to the job or are at the core purpose of the business.

Employment Perspective

Nancy Hartwick attended Podunk University, where she was a star basketball player. She later became a women’s basketball coach at Premier College, where she won the national championship four times. When a vacancy arose for the men’s basketball coach at her alma mater, she applied. Although Podunk’s administration had fond affection for Hartwick, they refused her application after consulting the school’s students, players, and alumni. The students and alumni said that they would boycott the games. The players said they would have no confidence in her ability. Hartwick claimed sex discrimination. Podunk argued that requiring a man to fill the position of men’s basketball coach is a BFOQ. Is it correct? No! The preference of the constituents of Podunk does not qualify as a BFOQ. Nancy Hartwick’s qualification must be judged on its face alone. Gender preference may not play a part.

Employment Perspective

Gail Dudack is a sports reporter for the Minnesota Moon, an evening daily newspaper. Dudack had been covering women’s sporting events, but now with the retirement of Charlie Scofield, she has been elevated to the major team sports. Her first assignment is a pro basketball game. During the game, Shorty Williams scores his 25,000th point. After the contest, all the reporters are rushing into the locker room to interview Williams. Dudack is refused entry because the men are changing and showering and she is a woman. Dudack files a claim with the Equal Employment Occupation Commission (“EEOC”), alleging pro basketball is discriminating against women reporters. The team argues that the closed-door policy toward women is a BFOQ. Is her claim viable? Yes! The locker-room policy makes it impossible for a woman to be a first-rate reporter. The team must either allow unrestricted entry or forbid all reporters from the locker room and conduct all interviews in the pressroom where equal access canbe given.

Employment Perspective

Roger Bishop is a registered nurse at Sumner County Hospital. Bishop is on duty one evening when Mildred Dirkson calls for assistance. When Bishop attempts to assist Dirkson, she admonishes him that she called for a nurse. Bishop explains that he is a nurse, but she wants no part of him. Bishop asks Dirkson about the fact that she would have no problem having him touch her if he were a physician. The next day Dirkson’s family complains to the hospital administration, and Bishop is assigned to an all-male ward. The hospital justifies its action by asserting it is a BFOQ. Bishop claims that this behavior is discriminatory because female nurses are not confined to servicing exclusively female patients. Who is correct? Bishop! The hospital’s action was not justified. BFOQs do not apply to one sex but not the other. Hospitals cannot discriminate in deference to their patients’ preferences. The patients must accept the hospital staff as long as those individuals are qualified. What if Dirkson’s request concerned applying medication to or washing the genital area? Every accommodation should be made in this regard if there are female nurses available. Respecting privacy is important. But patients who are hospitalized are attended by the physicians on duty, and these physicians, who are predominantly male, view a patient’s private parts if the need arises and the patient’s private physician is not available. So too with nurses. Another option is for Dirkson to hire a private-duty female nurse.

Customer Preferences

Although we are in an age in which customer service and satisfaction rule, acceding to customer preferences for service by one gender to the exclusion of the other is contradictory to Title VII’s prohibition against gender discrimination.

Employment Perspective

Tooters, a sports bar and restaurant chain known for its voluptuous female servers, has recently received applications from Ken, Frank, and Nick, who seek employment as servers. Tooters polls its clientele, who resoundingly state that they will no longer frequent the premises if male servers appear. Tooters denies the positions to Ken, Frank, and Nick because of their gender. Ken, Frank, and Nick sue for sex discrimination, arguing that as long as they are otherwise qualified, they cannot be refused employment on the basis of their gender. Is the customer always right, and will Ken, Frank, and Nick be working at Tooters? Tooters would have to prove that its business is primarily entertainment that requires females to dress provocatively. This issue has been left in doubt in light of a settlement in a case involving a similar situation against Hooters Restaurant.

Job selection cannot be based on customer preference for a particular gender; otherwise, it is discriminatory.

Employment Perspective

Thomas Stockwell applies for a position with Workouts for Women Only, a health club exclusively for women. He is denied employment because he is a man. The proprietors are concerned with respecting the privacy rights of women. They argue that requiring only women employees is a BFOQ. Stockwell argues that assisting women with fitness instruction, teaching aerobics, and performing desk duties do not qualify as a BFOQ. Besides, he adds, there are female employees available for locker-room maintenance. Is he correct? Yes! The preference of women customers to refrain from working out in front of men does not qualify as a BFOQ sufficient enough to override perpetuating discrimination against men by requiring their exclusion from employment.

Equal Pay