Overview: Title VII as well as various state and local laws prohibit discrimination based on sex or gender. Accordingly, an employer should avoid making employment decisions based solely on gender as well as apply all workplace policies in a gender-neutral manner. This means that employers should use the same criteria to evaluate employee performance as well as provide both men and women with equal opportunity in hiring and advancement. Employers should develop a zero tolerance policy for gender discrimination and make sure to provide training to all employees and supervisors.
Further, employers should avoid engaging in unlawful sex stereotyping as well as treating men and women differently based on pregnancy, family and medical leave or caregiving responsibilities. Employers need to understand that the prohibition against sex discrimination not only applies to women, but also prohibits employee discrimination against men. It pertains to any discrimination that is based on an individual's gender and also prohibits sexual harassment.
Trends: Employers should be aware that the Pregnant Workers Fairness Act has been introduced in the US Congress. It would require employers to provide reasonable accommodations to pregnant women unless it would cause undue hardship for the employer. Further, under the Affordable Care Act, employers are already obligated to provide reasonable breaks for mothers to express milk for up to one year after the child's birth.
Employers should also know that the EEOC has been aggressively pursuing sex discrimination in the workplace. The EEOC has been extremely successful in bringing class action lawsuits based on sex discrimination and sexual harassment. Further, in the landmark case of Macy v. Holder, EEOC No. 0120120821, the EEOC held that claims of discrimination based on gender identity, change of sex, sex stereotyping, and transgender status constitute sex discrimination. Additionally, the EEOC remains committed to providing for equal pay in the workplace.
Author: Beth P. Zoller, JD, Legal Editor
Updated to reflect amendments to state's Fair Pay Act, effective January 1, 2017.
Updated to include information on a federal district court case on whether Title VII prohibits sexual orientation discrimination.
New York employers that have four or more employees, have employees working in New York City and that seek educate employees, including supervisors, about the New York City law prohibiting discrimination on the basis of gender identity and the practical, workplace-related implications of that law should consider including this model policy statement in their handbook.
A handbook statement addressing discrimination on the basis of gender, gender identity and transgender status has been added to the New York employee handbook to help New York City employers comply with the law.
Massachusetts has passed The Act to Establish Pay Equity - a comprehensive pay equity law that places many significant new restrictions on employers.
A federal jury in New Hampshire has awarded more than $31 million in damages to a former Wal-Mart pharmacist who claims the nation's largest retailer fired her for raising safety concerns about how it filled prescriptions.
HR Guidance on addressing sex discrimination in the workplace and ensuring equal opportunity for employees and applicants of both genders.