Generally, there are five (5) categories of discrimination that the law prohibits from taking place in the workplace. These categories of discrimination include:
- race,
- sex (or gender),
- religion,
- age, and
- disability.
In order to fully understand discrimination, one must be able to understand it at its most extreme core. Discrimination, at its core, is not necessarily about a person's hatred toward another person because of his or her race, gender, or age. Rather, at its core, discrimination is about a person (or institution), who:
- believes he has the power to exercise excessive control over another person because he or she fits within a certain category and
- takes adverse actions against the person on the basis of this belief.
This exercise of undue control over another human is generally derived from a self-centered sense of arrogance is unhealthy for any free society.
The reason why employment discrimination is wrong and illegal is because:
- in reality, God did not intend for people to exercise undue control over other people and
- the law recognizes that it is important that employers should not conduct themselves as though they possess undue control over other people.
As modern society has made clear, women have the ability to perform with equal skill and success in virtually every endeavor engaged in by men, including employment, athletics, academics and politics. Yet discrimination on the basis of sex has a long history in the United States and its residual effects still operate to keep women's salaries lower and opportunities fewer than those available to men. Numerous laws, and the Constitution, prohibit discrimination on the basis of sex. As long as discrimination continues, women will have to resort to these laws to pursue fair and equal treatment. Although it is less common, men too can be subjected to unlawful sex discrimination.
What Constitutes Sex Discrimination?
The essence of sex discrimination is unequal treatment on the basis of sex. The treatment must not simply be different, but unequal, and therefore unfair. It is not sex discrimination to require women and men to use separate restrooms. It is sex discrimination to provide different working conditions, salaries, hiring, promotion or bonus criteria, admissions standards, or athletic and scholastic opportunities to women and men. A special form of sex discrimination is sexual harassment. Women, and men, have the right to secure and perform their jobs free of unwanted demands for romantic or sexual relationships, or unwanted communications or behaviors of a sexual nature that interfere with their ability to work.
As with other types of discrimination, sex discrimination can take many forms. For much of our history, sex discrimination was blatant and a matter of public law and policy. Women's property rights were limited, women could not vote, women were barred from most professions, and women were impeded from securing public office. Through the determined efforts of early women's rights advocates, federal and state legislatures slowly addressed these blatant forms of discrimination. Perhaps the biggest victory for women's rights, after the Nineteenth Amendment giving women the right to vote, was the Civil Rights Act of 1964. Title VII of this act provides strong protections against sex discrimination in employment. Specifically, Title VII makes it illegal for an employer:
- to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his [or her] compensation, terms, or privileges of employment, because of such individual's...sex...; or
- to limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise affect [the individual's] status as an employee, because of such individual's...sex....
Title VII also prohibits sex discrimination in on-the-job and apprenticeship programs, retaliation against an employee for opposing a discriminatory employment practice, and sexually stereotyped advertisements for employment positions.
This law has gone a long way to reducing sex discrimination in employment. It has not, however, obliterated it. While open forms of sex discrimination are now rare, such as an executive lounge for men only, subtle forms of sex discrimination still exist. Women are still paid less than men in the workplace. This is because women typically earn less in the same positions as men, and because there are fewer women in the most high paying jobs. Employment practices and policies that favor men over women, both for the awarding of jobs, bonuses, and promotions, and in the amounts paid for those jobs, bonuses and promotions, are unlawful. Unequal pay for equally qualified women employees also violates the Equal Pay Act.
The preference given to men over women in the workplace can be difficult to detect. Employers may have some women in important positions, but rarely have as many women as men. Where an equally qualified woman is passed over for a promotion based on her sex, the employer has discriminated unlawfully.
Workplace harassment is another form of unlawful discrimination. Employers must not only grant women and men equal pay and opportunities, they must also remedy situations of sexual harassment of which they know or should know. This includes both harassment by a manager or executive over employees of lower position, and also includes harassment among coworkers. Harassment involves unwanted sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. It is illegal for an employer to make sexual conduct a condition or term of employment, to base employment decisions on such conduct, or to permit sexual conduct that unreasonably interferes with an employee's work performance or creates an intimidating, hostile or offensive work environment. Lewd comments, unwanted touching, displays of sexual objects or photographs, or offensive cartoons or drawings may constitute sexual harassment where they interfere with an individual's work performance.
Another important piece of legislation aimed at sex discrimination is Title IX, which prohibits schools receiving federal funding from discriminating on the basis of sex in their sports programs. Title IX has led to significant expansion of women's sports opportunities. Women's athletic coaches, however, are still paid less than their male counterparts, indicating continuing sex discrimination in athletics.
Sex discrimination, like other forms of discrimination, is an active area of litigation in the United States and will continue to be until women reach true equality with men. The election of more women politicians, the appointment of more women judges, and the promotion of more women in the workplace will improve the possibilities of equal treatment for both sexes. Until that time is reached, however, women, and men, may find it necessary to take their case of unequal treatment to court. When employment disputes based upon gender cannot be resolved by other means
It is important to keep in mind that there must be a correction between the adverse act and sex. For example, the mere fact that a woman employee is being paid less that a male co-worker is not enough. The woman employee must be able to prove that her lower salary is a direct result of her being a women.
Conclusion
Over the last few decades, Congress and the courts have taken significant steps to overcome sex discrimination. The problem, however, is deeply rooted in our society and its effects continue in many areas. Most employers have procedures for reporting sexual harassment, but cases of sex discrimination can be more difficult for an affected employee to address. Sometimes legal action becomes necessary when an employer takes a discriminatory position against a female, or male, employee. A school or other professional or training program may also engage in unlawful sex discrimination. Again, resort to the protections of anti-discrimination laws may be the only alternative. Speaking with an experienced attorney can help you to protect your rights and to pursue a proper remedy if you've been the victim of discrimination.
Employment discrimination - the undue exercise of power over another because of his or her race, gender, religion, age or disability - manifests itself in numerous situations. Whenever an employee finds himself/herself in a situation where he or she believes an adverse action has been taken on the basis of race, gender, religion, age or disability, the employee should immediately seek out the assistance of legal counsel experienced in handling employment matters and by contacting the local office for the Equal Employment Opportunity Commission and.
*article courtesy of Walker & Chambers.