The Harman Firm, LLP

Gender Discrimination

Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law (NYSHRL), and the New York City Human Rights Law (NYCHRL) prohibit discrimination based on gender or sex. In addition to sexual harassment (which is covered on another page), gender discrimination includes considering a person’s gender in any employment decision, which includes hiring, firing, job tasks, responsibilities, promotions, discipline, and more.

Anti-gender discrimination statutes presume that gender differences are irrelevant in the workplace: An employer may not rely on stereotypical gender roles in making employment decisions or act based on perceived notions of abilities based on gender. This presumption has served as a great engine of social change. Courts applying this egalitarian ethic, however, have had to accommodate the real and consequential differences between men and women while simultaneously rooting out discrimination based on differences that are merely stereotypical or otherwise unrelated to employment. For example, it is unlawful to base employment decisions on the preferences of the employer or customer for one gender or another, yet employers may establish different dress and grooming requirements premised on gender-based cultural norms.

An employer may also discriminate based on gender where there is a bona fide occupational qualification (BFOQ). An employer bears the burden of establishing a BFOQ, which is (1) a relationship between the employee’s sex and the ability to perform the duties of the job, such that all or substantially all members of the excluded sex cannot perform the duties of the job “safely and efficiently,” or that it is impossible or highly impracticable to determine on an individual basis whether members of the excluded sex can do so; and (2) the required job qualification goes to the essence of the business operation. Some courts include that the requirement that there are no less restrictive alternatives that would make the sex-based qualification unnecessary.

This exception is very narrow. The following situations do not warrant the application of the BFOQ: the refusal to hire a woman because of her sex based on assumptions of the comparative employment characteristics of women in general, or the refusal to hire an individual based on stereotyped characterizations of the sexes. For example, the stereotypes that women are less capable of aggressive salesmanship or are better at taking notes then men are not legitimate bases for employment decisions.

In addition, the Pregnancy Discrimination Act (PDA), which amended Title VII, prohibits discrimination based on pregnancy or childbirth. The PDA does not prohibit employment decisions based on employee conduct that may be pregnancy-related unless based on stereotypical notions, such as that pregnant women need more time off regardless of their medical circumstances.

The PDA, however, does not require employers to take steps to make it easier for pregnant women to work. The PDA (and NYSHRL) only require an employer to treat pregnant women the same as non-pregnant employees; these laws require that employers grant a pregnant employee maternity leave or other accommodations to the same extent that they grant leaves or other accommodations to any other temporarily disabled employee. In other words, employers can treat pregnant women as badly as they treat similarly affected but non-pregnant employees, even to the point of conditioning the availability of an employment benefit on an employee’s decision to return to work after the end of the medical disability that pregnancy causes. The PDA does not give an employee the right to an accommodation; however, while a normal pregnancy is not a disability under the Americans with Disability Act, a pregnancy-related medical condition could be a disability where the employee cannot perform one or more of the essential functions of her job without a reasonable accommodation and is denied the accommodation.

Unlike Title VII and NYSHRL, under the NYCHRL, an employer must provide a reasonable accommodation to pregnant women and those who suffer medical conditions related to pregnancy and childbirth unless the employer can prove that the accommodation would cause an undue hardship in the conduct of the employer’s business. Examples of accommodations include bathroom breaks, leave for a period of disability arising from childbirth, restroom breaks, water intake, periodic rest for those who stand for long periods of time, and assistance with manual labor.

Additionally, the Equal Pay Act of 1963 (EPA) specifically requires employers to give their employees equal pay for equal work, regardless of gender. The jobs do not necessarily have to be identical but must only be similar in scope and scale. The EPA has helped to close the pay gap between men and women by ensuring that women have legal protections against discriminatory pay practices.

If you believe you are a victim of gender discrimination and are considering a lawsuit, contact The Harman Firm, LLP. The experienced team of employment discrimination lawyers at The Harman Firm, LLP, offers supportive counsel to victims of gender discrimination.

New York Employment Attorneys Blog - Gender Discrimination