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TT&S Weekly

TT&S Weekly (6/13/22)

Topic of the Week  Addressing Sex Discrimination at Work

Sex or gender discrimination in employment involves treating someone unfavorably because of the person’s sex, whether they are applying for a job or are a current employee. Although women have made clear they have the ability to perform with the same skill and success in every endeavor engaged in by men, the issue of sex discrimination still holds many back. Sex discrimination, although predominantly an issue for women, can sometimes be directed towards men as well. 

1. Is sex ever a qualification for a certain job?

Only in very limited situations. Title VII makes an exception to prohibiting sex discrimination when sex is an essential part of a particular job – also known by the legal term “bona fide occupational qualification” or BFOQ. For example, if a company needs an actor to play a female role or a “wet nurse,” then being a woman is a BFOQ for those positions.

The BFOQ exception as to sex has been interpreted very narrowly. Jobs that are considered “men's jobs” or “women's jobs” tend to unnecessarily deny employment opportunities to one sex or the other. 

2. Can my employer make me wear a dress or feminine clothing?

In an important U.S. Supreme Court case known as Price Waterhouse, the Court ruled that discrimination based on gender stereotyping is illegal sex discrimination under Title VII. In Price Waterhouse, the employer delayed a female employee's promotion, in part based on evaluation comments describing her as “macho” and advising her to "take a course in charm school.” This woman was treated differently because of her gender, and because she seemed too “male.” Therefore, a female employee who is discriminated against because she wears pants or other gender-neutral clothing may be able to argue that she faced discrimination based on gender stereotypes or notions of appropriate dress for women.

Many employers have dress codes or otherwise expect their employees to dress according to the customs of the profession. Nothing in the Price Waterhouse case prevents an employer from asking that both male and female employees dress professionally. For example, an employer who requires its male employees to wear neckties at all times and its female employees to wear dresses or skirts would not likely be found to have violated the law, as courts have previously allowed employers to require employees to wear “suitable” business attire, even when the standards for what is considered suitable vary by sex. However, California has passed a specific law making it illegal for employers to prevent an employee from wearing pants because of sex.

An employer who requires employees to wear uniforms which are different for males and females is not engaging in discriminatory practices as long as the uniforms for both males and females are “suitable.” For example, women cannot be forced to wear short shirts or sexually revealing uniforms if men are not required to do so.

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Weekly Comic by Jerry King

Weekly Comic by Jerry King

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    Did you know that 58% of transgender people of color reported their work hours were reduced during the pandemic?

    • For the general population, it was 23%
    • For White LGBTQ+ people, the figure was 27%
    • About 26 percent of transgender people of color became unemployed due to COVID-19

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