9. What is discrimination on the basis of sex under Title VII?
Discrimination based upon sex is slightly more complicated than discrimination based upon other protected classes. Understandably, Title VII prohibits intentional discrimination by an employer, such as hiring, firing, differentiating benefits of work conditions, based upon sex. In the absence of a valid business necessity for the discrimination, an employee will face liability for such actions.
• Note: Two important types of discriminatory treatment arises from the employer-employee agency relationship. Employees may act (or fail to act) in a manner that results in discrimination against other employees based upon sex. “Sexual harassment” and “hostile work environment” are two forms of discrimination in which the employer is held liable for the conduct of its employees. These two types of intentional sexual harassment are discussed in a section.
Other less obvious examples of intentional discrimination under Title VII include:
• Job Classifications – Employers cannot advertise or classify a job listing for only males or females.
• Seniority Lists – Employers cannot keep separate male and female seniority or promotion lists.
• Parenthood – Employers cannot discriminate based upon an employee’s pregnancy or intention to have children.
Employers may also adhere to policies that have a discriminatory impact upon employees based upon sex. Like intentional discrimination, these policies are prohibited in the absence of a business necessity or bona fide occupational qualification. In the context of sex-based discrimination, a bona fide occupational qualification means a “reasonable cause to believe or a factual basis for believing that all of substantially all women would be unable to perform safely and efficiently the duties of the job involved.” Examples of policies that may have a disparate impact based upon sex include the following:
• Height and Weight Requirements – Height and weight requirements often discriminate against women, who are statistically smaller than men. When these requirements have the effect of screening out applicants of a particular sex, it may be discriminatory. The employer must demonstrate that such requirements are validly related to the ability to perform the work in question (a business necessity).
• Appearance Requirements – Appearance requirements may discriminate against individuals based upon sex, race, religion, etc. Appearance requirements, such as short hair, may negatively impact women who traditionally wear longer hair.
• Discussion: How do you feel about the protections against sex-based discrimination afforded employees under Title VII? Can you think of examples of conduct that could constitute intentional discrimination? What about employer policies that demonstrate a discriminatory impact based on sex? Should these provisions be more or less protective?
• Practice Question: ABC Corp is a private security agency. It supplies security officers for events and securing business locations. As such, ABC generally hires men who are very large and intimidating. Evelyn is a 5-foot, 3-inch female. She applies for an open position at ABC Corp. ABC refuses to hire Evelyn because of her size. Does Evelyn have a cause of action for sex-based discrimination against ABC Corp?