Sex Discrimination at Various Stages of the Employment Relationship

HIRING

Discrimination in the hiring process occurs in other forms. Some employers regularly assign women to lower-paying jobs  delineated as  “women’s work”, generally on the basis of the stereotypes that these jobs are the “proper” place for women. Such stereotypes create segregated workforce , with men holding the better-paying positions and mostly women filling certain lower-paying jobs, including bookkeeper, payroll clerk, telephone operator, bank teller, child-care worker, cleaner and servant, nursing aide and orderly, dental assistant, and dietitian. Some women, of course, voluntarily select these types of jobs, but discrimination hiring practices also account for the recruitment and assignment of many women to these positions.

COMPENSATION

Pay inequity for women has long a common practice. Women on occasion have asserted unequal-pay claims under the umbrella of Title VII protections. To succeed, a complaint must first demonstrate that she is paid less than a man performing similar work. The two jobs in question must be such as to permit the court to determine that the two workers are “similarly situated”. The complainant then must prove that her employer’s decision to pay her less than her similarly situated male co-workers was an act of intentional discrimination. This is a burden of proof not readily sustained. The continuing existence of disparities in compensation between men and women has been a central issue in battle to attain workplace equality for women. Even before the enactment of Title VII. 

PROMOTION

Historically, courts have been reluctant to enter into employer-employee frays involving promotions. Even where the presence of flawed promotion procedures is apparent, a court may hesitate to overrule management’s decision to deny promotion to an employee, as that decision may have been based on bad  judgment rather than discrimination and bad judgment in and of itself, will never rise to the level of unlawfulness. “The law forbids invidious distinctions, not mistakes,”. Unless a worker’s qualifications, when compared with those of the worker who has been awarded the promotion, are so far superior that the employer’s reason for the promotion, must be viewed as a subterfuge or pretext for discrimination, the worker generally will not prevail, except in instances where she is able to submit independent evidence of a discriminatory motive. Nearly all promotion cases, therefore turn less on a comparisons of a worker’s qualifications than on the weight of the evidence demonstrating an invidious employer motive.

DEMOTION

Workers demoted by their employers less frequently sue sex discrimination. It is not common cases for the recovery of damages to be small. In some instances, a worker may be demoted to a lower position while her compensation remains unchanged, thus severely limiting the damages that may be recovered . The amount of a damage award in a demotion case often cannot justify the effort expended and the expense incurred in litigating the case.

TRANSFER

Intracompany transfers have been the subject of sex discrimination litigation in two sets of circumstances. The first involves an employers who, because of a discriminatory bias, refuses to grant female employee a desirable transfer. The second pertains to an employer who unlawfully imposes upon a female worker an undesirable transfer-either a transfer that removes an opportunity for promotion or other benefits or a transfer to a distant locality.

WORKING CONDITIONS

Some types of discrimination's against women occurred more commonly in the early days of Title VII. Dress codes, height and weight standards, and grooming requirements that discriminated against women were made mandatory by employers. This type of discrimination appears less commonly in today’s workplace. Discrimination against women in connection with current workplace conditions is generally subtle, not readily detected, and sometimes impossible to prove in a court of law.

CORPORATE REORGANIZATIONS

As is the case with middle-aged and older workers, women are frequently targeted for termination or other adverse treatment in corporate reorganizations. In some instances, employers have implemented corporate reorganizations primarily to deplete their workforce of female workers. A case in point involved a newly assigned plant manager who reorganized his employer’s administrative structure, changing it from traditional supervisory staff model to an administrative format that depended upon team leaders for supervisory guidance. Before the reorganization, twenty-five management and professional employees worked at the plant-twenty one men and four women. After the  new plant manager eliminated eight of these position in the reorganization, all the women had been removed from their jobs, leaving only men in the plant’s management and professional staff positions. The plant manager then selected two team leaders, both of whom were men.

TERMINATION

Some workers are formally terminated others are forced to resign. When a worker, forced to labor under conditions so intolerable as to require her, or any reasonable worker, to abandon her position, she is considered to have been “constructively discharged”. The distinction between a resignation and  a constructive discharge is a significant factor in determining the amount of damages a victim of sex discrimination is entitled to recover.