Labor and Employment Law - Gender Discrimination

It is illegal under both the Civil Rights Act of 1964 (Title VII) and the Fair Employment and Housing Act (FEHA), to discriminate on the basis of gender in the terms and conditions of employment. This can include salary, benefits, hours, vacations, promotions, hiring, firing or any other term. With few exceptions, most any defining characteristic of a particular position of employment is considered a "term or condition of employment". Gender discrimination in the simplest of terms refers to situations in which an employer treats an individual or group of individual employees differently based on their gender, be it female or male.

Generally, gender discrimination falls into two distinct categories, "disparate impact" and "disparate treatment."

Disparate Treatment: This is simply "different treatment", and is treating an individual or group of individuals differently because of his/her or their sex.

Disparate Impact: This refers to an employer’s practices or a company’s policy which impacts "differently" on a individual or group of individuals, depending on whether they are male or female.

The employer may not directly intend to discriminate or to have their practices or policies produce a discriminatory effect, but it does nonetheless. One example is in fire departments. Typically, these agencies had requirements relating to physical strength. However, as a result of these requirements there was a disproportionate number of males over females qualifying, and therefore being hired as firefighters. In cases where the degree of physical strength required was absolutely necessary to ensure those hired were physically capable of performing the duties of a firefighter, such policies may be legal, even though it impacts on women differently than men. However, in other cases where the physical strength required was clearly excessive and demanded more than was absolutely necessary in order for an individual applicant to perform the duties of firefighter, which then resulted in a disproportionate amount of males being hired instead of females, those policies were found to be illegal.

Generally, the determining factor in whether a policy which inadvertently excludes an individual or group of individuals based on their sex is legal, or illegal, is whether the policy is sufficiently job-related.

Remember to contact us with any questions or concerns.