Sex

Sexual harassment

Sexual harassment is unwelcome sexual conduct that is severe enough or occurs often enough to interfere with an employee’s ability to do his or her job. Sexual harassment takes many forms, such as touching, sexual comments or jokes, displays of pornographic materials, indecent exposure, assault or even rape. Sexual harassment occurs in many different work environments and victimizes both men and women. The harasser may be a person of the opposite sex or the same sex. It is the effect of the sexual conduct, not the harasser’s intent, that determines whether the law has been violated. Victims of sexual harassment should not try to ignore it or assume it is a joke or an accident. Sexual harassment is a wrongful use of power. Experience shows that harassment will continue or increase if it is ignored.

Employers may be liable for sexual harassment whether it comes from a supervisor, a co-worker or even from non-employees, such as customers or contractors. Many employers have anti-harassment policies and reporting procedures to deal internally with these problems. Effective policies and employee training can go a long way towards discouraging improper conduct before it becomes serious enough to violate the law.

Job assignments

Even though jobs usually are no longer advertised as “male jobs” or “female jobs,” some employers still maintain informal job segregation. Often this is based on stereotyped ideas of “appropriate” work for men and women. Such stereotypes include, for example, that men are less capable of assembling intricate equipment or that women are less capable of selling construction tools or automobile parts. Sometimes job segregation is based on habit or just the way the work has been done in the past. The principle of nondiscrimination requires that persons be considered for jobs on the basis of individual capacities and not on the basis any characteristics generally attributed to their sex.

The refusal to hire an individual because of the preferences of coworkers, the employer, clients or customers is a form of illegal sex discrimination. There are a very few instances in which sex will be recognized as a bona fide occupational qualification (BFOQ). Some examples include jobs where authenticity or genuineness calls for one sex, such as an actor or actress or when privacy interests of vulnerable populations, such as juveniles in custody or the elderly, will be impacted.

Equal pay

State and federal anti-discrimination statutes and equal pay laws require that men and women be given equal pay for equal work. To determine whether two jobs should be paid equally, the jobs need not be identical, but they must be substantially equal. It is job content, not job titles, that determines whether jobs are substantially equal. For example, one person may be called an accountant and another a bookkeeper, but if the content of their jobs is very similar and one is male and the other female, a higher pay rate for one may be sex discrimination. Wage differences based on seniority, merit, quantity or quality of production or other factors other than sex are permitted.

Pregnancy discrimination

There is one simple rule employers should follow in dealing with pregnant employees: treat women affected by pregnancy or related medical conditions the same way you treat others with temporary disabilities. Note: Pregnancy discrimination is a form of sex discrimination. Unless the pregnancy or childbirth results in serious complications, it is not covered as a “disability” under the ADA. This means that pregnant employees can be expected to perform the essential functions of their jobs. They are not entitled to accommodations for their health condition, unless the employer also accommodates other temporary disabilities. Employers should not exclude pregnant women from jobs because of stereotypical beliefs that they are incapable of doing their jobs or that, after childbirth, they will leave their jobs. The term “maternity leave” often is used to describe disability or sick leave due to pregnancy as well as leave to recuperate from childbirth. If an employer allows leave for temporary disabilities not related to pregnancy, it may not deny leave for pregnancy-related disabilities or apply different terms or conditions to such leave.

Maternity leave commences – such as six weeks before delivery or when the pregnancy “shows.” An employer must use the same procedures to determine a pregnant employee’s ability to work as it uses to determine any other temporarily disabled employee’s ability to work.

Questions often arise about insurance coverage for maternity-related medical expenses. The basic rule mentioned above – treat women affected by pregnancy the same way you treat others with temporary disabilities – is good guidance. For example, if an employer’s health plan covers pre-existing medical conditions, then it must cover an insured employee’s pre-existing pregnancy. Deductibles for pregnancy-related medical costs must be the same as deductibles for other conditions and limitations on expenses, including the employee’s share of premiums, cannot be applied exclusively for pregnancy-related conditions.

Fetal protection policies

Fetal protection policies sometimes exclude “all women,” “all women of childbearing capacity,” “all women of childbearing age” or “all pregnant women” from a work site containing hazards to a fetus. Any policy that excludes members of one sex from a workplace for the purpose of protecting fetuses cannot be justified under the laws prohibiting sex discrimination. Individuals who can perform the essential functions of a job must be considered eligible for employment, regardless of the presence of workplace hazards to fetuses.