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The Warshawsky Law Firm Blog

Friday, May 9, 2014

Employment Laws Prohibiting Sex Discrimination In The Workplace

According to the U.S. Bureau of Labor Statistics, women make up 47% of the American work force (in 2013). Although a lower percentage of women (57.2%) than men (69.7%) participate in the labor market overall, women are disproportionately represented in “management, professional, and related occupations” and “sales and office occupations,” comprising 51.4% and 61.9% of these fields respectively.

Specific examples of women’s share of various occupations include: 71.9% of human resources managers; 69.7% of health services managers; 62.1% of accountants; 58.1% of market research analysts; 34.9% of computer systems analysts; 73.8% of psychologists; 33.1% of lawyers; 37.3% of producers and directors; 63.3% of public relations specialists; 56% of pharmacists; 35.5% of doctors; 60.6% of physical therapists; 54.7% of veterinarians; 47.2% of advertising sales agents; 57.6% of real estate brokers and sales agents; 49.7% of retail salespersons; and 94.4% of secretaries and administrative assistants. Complete statistics for 2013 may be found here.

Women employees face ongoing challenges in the workplace, including issues of equal pay, pregnancy and maternity leave, sexual harassment, and sex discrimination. One measure of the prevalence of these issues is the number of complaints filed with the U.S. Equal Employment Opportunity Commission (EEOC). According to the EEOC, between 2010 and 2013, there were 115,606 complaints of sex discrimination, 15,298 complaints of pregnancy discrimination, and 30,580 complaints of sexual harassment.

These statistics count complaints filed under Title VII of the Civil Rights Act of 1964, the main federal antidiscrimination statute, which prohibits discrimination based on sex (gender). Several other statutes provide additional protections for women employees, including the Equal Pay Act of 1963, the Pregnancy Discrimination Act of 1978, the Family and Medical Leave Act of 1993, the New York State Human Rights Law, and the New York City Human Rights Law. Many other states and municipalities have their own laws prohibiting discrimination against women.

A brief summary of each of these statutes follows (the links provide more detailed information):

Title VII of the Civil Rights Act of 1964

Under Title VII, it is an “unlawful employment practice” for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a).  Title VII prohibits discrimination against women employees, including sexual harassment, failure to promote ("glass ceiling"), disparate treatment (i.e., being treated worse than men) regarding pay, benefits, job assignments, and other "terms and conditions" of employment.

As explained by the EEOC:  "Sex discrimination involves treating someone (an applicant or employee) unfavorably because of that person's sex."  "The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment."  "It is unlawful to harass a person because of that person's sex. Harassment can include 'sexual harassment' or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.  Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person's sex.  For example, it is illegal to harass a woman by making offensive comments about women in general."    

If an employee proves discrimination in violation of Title VII, the remedies available under the statute include hiring, reinstatement, promotion, back pay, front pay, compensatory damages, punitive damages, attorney’s fees, and costs. Compensatory damages and punitive damages are “capped” depending on the size of the employer.

To be protected by Title VII, an employee first must file a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC) within 180 days of the alleged discrimination. Under certain circumstances, this time limit may be extended to 300 days. Note: federal employees must file a charge of discrimination with their agency’s EEO office within 45 days of the alleged discrimination.

Equal Pay Act of 1963

The Equal Pay Act (EPA) is a federal statute that prohibits sex-based wage discrimination between men and women in the same establishment who perform jobs that require substantially equal skill, effort, and responsibility, under similar working conditions. 29 U.S.C. § 206(d)(1).

As explained by the EEOC:  “The Equal Pay Act requires that men and women in the same workplace be given equal pay for equal work. The jobs need not be identical, but they must be substantially equal. Job content (not job titles) determines whether jobs are substantially equal. All forms of pay are covered by this law, including salary, overtime pay, bonuses, stock options, profit sharing and bonus plans, life insurance, vacation and holiday pay, cleaning or gasoline allowances, hotel accommodations, reimbursement for travel expenses, and benefits.” Unlike Title VII, the Equal Pay Act does not require proof of intent to discriminate.

If an employee proves wage discrimination in violation of the Equal Pay Act, the remedies available under the statute include back pay, liquidated damages, attorney’s fees, and costs. Compensatory damages and punitive damages are not available under the EPA.

An individual alleging a violation of the Equal Pay Act may go directly to court and is not required to file an administrative complaint with either the EEOC or the U.S. Department of Labor beforehand. The time limits for going to court are: within two years of the alleged wage discrimination or, in the case of a willful violation, within three years.

Pregnancy Discrimination Act of 1978

The Pregnancy Discrimination Act of 1978 is a federal statute that amended Title VII to prohibit sex discrimination on the basis of pregnancy. The statute added a definition to Title VII of “because of sex” to mean “because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work . . . .” 42 U.S.C. § 2000e(k) (Definitions).

As explained by the EEOC:  “Pregnancy discrimination involves treating a woman (an applicant or employee) unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.” “The Pregnancy Discrimination Act (PDA) forbids discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment.” “If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer or other covered entity must treat her in the same way as it treats any other temporarily disabled employee. For example, the employer may have to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees if it does so for other temporarily disabled employees.”

Family and Medical Leave Act

The FMLA is a federal statute that provides covered employees with up to 12 weeks of job-protected, unpaid leave during any 12-month period for the following reasons: (1) birth and care of the employee's child, or placement for adoption or foster care of a child with the employee; (2) care of an immediate family member (spouse, child, parent) who has a serious health condition; or (3) care of the employee's own serious health condition. 29 U.S.C. § 2612.  As explained by the U.S. Department of Labor:  "FMLA is designed to help employees balance their work and family responsibilities by allowing them to take reasonable unpaid leave for certain family and medical reasons."

If an employee proves a violation of the FMLA, the remedies available under the statute include reinstatement, back pay, front pay, liquidated damages, attorney’s fees, and costs. Unlike Title VII, however, compensatory damages and punitive damages are not available under the FMLA.

An individual alleging a violation of the FMLA may go directly to court and is not required to file an administrative complaint with either the EEOC or the U.S. Department of Labor beforehand. The time limits for going to court are: within two years of the alleged violation or, in the case of a willful violation, within three years.

New York State Human Rights Law

The New York State Human Rights Law (NYSHRL) is a New York state statute that prohibits employment discrimination based on age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status, domestic violence victim status, and previous arrest record. N.Y. Exec. Law § 296 et seq.  Like Title VII, the NYSHRL is a comprehensive antidiscrimination statute that, inter alia, prohibits employment discrimination against women.

If an employee proves discrimination in violation of the NYSHRL, the remedies available under the statute include hiring, reinstatement, promotion, back pay, front pay, and compensatory damages. Punitive damages and attorney’s fees and costs are not available under the statue.

An employee who believes he or she has been discriminated against in violation of the NYSHRL may either file a complaint with the New York State Human Rights Division, which will investigate and decide the claim, or file a lawsuit directly in court, but not both. This is an “election of remedies” provision and, with few exceptions, strictly limits the employee’s choice of which remedial path to pursue. There is a one-year statute of limitations for filing a complaint with the Human Rights Division and a three-year statute of limitations for filing a lawsuit in court.

New York City Human Rights Law

The New York City Human Rights Law (NYCHRL) is a New York city statute that prohibits employment discrimination based on actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation, citizenship status, and previous arrest record. N.Y.C. Admin. Code § 8-101 et seq.  Like Title VII, the NYCHRL is a comprehensive antidiscrimination statute that, inter alia, prohibits employment discrimination against women.

The NYCHRL provides that it “shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions comparably-worded to provisions of this title have been so construed.” N.Y.C. Admin. Code § 8-130. As a result, the NYCHRL is interpreted and applied by state and federal courts in a manner that is even more favorable for employees than comparable state and federal anti-discrimination laws.

If an employee proves discrimination in violation of the NYCHRL, the remedies available under the statute include hiring, reinstatement, promotion, back pay, front pay, compensatory damages, punitive damages, attorney’s fees, and costs.

An employee who believes he or she has been discriminated against in violation of the NYCHRL may either file a complaint with the New York City Human Rights Commission, which will investigate and decide the claim, or file a lawsuit directly in court, but not both. This is an “election of remedies” provision and, with few exceptions, strictly limits the employee’s choice of which remedial path to pursue. There is a one-year statute of limitations for filing a complaint with the Human Rights Commission and a three-year statute of limitations for filing a lawsuit in court.

 

If you or someone you know has been the victim of sex discrimination, pregnancy or maternity discrimination, or sexual harassment in the workplace, please contact The Warshawsky Law Firm today.





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