Sex discrimination and sexual harassment are illegal under Title VII of the Civil Rights Act. The law requires that employers treat male and female workers equally in all terms and conditions of employment.
That means not only paying and promoting women on the same terms and conditions as men, but also meting out punishment equally. That was the issue in this case decided by the U.S. Supreme Court:
In Desert Palace v. Costa, 123 S. Ct. 2148 (2003), the court’s unanimous decision made it much easier for all workers to prove allegations that their employers discriminated against them because of race, sex, national origin, color, religion or disability. The court concluded that direct evidence of discrimination isn’t necessary: Workers can rely on circumstantial evidence.
Catherina Costa, the plaintiff, operated forklifts and pallet jacks in a warehouse owned and operated by Caesar’s Palace Hotel (formerly Desert Palace) in Las Vegas. In 1994 she was fired allegedly for fighting with a male co-worker.
Costa was by many accounts a tough cookie. She swore with her male co-workers and often got into arguments. Over the years, she was written up and warned that her conduct was unacceptable. Costa apparently took offense when a male co-worker called her a vulgar name. When she complained to, it investigated and concluded she had provoked the epithet. She received a three-day suspension for “engaging in verbal confrontation with a co-worker that resulted in use of profane and vulgar language by the other employee.”
The final incident occurred when she argued with another male co-worker in an elevator. The fight left her with several bruises, which she alleged occurred when the co-worker grabbed her and pushed her into the wall. When she complained, management fired her and suspended the co-worker, claiming it couldn’t figure out who had done what. Costa sued, claiming that it was sex discrimination to apply the rules more harshly against her.
The jury hearing the case agreed and awarded Costa $364,377. On appeal, the company argued she needed direct evidence of discrimination, not just circumstantial, such as that men were punished less harshly. The Supreme Court disagreed and concluded that circumstantial evidence is enough. Costa need only prove that as a female, she was treated differently than her male co-workers.
To protect yourself from sex discrimination claims, follow these guidelines:
- Before punishing a female worker, consider how you’ve punished other workers for the same offense. Treat males and females the same. (Don’t treat women with kid gloves, however. That could lead to a reverse discrimination lawsuit by a male.)
- Perform a regular audit of all personnel actions and look for patterns of discrimination. If you find a pattern, make managers aware of the problem and insist that they correct it.
- Consider making equal enforcement of the rules a measure of your managers’ performance. This will reinforce the policy that you’re serious about eliminating sex discrimination.
- Review your hiring, promotion and recruiting practices. Make sure you don’t rely excessively on employee referrals or promotions based on an informal old-boy network. Doing so may mean you are unintentionally excluding qualified applicants and workers. If a female worker can show a statistical pattern of fewer women being hired or promoted, she may be able to make a case of sex discrimination. Intent becomes irrelevant. Use consistent, measurable and sex-blind criteria to hire, fire and promote.
Reverse sex discrimination
Although not as common as discrimination against women, there have been cases of so-called reverse sex discrimination. Recently, the EEOC settled a case against a company that maintained sex-segregated job classifications.
The employer, Jillian’s Entertainment Corporation, operates family restaurants in 25 states and has more than 5,000 employees. Male workers filed a class action lawsuit against Jillian’s, alleging that it allowed only women to hold “server” positions, which paid on average more than positions open to the men. The company had to pay the men $350,000 in damages and agreed to rewrite its job descriptions to remove references to gender.
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