sexual discriminationWho, What, Why . . .

Who does it apply to: The law applies to all employers with 15 or more employees.

What is the issue: Title VII was passed in the 1960s to protect against discrimination based on race, color, religion, sex or national origin.

What am I required to do: Employers are required not to discriminate against employees on the basis of sex. More specifically, employers are required not to treat an employee adversely because of his or her sex in relationship to any significant aspect of employment.

What constitutes a violation: There are two kinds of violations – direct mistreatment and disparate impact. Direct mistreatment is straightforward. If an employer affirmatively mistreats an employee because of sex by failing to hire, firing, demoting or any other type of significant slight someone might dream up, it can be actionable as sex discrimination.

Disparate impact is more subtle. If an employer creates a policy that is neutral or non-discriminatory on its face, that policy might have a consequence of negatively impacting workers of one sex more significantly than others. If an employer institutes a policy that it prefers to hire people with military service, the policy itself does not seem discriminatory because it may affect any applicant. That said, there are statistically fewer women in the military and hence the rule has an adverse effect on women applicants. This facially neutral rule has a disparate impact against female applicants and may create a claim.

What counts as a sex: The answer appears straightforward but really is not. While homosexuality and gender identity are not expressly protected under Title VII, actions based on sexual stereotypes are permissible. For example, if a man brings a claim for being treated differently becuase he does not act manly enough (instead of alleging discrimination based on homosexuality) a jury may be allowed to award damages.

What if my employee violates without consent: Choose carefully who you place in charge. Employees placed in positions of authority with the power to control the circumstances of other employees are not personally liable. Their liability is placed with the employer even if the employee acts without authority. The same is true of independent contractors (whether properly characterized or not) placed in positions of authority over employees.

What if gender is a requirement of the job: Sometimes a person’s sex may affect their ability to get a job based on a Bona Fide Occupational Qualification (BFOQ). There are, however, very few circumstances where such a requirement will stand up in court outside of the entertainment industry in which a particular sex is cast for a role. BFOQs are complicated and you should always check with your employment counsel before implementing one.

Can retaliation play a part: Title VII protects employees who engage in protected activities such as supporting another employee’s claim of discrimination, resisting instruction to discriminate, and filing a complaint about discrimination with the employer or EEOC. Employers cannot negatively impact a significant aspect of employment for an employee who supports another’s sexual identity or their complaint against sex discrimination. Employers also cannot retaliate against an employee for complaining of sex discrimination or making a charge of sex discrimination with the EEOC.

What about harassment: Even if an employer does not discriminate against an employee directly, the employer may be liable if its employees harass an employee about his or her sex. Sex harassment is such a pervasive concern that it receives its own topic. See the Employer Handbook edition on Sex Harassment for more guidance.

Common Situations:

Babymaker: Doowe Cheatum & Howe is a prestigious law firm filled with go-getter attorneys that are willing to sacrifice almost anything for their careers. The few women working at the firm gave up on having children from the outset to convince the firm’s leaders they would not take time to raise a family. Can the firm select only women disinterested in having children? Of course not, but businesses do it every day.

I ain’t working for her: Tom’s Construction is looking for a new superintendent to oversee two of its crews. Megan, a well qualified graduate of Texas Tech’s Construction Engineering department, applies for the position. Tom, who is interviewing applicants, takes a moment to call Megan to let her know she
shouldn’t get her hopes up because he simply cannot hire a woman for the position even though she is well qualified. Tom tells Megan almost apologetically, “Those men won’t work for a lady.” Has Tom strayed out of bounds? Yep. While we can identify with the concern he raises, it is Tom’s job to create an
environment in which women can work side by side with men, even if it means he has to make changes to his crews.

Equal pay: Sally has worked for Bob’s Banjos for 23 years. Ted started with the company at about the same time. Each has risen to the job of Shift Manager, yet while at lunch one day, Ted mentions to Sally how much he earns – 10% more each year. Does Sally have a claim? Yes, it is sex discrimination, but it is
also a violation of the Equal Pay Act, covered in more detail in the Employer Handbook edition on that topic.

What Should I Do:

Good: Count up your workers every few months to know whether the law applies to you. Once you have more than 15 employees institute an anti-discrimination policy including sex discrimination.

Better: In addition to developing a policy, control who is permitted to interview and make material decisions about employees to be sure they are aware of the concerns of sex and other discrimination.

Best: In addition to the items above, create job descriptions for each position. Use the job descriptions to prepare advertisements for positions, to ask objective interview questions, and to create a uniform and objective performance review system to avoid accidentally discriminating against someone based on sex.

Who, What, Why . . .

Who does it apply to:  Every employer, but especially those subject to discrimination laws or who have employees classified as exempt from overtime.

Why should I have any:  If done right, a job description can help avoid discrimination claims, make job listings and interviews a snap, provide the analysis for classifying employees as exempt or non-exempt, and set the standard for performance appraisals.

How does a description help with exemptions from overtime:  As you know from my previous pieces on Overtime and Exemptions from Overtime, all employees are eligible for overtime – unless they meet one of certain limited exemptions.  Job descriptions can be written with exemptions in mind.  Then, when the Department of Labor arrives for an audit, you have the ammunition you will need to defend your decision to exempt those employees, and you will be less likely to have made a costly mistake in your initial determination of exempt status.

How does a description help with interviews and performance appraisals:  A job description makes writing an ad for an employee very easy because you’ve already defined what you want and can easily transcribe it. Descriptions make interviewing more objective by setting the standard by which all applicants are evaluated.  Finally, descriptions can be converted to evaluation points to objectively determine whether the employee has measured up to the job you’ve given them.

How does a description help avoid discrimination claims:  As noted above, they can help make interviews and performance appraisals objective, avoiding arguments that you made subjective determinations based on race, sex, or some other protected characteristic.  When written to include the essential functions of the position, including physical requirements like lifting, or reading and writing English, they will help avoid claims under the Americans with Disabilities Act (ADA), or discrimination claims based on national origin.

What problems might arise with old or inaccurate descriptions:  Job descriptions pulled off the internet from or a form book are like employee handbooks from the same sources.  They do not really reflect your practices or requirements.  If the Department of Labor arrives and questions employees about job descriptions and they don’t match up, the work in creating them will be for naught.  What is more, the position you designated as exempt based on an inaccurate description may be lost, and you could be responsible to the employee for overtime going back two or three years.   Worse still, since you did not have the employee clock in or out, you have nothing to defend with when the employee suddenly remembers working 5 hours of overtime every week!

What should be in a job description: Job descriptions need to separately describe both the essential functions of the job and those additional requirements that might be added or occasionally fall within the responsibilities for the position.  Essential functions should include not just the basic job duties, but employers must take consideration of what specific characteristics make up those functions.  You shouldn’t just assume that employees must read and write English. To protect you, even functions of this type need to be in the description in advance. Similarly, to protect against claims under the ADA, descriptions need to explain the physical requirements of the job such as lifting, carrying, and typing.  Finally, employers should consider whether the position should be exempt from overtime and under which exception so that the description can be written consistently with the exception requirements.

What should not be in a job description:  Employers should be careful not to write job descriptions that suggest discrimination.  A policy that all employees read and write English might be alright for the hotel front desk clerk, but not for the housekeeping department and thus create discrimination based on national origin.  Requiring a college degree for a job that does not need it might unnecessarily exclude certain protected classes.  And, a policy that specifically calls for a protected characteristic such as sex or religion is only appropriate if it is a “bona fide occupational qualification” or “BFOQ.”

When are BFOQs appropriate:  Sometimes it is appropriate to intentionally discriminate against a protected class in hiring an employee.  If you are hiring a new priest for your church, it is probably good that they have the right religion.  If you are hiring an attendant for the women’s restroom in your gym, it probably is best not to hire a man.  That said, it is not appropriate to hire all men because you are a men’s clothing company.  This is a dangerous area.  Courts are very particular about what is allowed under this exception.  You should probably consult with a lawyer before characterizing a protected class as a BFOQ.

Common Situations:

Job description after the fact:  Often, employers get caught with a Department of Labor audit and try to write job descriptions to justify exemptions after the fact.  The DOL is wise to this idea and gives the after-thought job descriptions little weight.  The same issue arises with job descriptions written after a discrimination claim is made.  The description often is used by the claimant to their advantage to make it look like the employer is trying to cover up to avoid liability.

Some jobs just require a guy:  BFOQs are dangerous, but having a requirement that you hire all men for your female-oriented shirtless hunk restaurant without writing down the requirement and explaining it in advance is a recipe for being sued.  In a reverse circumstance, a little company called Hooters™ got sued because it wouldn’t hire any men for its wait staff.  If you are going to have a BFOQ, put it in writing in advance and include an explanation that a jury would believe because that is who will ultimately evaluate it.  If a jury wouldn’t buy it, you probably shouldn’t be doing it.

Criminal background checks all around: If your job description says “no criminal history,” it better be needed.  Pepsi™ recently discovered that requiring no criminal history or even arrests for all positions can be considered discriminatory.  According to the Equal Employment Opportunity Commission, who just took Pepsi™ for a $3.1 million dollar settlement, not all jobs require a spotless criminal history.  I don’t necessarily agree with this position, but it makes a point.  If you make a job description that unnecessarily has an adverse effect on a particular protected class, even if it isn’t facially discriminatory, you could find yourself in a bad spot.

What should I do:

Good: Prepare job descriptions for all exempt employee positions and positions that require strenuous or specialized physical activity to protect against overtime claims and violations of the ADA.  Remember to be careful with job descriptions in a union environment, there may be additional requirements under the collective bargaining agreement you should consider.

Better: Prepare job descriptions for all positions and use those job descriptions as the basis for your interviews of prospective employees and as a checklist for performance evaluations of existing employees.  Be careful not to use sexist terms in your job descriptions like salesman or waitress.

Best:  In addition to the items above, get employee buy-in for job descriptions.  Have the employees presently in the position agree with the job description and what is included such that you could show the Department of Labor that the employee agreed to what is required.

Compensation Cafe offered up a “Beginner’s Guide to Job Descriptions” a few days ago.  Aimed at department managers, the post does a fair job of discussing the mechanics of writing a job description.  At the end though, the post defers to the HR department to add in any finishing touches.  So what happens if you are writing the job description AND the HR department for the whole company, too?  Maybe some mid-level manager at Microsoft would appreciate the post, but owners of a business trying to man all posts will be left without the most important part.  Why – O – Why should I even be writing a job description?

There are some business reasons to write a job description: clarify what employees are to do, delineate between different jobs, show prospective employees during an interview, etc.  But, job descriptions are not required by law.  Whew, you think, “I’m done”.  “Forget those other reasons, I’ve got a business to run.”

Of course, as is so often the case with the law, that isn’t the whole story.  Job descriptions can be helpful with legal issues under the FLSA (Fair Labor Standards Act) and ADA (Americans with Disabilities Act).

Under the FLSA, employees can be exempt from overtime (see Exemptions from Overtime – June 26, 2011) if they meet certain requirements.  One reason to write job descriptions is to think about who you might be able to exempt and write job descriptions or change jobs in a way that just so happens.  Think of how much moohlah you can save without having to pay as much OT?  That is one of the real reasons for writing a job description and it kind of helps to know that when you set down to write it!

The same is true under the ADA.  Say Joani, your private company pilot, comes in to say she has to start wearing contacts.  HOLY COW, you think, I’M NOT CLIMBING ON A PLANE WITH A PILOT THAT CAN’T SEE!  WHAT IF SHE LOSES ONE!!!!!!  If you had a job description for the pilot position stating they have to have uncorrected 20/20 vision you might be able to more easily resolve the matter.  Now, you just look like the guy who is trying to come up with an excuse to fire his disabled pilot!  (Note, the answer under the ADA is not quite that simple, but a job description would certainly help your cause.)