Gender Discrimination in the Workforce

Although there have been decades of hard won civil rights gains for women, we do not yet live in a gender blind society. Sexism perpetuates a cycle of unfulfilled aspirations among women. Public policies are being scrutinized under ever stricter legal microscopes, and an atmosphere of unease about the future pervades our national consciousness – “a future beset with economic challenges from abroad, technological innovation at home, a demographic revolution in our workforce, and a re-stratification of society. ” Restrictions on women’s access to and participation in the workforce include the wage gap and the glass ceiling.

We will discuss the following laws that have helped women make important strides in the workforce, cracking (but not breaking) the glass ceiling so they could climb up the corporate ladder: the 1963 Equal Pay Act, Title VII of the 1964 Civil Rights Act, Executive Orders 11246/11375, the 1968 Age Discrimination in Employment Act, and the 1978 Pregnancy Discrimination Act. In addition, we will provide reasons for the continuing network discrimination against females, a recent case study of pervasive gender discrimination resulting in a 152. 5 million dollar ettlement by one well known employer who was sued, and steps women can take to continue making strides toward an equal opportunity workforce. Legislation requiring equal pay for women was first introduced in 1945 in acknowledgement of women’s war work. Business owners and labor organizations succeeded in thwarting the effort, in part because of the perceived need for women to leave the labor force to create vacancies for returning servicemen. By the end of the 1950’s, policymakers were becoming concerned about insufficient use of “womanpower”.

In 1963, Congress passed the Equal Pay Act as an amendment to the Fair Labor Standards Act of 1938 to require employers to pay equal wages to men and women doing “equal work on jobs…which [require] equal skill, effort, and responsibility, and are performed under similar working conditions”. The Equal Pay Act was the first federal effort to bar discrimination by private employers on the basis of gender. The Equal Pay Act has limitations in its enforcement of protecting women – for full-time, year- round workers, the 2009 American Community Survey median earnings for women were 78. 2 ercent of men’s earnings - $35,549 compared with $45,485. Furthermore, women’s earnings were lower than men’s in all of the 50 states. One year after passing the Equal Pay Act, Congress passed the 1964 Civil Rights Act, which made it unlawful to discriminate based on a person’s race, religion, color, or sex. Title VII attacks sex discrimination more broadly than the Equal Pay Act extending not only to wages but to compensation, terms, conditions, or privileges of employment.

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Thus with the Equal Pay Act and Title VII, an employer cannot deny women equal pay for equal work, deny women transfers, romotions, or wage increases, manipulate job evaluations to regulate women’s pay, or intentionally segregate men and women into jobs according to their gender. In 1971 Reed v. Reed became the first case that the Supreme Court would uphold Title VII to, thus protecting women from sex discrimination. One year following the passage of the Civil Rights Act of 1964, President Lyndon B. Johnson issued Executive Order 11246 as a directive as to how the act should be interpreted and followed. Executive Order 11246 prohibited public and government sector employers from iscriminating based on race, color, religion, or national origin, but not sex. Executive Order 11246 was amended by Executive Order 11375 on October 13, 1967 after sexual harassment became an issue. Sex would now be included as a category that could not be discriminated against by an employer. Executive Order 11375 meant to ensure that women would not be exploited sexually to advance their careers. Women were to now be protected in the workplace from supervisors and coworkers who did not take into consideration the concept of personal space or offensive language and conduct.

Legal regulations now banned these behaviors and legal action could be taken if they did occur. Executive Order 11375 meant women should no longer have to worry about being discriminated against in the workplace in terms of being hired or released. Executive Order 11375 meant that Affirmative Action (of Executive Order 11246) now applied to women as well. Affirmative Action is an organization’s active effort to find opportunities to hire or promote people in a particular group (in this instance, women). Affirmative Action plans must consist of an equal opportunity policy statement, an analysis of he current work force, identification of underrepresented areas, the establishment of reasonable, flexible goals and timetables for increasing employment opportunities, specific action-oriented programs to address problem areas, support for community action programs, and the establishment of an internal audit and reporting system. Contractors receiving more than $10,000 from the federal government must take affirmative action, and those exceeding $50,000 must develop a written affirmative action plan for each of their establishments. The plan must be in place within 120 days of the beginning of the contract.

Employers whose contracts meet minimum size requirements must engage in affirmative action to ensure against discrimination. Employers must consider all qualified individuals for employment, must choose without regard to gender (now a protected category), and must engage in outreach to encourage the broadest possible group of qualified individuals to enter the supply or applicant pool. In 1967 Congress passed the Age Discrimination in Employment Act. The ADEA branches from the debate on Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the asis of race, color, national origin, or sex, but not age. President Lyndon Johnson strongly believed that age was a growing issue among Americans. This law prohibits discrimination of men and women employees over the age of 40 and forbids companies to base employment decisions solely on an applicant’s age. The Equal Opportunity Commission enforces this act but there are still many complaints filed yearly from workers who are experiencing discrimination because of their age. For many years, elderly workers have felt that they are losing out to their younger coworkers.

The Age Discrimination in Employment Act attempts to eliminate the gap between younger and older employees. The Age Discrimination in Employment Act applies to businesses with 15 or more employees working 20 or more weeks per year including employees in state and local government, federal government, employment agencies, and labor organizations. The ADEA helps protect unlawful discrimination of older individuals that can occur when applying or interviewing for jobs. The Age Discrimination Act protects employees by prohibiting employers to include age preferences or limitations in job applications and advertisements.

Under the ADEA it is not expressly forbidden to ask an applicant’s age, but it is closely examined to make sure the query was made for a legitimate purpose. Despite the Age Discrimination Act, The Supreme Court recently changed what qualifies as successfully proven age discrimination. Companies come up with multiple reasons why an employee is terminated without mentioning age, when in actuality the employee’s age is the only factor. Seniors are a growing population and many are planning to work past their retirement age. Discrimination against age is not only affecting individual employees but ociety as a whole. An employee now has to prove that their age was the sole reason for their employer’s actions, therefore older workers can barely fight or prosecute age discrimination. In 2007, 60-year-old Oklahoma City Teacher Judy Jones filed an age discrimination suit against the superintendant who eliminated her teaching position and reassigned her to an office job as a principal. Judy’s salary decreased and benefits were affected during her second year as principal, while school directors and the superintendant himself frequently commented on Judy’s age and retirement plans.

The district court rejected her claim because she “could not show sufficient evidence” that her age was the sole reason for her relocated position and reduced pay. There have been successful outcomes to Age Discrimination lawsuits as the U. S. Equal Opportunity Commission recently charged two companies with age discrimination. A 70-year- old pharmacist at the Honolulu Kmart was awarded $120,000 after higher management habitually commented on, and wrote about, her elderly age, causing her humiliation and compelling her to retire. In another case, a 75-year-old qualified receptionist was fired based on ge after her second day at work at Red Rock Western Jeep Tours Inc. She filed a lawsuit and it was settled in a $35,000 payout. The Pregnancy Discrimination Act of 1978 defines discrimination on the basis of pregnancy and childbirth or any other form of illegal sex discrimination. This act is meant to ensure that no woman will be subject to non-hire by an employer due to pregnancy. She is to be treated the same as any other individual and is to be guaranteed benefits and accommodations based on the same policies and procedures as any other employee with a disability.

Pregnancy discrimination occurs when expectant mothers are fired, not hired, or otherwise discriminated against due to their pregnancy or intention to become pregnant. Common forms of pregnancy discrimination include not being hired due to visible pregnancy or likelihood of becoming pregnant, being fired after informing an employer of one’s pregnancy, being fired during maternity leave, and receiving a pay dock due to one’s pregnancy. In 1978, the U. S. Congress passed the Pregnancy Discrimination Act, an amendment to the sex discrimination section of the Civil Rights Act of 1964. The Pregnancy Discrimination

Act states that discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII. This clause covers employers with 15 or more employees, including state and local governments. Title VII also applies to employment agencies and to labor organizations, as well as to the federal government. Women who are pregnant or affected by pregnancy-related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations. An employer may not single out pregnancy related conditions to determine an mployee’s ability to work. However, if an employer requires its employees to submit a doctor’s statement concerning their inability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy-related conditions to submit such statements. If an employee is temporarily unable to perform her job because of her pregnancy, the employer must treat her the same way as any other temporarily disabled employee. Pregnant employees must be permitted to work as long as they are able to perform their jobs.

If an employee has been absent from work as a result of a pregnancy-related condition nd recovers, her employer may not require her to remain on leave until the baby’s birth. An employer also may not have a rule that prohibits an employee from returning to work for a predetermined length of time after childbirth. Employers must hold open a position for a woman who has been absent due to pregnancy-related issues for the same length of time jobs are held open for employees on sick or disability leave. Any health insurance provided by an employer must cover expenses for pregnancy- related conditions on the same basis as costs for other medical conditions. An employer need ot provide health insurance for expenses arising from abortion, except when the life of the mother is endangered. Pregnancy-related expenses should be reimbursed exactly as those incurred for other medical conditions, whether payment is on a fixed basis or a percentage of a specific amount. The amounts payable by the insurance provider can be limited only to the same extent of amounts payable for other conditions. No additional, increased, or larger deductible can be imposed. Employers must provide the same level of health benefits for spouses of female employees as they do for spouses of male employees.

Pregnancy-related benefits cannot be limited to married employees. Benefits must be provided for pregnancy-related conditions to unmarried women if benefits are provided to employees for other medical conditions. If an employer provides any benefits to workers on leave, the employer must provide the same benefits for those on leave for pregnancy-related conditions. Employees on leave because of pregnancy-related conditions must be treated the same as other temporarily disabled employees for accumulation and crediting of seniority, vacation calculation, pay increases, and temporary disability benefits.

A case that was important to the creation of the Pregnancy Discrimination Act was Muller v. Oregon (1908). The Supreme Court upheld a decision limiting women to 10 hour workdays based on the idea that “performance of maternal functions” made women inherently incapable of the same work that men did. In the 1950s and 1960s, laws in several states prohibited women from working and others banned their hiring for some length of time before and after birth. Reasons for the continuing network discrimination against women include myths about female workers, conscious and unconscious stereotyping and biasing applied by many white en who are desperate to keep their competitive edge over women, and inadequate reporting and dissemination of information pertaining to glass-ceiling issues. The following myths about female employees, despite being disproved, still exist: women executives refuse to work long hours or relocate, and many women executives take leave of absences (and that those who go on federally and state protected maternity leave have suddenly lost professional credibility upon becoming pregnant or taking temporary leave). Statistics show women executives work 56 hours per week on average – the same as their ale counterparts. Only 14 percent refused to relocate as compared to 20 percent of the men.

Only one-third of female executives surveyed had ever taken a leave of absence and 82 percent of these were for maternity leave or other family reasons protected under FMLA. Finally, there can be a twisted perception that women executives lose their professional credibility upon becoming pregnant or taking maternity leave – an “out of sight, out of mind” mantra held by their bosses. Furthermore, a pregnant woman obviously has priorities outside of work and a selfish mployer may have the unreasonable expectation of work being a sole priority. Research suggests that an underlying cause of the glass ceiling is the perception of many white males “that they as a group are losing – losing competitive advantage, losing control, and losing opportunity as a direct consequence of inclusion of women. ” There is also a “difference” barrier “manifested through conscious and unconscious stereotyping and bias. ” People who do hiring feel most comfortable hiring people who look like them. Recruiters for high-status jobs are predominately white males who then hire other white males from the same socio- conomic status, which helps perpetuate their over-representation in the best jobs. Governmental barriers include the collection and disaggregation of employment related data which make it difficult to ascertain the status of various groups at the managerial level. There also continues to be inadequate reporting and dissemination of information pertaining to glass ceiling issues. Most importantly, there needs to be consistent monitoring and enforcement of laws and policies already on the books. The following case demonstrates how costly illegal gender discrimination can be to employers:

In May 2010, a jury in the U. S. District Court for the Southern District of New York awarded a record $250 million in punitive damages to 5,600 female sales employees in a sexual discrimination case after Novartis Pharmaceuticals Corporation (“Novartis”) took the lawsuit filed against them to court – and lost. In July 2010, the parties reached a $152 million settlement agreement of the plaintiffs’ claims of gender discrimination in the terms and conditions of their employment, including compensation, promotion/promotional opportunities, reviews, and pregnancy leave. The terms of this greement allow for full compensation of former and current female employees dating from 2002-2010, ensuring that every woman who worked at Novartis over the past 8 years was compensated fairly.

As part of the settlement, Novartis must also spend an additional $22. 5 million over the next three years on anti-discrimination policies, programs, and training, as well as on strengthening its employee complaint process. Novartis was ordered to increase its Human Resource and Employment Relations staff within nine months of the effective state of the settlement agreement – ensuring that there would be ne Employment Relations Investigator for every 1,000 Novartis employees. A Compliance Master would be appointed as an external specialist for the New York Federal Court to monitor Novartis’s compliance with the settlement agreement’s terms and conditions. Steps that women can take to continue making strides toward an equal opportunity workforce are to show themselves as decision makers, risk-takers, and players. Furthermore, a female manager should do her best to remove gender biases from her own business practices by not comparing her employees to men at the top.

In Conclusion, women are just a few steps closer to being looked at as equal to men due to these legal acts. Women now have fewer restrictions and more rights within the workforce. The 1963 Equal Pay Act and 1964 Title VII brought women higher pay and more equal opportunity. Women are now seeing the benefits of Executive Order 11375 which included protection from any sexual harassment. In 1967 the Age Discrimination in Employment Act was put into place to include age from discrimination, and women benefited from the insistence that age should not prevent a capable and qualified person from working.

In 1978 the Pregnancy Discrimination Act was implemented so that pregnancy did not determine a woman’s ability to work; it also ensured that she received the same benefits as anyone else with a disability. Furthermore, even today women are fighting to have fair rights within the workplace. Even with the legal clauses, women are faced with stereotypes and glass-ceiling barriers. In order for women to overcome the problems they are tackling, to truly be protected and to have the rights that they deserve, there must be constant reinforcement of the laws that are currently in place.

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