Gender and Sex-Based Discrimination
October 21, 2013
Employees are protected from gender or sex-based discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”)), a federal statute, as well as under The Pennsylvania Human Relations Act (“PHRA”), a state statute. Gender or sex-based discrimination involves treating an employee or job applicant unfavorably because of that person’s gender or sex. In addition, a facially neutral employment policy or practice that applies to all employees and/or job applicants may be illegal if it has a negative impact on the employment of a particular gender and it is not job related or necessary to the operation of the business. This type of discrimination is referred to as disparate impact discrimination. Title VII prohibits discrimination on the basis of sex related to any aspect of employment, including the following:
- Job assignments
- Training and Education
- Fringe benefits
- Any other term or condition of employment
It also is unlawful to harass a person on the basis of his or her gender. Harassment may include unwelcome sexual advances, conditioning aspects of the job on compliance with sexual advances (quid pro quo sexual harassment), or other physical or verbal harassment towards an individual because of his or her sex. Harassment does not need to be of a sexual nature. General comments towards someone that are offensive and are targeted at that person’s gender can constitute harassment if sufficiently severe or pervasive. The gender of the victim or the harasser is not important. For instance, the victim and harasser may be of the same sex so long as the harassing or discriminating actions are based upon the victim’s gender. In addition, persons who are lesbian, gay, or bisexual may bring claims of discrimination or harassment if adverse actions are taken against them because of their perceived non-conformance with sex-stereotypes.
Discrimination on the basis of pregnancy is a form of discrimination on the basis of sex. Employers may not discriminate against employees because of pregnancy.
Title VII covers employers with 15 or more employees while the PHRA covers employers with 4 or more employees. A charge, or complaint, alleging discrimination based on gender or sex discrimination must be filed with the federal Equal Employment Opportunity Commission (“EEOC”) (How to File an EEOC Charge) or the Pennsylvania Human Relations Commission (“PHRC”) (How to File a PHRC Charge), which is a state agency. The PHRC requires that a charge be filed within 180 days of the alleged unlawful practice, while the EEOC’s deadline is 300 days. The EEOC and PHRC investigate charges of discrimination to determine whether there is probable cause to believe that the alleged discrimination occurred.
Generally, an employer will be liable for the actions of its supervisors and it also could be liable for the actions of lower-level employees if it knew, or should have known, that the discrimination or harassment was taking place and subsequently failed to correct the behavior.
It is illegal for an employer to retaliate against an employee or applicant who has filed a charge of discrimination, complained about discrimination, or participated in an employment discrimination proceeding.
Employees who prove successfully that an adverse employment action was taken against them based on gender or sex may obtain remedies including compensatory and punitive damages. In the event of willful violations (overt discrimination by the employer), a court may award liquidated damages in an amount equal to the backpay of the victim.
Employees and job applicants who work for, or apply for jobs with, employers in the City of Pittsburgh are afforded additional protections against sex discrimination by the City of Pittsburgh Commission on Human Relations (“CHR”).
Employees and job applicants who work for, or apply for jobs with, employers in Allegheny County are afforded additional protections against sex discrimination by the Human Relations Commission Code of Ordinance.