Gender Discrimination in the Workplace

One of the greatest disputes in the United States today involves gender discrimination in the workplace. Issues such as unequal pay, pregnancy discrimination, and sexual harassment are all covered by the Equal Employment Opportunity Commission and the Title VII. However, in many businesses, the discrimination based on gender continues to occur.

Title VII prohibits job discrimination in all aspects of the workplace, from firing procedures to promotion and benefits. This law applies to businesses with fifteen or more employees, however companies with less than that are not immediately discounted from this employee protection.

Explicitly, companies cannot advertise or label jobs as male or female without proving that the gender of the applicant is absolutely essential to the job’s requirements. In addition, businesses cannot have two separate seniority lists based on gender, or not promote someone based on their gender (Miller, 495).

In order for a plaintiff to succeed in a gender discrimination case, they must prove that gender discrimination was the determining factor in the employer’s choice to either hire, terminate their employment, or promote them. In order to do this, the plaintiff and court must investigate all circumstances regarding the suit, and the environment surrounding the suit (Miller, 495). Without the undeniable proof that the employer’s choice was made based on gender, the defendant can argue that there were external factors involved, and the decision was made fairly based on employment history, performance, or a variety of other factors.

One of the major issues within the spectrum of gender discrimination is pregnancy discrimination. Within Title VII, the Pregnancy Discrimination Act expanded the concept of gender discrimination to include protecting against employers who discriminate based on pregnancy. This act states that “any woman that is undergoing pregnancy, childbirth, or any related medical conditions must be treated the same as other persons not so affected but similar in ability to work (Miller, 495).” The Pregnancy Discrimination Act protects women from all employment aspects, including benefits.

The largest dispute under gender discrimination involves wage discrimination, which is covered by many separate laws. The Equal Pay Act requires employers to pay males and females doing the same work the same wages, or equal pay. For example, two teachers, one male and one female, at the same elementary school teaching the same grade level should receive the same pay grade. When deciding if the Equal Pay Act has been violated, the court will investigate many aspects of the two jobs, including the content of the job and not the description of the job.

Since many factors go into determining pay, if the court finds that the wage was determined by seniority, the merit system, or any other external factors, then the employer did not violate the law. This makes it difficult for the plaintiff to prove without a doubt that their wage was determined by gender explicitly. Employers, or the defendant, often argue that there were other factors involved in order to win the wage discrimination suit.

l law regardless of when the discrimination began (Miller, 495).” Before this act, the Supreme Court had ruled that the time period for a plaintiff to file a complaint was limited to only 180 days after the employer’s decision of pay. However, since Congress overturned this previous ruling, the plaintiff has an almost unlimited amount of time to file a complaint while still working for the employer with a discriminatory wage.

While most cases of gender discrimination in the workplace are filed due to hiring, firing, or wages, in some cases employees who resign voluntarily may claim that they were “constructively discharged (Miller, 496).” This means that the employer caused the plaintiff’s work environment to be so miserable that anyone in the plaintiff’s position would have quit as well. In order to prove constructive discharge, the plaintiff must prove an intolerable working environment, and that the employer was aware of but did not fix within a reasonable amount of time. The plaintiff must also show the court causation, or that the defendant’s discrimination caused the intolerable working conditions. Basically, the plaintiff has to prove that they willingly left their employment because gender discrimination in the workplace made their employment intolerable by any reasonable person standard.

In terms of general employer liability, if there is a scenario in which the employer knows that an employee is being discriminated against based on gender, and they do not act to fix it at all or within a reasonable person’s time, then they are liable for the discrimination and possible harassment. This includes if a customer or coworker is the one committing the discrimination. If it is to the employer’s knowledge, they must act upon it.

Remedies under Title VII vary based on situation, and the facts presented. However, if the plaintiff proves that gender discrimination occurred, then they may be awarded with reinstatement into their previous job, back pay, retroactive promotions, and damages. In cases involving intentional discrimination, the plaintiff may be awarded with compensatory damages. If the defendant treated the plaintiff with malice or reckless indifference to their rights, the plaintiff may receive punitive damages as well. However, there is a $50,000 cap on damages from employers with on hundred or less employee (Miller, 499).

In order for the plaintiff to file a claim, they must file a charge with the Equal Employment Opportunity Commission before they can file a lawsuit for discrimination. This being said, depending on where the discrimination occurred the time period that they have to file a charge can vary. The initial process can be fairly simple, as the EEOC allows employees to file a charge of discrimination through their website. When filing the inquiry, questions will be asked in order to decide whether or not they are the right agency to assist in the claim of gender discrimination. The Equal Employment Opportunity Commission also allows the employee to file an inquiry in person, by phone, at a state or local fair employment practice agency, or by mail. After the inquiry is submitted, the EEOC will interview the employee (EEOC). After the employee files the charge with the EEOC, they investigate the inquiry, and they will give out a Notice of Right to Sue. After the plaintiff receives the right to sue, they have ninety days to file their lawsuit with in court. However, if they are filing under the Equal Pay Act, they don’t have to file a charge or obtain a notice of right to sue from the EEOC before filing. Instead, the plaintiff can go directly to the court as long as they file the suit within two years from the day the pay discrimination took place (EEOC).

Unfortunately, many cases have been filed under gender discrimination. Recently, Nike was accused of “intentionally and willfully discriminated against [women] with respect to pay, promotions, and conditions of employment (Golden).” This suit was filed in August of 2018, was seeking a class-action status, and was led by previous Nike employees Kelly Cahill and Sara Johnson from the Beaverton, Oregon headquarters. They claimed that Nike was marginalizing women and avoided giving them promotions, and judges them more than men. They said that in turn this meant women had lower salaries, bonuses, and stock options. The women in this branch of Nike complained to human resources about this discrimination, and even some harassment including sexual assault. Human resources ignored these claims, and mishandled the situation completely.

Nike responded by announcing that president Trevor Edwards was going to retire, since he was specifically named in the lawsuit for creating a “hostile work environment (Golden).” Later, they announced that they had fallen short in the area of hiring new women employees, as well as promoting current ones. In her lawsuit, Cahill said that the environment of Nike was one where women were left out, treated with hostility, and were spoken to in demeaning ways. She had told human resources about her complaints four times before resigning in 2013. Overall, the group of women was requesting changes in pay, a court-appointed monitor, back pay, and punitive damages (Golden).

With all of this information on this case, I believe that Cahill could also claim that she was constructively discharged. This is due to her claim that the work environment was hostile, and unfriendly. If she could prove to the court that any reasonable person would also quit, then she can prove that Nike was an intolerable working environment, and that the employer was aware of but did not fix within a reasonable amount of time. Since she reported it to human resources multiple times, Nike was aware of the issues but did not fix them.

Another gender discrimination case involving Walmart occurred in 2011 when Betty Dukes, a cashier who started working as a Walmart cashier in 1994, got promoted to the position of customer service manager. She was soon demoted back to cashier after several disciplinary violations, however Dukes claims that she did not violate company policy and was instead demoted for “invoking internal complaint procedures and that male employees have not been disciplined for similar infractions (Walmart v. Dukes).” In this case, it may have been difficult for Dukes to prove that in this case she was in fact a victim of gender discrimination, and not just a poor employee.

In the courts investigation however, they found that women filled 70% of hourly jobs in Walmart stores, but only 33% of management positions (Walmart v. Dukes). Even with this information, and much more, the Supreme Court ruled in favor of Walmart, because the plaintiffs did not have enough in common with each other to create a class. This case in particular shows how difficult it can be to defend the employee against the corporation the plaintiff worked for. Defendants often fight against the case by saying that the employee was actually just acting against company policies or was simply not as good as the employees of the opposite gender.

Dawnn McCleary-Evans filed against the Maryland Department of Transportation’s State Highway Administration, because she believed that they were refusing to hire her for the two positions she applied for based on her race and gender. She said that she was highly qualified for either position she applied for, but the hiring committee was biased and had already chosen their candidates. However, throughout the court’s investigation it was discovered that McCleary-Evans did not have sufficient facts to prove her claim. Therefore, the district court ended up granting the Maryland Department of Transportation’s motion to dismiss the case (McLeary-Evans v. Maryland Department of Transportation). This is yet another example of how hard it can be to prove allegations of discrimination in the workplace, and how easy it can be for the defendant to disprove the facts the plaintiff is trying to bring to light.

In another case, Linda Quigg claimed that the Thomas County School District and the school board both discriminated and retaliated against her. She filed this claim due to the fact that they refused to renew her employment contract and also filed an ethics complaint against her. The district court ruled summary judgement to the school district on all of Quigg’s claims. On her appeal, Quigg said that the court used the incorrect evaluation methods to review her mixed-motive case that also relied on circumstantial evidence. The final verdict agreed that the district court was wrong to grant summary judgement, however they also found that the court was right to dismiss the rest of her discrimination claims, as well as the retaliation claims (Quigg v. Thomas County School District).

Plaintiff-Appellant Ya-Chen Chen was an assistant professor at the City College of New York (CCNY), which is in the City University of New York (CUNY) system. She was also Interim Director of Asian Studies between 2008 and 2009, during which she had an altercation with a student. Administration told Chen that they thought she had handled the situation inappropriately, however Chen disagreed and told the board how she felt. In July 2009, CCNY told Chen that she was not going to be interim director again. They also later decided that she was not going to be reappointed as an assistant professor for the following year.

Chen tried to appeal this decision twice, but was unsuccessful. She then filed a suit against CUNY, and the administrative staff, by arguing that they violated Title VII and the Equal Protection Clause, since they discriminated against her on the basis of her race, gender, and national origin, as well as retaliated against her for her internal complaint. The district court granted summary judgements to the defendants on all claims, and the US Court of Appeals affirmed this decision (Ya-Chen Chen v. CUNY). This case seemed to be fairly cut and dry, there is no point in the scenario where Chen was blatantly being discriminated against, and the only conflict was about her misconduct with a student, which is normally grounds for dismissal in the nature that it occurred in this case.

In my opinion these gender discrimination laws are extremely important. I have had many people who are close to me struggle with bosses that would pay them less than their male counterparts. The wage gap is currently a major issue in this country, and I feel as though after reading the outcomes of some of these cases the laws are not doing enough to protect against it. An adjusted wage gap works with factors such as hours worked, occupations chose, education, and experience. In adjusted wage gap terms however, the average woman’s salary is only 78% of the average man’s salary (Vagins).

In addition to these gender discrimination issues, I think that the enforcement is too he-said she-said. In many of the cases I read throughout this paper, I found that the plaintiff often lost due to insufficient evidence which seems to be an issue when deciding the cases. Therefore, I think that the enforcement of these laws should be altered in some way.

In order for businesses to protect themselves against violating these gender discrimination laws, they need to treat every gender with respect. If businesses would take care of their employees equally, and eliminate these problems in the workplace when they are brought to their attention, then they wouldn’t be subject to these lawsuits.

Gender, race, and religious discrimination are all major issues in the United States, and they always have been. The gender discrimination laws cover a broad array of problems from pregnancy discrimination, unequal pay, and harassment issues. While Title VII, the Equal Pay Act, and many others have accomplished a lot and made large strides in protecting employees, there are still enforcement issues with proving the discrimination versus the defendants’ argument that usually includes the employee’s experience, previous altercations on the job, or education level.

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