What is sex discrimination?

Can an employer fire someone because of her gender? Can a female employee be given fewer benefits than her male counterpart? Is gender a protected class under the law?

In Texas, the default rule is that an employer can fire an employee at any time for any reason. This is called employment-at-will. However, certain federal and state statutes place limitations on the employment-at-will doctrine by prohibiting employment discrimination, preventing employers from basing their employment decisions—hiring, firing, promoting, and paying—on an employee belonging to a protected class.

Specifically, Title VII of the Civil Rights Act and Chapter 21 of the Texas Labor Code prohibit discrimination based on sex. Sex discrimination is basing employment decisions and practices on an employee’s gender, whether male or female.

Title VII applies to employer with 15 or more employees, and it protects only employees and not independent contractors. Who is and is not an employee depends on whether the employer has the right to control how the worker performs his job and the economic realities of the worker’s dependence on his employee.

The easiest type of sex discrimination to understand as unlawful is called disparate treatment. This is intentional discrimination based on sex. It includes discrimination in hiring, firing, promotion, pay, job classification, and benefits. For example, a female employee who is fired because of her gender has been unlawfully discriminated against. Similarly, an employer who only hires men and refuses to hire women has committed sex discrimination because it treats women differently—or, disparately. Further, an employer must extend the same employee benefits to a female employee as to a male employee.

However, sex discrimination is not limited to cases where the employer has an intentional discriminatory policy. Cases where an employer has a neutral policy that has a greater adverse impact on one gender are also prohibited—this is called disparate impact. For example, a hiring policy that states that only persons over six feet tall will be considered would be prohibited. The policy says nothing about gender, but it will disqualify far more women from consideration than men.

Title VII also classifies retaliation as illegal sex discrimination. Thus, an employer cannot fire or demote—i.e. retaliate—against an employee who files a discrimination charge or complains about unfair treatment because of her sex. The prohibition against retaliation protects every person from retaliation, not just the subject of the sex discrimination.

However, unlike race, gender can sometimes be considered in employment decisions when it is a “bona fide occupational qualification.” So, for example, a movie studio could limit its applicant pool to just men if it were looking for an actor to fill the role of Abraham Lincoln for a film. There are limits to the bona fide occupational qualification defense. For example, an employer cannot have gender as a qualification because its customers prefer a certain gender. So, an airline could not only hire female flight attendants just because its passengers prefer it—this is unlawful sex discrimination.

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