While federal and Hawaii state law permit both male and females to assert gender discrimination claims, both anecdotal evidence and hard research indicate that a majority of discrimination claims are filed by females. Examples of sex/gender discrimination claims filed by females include (a) Child care or pregnancy related claims; (b) failure to hire a female for a position for which she as qualified or even more qualified than the successful male applicant or the failure to provide equal pay; and (c) sexual harassment claims; or those involving verbal abuse, including sexual language and gender-specific words, directed at primarily females.
CHILD CARE AND PREGNANCY RELATED CLAIMS:
There has been a recent increase in child care and pregnancy-related claims filed by women. The increase in the number of complaints has outpaced the increase in percentage of women in the workforce during the same period.
Title VII makes it unlawful for an employer to limit, segregate or classify employees or applicants for employment in any manner which deprives or tends to deprive an individual of employment opportunities because of the individual’s race, color religion, sex or national origin. Generally, the law covers all employers engaged in an industry affecting commerce with 15 or more employees.
Title VII was amended by the Pregnancy Discrimination Act (“PDA”) to prohibit all forms of discrimination in employment based on pregnancy, childbirth, or related medical conditions. Under PDA, pregnant employees must not be treated less favorably than a non-pregnant employee under similar circumstances.
Under the PDA, pregnant employees must not be treated less favorably than a non-pregnant employee under similar circumstances. Thus, an employer that refuses to hire or promote a female because of pregnancy has violated PDA. Also, an employer that forces a pregnant employee to take a leave of absence despite being able to perform her job has violated PDA. Conversely, it is unlawful to force a pregnant employee to continue performing work she is incapable of doing due to her pregnant condition from which other similarly situated disabled employees are excused.
Under the Hawaii Employment Practices Act, HRS Chapter 378, covered employers are prohibited from discriminating in public and private employment on the basis of “sex.” Like PDA, Hawaii law prohibits discriminating against women in employment because of “pregnancy.”
There are significant differences between PDA and Hawaii law. First, the Hawaii statute covers any employer with “one or more” employees, thus affecting many small business owners that perhaps lack resources to fully educate themselves on the law or implement risk reduction policies and procedures.
Second, while federal law simply requires the employer to treat a pregnant employee as it would similarly situated non-pregnant employees under Hawaii law employers are required to do much more. Specifically, Hawaii law requires by regulatory mandate that employers “make every reasonable accommodation to the needs of the female affected by disability due to and resulting from pregnancy, childbirth, or related medical conditions.”
This would include permitting a pregnant employee to take a pregnancy related leave of absence for as long her doctor approves. Regardless of the policies applicable to non-pregnant disabled employees, female employees who are disabled due to pregnancy, childbirth, or related medical conditions must be permitted to take a leave of absence, paid or unpaid, for a “reasonable period of time.” A “reasonable period of time” is that time determined by the employee’s health care provider.
Hawaii law also requires employers to essentially return the employee back to the same position with the same benefits. These employees are protected from the employer imposing “penalties” due to the pregnancy, the accommodations required, and/or the leave taken by the employee.
HIRING AND PAY CLAIMS:
Claims of discrimination in hiring and pay often arise where female employees perceive that the employer is treating them differently because they are female. The ability for an employer to consider gender in hiring is very narrow. Title VII and Hawaii law permit unequal treatment of employees on the basis of sex only where the employer can prove that sex is a necessary qualification for the specific job at issue. This means that employment decisions should generally be based upon qualifications as opposed to an employee's sex.
The federal Equal Pay Act applies to employers of two or more employees when: (a) the employees are engaged in work involving interstate commerce or in the production of goods for interstate commerce; or (b) the employer is engaged in interstate commerce. Independent contractors are not considered employees under the Act.
As a general matter, violations of the Equal Pay Act also constitute violations of Title VII. Unlike Title VII, an Equal Pay Act violation need not be supported with discriminatory animus. An individual may sue an employer directly in federal district court for claimed violations. This private right of action is extinguished if the EEOC files suit against the employer.
The Equal Pay Act requires employers to pay male and female workers equal pay for work performed under similar work conditions and requiring equal skill, effort and responsibility. To establish a prima facie case under the Equal Pay Act, a plaintiff must show that the defendant paid higher wages to employees of the opposite sex for substantially equal work. Equal work does not require the job to be identical, but instead that there is substantial equality of skill, effort, responsibility, and working conditions. Substantial equality is established through a comparison of all components of work done by an employee, as opposed to individual components. It is important to note that the analysis focuses on equality of the job, as opposed to the equality of the employees' respective skill sets.
Once a prima facie case is established, employers can avoid liability by asserting the applicability of one or more affirmative defenses. The Equal Pay Act permits employers to pay different wages pursuant to bona fide seniority systems, merit systems, and where wages are based on the quantity or quality of work produced, or most importantly where such difference is based "upon any factor other than sex." Suits under the Equal Pay Act must be brought within two years of the claimed violation, unless they involve a willful violation, which has a three-year statute of limitations.
If an individual is successful in a claim under the Equal Pay Act, he or she may recover the amount of wages that would have been earned in the absence of discrimination. In addition, the individual may be awarded liquidated damages equal to the amount of back wages owed where the court finds that the employer acted in bad faith. The court can also enjoin the employer from committing future violations of the Act.
SEXUAL HARASSMENT AND TARGETED VERBAL ABUSE CLAIMS
The number of sexual harassment claims filed by women has actually decreased in the past few years. Ironically, the number of male on male harassment cases has increased significantly. Nevertheless, the biggest potential liability to companies remains harassment cases filed by women, especially given the reality that many times it is the male manager that is accused of harassing his subordinate female employee.
It is well-established now under federal law, Title VII, that in sexual harassment cases involving a supervisor where no tangible employment action is taken, the employer may avoid liability if it can prove as an affirmative defense that: (1) It exercised reasonable care to prevent and correct promptly any sexually harassing behavior and (2) the employee unreasonably failed to take advantage of the employer's anti-harassment policies and any preventive or corrective opportunities.
If the employer cannot establish that it took prompt and effective remedial action in responding to a harassment complaint, the employer may be unable to take advantage of the affirmative defense available under federal law. Further, an employee may successfully argue that the employee's failure to invoke the company's sexual harassment policy was reasonable if the employee can establish that the company had a history of failing to respond to such complaints. This could also prevent the employer from proving the elements of the affirmative defense.
Under Hawaii state law, under regulations promulgated by the HCRC, the state agency charged with the enforcing and interpreting Hawaii’s Employment Practices Act, strict liability would apply to a supervisor’s harassment of a subordinate regardless of whether tangible action is taken. This provision was recently found lawful by the Hawaii Supreme Court in the Lales case. It is critical then, in both sexual harassment and targeted verbal abuse cases, that employers be able to establish the adequacy of their investigations.