While federal and Hawaii state law permit both men and women to file gender discrimination claims, most claims are filed by women. Examples of sex discrimination claims filed include (a) claims relating to childbirth or pregnancy; (b) failure to hire a woman for a position for which she is as or more qualified or than the successful male applicant; (c) equal pay allegations; and (c) sexual harassment claims or claims of verbal abuse, including sexual language and gender-specific words, directed at female employees.
There has been a recent increase in pregnancy-related claims filed by women. This increase 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 the PDA, pregnant employees must not be treated less favorably than non-pregnant employees under similar circumstances. Thus, an employer that refuses to hire or promote a woman because of her pregnancy has violated PDA. Also, an employer that forces a pregnant employee to take a leave of absence even though she can still do her job has violated PDA. If the employer provides light duty assignments to employees who are temporarily unable to work for other reasons, it must also make these assignments available to pregnant employees who have temporary work restrictions due to pregnancy.
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 the PDA, Hawaii law prohibits discriminating against women in employment because of pregnancy.
There are significant differences between the 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, Hawaii law requires employers to do much more. Hawaii law requires 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.”
Regardless of the policies applicable to non-pregnant disabled employees, 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.
HIRING AND PAY CLAIMS
Claims of discrimination in hiring and pay often arise when female employees perceive that the employer is treating them differently because of their sex. 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 -- in other words, that the job can be done only by employees of one sex, not the other. This exception generally applies only in situations where privacy is at issue (for example, when hiring a restroom attendant or prison guard) or when gender is an integral part of the job (such as when hiring actors to play female roles). This is intended to be a very limited exception.
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.
Unlike claims of sex discrimination brought under Title VII, an Equal Pay Act violation need not be supported with proof of the employer's discriminatory intent. 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 employer 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 the entire job 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 one or more affirmative defenses. The Equal Pay Act permits employers to pay different wages based on a bona fide seniority system, a merit system, the quantity or quality of work produced, or 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 employee 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 against the employee, 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 to report the problem and give the employer an opportunity to correct it.
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, strict liability applies to a supervisor’s harassment of a subordinate, regardless of whether tangible action is taken. This means the employer is responsible for this conduct, whether or not it tried to prevent it and whether or not it had an effective policy prohibiting harassment.