Title VII operates with respect to gender discrimination in the same fashion that it outlaws race discrimination. Gender discrimination is prohibited in the entire broad scope of employment-related actions including hiring, compensation, training, recruiting, promotion, terms and conditions of employment, and termination. Several of the legal theories under which race or color discrimination cases can be brought in court under Title VII also apply to gender discrimination. First, gender discrimination may be proven under disparate treatment theory: that is, the theory that the employer intentionally treated an employee adversely due to his or her gender. Such cases may be proven through direct evidence that gender was a factor motivating an adverse action against a job applicant or employees. Direct evidence would consist of negative or derogatory remarks concerning the plaintiff based on his or her gender, or even remarks directly to the effect that the adverse action was taken against the plaintiff due to his or her gender.
Examples: “We need a man to do that job,” Women can’t handle the stress of being manager,” or “Only a woman is sensitive enough to handle the problems of our clients.”
In cases where there is direct evidence that gender was a consideration of the employer in taking a challenged action concerning the plaintiff, the employer can only defend itself by proving that gender was not a significant motivating factor in its decision. This is difficult to prove unless the employer can produce evidence that it has made the same type of decision in about the same time frame with respect to other similarly situated employees.
Example: A manager has been shown to have regularly remarked that women should not be promoted to assistant-manager positions, and a female plaintiff has sued the employer after being denied a promotion to that position. If the employer argues that the true reason for not promoting the employee was that she had not completed at least an associate degree in business management and can show that (a) that at least eight people promoted to assistant managers had the degree and (b) that the last six persons turned down for promotion included both males and females and all lacked associate degree or better, then the employer has a good chance in the case.
Disparate-treatment gender discrimination may also be proven circumstantially, through the steps outlined in the McDonnell Douglas case discussed earlier.
Example: A female employee is denied promotion. First, to establish a prima facie case, the employee proves (1) that she is a member of a protected class–female; (2) that she is qualified for the promotion; (3) that despite her qualification, she is rejected; and (4) that the employer promotes a male instead of her. At this point, the employer must articulate a non-discriminatory reason for its decision, such as that the male employee had better educational qualifications for the promotion. Finally, the female employee must prove that the employer’s stated reason for her rejection was pretextual. She can do this by proving that the educational qualification of the male employee had nothing to do with the ability to perform the job to which he has been promoted and the employer knew it.
Disparate impact is also a viable theory for gender-discrimination cases. Height and weight requirements, such as involved in the Dothard case discussed in the text, have frequently been challenged as improper in cases involving law-enforcement jobs. This is because they tend to disqualify females from the positions at much higher rates than males and because height and weight requirements are not job related. To avoid disparate-impact claims, the employer should ensure that the selection criteria for positions are truly job related and essential to the business.