Over the almost 50 years since the rise of our modern workplace with the initiation of Title VII, job requirements, job descriptions and related policies have evolved along with updated labor laws, new regulations and court cases. Here’s
a quick look at some potential discriminatory areas in hiring practices.
|JOB REQUIREMENTS||IS IT DISCRIMINATORY?|
|A job ad that uses phrases such as: one-girl office, two-man operation, Girl Friday, lady-like appearance, etc.||Yes. Stating a preference for a man or woman in a job ad is unlawful sex discrimination unless the requirements for the particular job mean that it is lawful to employ only a man or a woman.|
|A job ad for a female or male locker room attendant||No. U.S. Courts have held that employers may hire only a man or woman for
positions where privacy is an issue.
|A job ad for a female model for woman’s clothing catalog||No. Refusing to consider a male model is legal as being a female is a bona fide occupational qualification (BFOQ) for modeling such items as evening gowns, bikinis and bras.|
|A job ad for a stewardess in the airlines industry.||Yes. The airline industry originally hired only female stewardesses under the
theory that travelers wished to have attractive females attend to them. The U.S.
courts prohibited this practice because the main service provided by the industry was safe commuting rather than cabin service. The airlines couldn’t
defend their discriminatory practice, since there was no BFOQ that justified requiring flight attendants to be female.
Other gender specific titles to avoid: seamstress, hostess, waitress, handyman,
|Hooters Restaurant hiring only female wait staff as “Hooter’s Girls”||Yes. Hooters Restaurant chain came under the close eye of the EEOC in the 1990’s
with its hiring of “Hooter’s Girls.” The Company described itself as a provider of “vicarious sexual entertainment.” The EEOC disagreed saying Hooters’ was a provider of food and thus being a woman was not a BFOQ. Hooters settled its lawsuit with the EEOC for $3.75 million and an agreement to add male eligible positions such as bartenders and hosts.
|Job ads that use statements such as “looking for young & dynamic” or “a
|Yes. Avoid using words and phrases such as “young and dynamic” or “mature person.” These could result in a complaint of age discrimination since they suggest an employer is looking for applicants from a particular age group.|
|A job ad or workplace requirement to speak only English
|Yes. A rule requiring employees to speak only English at all times on the job may
violate Title VII based on national origin, unless an employer shows it is necessary for conducting business. If an employer believes the English-only rule is critical for business purposes, employees have to be told when they must speak English and the consequences for violating the rule.
Language discrimination occurs when a person is treated differently because of that person’s native language or other characteristics of that person’s speech. For example, an employee may be being subjected to language discrimination if the workplace has a “speak-English-only” policy but the employee’s primary language is something other than English. Many courts and governmental agencies consider language discrimination to be a form of discrimination on the basis of race or national origin, which are prohibited by well-established laws such as Titles VI and VII of the Civil Rights Act of 1964 (a federal law) and certain state laws.
|Job requirement for “no accents”||Yes. An employer must show a legitimate non-discriminatory reason for the denial
of employment opportunity because of an individual’s accent or manner of speaking. Requiring employees or applicants to be fluent in English may violate Title VII if the rule is adopted to exclude individuals of a particular national origin and is not related to job performance.
|A Company that has a “no beards” policy or requires all male employees to be “clean shaven.”||Yes & No. Employer dress standards and personal appearance requirements must be flexible enough to take into account religious practices. However, employers may enforce reasonable rules regarding personal appearance and safety even where the rules collide with an employee’s religious beliefs. An employer can, for
example, enforce a no-beard policy if beards prevent employees from safely
wearing protective masks.
Regarding the policy for all males to be “clean shaven,” the policy might have a disparate impact on African American men who are more likely to suffer from Pseudofolliculitis barbae (skin condition exacerbated by shaving.). Thus, it could be
|A company that has different dress code requirements for men & women
|No. Gender-based dress codes have been challenged for many years. However, for
the most part, U.S. courts have found these different standards to be legal as long as they are in line with societal norms and don’t impose a burden on employees of one sex. A note, however, regarding California new regulations (AB 887) that expand the definition of “sex” in the legal codes for employment discrimination law. With protections for “gender identity” and gender expression,” employees now have a right to dress as a man or woman if they wish to “express” that gender.