Sex Discrimination. Lee Perselay Senior Policy Advisor U.S. Dept. of Labor, Civil Rights Center

Transcription

1 Sex Discrimination Lee Perselay Senior Policy Advisor U.S. Dept. of Labor, Civil Rights Center 1

2 Discrimination based on sex In providing any aid, benefit, service, or training under a WIOA Title I-financially assisted program or activity, a recipient must not directly or through contractual, licensing, or other arrangements, discriminate on the basis of sex. 2

3 Discrimination based on sex An individual may not be excluded from participation in, denied the benefits of, or subjected to discrimination under any WIOA Title I-financially assisted program or activity based on sex. The term sex includes, but is not limited to, pregnancy, childbirth, and related medical conditions, transgender status, and gender identity. 3

4 Discrimination based on sex Recipients may not make any distinction based on sex in providing any aid, benefit, service, or training under a WIOA Title I- financially assisted program or activity. Such unlawful sex-based discriminatory practices include, but are not limited to, the following: 4

5 Examples of prohibited sex-based discriminatory practices (1) Making a distinction between married and unmarried persons that is not applied equally to both sexes; (2) Denying individuals of one sex who have children access to any aid, benefit, service, or training that is available to individuals of another sex who have children; 5

6 Examples of prohibited sex-based discriminatory practices (3) Adversely treating unmarried individuals of one sex, but not unmarried individuals of another sex, who become parents; (4) Distinguishing on the basis of sex in formal or informal job training and/or educational programs, other opportunities such as networking, mentoring, individual development plans, or on the job training opportunities; 6

7 Examples of prohibited sex-based discriminatory practices (5) Posting job announcements for jobs that recruit or advertise for individuals for certain jobs on the basis of sex; (6) Treating an individual adversely because the individual identifies with a gender different from that individual s sex assigned at birth, or the individual has undergone, is undergoing, or is planning to undergo, any processes or procedures designed to facilitate the individual s transition to a sex other than the individual s sex assigned at birth. 7

8 Discrimination based on sex A recipient s policies or practices that have the effect of discriminating on the basis of sex and that lack a substantial legitimate justification constitute unlawful sex discrimination, including: Height or weight qualifications that lack a substantial legitimate justification and that negatively affect women substantially more than men. Strength, agility, or other physical requirements that lack a substantial legitimate justification and that negatively affect women substantially more than men. 8

9 Price Waterhouse v. Hopkins (1989) Sex stereotyping case Supreme Court held that an employer s failure to promote a female senior manager to partner because of sex-stereotyped perceptions that she was too aggressive and did not walk more femininely, talk more femininely, wear make-up, have her hair styled, and wear jewelry was unlawful sexbased employment discrimination. 9

10 Price Waterhouse case Supreme Court recognized that unlawful sex discrimination occurs when an individual is treated differently based on a failure to conform to gender-based stereotypes about how individuals should present themselves or behave. CRC s rule adopts this principle and applies it to the provision of any aid, benefit, service, or training through WIOA Title I programs and activities. 10

11 Examples of sex stereotyping CRC s rule prohibits discrimination on the basis of sex stereotypes, including: Denying an individual access to, or otherwise subjecting the individual to adverse treatment in accessing, any WIOA Title I-financially assisted aid/benefit/service/training because of the individual s failure to comply with gender norms and expectations for dress, appearance and/or behavior, including wearing jewelry, make-up, high-heeled shoes, suits, or neckties. 11

12 Examples of sex stereotyping Harassment or other adverse treatment of a male applicant, participant, or beneficiary of a WIOA Title I-financially assisted program or activity because he is considered effeminate or insufficiently masculine. 12

13 Examples of sex stereotyping Adverse treatment of an applicant, participant, or beneficiary of a WIOA Title I- financially assisted program or activity because of the individual s actual or perceived gender identity. 13

14 Examples of sex stereotyping Adverse treatment of an applicant, participant, or beneficiary of a WIOA Title I-financially assisted program or activity based on sex stereotypes about caregiver responsibilities. For example, adverse treatment of a female participant because of a sex-based assumption that she has (or will have) family caretaking responsibilities, and that those responsibilities will interfere with her ability to access any aid, benefit, service, or training, is discrimination based on sex. 14

15 Examples of sex stereotyping Adverse treatment of a male applicant, participant, or beneficiary of a WIOA Title I- financially assisted program or activity because he has taken, or is planning to take, care of his newborn or recently adopted or fostered child, based on the sex-stereotyped belief that women, and not men, should care for children. 15

16 Examples of sex stereotyping Denying a woman access to, or otherwise subjecting her to adverse treatment in accessing, any aid, benefit, service, or training under a WIOA Title I-financially assisted program or activity, based on the sexstereotyped belief that women with children should not work long hours, regardless of whether the recipient is acting out of hostility or belief that it is acting in her or her children s best interest. 16

17 Examples of sex stereotyping Denying an individual access to, or otherwise subjecting the individual to adverse treatment in accessing, any aid, benefit, service, or training under a WIOA Title I-financially assisted program or activity, based on sex stereotyping including the belief that a victim of domestic violence would disrupt the program or activity and/or may be unable to access any aid, benefit, service, or training. 17

18 Examples of sex stereotyping Adverse treatment of a woman applicant, participant, or beneficiary of a WIOA Title I- financially assisted program or activity because she does not dress or talk in a feminine manner. 18

19 Examples of sex stereotyping Denying an individual access to, failing to provide information about, or otherwise subjecting the individual to adverse treatment in accessing, any aid, benefit, service, or training under a WIOA Title I-financially assisted program or activity, because the individual does not conform to a sex stereotype about individuals of a particular sex working in a specific job, sector, or industry. 19

20 Examples of sex stereotyping Adverse treatment of an applicant, participant, or beneficiary of a WIOA Title I- financially assisted program or activity based on sexual orientation where the evidence establishes that the discrimination is based on gender stereotypes. 20

21 Pregnancy discrimination Pregnancy discrimination remains a significant issue. Between 2001 and 2013, charges of pregnancy discrimination filed with the EEOC and State/local agencies increased by 35%. 21

22 Pregnancy discrimination Discrimination on the basis of pregnancy, childbirth, or related medical conditions, including childbearing capacity, is a form of sex discrimination. Recipients may not treat persons of childbearing capacity, or those affected by pregnancy, childbirth, or related medical conditions, adversely in accessing any aid, benefit, service, or training under a WIOA Title I-financially assisted program or activity. 22

23 Pregnancy discrimination In their covered employment practices, recipients must treat people of childbearing capacity and those affected by pregnancy, childbirth, or related medical conditions the same for all employment-related purposes, including receipt of benefits under fringebenefit programs, as other persons not so affected but similar in their ability or inability to work. 23

24 Examples of unlawful pregnancy discrimination Refusing to provide any aid, benefit, service, or training under a WIOA Title I-financially assisted program or activity to a pregnant individual or an individual of childbearing capacity, or otherwise subjecting such individuals to adverse treatment on the basis of pregnancy or childbearing capacity; 24

25 Examples of unlawful pregnancy discrimination Limiting an individual s access to any aid, benefit, service, or training under a WIOA Title I-financially assisted program or activity based on her pregnancy, or requiring a doctor s note in order for a pregnant woman to begin or continue participation while pregnant when doctors notes are not required for participants who are similarly situated; 25

26 Examples of unlawful pregnancy discrimination Denying an individual access to any aid, benefit, service, or training under a WIOA Title I-financially assisted program or activity or requiring the individual to terminate participation in any WIOA Title I-financially assisted program or activity when the individual becomes pregnant or has a child; 26

27 Examples of unlawful pregnancy discrimination Denying reasonable accommodations or modifications of policies, practices, or procedures to a pregnant applicant or participant who is temporarily unable to participate in some portions of a WIOA Title I-financially assisted program or activity because of pregnancy, childbirth, and/or related medical conditions, when such accommodations or modifications are provided, or are required to be provided, by a recipient s policy or by other relevant laws, to other similarly situated applicants or participants. 27

28 Parting Thoughts The Section 188 regulations are 29 CFR part 38. They can be found through the links on our website: Questions and requests for technical assistance can be sent to: 28