Discrimination Based on Sex, Sexual Orientation, Harassment and Hostile Work Environments
While there are little open efforts today to differentiate among employees on gender lines, there is still seen: an effort to place one or another sex in a particular job. More often, gender bias is unstated and must be shown indirectly. While most gender-specific harassment falls within sexual harassment, sometimes the harassing conduct has no sexual connection and is exclusively gender based (for example, use of swearing and belittling language about women; bullying, angry conduct based on gender harassment or gender discrimination).
Pregnancy-based distinctions were the subject of many suits after gender bias was first declared against the law. In the 1970s, in cases against school committees, the Massachusetts Supreme Judicial Court held that discrimination based on pregnancy to be illegal gender bias under G.L. c. 151 B. See Below.
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Stereotyping Based On Gender
Gender bias may be based on stereotypes about the capabilities of a particular individual because of that person’s gender, or on attitudes masquerading as the essential qualifications of the position. Such assumptions come from cultural bias and personal perceptions. They still affect the sexes, and mostly, but not always, women in the workplace. Courts enforce the rights to be free of these assumptions as gender bias in a more subtle form. Stereotyping may occur when an employer decides that the position requires a certain temperament or characteristic, and concludes that one gender does not possess one or another necessary trait. It can also be seen when an employer fails to recognize the value of an employee because he or she does not fit a particular stereotyped image of how individuals of that gender should act (such as a man not male enough, or woman not feminine enough, or either too much so, or somewhere on some assumed proper sex role continuum). There is a Bona Fide Occupational Qualification (BFOQ) defense based on actual differences between men and women in extremely narrow and limited set of exceptions to the law’s gender-blind requirements. These involve bodily privacy or attributes necessary to the normal operation of a particular business or enterprise.*
* Example: bathroom attendants, nurses, religious college, and theaters.
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Sex-plus Discrimination
“Sex-plus” based decisions distinguish employees of the same sex based on an additional characteristic. Employers differentiate among subgroups of men or women. Such discrimination was first recognized in a case where Martin Marietta Corp refused to hire women with school-age children even though it hired other women and hired men without regard to the family situation.
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Sex-Plus Marital Status
Treating a married woman differently from a married man is gender discrimination, such as when an employer terminated a dentist’s duties once she announced her engagement to be married. The employer had made negative comments to the employee, suggesting that she should put off her marriage and motherhood until her dentistry practice was better established.
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Sex-Plus Pregnancy
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Sex-Plus Children
While parental status is not a protected category, bias against women with children, based on the stereotypical belief that women are incapable of doing an effective job while at the same time caring for their young children, is gender bias. Parental status is a characteristic often closely linked to gender. See EEOC Enforcement Guidance: Unlawful Disparate Treatment of Workers with Care-giving Responsibilities (No. 915.002) (May 23, 2007) which set out EEOC’s analysis of how disparate treatment of mothers and other caregivers may constitute sex discrimination.
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Sex-Plus Appearance
The MCAD has found gender bias in the decision of an employer to terminate a female employee after she had cancer-related breast removal. While agreeing that men may also have the same removal, the Commission found sex discrimination on the reality that only female breasts are linked to sexuality in our society, making the removal of a female breast a unique and sex-linked event.
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Claims for Equal Pay
Massachusetts employees have several statutory claims for gender-based un¬equal pay: the Federal Equal Pay Act (FEPA); the Massachusetts Equal Pay Act (MEPA), G.L. c. 149, § 105A; Title VII and G.L. c. 15IB. Each claim requires different proof. There are a number of defenses and the period for which damages may be recovered depends on the facts and the legal theory on which the claims are pursued. Such claims should be made as soon as possible.
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Sexual Orientation
To feel that you have been demoted or fired or passed over for promotion based on your sex or sexual orientation is debilitating and unlawful under G.L. c. 151B. In some types of cases, you need to show that you were qualified or more qualified and that the person who was chosen was not in a protected category. This can result in significant damage awards as discussed below.
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