Department of Labor's Sex Discrimination Guidelines Finally get a Makeover

It has been more than 45 years since guidelines were first established to ensure nondiscrimination of females in the workplace. The Sex Discrimination Guidelines, as they havebecome known, have not been updated in all that time. Now, the Department of Labor has acknowledged that these guidelines are now “out of touch with current law and with the realities of today’s workforce and workplaces.” These new guidelines will become effective on August 15, 2016.

Sex Discrimination protections of Title VII

Title VII of the Civil Rights Act of 1964 makes it unlawful to discriminate against someone on the basis of race, color, religion, national origin, or sex. It is also unlawful to retaliation against someone because they complain about such discrimination, file a charge of discrimination with the EEOC, and participate in a discrimination investigation or lawsuit. Title VII also requires an employer to provide reasonable accommodations for religious practices that are “sincerely held,” as long it the accommodation would not create an undue hardship on the employer’s business. As the Department of Labor recognizes, women are a vital part of the U.S. workforce and economy.

Changes to coverage of anti-discrimination regulations

Among the most notable changes to the Department's regulations is the broader definition of "sex" to include gender identity, transgender status, pregnancy, and sex stereotyping. Also, employers are not allowed to make assumptions about employees based on stereotypes about caregiving obligations. For instance, an employer may not deny women opportunities available to men based on the assumption that childcare responsibilities will affect the woman's performance. On the other side of the coin, an employer cannot deny a father a flexible work schedule that would otherwise be made available to mothers, based on the assumption that men do not assume childcare responsibilities.

Changes related to disparate treatment and disparate impact claims

Examples of disparate treatment and disparate impact claims have been modernized for clarity. New examples of disparate treatment now include denying transgender employees access to the restrooms, changing rooms, showers and similar facilities. Examples of disparate impact include reliance on recruitment or promotion methods like “word-of-mouth” and using height and weight requirements that tend to have an adverse impact on women and are not job-related and consistent with business necessity.

Adoption of various wage discrimination concepts

The Department's new regulations adopt the Lilly Ledbetter Fair Pay Act standard, i.e., pay discrimination occurs any time an employer pays an employee as a result of a discriminatory compensation decision. The regulations also adopt Title VII’s broad approach to wage discrimination to include both disparate treatment and disparate impact claims. The new regulations prohibit paying employees differently because of their sex, including opportunities for overtime, training, and better-paying positions. This also includes fringe benefit plans like insurance, retirement, profit-sharing, bonus, leave, etc.

If you feel you have been the victim of sex discrimination or retaliation, or if you have any questions regarding your employment rights, please contact Wrady & Michel, LLC, either online or by calling us at (205) 265-1880.

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