Gender Discrimination in Employment – A New Focus

 gender discrimination in employmentGender discrimination comes to the forefront this year in confirming that an employer shall not pay any of its employees at wage rates less than the rates paid to employees of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions, except where the employer demonstrates:

(1) The wage differential is based upon one or more of the following factors:

(A) A seniority system.

(B) A merit system.

(C) A system that measures earnings by quantity or quality of production.

(D) A bona fide factor other than sex, such as education, training, or experience – which factor shall not be based on a sex-based difference in compensation, related to the job in question and consistent with a business necessity – which factor will still not apply if the employee can demonstrate that an alternate business practice exists that would serve the same purpose with causing the wage differential.

This more robust approach to determining gender discrimination is to be viewed industry-wide not just within the confines of the individual employer’s workforce.

Additionally, it may be enforced by a complaint filed with the Labor Commissioner’s Department of Labor Standards Enforcement or a private right of action that provides for the recovery of attorney fees, interest on the claim and liquidated damages equal to the wages recovered; together with reinstatement to the position if applicable.

Discrimination also includes discharge and/or being retaliated against in in the terms and conditions of an employee’s employment.

All employers need to take a new look at their workforce where men and women are doing the same job with a view towards avoiding a zealous visit from the Department of Labor Standards Enforcement!