What is discrimination on the basis of sex under Title VII?

Title VII prohibits intentional discrimination by an employer, such as hiring, firing, differentiating benefits of work conditions, based upon sex. In the absence of a valid business necessity for discrimination, an employee will face liability for such actions. Employers may also adhere to policies that have a discriminatory impact on employees based on sex. Like intentional discrimination, these policies are prohibited in the absence of a business necessity or bona fide occupational qualification.

What is Discriminatory Treatment based upon Sex?

Two important types of discriminatory treatment arise from the employer-employee agency relationship. Employees may act (or fail to act) in a manner that results in discrimination against other employees based upon sex. Sexual Harassment and Hostile Work Environment are two forms of discrimination in which the employer is held liable for the conduct of its employees.

These two types of intentional sexual harassment are discussed in a  separate section.

Other less obvious examples of intentional discrimination under Title VII include:

• Job Classifications – Employers cannot advertise or classify a job listing for only males or females.
• Seniority Lists – Employers cannot keep separate male and female seniority or promotion lists.
• Parenthood – Employers cannot discriminate based upon an employee’s pregnancy or intention to have children.

What is a Bona Fide Occupational Qualification?

In the context of sex-based discrimination, a bona fide occupational qualification means a reasonable cause to believe or a factual basis for believing that all or substantially all women would be unable to perform safely and efficiently the duties of the job involved.

What is a Discriminatory Impact based upon Sex?

 Examples of policies that may have a disparate impact based upon sex include the following:

• Height and Weight Requirements – Height and weight requirements often discriminate against women, who are statistically smaller than men. When these requirements have the effect of screening out applicants of a particular sex, it may be discriminatory. The employer must demonstrate that such requirements are validly related to the ability to perform the work in question (a business necessity).
• Appearance Requirements – Appearance requirements may discriminate against individuals based upon sex, race, religion, etc. Appearance requirements, such as short hair, may negatively impact women who traditionally wear longer hair.