The prohibition of sex discrimination covers both females and males, but the origin of the law was to protect women in the workplace and that is its main emphasis today. This discrimination occurs when the sex of the worker is made a condition of employment (such as only male waiters or carpenters) or where there is a job requirement that does not mention sex but ends up barring many more persons of one sex than the other from the job (such as height and weight limits).
There are a number of special categories where employer rules have been found to discriminate due to sex. These include separate lines of promotion or seniority for women, payment of different wages for the same work, and different pension and fringe benefits. Employer rules barring women from certain jobs based on their marital status or the fact that they have minor children to care for, or treating women differently from men when involved in workplace affairs or extramarital relations are all illegal.
Pregnancy is protected separately by rules that bar mandatory leave policies that require women to take leave at a predetermined time before their delivery date, or an employer’s refusal to grant leave when required under doctor’s orders where such leave would be granted for other medical problems to males on a doctor’s order. Any policy that adversely affects pregnant women or puts them in a different category, such as limiting their job or promotion opportunities upon becoming pregnant, is a violation.
In viewing the discrimination rules mentioned above, the employer can raise a defense that the rules were required because of a business necessity, such as the fact that a certain size or degree of strength is necessary, or a person of a certain sex is necessary because they must work in the theater, or in a dressing room of the same sex. If these defenses are raised, it is up to the employer to carry the burden of proving that they are real, and not just an excuse for sex discrimination. This has become a very high burden and most jobs are now open to both sexes under the law.
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