National Guidelines in the United States - Discrimination because of Sex

Equal Employment Opportunity Commission's Guidelines of Discrimination because of Sex

These Guidelines deal with the question of sex as a bona fide occupational qualification (Section 1604.2). The Commission believes that this exception must be interpreted narrowly. For example, the following would not warrant the application of the bona fide occupational qualification exception:

• The refusal to hire a woman because of her sex based on assumptions on the comparative employment characteristics of women in general. For example, the assumption that the turnover rate among women is higher than among men.
• The refusal to hire an individual based on stereotyped characterizations of the sexes. Such stereotypes include, for example, that men are less capable of assembling intricate equipment or that women are less capable of aggressive salesmanship. The principle of nondiscrimination requires that individuals be considered on the basis of individual capacities and not on the basis of any characteristics generally attributed to the group.
• The refusal to hire an individual because of the preferences of co-workers, the employer, clients or customers (except as covered by an exception in paragraph 1604.2(a)(2) of the Guide).

According to Section 1604.3, it is also unlawful to classify a job as "male" or "female" or to maintain separate lines of progression or separate seniority lists based on sex where this would adversely affect any employee.

Section 1604.4 reiterates that an employer’s rule which forbids or restricts the employment of married women and which is not applicable to married men is discrimination based on sex prohibited by title VII of the Civil Rights Act of 1964.

Likewise, Section 1604.5 prohibits a help-wanted advertisement that indicates a preference, limitation, specification, or discrimination based on sex unless sex is a bona fide occupational qualification for the job involved. It is also unlawful for an employer to discriminate between men and women with regard to fringe benefits (Section 1604.9). Similarly, a written or unwritten employment policy or practice which excludes as employment applicants or employees because of pregnancy, childbirth or related medical conditions is in prima facie violation of title VII of the Civil Rights Act (Section 1604.10).

Employment agencies must also be careful not to discriminate in any way against any individual because of sex (Section 1604.6).

Finally, the whole of Section 1604.11 is dedicated to sexual harassment, which is a violation of Section 703 of title VII of the Civil Rights Act. Sexual harassment is defined as unwelcome sexual advances, requests for sexual favours, and other verbal or physical conduct of a sexual nature, when:

• submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment; or,
• submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or,
• such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

Equal Employment Opportunity Commission's Uniform Guidelines on Employee Selection Procedures

The Guidelines provide that employer policies or practices, which have an adverse impact on employment opportunities or any race, sex or ethnic group, are illegal unless justified by business necessity.