It is illegal under both the Civil Rights Act of 1964 Title VII and the Fair Employment and Housing Act (FEHA), to discriminate on the basis of gender in the terms and conditions of employment. This can include salary, hiring, firing or any other action. With few exceptions, most any defining characteristic of a particular position of employment is considered a “term or condition of employment.” Gender discrimination in the simplest of terms, refers to situations in which an employer treats an individual or group of individual employees differently, based on their gender, be it female or male.
Generally, gender discrimination falls into two categories: “disparate impact” and “disparate treatment”:
- Disparate Treatment. This is simply “different treatment”, and is treating employees differently because of his/her or their sex.
- Disparate Impact. This refers to an employer’s practices or a company’s policy which impacts “differently” on a individual or group of individuals, depending on whether they are male or female.
The employer may not directly intend to discriminate or to have their practices or policies produce a discriminatory effect. One example is in fire departments, where the agencies have requirements relating to physical strength. If, as a result of these requirements there are a disproportionate number of males over females qualifying, and therefore being hired as firefighters, such a practice may be illegal. However, in cases where the degree of physical strength required is absolutely necessary to ensure those hired are physically capable of performing the duties of a firefighter, such policies may be legal, even though it impacts on women differently than men.
Generally, the determining factor in whether a policy that inadvertently excludes an individual or group of individuals based on their sex, is legal or illegal, and whether the policy is sufficiently job-related.