HUH?
timberlandko wrote:Don't like this law, elect legislators who will change it. Its a free country. However, changin' this particular law would require a Constitutional Ammendment ... one which would be in conflict with a number of already guaranteed and considered-sacred rights - the First and Fourteenth Ammendments leap immediately to mind.
You're wrong. We don't need to amend the Constitution. A private employer does not have a protected liberty interest under the First Amendment nor the Fourteenth Amendment to discriminate in employment decisions against qualified individuals based on race, color, religion,
sex, or national origin.
Congress passed Title VII of the Civil Rights Act of 1964 which prohibits employment discrimination based on race, color, religion, sex, or national origin.
The Ninth Circuit ruled that the plaintiff did not state a claim under Title VII -- that her employer's requirement that female employees wear make up as a condition of employment was NOT sex discrimination in violation of Title VII.
But See
PRICE WATERHOUSE v. HOPKINS, 490 U.S. 228 (1989).
Quote:To improve her chances for partnership, Hopkins was advised that she should "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry."
In passing Title VII, Congress made the simple but momentous announcement that sex, race, religion, and national origin are not relevant to the selection, evaluation, or compensation of employees. 3 Yet, the statute does not purport to limit the other qualities and characteristics that employers may take into account in making employment decisions. The converse, therefore, of "for cause" legislation, 4 Title VII eliminates certain bases for distinguishing among employees while otherwise preserving employers' freedom of choice. This balance between employee rights and employer prerogatives turns out to be decisive in the case before us.
Congress' intent to forbid employers to take gender into account in making employment decisions appears on the face of the statute. In now-familiar language, the statute forbids [490 U.S. 228, 240] an employer to "fail or refuse to hire or to discharge any individual, or otherwise to discriminate with respect to his compensation, terms, conditions, or privileges of employment," or to "limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's . . . sex." 42 U.S.C. 2000e-2(a)(1), (2) (emphasis added). 5 We take these words to mean that gender must be irrelevant to employment decisions.
The critical inquiry, the one commanded by the words of 703(a)(1), is whether gender was a factor in the employment decision at the moment it was made.
Our interpretation of the words "because of" also is supported by the fact that Title VII does identify one circumstance in which an employer may take gender into account in making an employment decision, namely, when gender is a "bona fide occupational qualification [(BFOQ)] reasonably necessary to the normal operation of th[e] particular business or enterprise." 42 U.S.C. 2000e-2(e). The only plausible inference to draw from this provision is that, in all other circumstances, a person's gender may not be considered in making decisions that affect her. Indeed, Title VII even forbids employers to make gender an indirect stumbling block to employment opportunities. An employer may not, we have held, condition employment opportunities on the satisfaction of facially neutral tests or qualifications that have a disproportionate, adverse impact on members of protected groups when those tests or qualifications are not required for performance of the job. See Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988); Griggs v. Duke Power Co., 401 U.S. 424 (1971). . . .
In saying that gender played a motivating part in an employment decision, we mean that, if we asked the employer at the moment of the decision what its reasons were and if we received a truthful response, one of those reasons would be that the applicant or employee was a woman. 13 In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.
Although the parties do not overtly dispute this last proposition, the placement by Price Waterhouse of "sex stereotyping" in quotation marks throughout its brief seems to us an insinuation either that such stereotyping was not present in this case or that it lacks legal relevance. We reject both possibilities.
GENDER is most certainly factor in an employment decision when the employer conditions a female employee's employment on wearing cosmetics -- foundation, blush, mascara, and lip color. The requirement that a woman wear make-up or lose her job is NOT a facially neutral qualification for the job -- and that's where the Ninth Circuit went wrong in its decision. The Ninth Circuit treated this as a "disparate impact" case when it wasn't a disparate impact case. The employer made an employment decision based on GENDER and acted on the basis of a belief that a woman cannot successfully mix, pour, or sell drinks to customers unless she wears make up. This is unlawful sex stereotyping.
Contrary to Timber's assertion, we don't need to AMEND the Constitution in order to extend protections to women against employment discrimination. We just need to enforce the laws that are on the books.
Stumble It!
Tweet This
Bookmark on Delicious
Share on Facebook
Share on MySpace