Employment Practices Related to Men and Women

PURPOSE: The Missouri Commission on Human Rights has the authority to formulate policies to effectuate the purposes of Chapter 213, RSMo (1986). This rule sets forth guidelines and interpretations governing, but not limited to, the major aspects of employment practices in relation to sex. (1) References to employer(s) in these rules state principles that are applicable not only to employers but also to labor organizations and to employment agencies insofar as their action or inaction may adversely affect employment opportunities, as defined in the Missouri Fair Employment Practices Act, Chapter 213, RSMo (1986). (2) The bona fide occupational qualification exception as to sex is strictly and narrowly construed. Labels-men’s jobs and women’s jobs-tend to deny employment opportunities unnecessarily to one sex or the other. (A) The following situations do not warrant the application of the bona fide occupational qualification exception: 1. The refusal to hire a woman because of her sex based on assumptions of the comparative employment characteristics of women in general. For example, the assumption that the turnover rate among women is higher than among men; 2. The refusal to hire an individual based on stereotyped characterizations of the sexes. These stereotypes include, for example, that men are less capable of assembling intricate equipment; 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; and 3. The refusal to hire an individual because of the preferences of coworkers, the employer, clients or customers. (3) Employers engaged in recruiting activity must recruit employees of both sexes for all jobs unless sex is a bona fide occupational qualification. (4) Advertisement in newspapers and other media for employment must not express a sex preference, unless sex is a bona fide occupational qualification for the job. The placement of an advertisement in columns headed male or female will be considered an expression of a preference limitation, specification or discrimination based on sex. (5) Section 213.055, RSMo (1986) specifically states that it shall be unlawful for an employment agency to discriminate against any individual because of sex. Private employment agencies which deal exclusively with one sex are engaged in an unlawful employment practice, except to the extent that those agencies limit their services to furnishing employees for particular jobs for which sex is a bona fide occupational qualification. (A) An employment agency that receives a job order containing an unlawful sex specification will share responsibility with the employer placing the job order if the agency fills the order knowing that the sex specification is not based upon a bona fide occupational qualification. However, an employment agency is not in violation of the law, regardless of the determination as to the employer, if the agency does not have reason to believe that the employer’s claim of bona fide occupational qualification is without substance and the agency makes and maintains a written record available to the commission of each job order. This record shall include the name of the employer, the description of the job and the basis for the employer’s claim of a bona fide occupational qualification. (B) It is the responsibility of employment agencies to keep informed of opinions and decisions of the commission on sex discrimination. (6) A preemployment inquiry may ask male—, female—, or Mr., Mrs. Or Miss, provided that the inquiry is made in good faith for nondiscriminatory purpose. Any pre-employment inquiry in connection with prospective employment which expresses directly or indirectly any limitation, specification or discrimination as to sex shall be unlawful unless based upon a bona fide occupational qualification. (7) Written personnel policies relating to job policies and practices must expressly indicate that there shall be no discrimination against employees on account of sex. If the employer deals with a bargaining representative for his/her employees and there is a written agreement on conditions of employment, this agreement shall not be inconsistent with these rules. (8) Employees of both sexes shall have an equal opportunity to any available job that s/he is qualified to perform unless sex is a bona fide occupational qualification. (9) No employer shall make any distinction based upon sex in employment opportunities, wages, hours or other conditions of employment. In the area of employer contributions for insurance, pensions, welfare programs and other similar fringe benefits, the employer will not violate these rules if benefits are equal for men and women. (10) Any distinction between married and unmarried persons of one sex that is not made between married and unmarried persons of the opposite sex will be considered to be a distinction made on the basis of sex. Similarly, an employer must not deny employment to women with young children unless it has the same exclusionary policies for men; or terminate an employee of one sex in a particular job classification upon reaching a certain age unless the same rule is applicable to members of the opposite sex. (11) The employer’s policies and practices must assure the appropriate physical facilities to both sexes. The employer may not refuse to hire men or women or deny men or women a particular job because there are no restrooms or associated facilities. (12) An employer must not deny a female employee the right to any job she is qualified to perform. For example, an employer’s rules cannot bar a woman from a job that would require more than a certain number of hours or from working at jobs that require lifting or carrying more than designated weights. (13) It is an unlawful practice 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 unless sex is a bona fide occupational qualification for that job. Accordingly, employment practices are unlawful which arbitrarily classify jobs so that— (A) A female is prohibited from applying for a job labeled male or for a job in a male line of progression and vice versa; (B) A male scheduled for layoff is prohibited from displacing a less senior female on a female seniority list and vice versa; and (C) A seniority system or line of progression which distinguishes between light and heavy jobs constitutes an unlawful employment practice if it operates as a disguised form of classification by sex or creates unreasonable obstacles to the advancement by members of either sex. (14) The employer’s wage schedules must not be related to or based on the sex of the employees; and the employer may not discriminatorily restrict one sex to certain job classifications. The employer must take steps to make jobs available to all qualified employees in all classifications without regard to sex. (15) Fringe benefits, as used in this rule, include medical, hospital, accident, life insurance and retirement benefits; profitsharing and bonus plans; leave; and other terms, conditions and privileges of employment. (A) It shall be an unlawful employment practice for an employer to discriminate between men and women with regard to fringe benefits. (B) Where an employer conditions benefits available to employees and their spouses and families on whether the employee is the head of the household or principal wage earner in the family unit, the benefits tend to be available only to male employees and their families. Due to the fact that conditioning discriminatorily affects the rights of women employees, and that head of household or principal wage earner status bears no relationship to job performance, benefits which are so conditioned will be found in a prima facie violation of the prohibitions against sex discrimination contained in the act. (C) It shall be an unlawful employment practice for an employer to make available benefits for the wives and families of male employees where the same benefits are not made available for the husbands and families of female employees; or to make available benefits for the wives of male employees which are not available for female employees; or to make available benefits to the husbands of female employees which are not made available for male employees. (D) It shall not be a defense under Chapter 213, RSMo (1986) to a charge of sex discrimination in benefits that the cost of benefits is greater with respect to one sex than the other. (16) A written or unwritten employment policy or practice which excludes from employment applicants or employees because of pregnancy is in prima facie violation of Chapter 213, RSMo (1986) and may be justified only upon showing of business necessity. (A) Disabilities caused or contributed to by pregnancy, miscarriage, legal abortion, childbirth and recovery are, for all job-related purposes, temporary disabilities and should be treated as such under any health or temporary disability insurance or sick leave plan available in connection with employment. Written or unwritten employment policies and practices involving matters such as the commencement and duration of leave, the availability of extensions, the accrual of seniority and other benefits and privileges, reinstatement and payment under any health or temporary disability insurance or sick leave, plan, formal or informal, shall be applied to disability due to pregnancy or childbirth on the same terms and conditions as they are applied to other temporary disabilities. (B) Where the termination of a temporarily disabled employee is caused by an employment policy under which insufficient or no leave is available, this termination violates the act if it has a disparate impact on employees of one sex and is not justified by a business necessity. (17) Harassment on the basis of sex is a violation of Chapter 213, RSMo. (A) Unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature constitute sexual harassment when— 1. Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment; 2. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting the individual; or 3. Such conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment. (B) In determining whether alleged conduct constitutes sexual harassment, the commission will look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will be made from the facts, on a case-by-case basis. (C) Applying general principles of Chapter 213, RSMo, an employer, employment agency, joint apprenticeship committee or labor organization (hereinafter collectively referred to as employer) is responsible for its acts and those of its agents, employees and supervisory employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized or even forbidden by the employer if the employer knew or should have known of their occurrence. (D) An employer is subject to vicarious liability to a victimized employee with respect to sexual harassment by a supervisor with immediate (or successively higher) authority over an employee or other supervisor who the employee reasonably believes has the ability to significantly influence employment decisions affecting him or her even if the harasser is outside the employee’s chain of command. 1. When no tangible employment action is taken, an employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence. The defense comprises two necessary elements: a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and b) that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. 2. No affirmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action. 3. A tangible employment action is a significant change in employment status. It is the means by which the supervisor brings official power of the enterprise to bear on subordinates, as demonstrated by the following: it requires an official act of the enterprise; it usually is documented in official company records; it may be subject to review by higher level supervisors; and it often requires the formal approval of the enterprise and use of its internal processes. A tangible employment action usually inflicts direct economic harm. 4. Examples of tangible employment actions include but are not limited to: hiring and firing; promotion and failure to promote; demotion; undesirable reassignment; a decision causing a significant change in benefits; compensation decisions; and work assignments. 5. The commission will examine the circumstances of the particular employment relationship and the job functions performed by the individual in determining whether an individual acts in a supervisory capacity with immediate (or successively higher) authority over an employee or is another supervisor who the employee reasonably believes has the ability to significantly influence employment decisions affecting him or her even if the harasser is outside the employee’s chain of command. AUTHORITY: section 213.030(6), RSMo 2000.* This rule was previously filed as 4 CSR 180-3.040. Original rule filed Oct. 31, 1973, effective Nov. 10, 1973. Amended: Filed July 1, 1980, effective Nov. 13, 1980. Emergency amendment filed Sept. 17, 1999, effective Sept. 27, 1999, terminated Dec. 29, 1999. Amended Filed Dec. 28, 2000, effective June 30, 2001. *Original authority: 213.030, RSMo 1959, amended 1978, 1986, 1992, 1993, 1995, 1998.