Troy P. Foster and Stephanie M. Cerasano, Editors
Ford & Harrison LLP

Vol. 15, No. 2
July 2008

SEX DISCRIMINATION

We've come a long way, ladies!

It's hard to believe there was a time when women in the workplace were a novelty ― somewhat like the bearded lady at the circus. But women weren't a regular feature in the workplace until World War II depleted the country's male workforce and women were needed to fill the void. While women have been assimilated into the workplace for 65 years, back in the 1940s, they were quite a novelty. Frankly, ladies, the men just didn't know what to do with us.

To illustrate my point, I'd like to share with you "Eleven Tips on Getting More Efficiency Out of Women Employees," published by Mass Transportation magazine in July 1943. Our comments follow the tips and explain why today's employers should either use caution in following them or not follow them at all.

Take this advice with a grain of salt

1. If you can get them, pick young married women. According to the article, young married women are more responsible than unmarried women and are less likely to be flirtatious. Plus, they obviously need the work or else they wouldn't be doing it. While that's an interesting theory, that kind of logic today will get you in a heap of trouble. You should never ask applicants about or make decisions based on their marital status ― unless you're looking for a sex discrimination lawsuit!

2. When older women are needed, try to get ones who have worked outside the home. The theory is that older women have a harder time adapting themselves to the workplace and can be "cantankerous and fussy." Perhaps they're cantankerous because you're discriminating against them based on their age. Need I say more?

3. "Husky" girls are more even-tempered and efficient than their underweight sisters. This is one of my favorites (possibly because I am, by this definition, quite even-tempered myself). Employers, beware: Placing weight restrictions on female applicants will get you hit with a sex discrimination claim (and potentially an Americans with Disabilities Act case if the applicant is severely obese), especially if the skinny men can still apply!

4. Have a physician give each woman a special physical examination ― to cover female conditions. According to the magazine, conducting a medical exam can uncover whether the applicant has any "female weaknesses that would make her mentally or physically unfit for the job." Hmmm ― women regarded as mentally disabled simply because they are women. I don't want to get stuck defending that lawsuit!

5. In "breaking in" women who haven't previously worked, stress the importance of time. See response to tip 4. Women are not inherently mentally disabled and can tell time just as well as men. Should you decide to hold women accountable for every minute, you had better be doing the same with the men.

6. Give the female employee a daylong schedule of duties. According to the rule, the purpose of the daylong schedule is to keep the employee busy and prevent her from "bothering management for instructions every few minutes." The magazine goes on to say that women can make excellent workers if you give them specific instructions, but they lack initiative for finding work on their own. I predict that you likely have just as many male employees who suffer from this defect. Just make sure you're treating both male and female employees consistently with regard to scheduling duties.

7. Let the female employee change jobs throughout the day. The author of this rule claims the changeup is necessary because women are inclined to be nervous and are happier with change. Apparently, in 1943, it was common to treat female employees like caged hamsters. If you adhere to this practice today, you'd better have a lot of insurance ― and a small deductible! Today's employers should be placing employees in jobs based on their qualifications and nothing else.

8. Give every girl an adequate number of rest periods during the day. According to the magazine, employers need to allow for "feminine psychology" because ― and this is a direct quote ― "a girl has more confidence and consequently is more efficient if she can keep her hair tidied, apply fresh lipstick, and wash her hands several times a day." Try telling that to the male employee who doesn't get the breaks that the females get, and see how well that sits with the jury at his sex discrimination trial.

9. Be tactful in issuing instructions or making criticisms. The idea here is that we sensitive women can't shrug off the harsh words like men can, and ridiculing us breaks our spirit and affects our efficiency. To be safe, I suggest you treat all your employees tactfully, and you will do just fine.

10. Be considerate about using strong language around women.According to the rule, women tend to dislike a place of business where too much strong language is used. These days, women can generally dish out "strong language" just as well as the men. However, for obvious reasons, you should have policies in place that prohibit vulgar language from any employee to limit harassment and discrimination complaints.

11. Get enough size variety in operator uniforms so that each girl can have a proper fit. Apparently, this is one of the best ways to keep women happy (along with allowing extra time for tidying and prettying), even though it's inconsistent with the idea that employers should be trying to hire the hefty girls. At any rate, I think it goes without saying that all employees, not just women, should fit comfortably into their uniforms.

Wrap-up

I hope our "modern tips" have been helpful. If you're still following the original 11 tips, however, it's time to get your handbook updated and possibly take a refresher discrimination course!

You can find sample language for creating your employee handbook in the subscribers' area of www.HRhero.com, the website for Arizona Employment Law Letter. Just log in, scroll down to HR Tools, and click on "Sample Policies & Procedures." If you need help, call customer service at (800) 274-6774.

Copyright 2008 M. Lee Smith Publishers LLC

ARIZONA EMPLOYMENT LAW LETTER should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only. Anyone needing specific legal advice should consult an attorney. For further information about the content of any article in this newsletter, please contact any of the editors.