Current through Register Vol. 49, No. 18, September 16, 2024
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;
profit-sharing 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.
*Original authority: 213.030, RSMo 1959, amended 1978,
1986, 1992, 1993, 1995, 1998.
