Employment Law/Query

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QUESTION: Good day
I wanted to find out if a women's owned company has the ability to hire only women. In other words does it being women owned give it the ability to hire only women and exclude men?
Are there any laws saying that a women's owned company must hire men?
S. Mahabir

ANSWER: S. Mahabir:  Unless the entity falls within the very limited classification of a religious institution, it is subject to the same anti-discrimination laws as every other business in this country.  Discrimination on the basis of gender is illegal, unless the employer can show that it is a religious necessity.  Obviously, qualifications count, but a qualified individual should be assessed on his or her merits, not on gender.  There are no laws saying a woman-owned company must hire men; there are laws saying no company cannot discriminate against men or women because they fall into the male or female category.

---------- FOLLOW-UP ----------

QUESTION: Thanks for the answer.
With reference to merit I know that there are certain professions that men are better equipped for and others women are better equipped for. For example men are better at math & science (history of technological development and advancements prove this), work that involves greater physical strength (because the majority are physically stronger- not all though). Then women are better at certain professions. For example nursing (because they have been mothers and played the care giving role throughout history) and other professions like interior design etc...
Does the law take this fact into consideration?
Also how does one prove merit in any profession? Is there an objective and quantifiable way to demonstrate merit because I believe that alot of hring is based upon preferences and likes.
How does either sex challenge an employer when he or she does not get a job and they believe that they were better qualified.

Answer
Dear S. Mahabir:

Discrimination has to be based on evidence, which often boils down to statistics.  Absent concrete evidence, like a statement in front of witnesses that someone is not being hired due to the suspect classification, the usual way of proving discrimination is by showing that the company has a history of not hiring certain kinds of employees.  If, for example, a company of twenty people has only white employees in an area with a significant minority population, it would be reasonable to conclude that racial discrimination is taking place.  

Qualifications can be subjective.  Factors like who will fit into the office can be taken into account, barring discriminatory assumptions.  So can answers to hypothetical questions, past experience, and personality.  Better qualified can be in the eye of the beholder.

The law does not take into consideration the so-called gender differences you list.  It might find, for example, that rape counselors can be restricted to women simply by virtue of the nature of the victims and the crime, although even that I would not bet on.  

If you think you have been discriminated against, you should seek out an employment lawyer and discuss the case with him or her.  That person will tell you whether you have a winnable case or not.

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Margaret M. deMarteleire

Expertise

I can answer most questions about employment law, federal or state. I am an attorney, not an HR professional, so questions about HR careers, coursework, prospects, etc. are not within my scope.

Experience

Attorney for 20 years, currently working exclusively with employment law - FLSA, FMLA, federal contracts, pay, etc.

Education/Credentials
Temple University School of Liberal Arts, BA, Rhetoric & Communication, 1982 Temple University School of Law, JD, 1990 Certificate in HR, Cornell University ILR School, 2006

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