Early this year I joined a new company. As part of the benefits they give to their employees is included a day off, paid by the company, to all female employees for the 8 of March because of the International Woman's Day celebration.
So women employees get one benefit more than men employees, simply because they are women.
I'm curious to understand under what conditions can employees be treated differently differently by the company based on their gender and not be considered discrimination.
In the US, prohibitions against sex discrimination in employment do not include an exception when males are the targets of a discriminatory practice, whatever the underslying rationale may be. The specific language of 42 USC 2000e-2 is
It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin
Although sex discrimination lawsuits are infrequent when the victim is male, extending a beneficial condition of employment to females only would be as illegal as extending a beneficial condition of employment to whites only.
Discrimination in non-government employment settings is defined by statute; what is prohibited or permitted will vary from jurisdiction to jurisdiction.
The BC Human Rights Code says that, in employment, a person must not discriminate against a person regarding employment or any term or condition of employment because of gender identity or expression" (s. 13).
However, s. 42 deems that it is not discrimination to adopt an equity program that "has as its objective the amelioration of conditions of disadvantaged individuals or groups who are disadvantaged because ... sex, sexual orientation, or gender identity or expression." The BC Human Rights Tribunal and the Court of Appeal for British Columbia have both held that such preferential treatment does not require prior approval: see Reid et al. v. Vancouver (City) et al. (No. 5), 2000 BCHRT 30 at para 204; Miller v. The Union of British Columbia Performers, 2022 BCCA 358 at paras. 52, 54, 59.
The question will turn on whether the distinction is:
in the sense that it furthers substantive equality (Miller at para. 58):
... a program that distinguishes between individuals based on a protected ground to ameliorate the conditions of a disadvantaged group furthers substantive equality and is not discriminatory even though such programs necessarily exclude people from other groups. This is because differential treatment in the service of equality for disadvantaged groups is an expression of equality, not an exception that requires exemption. The Court explained that disadvantaged groups are identifiable by their protected characteristics, which connote “vulnerability, prejudice and negative social characterisation”.
This is an inherently fact-specific inquiry that would be left to the assessment of the Human Rights Tribunal absent some error rising to the level of patent unreasonableness.
Is awarding a day off for women employees on 8 March a discrimination against the male employees?
It would be if it was done.
The International Women's Day is not an official public holiday — pretty much like in all the Western world. Even if it was, all employees would have a day off, not only women.
Thus, (not) giving an employee a day off based merely on their sex would be blatant illegal discrimination.
As a side note, a closest thing would be menstrual leave which would not be discrimination based on sex as it would grant leave only to those individuals who actually menstruate (and only when they do; women after certain age & not women by birth excluded). But, this is not a thing in NZ yet either as of writing this answer.
There is “discrimination” and “illegal discrimination”. Paying someone more for working more hours or doing a better job is discrimination, but not only is it not illegal, but expected.
Giving women an additional paid bank holiday is perfectly legal discrimination. The reason you don’t get it is not because you are male, but because you don’t match the bank holiday.
