Employment Law Questions? Ask an Employment Lawyer.
1. "Can my employer require walk-in shifts that differ based on position and that do not apply to herself when she is working as an employee of her own company?"
Yes, your employer is allowed to treat different employees differently based on their jobs. She can even treat different employees in the same job differently as long as it is not based on an illegal motivator (like discrimination based on race, gender, religion, age or disability). She can certainly make special rules for herself as owner.
2. "can she require all commissioned employees to clean the spa every day when she will not."
Yes. She is allowed to treat herself differently, even if acting in a role as an employee.
3. "Is this gender bias or discrimination?"
It is gender discrimination. But in this case, it sounds like it is related to a rational business purpose, and as such, it probably is not illegal. If it is a fact that most clients prefer to work with female therapists, then she is allowed to discriminate in that practice. So it is technically gender discrimination, but if it serves a reasonable business purpose, then she is allowed to do it.
I know you want some references to tell her that she is acting
illegally, but she isn't. Sorry, I wish I could tell you otherwise... but I have a responsibility here to give the truth- the correct legal answer, rather than tell you what you hope to hear.
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating based on gender. However, in that same law is the "bona fide occupational qualification" defense, which reads: "Notwithstanding any other provision of this subchapter ... it shall not be an unlawful employment practice for an employer to hire and employ employees ... on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise."
So if the employer can show that it is reasonably necessary for her to run her business, it is allowed. Everything you need is right there in the Act.
You can see the law here: http://www.eeoc.gov/laws/statutes/titlevii.cfm
The section you are looking for is Sec. 2000e-2(a)- employer practices. It reads:
"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; or(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin."
(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; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin."
There is no statutory law that addresses such things. It is part of the "at will" nature of employment. That is, if it is not specifically illegal... it is legal. So that, an employee may treat different employees differently, unless it is for an illegal reason.
This is garnered through the common law (case law), and there won't be a case to support your position. I can't cite a law for you that does not exist.
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