Gender Still Matters: a Primer on Gender Discrimination Law
| Publication year | 2012 |
| Pages | 33 |
| Citation | Vol. 41 No. 10 Pg. 33 |
2012, October, Pg. 33. Gender Still Matters: A Primer on Gender Discrimination Law
October 2012
Vol. 41, No. 10 [Page33]
About the Authors
Susan P. Klopman is a Shareholder in the Employment Group at Brownstein Hyatt Farber Schreck, LLP. She advises union and non-union employers on all aspects of employment law and provides strategic litigation defense in both state and federal courts-sklopman@bhfs.com. Sangeetha Mallavarapu is an Associate in the Employment Group at Brownstein Hyatt Farber Schreck, LLP- smallavarapu@bhsf.com.
Written for employment and non-employment lawyers alike, this article provides an overview of disparate treatment gender discrimination under Title VII of the Civil Rights Act. The focus is on definitions of sex and gender, as well as sex stereotyping and sex-plus theories.
Federal law has prohibited discrimination against women because of their gender for nearly five decades. Sex discrimination jurisprudence has defined the workplace landscape and opened workplace doors during these years. Today, women make up roughly 47% of the workforce in the United States, and in almost 66% of families, women are the primary or co-primary breadwinner.(fn1) These statistics do not mean there is gender parity in the workplace, however.(fn2) In Colorado, where more than 208,000 households are headed by women, women earn approximately 79 cents for every dollar paid to men (and far less if the woman is African American or Latina).(fn3) Additionally, according to the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency charged with interpreting and enforcing Title VII of the Civil Rights Act (Title VII), more women are choosing to work during pregnancy and "[d]espite the passage of the Pregnancy Discrimination Act more than 30 years ago, women still often face demotions, prejudice, and even job loss when they become pregnant."(fn4)
This article summarizes the law and legal theories applicable to disparate treatment gender discrimination claims brought under Title VII and examines the evolution of how the term "sex" has been defined by courts over the years. The article also discusses the EEOC's 2012 opinion concluding that transgendered persons are covered by Title VII's gender discrimination prohibitions.
Title VII of the Civil Rights Act of 1964
Title VII is a standalone title of the Civil Rights Act of 1964 that prohibits discrimination by public and private employers, labor organizations, and employment agencies against certain groups of individuals, known as "protected classes."(fn5) Gender is one such protected class. Specifically, Title VII makes it unlawful to:
fail or refuse to hire or to discharge any individual, or to otherwise discriminate against any individual with respect to his [or her] compensation, terms, conditions or privileges of employment, because of such individual's . . . sex; [and] limit, segregate, or classify 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 [or her] status as an employee because of such individual's . . . sex.(fn6)
History of Sex Discrimination
The prohibition on sex discrimination began as something that today might be considered a politically improvised explosive device. The day before the Civil Rights Act of 1964 was due to pass in Congress, a representative introduced a new concept into the mix: discrimination "because of sex." His goal in inserting the then controversial phrase was to divide Congressional alignments and, hence, kill the Act.(fn7) Instead, the Act was passed without debate on the meaning of "sex."(fn8) Consequently, the phrases "because of sex" or "on the basis of sex" were not defined by Title VII. Since that time, courts have interpreted the boundaries of sex discrimination largely without legislative intent.
Over the years, Congress has course-corrected the Judicial Branch several times, twice involving issues of sex discrimination.(fn9) In 1978, Congress adopted the Pregnancy Discrimination Act (PDA) to expand Title VII's reach to pregnant women, women who recently have given birth, and women who have "related medical conditions."(fn10) In 2009, the Lilly Ledbetter Fair Pay Act clarified that wage or benefits discrimination is triggered under one of three circumstances: (1) when the compensation policy or practice is adopted; (2) when an individual becomes subject to the policy or practice; and (3) when "an individual is affected by the application of the discriminatory compensation decision, . . . including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice."(fn11)
Definitions of "Sex" in Sex Discrimination
Against this backdrop of minimal to no legislative guidance, courts have held that the term "sex" applies to both men and women.(fn12) In this context, "sex" traditionally is seen as a person's biological sex.(fn13) The PDA later amended the definition, so that "sex" in Title VII now expressly includes, but is "not limited to, because of or on the basis of pregnancy, childbirth or related medical conditions."(fn14) By this definition, "related medical conditions" can include abortions and in vitro fertilization.(fn15)
In 1989, in the oft-quoted U.S. Supreme Court case of Price Waterhouse v. Hopkins, the phrase "because of sex" came to refer to something more than one's biological sex.(fn16 )The Price Waterhouse Court expanded "sex" to include social constructs of gender.(fn17) Because gender can be defined as "socially constructed norms associated with a person's sex," sex discrimination...
To continue reading
Request your trial