Sex Discrimination Under Title VII and the Equal Pay Act

• Pages: 117-147
• Author: George Rutherglen

117

Chapter 6

SEX DISCRIMINATION UNDER TITLE

VII AND THE EQUAL PAY ACT

Title VII is the most important federal prohibition against sex

discrimination in employment, but it was not the first. It was

preceded by the Equal Pay Act of 1963,

1

which was enacted by the

same Congress that enacted the Civil Rights Act of 1964. In contrast

to Title VII, the Equal Pay Act prohibits only sex discrimination, only

in compensation, and only when women and men perform equal

work. The interpretation and enforcement of both Title VII and the

Equal Pay Act have been complicated by the history of their

enactment. As noted in Chapter 1, constitutional law did not develop

a general prohibition against sex discrimination until several years

after the enactment of Title VII. This sequence of constitutional law

following statutory law was the reverse of that for racial

discrimination, in which constitutional decisions came first. The

statutory prohibitions against sex discrimination, however, had no

pre-existing basis in constitutional law, raising persistent questions

which have endured to this day: How is the prohibition against sex

discrimination related to the prohibition against racial

discrimination? Is it narrower, or broader, or simply different? Is the

continued existence of sex discrimination as great a problem as

continued racial discrimination? Should the conceptions of equality

that apply to racial discrimination also apply to sex discrimination?

These questions arise most forcefully in interpreting distinctive

statutory provisions that apply only to sex discrimination.

The most apparent of these provisions are in the Equal Pay Act,

with its narrow prohibition against sex discrimination in pay in jobs

involving equal work. The substantive and procedural provisions of

this act are discussed in the first section of this chapter. Proceeding

in chronological order, the next section takes up the consequences of

the enactment of Title VII, and in particular, the relationship

between its broad prohibition against sex discrimination and the

narrow prohibition of the Equal Pay Act. The uncertain relationship

between these prohibitions derives from the unusual way in which

sex was added to Title VII, as an amendment on the floor of the House

of Representatives without any previous consideration by committee.

A third section then considers the general nature of the prohibition

against sex discrimination in Title VII and its interpretation

according to the model of colorblindness in the law of racial

1

29 U.S.C. § 206(d) (2018).

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SEX DISCRIMINATION UNDER TITLE

VII AND THE EQUAL PAY ACT

Ch. 6

discrimination. A formal interpretation according to this model,

barring the consideration of sex in any decision related to

employment, has proved to be surprisingly influential under Title

VII. Nevertheless, the model of colorblindness cannot be applied

literally to sex discrimination, as made clear by the different

treatment of race and sex under Title VII, discussed in the following

sections of this chapter. The first of these discusses the special

provision on discrimination on the basis of pregnancy. The second

examines the exception for “bona fide occupational qualifications” (or

BFOQ) on the basis of sex. A final section discusses the law of sexual

harassment.

In analyzing each of these specific topics, much depends upon

the perspective and conception of equality that is applied to sex

discrimination. Feminist legal theorists began by articulating the

difference between a “sex-blind” conception of equality and a

remedial conception in terms of “difference” rather than “sameness.”

2

Should the goal of sex discrimination law be to achieve the same

treatment of women and men, or as nearly the same as can possibly

be achieved? Or should the goal be to take account of the differences

between women and men and alter the conditions applicable to

women accordingly? Each approach has something to be said for it.

“Sameness” has all the force of the model of racial discrimination and

the consensus in favor of colorblindness as a conception of equality.

If the law prohibits discrimination on the basis of sex, it must require

blindness with respect to sex, just as it does with respect to race.

“Difference,” however, has the advantage of recognizing the

significant biological differences between the sexes and the social

differences constructed upon them—which are perhaps even more

important. A perspective based on difference also recognizes the

limitations, discussed in previous chapters, of a purely colorblind

conception of equality. Simply prohibiting further consideration of

sex risks leaving women with the disadvantages they have always

had because of their past exclusion from employment.

More recent discussions in feminist theory have sought to go

beyond the debate between “sameness” and “difference,” inquiring

more closely into the reasons why women have not participated fully

in public life, including employment. Advocates of “dominance”

explanations for the subordinate place of women, led by Catharine

MacKinnon, argue that the categories of sameness and difference

both have resulted from the dominant status of men and that

adopting either category as the basis for reform only reinforces the

2

The range of feminist theories has been summarized in various ways. For a

representative sample, see Deborah L. Rhode, Justice and Gender: Sex Discrimination

and the Law 305–17 (1989); Cass Sunstein, Introduction: Notes on Feminist Political

Thought, 99 Ethics 219 (1989).