Sex Discrimination Under Title VII and the Equal Pay Act

• Pages: 115-146
• Author: George A. Rutherglen

115

Chapter 6

SEX DISCRIMINATION UNDER TITLE

VII AND THE EQUAL PAY ACT

Title VII is the most imp ortant federal prohibition against sex

discrimination in employ ment, but it was not th e 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 e nforcement 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 proh ibitions against sex discrimination, however, had no

pre-existing basis in constitutional law, raising persistent quest ions

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 raci al discrimination also apply to sex discrimination?

These questions arise most forcefully in inte rpreting 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 j obs

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 par ticular, the relationship

between its broad prohibition against sex discrimination and the

narrow prohibition of the Equal Pay Act. The unce rtain 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 inte rpretation

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 follo wing

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 to pics, much depends upon

the perspective and conception o f equality that is applied to sex

discrimination. Feminist legal theorists began by articulating the

difference between a “sex-blind” conce ption 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 acco unt 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 differe nces 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 th ey 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 “differe nce,” 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 do minant 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).

Ch. 6

SEX DISCRIMINATION UNDER TITLE

VII AND THE EQUAL PAY ACT

117

current status of w omen.

3

Either women are held to the same

standards as men, despite the fact that these standards were set with

only men in mind, or they are held to different standards, which leave

them with jobs carrying less prestige and lower pay. Other advocates

of an alternative approach have relied on the psychological theories

of Carol Gilligan, arguing that the unique exp eriences and attitudes

of women support a greater emphasis on responsibility and less on

rights and legal rules.

4

Sometimes this approach is framed in terms

of women’s stronger connections to other people, through experiences

such as motherhood. It is the characteristic attitudes of women, on

this view, that current employment practice s fail to take into

account, leaving women at a systematic disadvantage in

individualistic and competitive labor markets. In the terms used in

Chapter 2, all of these approaches expand upon a remedial

perspective and seek to give a stronger foundation for women’s claims

than a “difference” viewpoint that seems to take biological and

cultural differences at face value.

Feminist theories have concentrated on adapting the reme dial

perspective to the distinctive situation of women. The only similar

debate with respect to race has concerned affirmative action, an issue

that has not stood out, either on the agenda of women’s gro ups or in

the law of sex discrimination. In part, this difference is attributable

to the relative ease with which women have gained access to higher

education under neutral standards of admission. The academic

success of women, comprising now a majority of students enrolled in

colleges and universities, has greatly increased their opportunities

for employme nt. Other impediments to full equality of opportunity

still persist, such as the concentration of women in some occupations,

their exclusion from others, and the “glass ceiling” on their promotion

to higher level jobs, but proposals to remedy these problems have not

emphasized affirmative action as the solution. A more profound

difference between race and sex concerns the role that women have

traditionally taken in family life, beginning with pregnancy and

childbirth and extending through childrearing and housekee ping.

Adjusting the demands of employment to these aspects of family life

requires alteration o f the remedial conception of equality developed

for race.

In contrast to the debates over how the remedial perspective

applies to sex discrimin ation, the economic perspe ctive remains

largely unchanged when it is applied to sex. In its usual formulation,

the economic perspective emphasizes merit as determined by the

3

Catharine A. MacKinnon, Feminism Unmodified: Discourses on Life and

Law 42 (1987).

4

For a discussion of these views, see Mary Becker, Patriarchy and Inequality:

Towards a Substantive Feminism, 1999 U. Chi. Legal F. 21, 40–49.