Sexual Discrimination and Orientation
| Author | Jeffrey Wilson |
| Pages | 259-264 |
Page 259
"Remember the ladies," stated Abigail Adams to her husband John in 1776 while he was helping to draft the Declaration of Independence. Unfortunately, throughout most of American history, the ladies were not remembered when it came to laws, as women were treated at best as second-class citizens and at worst as the virtual property of their husbands. U. S. law has witnessed a gender revolution, starting with the passage of the Equal Pay Act in 1963. In the process, areas of the law that had never existed before, such as sexual harassment litigation, were articulated and applied.
Six years after the Equal Pay Act was passed, riots at the Stonewall Inn in New York City began the gay rights movement. Legally, homosexuals were barely recognized by the law except in anti-sodomy rules virtually every state possessed. Today, gay rights are at the cutting edge of sexual discrimination law, an area both unsettled and controversial. Sexual discrimination law advanced a long way in the latter half of the twentieth century. How much more it will advance remains an interesting question.
Discrimination on the basis of sex was first addressed in federal law in the Equal Pay Act of 1963. Since that act was passed, several other laws affecting the rights of women have been enacted. They include:
Title VII of the Civil Rights Act of 1964
The Civil Rights Act of 1991, which expanded some of the protections granted by Title VII
Title IX of the Education Amendments of 1972 (Title IX)
The Pregnancy Discrimination Act of 1978
The Family and Medical Leave Act of 1993
The Equal Pay Act, passed in 1963, was the first law to address gender inequality in the workplace and
Page 260
one of the first laws to benefit women explicitly since they gained the right to vote earlier in the century. The Equal Pay Act guaranteed equal pay for equal work for men and women. For the act to take effect, men and women must be employed under similar working conditions, and equal is defined as "equal skill, effort and responsibility." Overtime and travel are included among the provisions of the act.
The Equal Pay Act is part of the Fair Labor Standards Act, although it is unlike the other parts of the act in that there are no exceptions for executive, administrative, professional employees, or outside salespeople. But the Equal Pay Act contains the same business exceptions as the Fair Labor Standards Act and covers only employees "engaged in commerce." In practice, this law applies to vast majority of businesses in the country.
There are four affirmative defenses to the Equal Pay Act: merit, production, seniority, and "factor other than sex." The most litigated of these defenses is the "factor other than sex" because of the ambiguous nature of the clause. For example, prior wages, profitability of the company, and evaluation of a personal interview have all been held to be a factor other than sex justifying pay discrepancies between men and women under the Equal Pay Act.
Title VII, passed in 1964, is arguably the most important legislation protecting the equality of women in the workplace. Title VII, which was originally proposed as an anti-racial discrimination bill, included sex as a protected class largely as an afterthought. The amendment adding the term sex was proposed by a conservative legislator from Virginia, probably as a way of scuttling the whole bill. Despite this, Title VII passed with its protections against sexual discrimination intact.
Title VII prohibits discrimination by employers, employment agencies, and labor organizations with 15 or more full-time employees on the basis of race, color, religion, sex, or national origin. It applies to pre-interview advertising, interviewing, hiring, discharge, compensation, promotion, classification, training, apprenticeships, referrals for employment, union membership, terms, working conditions, working atmosphere, seniority, reassignment, and all other "privileges of employment."
The operative question in a Title VII sex discrimination case is whether the litigant has suffered unequal treatment because of his or her sex. Courts look at whether the disparate treatment of the employee was sex-related. If it was, it is actionable under Title VII unless the employer uses an affirmative defense; if not, it is not actionable.
Affirmative defenses under Title VII include all of the affirmative defenses under the Equal Pay Act. In addition, defenses include situations in which sex is a bona fide occupational requirement (BFOQ) for the job; when sex discrimination occurs as a result of adhering to a bona fide seniority system (unless the system perpetuates past effects of sex discrimination); or when sex discrimination is justified by "business necessity."
When employers assert a mixed motive under Title VII, that is, the action taken against the employee has both an discriminatory and nondiscriminatory reason, the employer must prove by a preponderance of the evidence the employment decision would have been made absent the discriminatory factors.
Plaintiffs can also sue under Title VII using a theory of "disparate impact" that is, showing that while an employment decision or policy is not discriminatory on its face, it has resulted in discrimination on the basis of sex. The intent of discrimination can be inferred by the impact of the policy.
Affirmative action for women is allowed under Title VII. In the decision of Johnson v. Transportation Agency, Santa Clara County, the Supreme Court determined an affirmative action program that promoted a woman over a more qualified man was legal under Title VII as long as her sex was just one factor in the decision, and...
To continue reading
Request your trial