At the beginning of the second wave of feminism in the 1960s many women saw their treatment in the workplace as upsetting, marked by prejudice, or morally wrong, but in most cases they viewed their situations as individual experiences. With the passage of federal civil rights laws in the 1960s and their enforcement in the 1970s women gave a name to that experience: discrimination. Employment discrimination and the accompanying judicial decisions have been an important arena in which to work out a national conception of women's equality.
THE CIVIL RIGHTS ACT OF 1964
Title VII of the Civil Rights Act of 1964 is the most important federal civil rights statute dealing with employment discrimination. The act prohibits discrimination on the basis of race, religion, and national origin in order to open access to public accommodations (hotels, restaurants, retail businesses), enforce voting rights, and desegregate public education. Only the employment provision (Title VII), however, also prohibits discrimination on the basis of sex. An opponent of the Civil Rights Act offered the proposal to add sexual discrimination to Title VII; as a result many observers concluded that Congress was not serious about prohibiting sex discrimination in employment despite its many congressional supporters.
Originally Title VII applied only to private employers; educational institutions were exempt. An earlier statute, the Equal Pay Act of 1963, provided equal pay for equal work on the basis of sex, but that statute originally exempted professional, executive, and administrative positions. In 1972 Congress amended both statutes to eliminate those exemptions and strengthened their enforcement. In 1991 Congress again amended Title VII, adding the right to jury trials and providing for monetary awards for victims of intentional discrimination.
Title VII sets up a federal administrative agency, the Equal Employment Opportunity Commission (EEOC). This agency, with five Commissioners appointed by the President with the advice and consent of the Senate, is charged with the development of equal employment opportunity policy. It also authorizes the general counsel of the EEOC to bring cases alleging discrimination against employers. The agency also provides a nonjudicial administrative process for individuals filing complaints. Many complaints are dismissed routinely, but the agency investigates some complaints, determines if there is reasonable cause to believe that the charge is true, and attempts to eliminate the unlawful employment practice through informal methods of conciliation. The federal civil rights statutes use the term sex in defining the basis on which discrimination is prohibited. Nonetheless, litigants, courts, and commentators often use the term gender interchangeably with sex or refer to Title VII as prohibiting discrimination on the basis of gender.
Categories of Sex Discrimination
Sex or gender discrimination cases under Title VII fall into several categories. The most obvious cases are those in which an employer has a specific employment policy that makes an overt distinction or reference to gender: Women cannot be bartenders unless they own the bar, cannot work after midnight in certain jobs, or may not work in a job that might be hazardous to their reproductive capacity. Unequal or inferior treatment is implicit in these policies; discriminatory motivation seldom is disputed because the act of classifying implies the intention to discriminate. These employment policies are unlawful under Title VII unless they are justified by a defense provided for in the statute: the bona fide occupational qualification (bfoq) exception.
The bfoq exception provides that it is not unlawful under Title VII to hire and employ on the basis of sex in instances in which sex "is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise" (Civil Rights Act of 1964 sec. 2000e-2 (e)(1)). The issue here is how broadly or specifically to interpret that exception. Although the Supreme Court has given conflicting signals on the scope of the exception, in the early twenty-first century the courts were fairly uniform in regarding the exception narrowly and allowing the overt use of gender only in very limited situations, such as cases in which the biological differences between men and women or legitimate privacy concerns justify a specific gender employment policy.
Whether an overt gender classification signals inferior treatment and is motivated by unlawful discrimination often is contested. For example, retirement plans once routinely mandated that women and men make equal contributions but then gave women lower monthly benefits upon retirement. Employers justified this as necessary to ensure "equal treatment" because women live longer than men and thus had to make the same amount of money last longer or accumulate more money to cover their longer life span. The Supreme Court rejected the use of sex as the sole or best determinant of longevity even though women do live longer than men.
Framework for Litigation
Proving that an employer acted with a discriminatory motive can be difficult in cases in which the difference in treatment on the basis of sex is not obvious. The Supreme Court has established two analytical frameworks to deal with this issue. First, in claims of individual discrimination a harmed employee may be able to eliminate legitimate explanations for the challenged employment decision, for example, that she was not qualified for the job or that her termination resulted from a general "reduction-in-force." The employer then responds by stating the legitimate, nondiscriminatory reason for its action. The plaintiff must show that discrimination is the more likely explanation for what happened; typically she does this by asking the court to draw a series of inferences based on other evidence about the employer and additional facts established at trial.
The second analytical framework is based on statistical probability theory. In many cases the only proof is provided by the use of statistics to uncover covert discrimination by the employer. Harmed individuals rely on statistical evidence to infer a causal relationship between sex and the employment decision, that is, evidence that women are underrepresented in the employer's workforce in comparison to their availability.
There is also the question of whether acting on the basis of stereotypes counts as an unlawful discriminatory motive under Title VII. Employers cannot base employment decisions solely on assumptions about an individual that flow from a stereotype. This is the essence of formal equality: People should be treated as individuals, not as undifferentiated members of a group. However, an employer may want an individual to conform to certain stereotypes about women. Clearly, an employer cannot require a certain kind of behavior and then reject a woman because her compliance with that behavior is inconsistent with the employer's general notion of womanhood. Less certain is whether it counts as discrimination under Title VII to use gender expectations that are stereotypical or sex-specific, such as those involving behavior, demeanor, or appearance. For example, most federal courts have allowed the use of dress codes that include different standards for men and women.
In 1986 the Supreme Court ruled that sexual harassment is a form of sex discrimination under Title VII because it imposes different working conditions on women that are based on their gender. Because sexual harassment frequently occurs despite formal employer rules against such behavior, an important legal issue has been the limits of employer liability for harassment by supervisors and coworkers in violation of company policy.
Quid Pro Quo and Hostile Work Environment
Under Title VII sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. Courts have recognized two distinct forms of sexual harassment: quid pro quo and hostile work environment. With quid pro quo harassment a supervisor demands sexual favors in exchange for a job benefit or for withholding a job detriment. To prevail legally the employee does not have to suffer the threatened economic loss. These cases often turn on issues of credibility. More common are claims of a hostile work environment, which involves conduct that has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive work environment. The main issue in these claims is the level of behavior; the sexually harassing conduct must be sufficiently severe or pervasive to alter conditions of work or create an abusive work environment. An action that is "merely offensive" is not sufficient, but Title VII does not require tangible psychological injury. Whether an environment is hostile or abusive is determined by looking at all the circumstances: the frequency of the conduct, its severity, whether it is physically threatening or humiliating, and whether it unreasonably interferes with an employee's work performance.
Employers are liable for the sexual harassment of their employees. If harassment by a supervisor resulted in the loss of a "tangible job benefit" (e.g., discharge or demotion), the employer is directly liable and has no defense. If the harassment does not result in such a loss, the employer avoids liability by proving that it exercised reasonable care to prevent and correct sexually harassing behavior and that the employee failed to take advantage of those preventive and corrective measures. Typically, the issue here is whether the employer had an effective sexual harassment policy, had a workable internal grievance procedure, and took corrective measures in the past. In the case of harassment by coworkers the employer is liable if it knew or should have known about the harassing conduct and did not take adequate corrective action.
Title VII also prohibits workplace harassment when the harasser and the harassed employee are of the same sex. To the extent that same-sex sexual harassment cases involve the same kinds of facts or behaviors that opposite-sex sexual harassment cases do, the issues are the same. However, to the extent that same-sex sexual harassment claims rest on the failure of the employee to con-form to gender expectations, these cases involve the issue of whether it counts as discrimination for others to rely on gender expectations about behavior or demeanor. It is clear from these cases that sexual harassment does not need to be about sexual activity and is rarely about misplaced sexual desire.
Disparate Treatment and Disparate Impact
These claims of intentional discrimination often are called disparate treatment cases. Discriminatory motive is crucial. In contrast, Title VII also allows claims of disparate impact. Those claims involve employment practices that are facially neutral in their treatment of men and women but in fact fall more harshly on one group than another and cannot be justified by business necessity. Proof of discriminatory motive is not required.
The key issues here are (1) identifying the employment practices that have an adverse effect on the basis of sex; (2) producing statistical evidence of the impact; (3) deciding the kinds of business justifications; and (4) determining the quality of evidence necessary to support the employer's justification. This analytical framework provides a way to test an employment practice that is based on stereotypes about women and therefore has an adverse effect. For example, an employer may require employees to be "strong," have the "appearance of strength," or be a "good institutional fit." The challenger can show that the requirement of strength will affect women adversely and argue that requirements for strength are not important to the employer; if strength is important, the employer can identify the strength-related tasks easily and then develop a specific test to measure individual performance. In contrast, the challenger may have difficulty showing that the application of a "good institutional fit" has an adverse effect on women. Even if she does, the employer probably will establish that selecting women who are good institutional fits is important and reasonable. Still, the challenger can argue that the employer's determinations about such fitness are based on stereotypes about women in general.
The Supreme Court decided a number of pregnancy discrimination cases in the 1970s and concluded that pregnancy discrimination is not "sex discrimination." Congress amended Title VII by enacting the Pregnancy Discrimination Act of 1977 to clarify that discrimination because of sex under Title VII includes discrimination because of pregnancy. That amendment also adopted an "equal treatment" or "analogy" approach to dealing with pregnancy in employment situations: Employers and courts should make employment decisions involving pregnancy in the same way that they deal with other temporary disabilities. For example, if an employer offers paid leave for most temporary disabilities, women are entitled to pay for leave related to pregnancy. Because pregnancy is, however, one of the "real differences" between men and women, employment situations arise that do not have analogies or for which analogies are not helpful. So far the courts have been committed to an "equal treatment" model of discrimination, and so they rely on analogies even if they ignore the relevance of the "real differences" of pregnancy.
Courts have ruled that discrimination on the basis of sexual orientation is outside the scope of Title VII. Title VII does not include sexual orientation as a prohibited basis of discrimination, and courts have been unwilling to conclude that discrimination on that basis is a form of sex or gender discrimination under the statute. There have been proposals to amend Title VII or pass a separate statute to prohibit this form of discrimination in employment, but none has received much support. In the one area where courts have considered same-sex discrimination, harassment by a homosexual usually guarantees a finding of liability whereas complaints by an employee that he was harassed because of his sexual orientation usually fail.
Several states have specific statutes that prohibit discrimination on the basis of sexual orientation. State laws typically parallel the federal Civil Rights Act of 1964 and rely on judicial and agency policy interpretations of Title VII. Some states have amended their antidiscrimination laws to include sexual orientation as a prohibited basis of discrimination. Others have prohibited sexual orientation discrimination by public employers only. Executive Order 13087 (1998) prohibits discrimination on the basis of sexual orientation in employment by the federal government.
Definitions of Discrimination
The overriding issue for sex discrimination in employment law is what counts as discrimination. Title VII adopts as its core understanding the principle of formal equality: Similarly situated individuals should receive equal treatment by employers, and for the most part men and women are "similarly situated." Thus, claims of discrimination that are based on the denial of equal treatment fit under current laws. Equally clearly, claims of sex discrimination can fit within the disparate impact analytical framework. Much of the litigation and discussion since the passage of Title VII has involved testing the limits of these definitions of equality and arguing for or against additional ones.
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Executive Order 13087, 1998.
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Omilian, Susan M. 1997. Sex-Based Employment Discrimination. St. Paul, MN: Thomson-West.
Padavic, Irene, and Barbara Reskin. 2002. Men and Women at Work. 2nd edition. Thousand Oaks, CA: Pine Forge Press.
Rutherglen, George. 2001. Employment Discrimination Law: Visions of Equality in Theory and Doctrine. New York: Foundation Press.
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