Sex discrimination

SIGNIFICANCE: Strong federal legislation has made it illegal for employers and institutions to treat men and women differently in such matters as employment and access to educational opportunities.

Discrimination is the treatment of individuals with similar abilities and potential in a different manner because of some distinguishing characteristic. Sex discrimination is the use of gender as the basis for such unequal treatment. Federal and state anti-discrimination laws, most of which were enacted during the 1960s and 1970s, prohibit sex discrimination, as do federal and state constitutions. Sex discrimination laws cover a wide array of issues, including employment rights and education opportunities.

Civil Rights Act of 1964

Title VII of the federal Civil Rights Act of 1964 is titled “Equal Employment Opportunity” and expressly prohibits employment discrimination based on several criteria, including sex. The act applies to certain private employers, employment agencies, and labor organizations. Title VII also prohibits discriminatory and unlawful employment practices, including the use of gender as the basis for hiring and firing decisions. Thus, when equally qualified male and female candidates apply for the same job, gender may not be the determining factor of which of them is hired.

Likewise, Title VII forbids sex discrimination in compensation, working conditions, employment terms, and privileges afforded employees. Moreover, test scores used for selection or referral of persons for jobs may not be adjusted or altered based on sex. People with the same qualifications must therefore receive equal pay, equal opportunities for obtaining jobs and promotions, and equal benefits. However, even more than five decades after the passage of the Civil Rights Act of 1964, women are estimated, according to the Institute for Women's Policy Research as of 2022, to receive about 16 percent less compensation on average than equally qualified men holding the same kinds of jobs. Sex discrimination still exists in the twenty-first century.

Title VII also prohibits the unlawful employment practice of classifying, limiting, or segregating employees based on gender in a manner that might deprive employees of various employment opportunities, such as advancement and training opportunities. In addition, employment agents and labor unions may not make gender-based decisions to refer clients and members for employment, and it is unlawful for labor organizations to make membership decisions on the basis of gender.

Title VII does permit good-faith employment qualification and ability test exceptions that may result in discrimination based on sex. Under these exceptions, employers may impose specific job qualifications that can be shown to be necessary for job performance. For example, an employer might set as a job qualification the ability to lift a minimum weight that would disqualify most women from the job. However, if a woman applicant were able to lift the required weight, then gender could not be used to disqualify her. Courts have also held that arbitrary weight and height requirements for employment are illegal.

The Civil Rights Act of 1991 added a disparate impact category to unlawful employment practices. Under this provision, if a complaining party were to show that an employment practice would have a disparate gender impact, then the employer would have to show that the practice is job related and required by business necessity. Such a defense is not available in intentional sex discrimination cases. Complaining parties may also demonstrate that alternative employment practices are available to employers that do not result in disparate impacts based on sex.

Title VII of the Civil Rights Act of 1964 does not require preferential treatment of members of any gender group to correct imbalances that may exist, but this fact does not prevent voluntary attempts to correct the imbalance. Reverse discrimination claims have met with some success in the courts when men have claimed to be victims of general discrimination in hiring, firing, and promotion practices designed to increase the numbers of women workers. Employers may also provide different levels of compensation, terms, conditions, and privileges of employment at different locations as long as they are not based on sex discrimination. For example, the cost of living may be higher in one area of the country than in another, and the same employer could provide disparate pay for the same job in the two separate locations.

The Equal Employment Opportunity Commission (EEOC) is the federal law enforcement agency responsible for upholding anti-discrimination legislation. In 2011 it expanded Title VII's protections against employment discrimination to make stereotyping of lesbian, gay, and bisexual people illegal, and in 2012 it further prohibited discrimination of transgender individuals or due to gender identity. In September 2014, the first federal lawsuits regarding transgender discrimination were filed against two private companies. In State of Texas v. EEOC (2022), the US District Court for the Northern District of Texas ruled the EEOC's 2021 guidance about gender identity and sexual orientation discrimination in the workplace was unlawful. Other states also challenged the EEOC on guidance about bathroom use, dress codes, and other issues regarding LGBTQ workers.

Penalties for Violating the Civil Rights Act

Intentional violations of Title VII may subject violators to a variety of punishments and sanctions, such having to pay compensatory and punitive damages, based on the size of the employer; injunctions to terminate unlawful employment practices; orders that may require reinstatement or hiring of employees; awards of back pay; and payment of attorney and expert witness fees.

Because intentional violations may subject violators to monetary damages, jury trials are also available. When employers prove they have not intentionally discriminated, then sanctions may be limited to equitable relief to stop their discrimination and the payment of attorney fees alone.

Officers and employees of the EEOC are also subject to penalties under Title VII for failing to maintain the confidence of parties who file discrimination claims. Moreover, any employee who makes such information public may be charged with a misdemeanor and made to pay a fine or be subject to imprisonment.

The fact that a person may be subject to penalties under the federal Civil Rights Act does not relieve such a person from compliance with anti-discrimination laws adopted by states and their political subdivisions. Furthermore, it is unlawful for employers to retaliate against employees who oppose employment practices that constitute sex discrimination or who file claims, provide testimony, or otherwise participate in investigations of sex discrimination cases under Title VII.

The Education Amendments of 1972

Title IX of the Education Amendments of 1972 prohibits gender discrimination with respect to education programs and related activities that receive federal financial assistance in the form of grants, loans, or contracts. However, several types of educational institutions are exempt from Title IX, such as single-gender schools and military training facilities. Title IX requires that both sexes have equal opportunities to seek education programs, and anything that might discriminate based on gender and interfere with this opportunity would be in violation of Title IX. Educational institutions may require separate living facilities for each gender, and they are not required to provide benefits related to abortions.

The rights under Title IX also include equal access to sports opportunities. Educational institutions do have some flexibility in complying with the law and are not required to offer exactly the same sports or even equal numbers of sports for both genders. However, educational institutions are required by the Title IX regulations to accommodate the athletic interests and abilities of each gender when selecting sports to support. Similar to Title VII, Title IX does not require preferential treatment of a person or group of persons on the basis of gender to correct any imbalance that may exist. Failure to comply with this act could result in termination of federal financial assistance.

In early 2024, President Joseph Biden's Department of Education expanded protections under Title IX to apply to discrimination based on gender identity and sexual orientation. The expansion did not apply to sports but the agency was expected to address that topic later. At least eight lawsuits were filed in the following weeks. By July, the rule was on hold in Alaska, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Montana, Ohio, Tennessee, Utah, Virginia, West Virginia, and Wyoming until the cases were decided.

Constitutional Protections and the ERA

The Fifth and Fourteenth amendments to the US Constitution and comparable provisions under state constitutions require governments to provide equal protection for all their citizens. In interpreting the Constitution in gender-based discrimination cases, the US Supreme Court has imposed a heightened standard of review, sometimes referred to as a middle-tier scrutiny, in which governmental entities imposing gender-based classification must demonstrate an “exceedingly persuasive justification” by proving that the classification meets two requirements: an important governmental purpose for the classification, and a substantial relationship between the purpose and the means used to achieve it. The Supreme Court has held that this heightened scrutiny does not apply in gender-based discrimination claims under the Civil Rights Act, as private entities are not subject to constitutional requirements.

In 1972, Congress approved the Equal Rights Amendment (ERA) to the US Constitution and submitted it to the states for ratification. That amendment would have expressly prohibited government from denying or abridging equal rights based on sex, but it eventually failed because of lack of timely ratification by at least thirty-eight states. However, advocates continued to promote the idea, and the issue was maintained in Congress as supporters pushed to remove the ratification deadline, including in 2023. The ERA was frequently reintroduced and remained a topic of debate.

Other Sex Discrimination Issues

Prior to passage of the Civil Rights Act of 1964, Congress enacted the Equal Pay Act of 1963. That law prohibits gender-based discrimination with respect to compensation in situations in which men and women perform substantially similar work under the same working conditions in the same locations. Since the early 1990s, the Department of Labor has found violations of anti-discrimination laws, such as the Equal Pay Act, among approximately one-half of all companies whose federal contracts have been audited. These audits have resulted in multimillion-dollar settlements because of gender-based pay disparities and lack of management opportunities for women. A proposed extension of the Equal Pay Act, known as the Paycheck Fairness Act, was introduced in an attempt to further reduce the male-female wage gap. It was originally passed by the House of Representatives in 2009, but strong opposition from the Republican Party led to the bill's failure to pass through the Senate on repeated attempts in 2010, 2012, and 2014, despite the support of President Barack Obama's administration. In 2023, the bill was again introduced. It defined wage discrimination on the basis of sex to include pregnancy, gender identity, sex characteristics, and sexual orientation.

In 1978, Congress passed the Pregnancy Discrimination Act as an amendment to Title VII of the Civil Rights Act. Under this act, it is illegal for employers to deny the use of sick leave to employees because of pregnancy or childbirth or to exclude such conditions from health benefit plans. Likewise, the 1991 Civil Rights Act defined the terms “discrimination on the basis of sex” and provided that this means any discrimination based on “pregnancy, childbirth, or related medical conditions.” One gender-based exception under the Civil Rights Act is that employers are not required to pay for health benefits for abortions, unless a pregnant woman’s life is endangered or medical complications arise after an abortion. In the 1991 act, Congress also appointed a Glass Ceiling Commission to study artificial barriers to advancement in the workplace for women and minorities (known as the glass ceiling).

In 2015, the Department of Labor released a proposal for updates to regulations regarding sex discrimination by federal contractors dating back to 1970. The changes, which were introduced as revised regulations in 2016, brought policy and legal precedent up to date with Title VII.

Congress passed a new federal law, the Pregnant Workers Fairness Act (PWFA), In December 2022. The EEOC issued final regulations on implementing the legislation in April 2024. The law requires all government employers and private employers with at least fifteen employees to make reasonable accommodations for pregnant workers regarding pregnancy-related conditions. Reasonable accommodations might include more frequent bathroom breaks or allowing the worker to sit instead of stand. The EEOC interpreted the legislation to include accommodations for elective abortion, which the agency classified as a pregnancy-related condition. Within a month, several states filed lawsuits challenging the elective abortion rule. Some states cited the 2022 Supreme Court decision that allows states to determine abortion laws.

Parties continue to raise gender discrimination issues in many venues to change laws to meet the needs of modern society. Arguments have concerned matters such as abortion and reproductive rights; access to Medicaid; same-sex marriage, adoption, and inheritance rights; domestic abuse and the battered woman’s syndrome defense; pregnancy, health care, and family care; LGBTQ rights; and marriage, divorce, alimony, and child custody.

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