Sex Discrimination at Work
• Sex discrimination at work covered under
– Equal Pay Act 1963 (amended FLSA 1938)
– Executive Order 11375
– Title VII of Civil Rights Act 1964, as amended
by Pregnancy Discrimination Act, 1978 and
Civil Rights Act, 1991
– Lilly Ledbetter Fair Pay Act of 2009
Lilly Ledbetter Fair Pay Act of 2009
• The Lilly Ledbetter Fair Pay Act of 2009 is an Act of Congress
enacted by the 111th United States Congress and signed into
law by President Barack Obama on January 29, 2009.
• The bill amends the Civil Rights Act of 1964 stating that the
180-day statute of limitations for filing an equal-pay lawsuit
regarding pay discrimination resets with each new
discriminatory paycheck.
• The law was a direct answer to the Ledbetter v. Goodyear Tire
& Rubber Co., 550 U.S. 618 (2007), a U.S. Supreme Court
decision holding that the statute of limitations for presenting an
equal-pay lawsuit begins at the date the pay was agreed upon,
not at the date of the most recent paycheck, as a lower court
had ruled
Sex Discrimination at Work
• Early cases
– Diaz v Pan Am 1971 - gender was not a
legitimate “BFOQ” bona fide occupational
qualification for work of flight attendant
– Dothard v Rawlinson 1977 - gender was a
BFOQ in prison setting - not hiring women for
guards in all male prison was reasonable
Sex Discrimination at Work as
Sexual Harassment
EEOC defines sexual harassment as …
unwelcome sexual advances, requests for sexual favors, and
other verbal or physical conduct of a sexual nature when
(1) submission to such conduct is made either explicitly or
implicitly a term or condition of an individual's employment;
(2) submission to or rejection of such conduct by an
individual is used as the basis for employment decisions
affecting such individual; or
(3) such conduct has the purpose or effect of unreasonably
interfering with an individual's work performance or creating
an intimidating, hostile, or offensive working environment.
Sexual Harassment
• Early Case
– Barnes v Costle 1977 – first time sexual
harassment defined as illegal sex
discrimination – quid pro quo form
http://findarticles.com/p/articles/mi_qa3757/is_200001/ai_n8892390/pg_9
Sex-based Harassment
Meritor Savings Bank v Vinson 1986 –
harassing work environment focused
on sex was also illegal
http://en.wikipedia.org/wiki/Meritor_Savings_Bank_v._Vinson
Sex Harassment
Harris v. Forklift Systems 1993 –
the behavior must be severe or pervasive enough to
create a hostile environment and be objectively
offensive (from the perspective of a reasonable
person) …
and that the work environment does not have to rise
to the level of seriously affecting an employee's
psychological well being to comprise a hostile
work environment
Sex Harassment
Jenson v. Eveleth Taconite (D. Minn. 1991) –
sex harassment could be pursued as class
action, and defendant queries into
plaintiffs backgrounds need be limited
This is the case that was the basis for the
movie, “North Country”
Sex Discrimination at Work
• More recent case
– Johnson Controls v UAW 1991 – the
employer could not ban 'fertile women' from
jobs involving exposure to lead, while denying
male leave of absence from such work
– Instead, an “informed consent” standard holds
Same-Sex Harassment
Oncale v. Sundowner 1998 – same-sex
harassment was illegal
http://www.sexualharassmentsupport.org/OncaleVsSundowner.html
Whither Hooters?
• Hooters “profile” of successful server
• Cases are settled, not left for court
decision
• Practices persist
Sexual Discrimination
• What employer should do …
– Have clear, written, understood policy against
discrimination on sex (and race, etc.)
– Take complaints seriously
– Investigate carefully
– Take action when needed