Sex Discrimination

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“Sex discrimination” refers to the practice of denying individuals opportunities for employment, education, and other services based on their gender. Discriminatory practices were widespread among private employers and the federal and state governments prior to the 1970s, before which hire and fire bans were common in which married women were not hired or were fired upon marrying. Sex discrimination still occurs, but since the 1960s legislation and U.S. Supreme Court decisions have provided increased legal protections against sex discrimination.

The Civil Rights Act of 1964 forbade discrimination on the basis of sex, (as well as race, color, religion, and national origin). Title VII prohibited employment discrimination on any of these five classifications and created the Equal Employment Opportunity Commission (EEOC) to enforce these provisions. When the EEOC failed to act on sex discrimination claims, Bella Abzug and others formed the National Organization for Women (NOW) in 1966 to push for implementation of the provision. In 1967, President Lyndon Johnson signed Executive Order 11375 requiring employers to take “affirmative action” to ensure that women were given full consideration for employment. Additionally, the Supreme Court first ruled sex discrimination to be illegal under the Fourteenth Amendment’s Equal Protection Clause in 1971 in Reed v. Reed; the Court adopted intermediate scrutiny in sex discrimination cases falling under the equal protection clause in Craig v. Boren (1976).

In 1985, Congress amended Title VII of the Civil Rights Act, specifying sexual harassment as a form of discrimination under the Civil Rights Act. The provision outlawed two forms of harassment: “quid pro quo” when employment status or terms are conditional on sexual favors, and the hostile work environment that results from harassment but need not involve salary or benefits. In Meritor Savings Bank v. Vinson (1986), the Supreme Court of the United States upheld the provision that conduct creating a hostile environment is employment discrimination under Title VII of the Civil Rights Act. The EEOC hears over 12,000 sexual harassment cases each year.

One persistent form of sex discrimination is wage discrimination in employment. In 1950, women’s hourly wages were 48 percent those of men; while the next fifty years brought improvement in the wage gap, by the year 2000, studies showed women’s hourly wage was 76 percent that of men. To address the wage discrimination problem, in 1963 Congress passed the Equal Pay Act, which required equal pay for equal work. This law worked to reduce the pay discrepancy: in 1963, women made 58 percent of men’s salary, but by 2015 women were making 79 percent of men’s salary. There are several explanations for the pay gap. Men are more likely to work blue collar jobs, which require payment for overtime, while women are more likely to work white collar jobs, which are generally salaried and do not have overtime pay. Further, women are more likely to take time off for the birth and care of children, which exacerbates differential earning between men and women. In 2009, the Lilly Ledbetter Fair Pay Act extended the statute of limitations giving women more time to file a pay discrimination lawsuit, which gives women more time to build their case. The main beneficiaries of these laws have been white and Asian women, who now make 82 percent and 87 percent of white men’s salaries, respectively, while black women make 65 percent and Hispanic women make 58 percent of white men’s salaries (Patten 2016).

While the legal protections adopted in the United States throughout the twentieth century have not eliminated sex discrimination entirely, it has been significantly lessened, and recourse is available to those who do become victims of discrimination.


BIBLIOGRAPHY:

J. Freeman, “How “sex” got into Title VII: Persistent opportunism as a maker of public policy.” Law and Inequality: A Journal of Theory and Practice 9 (1991): 163–184; M. E. Gold, “A tale of two amendments: The reasons Congress added sex to Title VII and their implication for the issue of comparable worth,” Duquesne Law Review 19 (1980): 453–477; Nancy E. McGlen, Karen O’Conner, Laura van Assendelft, and Wendy Gunther-Canada, Women, Politics and American Society, 3rd ed. (New York: Longman, 2004); Eileen Patten, “Racial, Gender Wage Gap Persist in U.S. Despite Some Progress,” Pew Research (2016).

Emily Schnurr (revised) (February 2018) Maureen Rand Oakley (2006)

Last Updated: 2018

SEE ALSO: Equal Rights Amendment; Gender and Federalism; Women’s Rights