Sex Discrimination
Discrimination on the basis of gender.
Women have historically been subjected to legal discrimination based on their gender. Some of this discrimination has been based on cultural stereotypes that cast women primarily in the roles of wives and mothers. In the patriarchal (male-dominated) U.S. society, women have been viewed as the "weaker sex," who needed protection from the rough-and-tumble world outside their homes. Such beliefs were used as justifications for preventing women from voting, holding public office, and working outside the home. In a culture that portrayed wives as appendages of their husbands, women have often been invisible to the law.
The ability of women to use the law to fight sex discrimination in employment, education, domestic relations, and other spheres is a recent development. With the passage of Title VII of the Civil Rights Act of 1964 (42 U.S.C.A. § 2000e et seq.), discrimination in employment based on sex became illegal. In the 1970s and 1980s, the U.S. Supreme Court began to wrestle with the implications of sex discrimination in many contexts, often with conflicting or ambiguous results. Employers and social institutions have sought to justify discriminatory treatment for women on the basis of long-held traditions. In some cases the Court has agreed, while in others the justifications have been dismissed as cultural stereotypes that have no basis in fact.
Historical Background
To reshape gender roles, women have had to overcome centuries of tradition, much of which originated in medieval England. After the Norman Conquest in 1066, the legal status of a married woman was fixed by Common Law. The identity of the wife was merged into that of the husband; he was a legal person but she was not. Upon marriage, he received all her Personal Property and managed all property that she owned. In return, the husband was obliged to support his wife and children.
This legal definition of marriage persisted in the United States until the middle of the nineteenth century, when states enacted married women's property acts. These acts conferred legal status upon wives and permitted them to own and transfer property in their own right, to sue and be sued, and to enter into contracts. Although these acts were significant advances, they dealt only with property a woman inherited. The husband, by placing title in his name, could control most of the assets acquired during marriage, thereby forcing his wife to rely on his bounty.
The passage of the married women's property acts resulted from the efforts of feminist reformers, including Lucy Stone, Elizabeth Cady Stanton, and susan b. anthony. The feminist political movement began in the nineteenth century with the call for female suffrage. At a convention in Seneca Falls, New York, in 1848, a group of women and men drafted and approved the Declaration of Sentiments. This declaration, which was modeled on the language and structure of the Declaration of Independence, was a Bill of Rights for women, including the right to vote. Stone, Stanton, and Anthony were persistent critics of male refusal to grant women political and social equality. Not until the Nineteenth Amendment to the U.S. Constitution was ratified in 1920, however, did women have voting rights in the United States.
Sex Discrimination and Title VII: An Unusual Political Alliance
The legislative battle to pass the Civil Rights Act of 1964 (42 U.S.C.A. § 2000e et seq.) required the leadership of President lyndon b. johnson and the bipartisan support of legislators from outside the South. The original draft of title VII of the act, which prohibits employment discrimination, limited its scope to discrimination based on race, color, religion, and national origin. Sex was not included as a "protected class" because supporters of the bill feared such a provision might kill the act itself.
In February 1964 Representative Howard W. Smith, a powerful Democrat from Virginia, offered an amendment to include sex as a protected class. Supporters of the bill were suspicious of Smith's motives, as he had, for three decades, consistently opposed Civil Rights laws prohibiting racial discrimination. Many suspected that he was including sex discrimination in title VII in an attempt to break the bipartisan consensus for the entire bill.
Smith, however, claimed he had no ulterior motive. Since the 1940s he had formed a loose alliance with the National Woman's party (NWP), a feminist organization headed by alice paul. Since 1945 Smith had been a sponsor of the Equal Rights Amendment, which Paul had originally drafted in 1923. Smith said he had introduced the amendment to title VII at the request of Paul and the NWP.
Sponsors of the bill urged that the amendment be defeated, but female representatives, such as Martha W. Griffiths of Michigan, led a bipartisan effort to adopt the amendment. The amendment was passed by a vote of 164 to 133, with most southern Democrats voting for it. The Senate then adopted the House language. If Smith and the other southerners thought the amendment would scuttle the bill, they were mistaken. The law was enacted on July 2, 1964, with Smith and other southern Democrats voting against the entire bill. Nevertheless, Smith had proved an unlikely hero for Women's Rights.
The U.S. Supreme Court confronted the issue of sex discrimination in Bradwell v. Illinois, 83 U.S. 130, 21 L. Ed. 442 (1872). myra bradwell sought to practice law in Illinois, but the Illinois Supreme Court refused to admit her to the bar because she was a woman. Bradwell appealed to the U.S. Supreme Court, arguing that the refusal to grant her a license violated the privileges and immunities clause of the Fourteenth Amendment. By an 8–1 vote, the Court rejected Bradwell's argument. Though the majority opinion was on the argument that the Privileges and Immunities Clause applied only to matters involving U.S. citizenship and not state citizenship, a concurring opinion written by Justice Joseph P. Bradley and signed by two other justices revealed the cultural stereotypes that lay behind the legal analysis. Observing that there is "a wide difference in the respective sphere and destinies of man and woman," Bradley went on to write that the "natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life." For Bradley, the "paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator."
By the late nineteenth century, mass immigration from Europe to the industrialized cities of the United States had resulted in many immigrant women seeking work in factories. Though the Supreme Court was hostile to state laws that sought to regulate working conditions, the Court was more hospitable to laws aimed at protecting women in the workplace. The idea that women were the weaker sex and needed special treatment constituted discrimination based on sex, but the Court willingly embraced the concept. The landmark case in this regard was Muller v. Oregon, 208 U.S. 412, 28 S. Ct. 324, 52 L. Ed. 551 (1908). The Court upheld an Oregon law that prohibited the employment of women for more than ten hours a day, in large part because of the brief submitted in support of the law by louis d. brandeis. The brief contained information about the possible injurious effects of long work hours on women's health and morals, as well as on the health and welfare of their children, including their unborn children. Brandeis emphasized the differences between women and men. The Court unanimously agreed, noting that "woman's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence."
World War II played a decisive role in changing the social status of women. Large numbers of women left the home and entered the industrial workplace when men joined the Armed Services. Many women performed jobs that were previously thought to be beyond their physical and mental abilities. Though these women were unceremoniously fired after the war to free up jobs for returning servicemen, many traditional social assumptions about women had been shaken.
By the 1970s women had begun to compete with men for managerial and professional positions. Nevertheless, sex discrimination in employment and other areas of U.S. society remained a troubling issue. Congress, state legislatures, and the courts began to address the legality of this type of discrimination.
Sex Discrimination Laws
The first significant piece of federal legislation that dealt with sex discrimination was the Equal Pay Act (EPA) of 1963 (29 U.S.C.A. § 206(d)), which amended the Fair Labor Standards Act of 1938 (29 U.S.C.A. §§ 201–219) by prohibiting discrimination in the form of different compensation for jobs requiring equal skill, effort, and responsibility.
The inclusion of a prohibition against gender-based discrimination in Title VII of the Civil Rights Act of 1964 was a landmark achievement, though the provision was added by opponents of the comprehensive act in a last-minute attempt to prevent its passage. Title VII defines sex discrimination in employment as including failure or refusal to hire, discrimination in discharge, classification of employees or applicants so as to deprive individuals of employment opportunities, discrimination in apprenticeship and on-the-job training programs, retaliation for opposition to an unlawful employment practice, and sexually stereotyped advertisements relating to employment (42 U.S.C.A. §§ 2000e-2(a) & (d), 2000e-3(a) & (b)).
The Pregnancy Discrimination Act (PDA) of 1978 (42 U.S.C.A. § 2000e(k)) was the congressional response to the ruling of the Supreme Court in General Electric Co. v. Gilbert, 429 U.S. 125, 97 S. Ct. 401, 50 L. Ed. 2d 343 (1976), that an employer's refusal to grant pregnancy disability benefits under an otherwise all-inclusive short-term disability insurance program did not violate Title VII. The PDA prohibits discrimination against employees on the basis of pregnancy and childbirth with respect to employment and benefits.
In an interesting twist, men have found themselves the victims of sex discrimination when the issue of pregnancy and Child Care arises. The case of Kevin Knussman provides a cautionary tale for men and women who are planning to become parents. Knussman, a 17-year veteran of the Maryland State Police, asked for a leave of absence from work in October 1994, a leave to which he was entitled under the Family and Medical Leave Act (Pub. L. 103-93, 1993). He asked for four to eight weeks of unpaid leave but was turned down. In November, his wife was hospitalized with complications from the pregnancy, and he again asked for leave. He was informed that a new state law allowed only ten days of unpaid leave for "secondary caregiver," which was how he was viewed by his employer unless his wife was severely incapacitated. Knussman was told that if he did not return to work after the ten-day period his job would be in jeopardy.
Knussman filed federal suit in April 1995 against his employer (Knussman v. Ste of Maryland, No. B-95-1255), claiming that his rights under FMLA had been violated—as had his Fourteenth Amendment right of equal protection under the law. After nearly four years, during which the Maryland State Police claimed that they had merely been confused by the new statute, a jury awarded Knussman $375,000 for emotional suffering. Interestingly, during this time the Knussmans had a second child, and Knussman's request for 12 weeks of paid leave was granted.
Other legislation aimed at eradicating sex-based discrimination was also passed during this era. The Equal Credit Opportunity Act (15 U.S.C.A. § 1691) prohibits discrimination on the basis of sex or marital status in the extension of credit. Title IX of the Education Amendments of 1972 (20 U.S.C.A. §§ 1681–1686) prohibits educational institutions receiving federal financial assistance from engaging in sex discrimination, including the exclusion of individuals from noncontact team sports on the basis of sex. (In 1982 the Supreme Court extended this prohibition to sex-stereotyped admissions and employment practices of schools.)
The Equal Rights Amendment
The boldest attempt to outlaw sex discrimination was Congress's passage in 1972 of a constitutional amendment, popularly known as the Equal Rights Amendment (ERA). The ERA, which had originally been introduced in Congress in 1928, stated that "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex." It gave Congress the authority to enforce this provision by appropriate legislation.
The ERA, like all constitutional amendments, had to be ratified by at least three-fourths of the states to become part of the Constitution. At first the amendment was met with enthusiasm and little controversy in the state legislatures. By 1976 the ERA had been ratified by 35 of the needed 38 states. In the late 1970s, however, conservative groups mounted strong opposition in those states that had yet to ratify. Opponents contended that the ERA would lead to women in combat, unisex bathrooms, and the overturning of legitimate sex-based classifications. Although Congress extended the period for ratification until 1982, the ERA ultimately failed to win approval from the required 38 states.
Judicial Review of Sex-Based Discrimination
With the defeat of the ERA, constitutional interpretation in the area of sex discrimination has been largely based on the Fourteenth Amendment. In 1971, in Reed v. Reed, 404 U.S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225, the Supreme Court extended the application of the equal protection clause of the Fourteenth Amendment to gender-based discrimination in striking down an Idaho law that preferred men to women as probate administrators.
In Reed the Court appeared to be moving toward making sex a "suspect classification" under the Fourteenth Amendment. The Suspect Classification doctrine holds that laws classifying people according to race, ethnicity, and religion are inherently suspect and are subject to the Strict Scrutiny test of Judicial Review. Strict scrutiny forces the state to provide a compelling state interest for the challenged law and demonstrate that the law has been narrowly tailored to achieve its purpose. Although strict scrutiny is not a precise test, it is far more stringent than the traditional Rational Basis Test, which requires only that the government offer a
| Leading Occupations for Women, in 2001 |
| Occupation | Total Employed (Men and Women) | Percent Women | Ratio of Women's Earnings to Men's Earnings |
| source: U.S. Department of Labor, Women's Bureau, 20 Leading Occupations of Employed Women, 2001. |
| Managers and administrators | 8,018 | 31.0 | 65.5 |
| Secretaries | 2,404 | 98.4 | N.A. |
| Cashiers | 2,974 | 76.9 | 89.3 |
| Registered nurses | 2,162 | 93.1 | 87.9 |
| Sales supervisors and proprietors | 4,836 | 41.1 | 70.5 |
| Nursing aides, orderlies, and attendants | 2,081 | 90.0 | 89.7 |
| Elementary school teachers | 2,216 | 82.5 | 94.9 |
| Bookkeepers, accounting and auditing clerks | 1,621 | 92.9 | 93.7 |
| Waiters and waitresses | 1,347 | 76.4 | 87.3 |
| Receptionists | 1,047 | 96.9 | N.A. |
| Accountants and auditors | 1,657 | 58.8 | 72.0 |
| Investigators and adjusters, excluding insurance | 1,171 | 75.0 | 89.4 |
| Hairdressers and cosmetologists | 854 | 90.4 | N.A. |
| Secondary school teachers | 1,304 | 58.5 | 91.9 |
| General office clerks | 903 | 83.7 | 96.0 |
reasonable ground for the legislation. Therefore, making sex a suspect classification would have dramatically improved the chances that sexbased laws would be struck down.
The Supreme Court, however, has declined to make sex a suspect classification. Nevertheless, it has invalidated a number of sex-based policies under a "heightened scrutiny" or "intermediate scrutiny" test. In Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976), the Court articulated its intermediate standard of review for sex-based policies. According to this test, "classifications by gender must serve important governmental objectives and must be substantially related to the achievement of those objectives." Presumably, this test is stricter than the rational basis test but less strict than the compelling state interest test.
In Craig the Court struck down an Oklahoma law that outlawed the sale of beer containing less than 3.2 percent alcohol to females under the age of 18 and males under the age of 21. Oklahoma argued that the law was a public safety measure and purported to show that men between 18 and 21 were more likely to be arrested for drunk driving than were women in the same age bracket. The Court rejected this argument, holding that the state had failed to demonstrate a substantial relationship between its sexually discriminatory policy and its admittedly important interest in traffic safety.
In Orr v. Orr, 440 U.S. 268, 99 S. Ct. 1102, 59 L. Ed. 2d 306 (1979), the Court reviewed an Alabama law that required divorced men, under certain circumstances, to make Alimony payments to their ex-wives but exempted women in the same circumstances from paying alimony to their ex-husbands. The state argued that this policy was designed to compensate women for economic discrimination produced by the institution of marriage. Though the Court accepted that such compensation was an important state interest, it concluded that the law was not substantially related to the achievement of this objective. Justice william j. brennan jr., in his majority opinion, pointed out that wives who were not dependent on their husbands benefited from the disparate treatment.
In other cases, however, the Court has upheld gender-based policies. In one of its most controversial decisions, Rostker v. Goldberg, 453 U.S. 57, 101 S. Ct. 2646, 69 L. Ed. 2d 478 (1981), the Court upheld the constitutionality of a male-only draft registration law, the Military Selective Service Act (MSSA) of 1980 (50 U.S.C.A. App. § 451 et seq.). In his majority opinion, Justice william rehnquist rejected the idea that the MSSA violated the Fifth Amendment by authorizing the president to require the registration of males and not females. Rehnquist noted that the statute involved national defense and military affairs, an area that the Court had accorded the greatest deference. He concluded that Congress had not acted unthinkingly or reflexively in rejecting the registration of women. He pointed out that the question had received national attention and was the subject of public debate in and out of Congress.
Rehnquist noted that "women as a group, unlike men as a group, are not eligible for combat" under statute and established policy. These combat restrictions meant that Congress had a legitimate basis for concluding that women "would not be needed in the event of a draft." Therefore, there was no need to register women. The law did not violate equal protection because the exemption of women from registration was closely related to the congressional purpose of registration as a way to "develop a pool of potential combat troops." In upholding the draft law, the Court avoided applying the intermediate scrutiny test.
Sex Discrimination by Educational Institutions
Numerous state-operated or publicly operated or supported educational institutions have limited enrollment to one sex. The Supreme Court first addressed whether such limitations on enrollment constituted sex discrimination in Mississippi University for Women v. Hogan, 458 U.S. 718, 102 S. Ct. 3331, 73 L. Ed. 2d 1090 (1982). The Court voted 5 to 4 to require the Mississippi University for Women to admit a male student to its nursing school. In defending its refusal to admit Joe Hogan, the school argued that having a school solely for women compensated for sex discrimination in the past and that the presence of men would detract from the performance of female students.
Writing for the majority, Justice Sandra Day O'Connor rejected both of the school's arguments. O'Connor rejected the "compensation" argument as contrived since the school had made no showing that women had historically lacked opportunities in the field of nursing. As for the concern that the presence of men would hurt the performance of female students, O'Connor pointed out that the school had been willing to admit Hogan to classes on a noncredit basis. In the Court's view, the principal effect of the female-only nursing program was to "perpetuate the stereotyped view of nursing as an exclusively woman's job."
In 1996 the Supreme Court again addressed the issue of educational sex discrimination in the highly publicized case of United States v. Virginia, U.S., 116 S. Ct. 2264, 135 L. Ed. 2d 735. The Court ruled that the Virginia Military Institute (VMI), a publicly funded military college, must give up its all-male enrollment policy and admit women. The all-male policy violated the Equal Protection Clause of the Fourteenth Amendment.
The lower federal courts had upheld the VMI admission policy, basing their decision on the need to preserve the "VMI experience," a physically and emotionally demanding military regimen that has remained the same since the early nineteenth century. Co-education would prevent both men and women from undergoing the "VMI experience" and would distract the male cadets. During the litigation the state of Virginia proposed the establishment of a parallel program for women, called the Virginia Women's Institute for Leadership (VWIL), with VMI remaining an all-male institution.
The Supreme Court rejected the arguments advanced by the courts below. Justice Ruth Bader Ginsburg, writing for the majority, stated that "Neither the goal of producing citizen-soldiers nor VMI's implementing methodology is inherently unsuitable to women." Ginsburg rejected Virginia's contention that single-sex education yields such important educational benefits that it justified the exclusion of women from VMI. The generalizations about the differences between men and women that the state offered to justify the exclusion of women were suspect. According to Ginsburg, the generalizations were too broad and stereotypical, with the result that predictions about the downgrading of VMI's stature if women were admitted were no more than self-fulfilling prophecies. The categorical exclusion of women from VMI denied equal protection to women.
The Court was also unimpressed with the creation of the VWIL as a remedy for the constitutional violation of equal protection. Justice Ginsburg noted numerous deficiencies, pointing out that VWIL afforded women no opportunity to "experience the rigorous military training for which VMI is famed."
Sex Discrimination to Protect Fetal Health
In the 1980s female employees in certain industries complained that they were barred from certain jobs because the employer believed the jobs exposed women to health hazards that could affect their ability to reproduce and could also affect the health of a fetus. The Supreme Court, in UAW v. Johnson Controls, 499 U.S. 187, 111 S. Ct. 1196, 113 L. Ed. 2d 158 (1991), ruled that a female employee cannot be excluded from jobs that expose her to health risks that might harm a fetus she carries. The Court found that the exclusion of the women violated Title VII of the Civil Rights Act of 1964 because the company policy applied only to fertile women, not fertile men. The Court noted that the policy singled out women on the basis of gender and childbearing capacity rather than on the basis of fertility alone. If a job presented potential dangers to the worker or the worker's fetus, it was up to the worker to decide whether to accept the position.
Gender Bias in the Courts
Beginning in the 1980s, many state court systems have established task forces to investigate the existence of gender bias in the courts. The reports of these task forces have documented sex discrimination, with its victims more often women than men. The task forces have found that much gender-biased behavior is unconscious and that the manifestations of bias, although often subtle, are deeply ingrained in state judicial systems. For example, the studies have noted the existence of stereotypes concerning victims of Domestic Violence and sexual assault; many judges believe that women who are beaten by a spouse or raped have provoked the attack. These studies also have shown that judges do not always treat men and women equally in the courtroom. For example, judges may identify women appearing before them by their first name but use professional titles or "Mister" when addressing men. In response to these findings, states have set up judicial educational programs on the dangers of gender-based stereotypes and have modified judges' and lawyers' codes of conduct to explicitly prohibit gender-biased behavior. These task forces have also recommended that more women be appointed to the bench.
Further readings
Atwell, Mary Welek. 2002. Equal Protection of the Law?: Gender and Justice in the United States. New York: P. Lang.
Becker, Mary, Cynthia Grant Bowman, and Morrison Torrey. 2001. Cases and Materials on Feminist Jurisprudence: Taking Women Seriously. 2d ed. St. Paul, Minn.: West Group.
Kimmel, Michael S. 2004. The Gendered Society. 2d ed. New York: Oxford Univ. Press.
Macklem, Tony. 2004. Beyond Comparison: Sex and Discrimination. New York: Cambridge Univ. Press.
Smith, Patricia. 1993. Feminist Jurisprudence. New York: Oxford Univ. Press.
Cross-references
Armed Services; "Bradwell v. Illinois" (Appendix, Primary Document); Dworkin, Andrea; Employment Law; Feminist Jurisprudence; Fetal Rights; Friedan, Betty Naomi Goldstein; Husband and Wife; Ireland, Patricia; Millett, Katherine Murray; Schlafly, Phyllis Stewart; Sexual Harassment; Women's Rights.