Title VII Sex Discrimination in the Public Sector in the 1990s: The Courts' View
Greenlaw, Paul S., Kohl, John P., Lee, Robert D., Jr., Public Personnel Management
In the past thirty years, Congress has enacted a wide-range of laws aimed at bringing equal job opportunity to Americans. The major and primary piece of federal legislation is Title VII of the Civil Rights Act of 1964 (CRA). This act prohibits all forms of employment discrimination based upon an individual's race, religion, color, national origin - and sex.(1) Thus it is unlawful to:
refuse to hire or to discharge any individual, or otherwise to discriminate . . . with respect to . . . compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex . . . ([section]703(a)(1)).
At first sex was not included as a protected category under Title VII of the Civil Rights Act. In fact, it is omitted in other Titles (or sections) of the CRA. When Title VII was being debated on the floor of Congress, "sex" was introduced in an attempt to have the bill defeated.(2) Despite this strategy, the CRA passed - and sex discrimination was clearly prohibited under the law.
As clear as this prohibition appears, however, there has continued to be confusion concerning precisely what Congress and the regulatory agencies meant when they prohibited discrimination based on "sex." Since passage of the CRA, Congress and the Equal Employment Opportunity Commission (EEOC) have returned again and again seeking to clarify Congressional intent. One major concern, which subsequently led to Congress amending Title VII, was whether or not pregnancy was protected under the Act. Following numerous unfavorable U.S. Supreme Court decisions in the 1970s, Congress amended Title VII with the Pregnancy Discrimination Act of 1978.
A second major problem involved unequal retirement benefits for women who worked. Frequently women were charged more for retirement benefits than their male counterparts because of longer life expectancy, or were awarded lower pension benefits than males based on the same fact. Both situations were subsequently struck down by the United States Supreme Court as being a form of sex discrimination prohibited under the law.
During the 1970s the courts uniformly rejected the claims of women plaintiffs charging that harassment was a form of discrimination prohibited under the law. In response to this question, the EEOC issued its now famous guidelines on sexual harassment on November 10, 1980. Despite the conciseness and clearness of the guidelines, the courts continued to address the issue of both quid pro quo harassment and hostile work environment.(3)
As Congress, the regulatory agencies, and the courts have continued to broaden and develop these issues concerning sex discrimination, it appears that what has been forgotten in recent years is Title VII sex discrimination excluding any special issues as pregnancy, retirement benefits, or sexual harassment. This article will examine and analyze recent federal court cases dealing with such discrimination in the public sector.
One important issue raised in numerous court cases reviewed is the fact that employment discrimination based upon sex includes both women and men, since: "A claim of sexual discrimination brought by a male plaintiff is cognizable under Title VII, since the word "sex . . . simply refer[s] to membership in a class delineated by "gender."(4)
This article focuses on and is organized around five traditional categories of employment decisions covered under Title VII: (1) initial hiring decisions, (2) compensation and benefits, (3) transfer and assignment, (4) promotion, and (5) discharge.
The number of court decisions(5) in the public sector which we have identified was relatively small for the first three categories and we will discuss them in toto. However, the number of promotion and discharge cases was so large that a complete discussion of all of them would render this article unmanageable. Therefore, only selected promotion and discharge cases will be reviewed in a similar manner as the first three categories, with the remainder simply summarized in the Appendix. …