Chapter 7
GENDER AND FAMILY ISSUES: TITLE VII AND OTHER LEGISLATION
INTRODUCTION
This chapter focuses on discrimination based on gender, family-related issues, and the relevant provisions
of Title VII and other legislation. Title VII protects all individuals from employment discrimination based
on sex or gender, meaning that both men and women are protected from sex discrimination in
CHAPTER OUTLINE
I. Gender Discrimination
A. Basic Scope of Statute
1. Title VII prohibits any discrimination in terms or conditions of employment because of an
employee’s sex; it also prohibits limiting, segregating, or classifying employees or applicants
*Bona fide occupational qualification (BFOQ) is an exception to the civil rights law that allows an
employer to hire employees of a specific gender, religion, or national origin when business necessity
requires it.
4. The act also prohibits advertising for male or female employees in help-wanted notices
B. Dress Codes and Grooming Requirements
1. The act prohibits imposing different working conditions or requirements on similarly
C. Gender as a BFOQ
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1. Title VII does allow employers to hire only employees of one sex, or of a particular religion
2. Section 703(e)(1), which defines the BFOQ exemption, states that:
…it shall not be an unlawful employment practice for an employer to hire and employ
4. Employer convenience, customer preference, or co-worker preference is not sufficient.
CASE 7.1 AMBAT V. CITY AND COUNTY OF SAN FRANCISCO
757 F.3d 1017 (9th Cir. 2014
Facts: In 2006, the San Francisco Sheriff’s Department implemented a new policy prohibiting male
deputies from supervising female inmates in the housing units of the jails operated by the county.
According to San Francisco Sheriff Michael Hennessey, who had held his position since 1980, he adopted
the policy to protect the safety of female inmates from sexual misconduct perpetrated by male deputies
and promote the inmates’ rehabilitation.
Issue: Did the SFSD articulate a bona fide occupational qualification for its rule forbidding male guards
from supervising female inmates?
5. Dothard v. Rawlinson held that the dangers presented by conditions in Alabama maximum
security prisons would reduce the ability of female guards to maintain order and would pose
6. The courts will also allow claims of a BFOQ based on gender when community standards of
morality or propriety require that employees be of a particular gender.
THE WORKING LAW
Corps’ Top Leaders Address Lifting of Combat Exclusion Policy
Defense Secretary Leon E. Panetta officially announced the end of the 1994 Direct Ground Combat
Definition and Assignment Rule excluding women from assignment to units and positions whose primary
mission is to engage in direct ground combat in 2013.
CASE 7.2 PRICE WATERHOUSE V. ANN B. HOPKINS
490 U.S. 228 (1989)
Background: Ann Hopkins was a senior manager at Price Waterhouse who submitted her name for
partner. The partners chose not to recommend her for partner and she sued under Title VII, alleging
discrimination based on sex. The trial court ruled in her favor and the U.S. Court of Appeals for the D.C.
Circuit affirmed.
When deciding whether to recommend a manager for partner, other partners are invited to make
comments on the issue, then a board decides whether to make the recommendation. This decision is not
based on a formulaic determination. Of the 32 partners who made comments, 13 supported Hopkins, 3
candidate. The partner who was charged with informing Hopkins that she was not being recommended
stated that she should walk more femininely, talk more femininely, wear make-up, have her hair styled,
and wear jewelry.
A social psychologist and professor at Carnegie-Mellon opined that the selection process at Price
Waterhouse was likely influenced by sex stereotyping.
In previous years, one partner stated that he could not think of a woman as a legitimate candidate for a
partnership position and the firm took no action against this and included his comments.
Issue: May employment decisions based on sex stereotypes constitute sex discrimination in violation of
Title VII?
Decision: Yes. Price Waterhouse unlawfully discriminated against Hopkins on the basis of sex by
consciously giving credence and effect to partners’ comments that resulted from sex stereotyping. The
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taken place.
ANSWERS TO CASE QUESTIONS
1. Hopkins had a better performance record than any other candidates for partnership, and had landed a
2. The partners‘ comments reflected a stereotypical view of how women should act⎯Hopkins was
criticized for being harsh and aggressive and not being more feminine, while males with the same
3. An employer that acts based upon mixed motives is in violation of Title VII if some of those motives
reflect illegal discrimination⎯based on race, color, sex, religion or national origin; the employer can
limit liability by showing that it would have made the same decision regarding the employee even
1. Following Hopkins, federal courts of appeals have held that discrimination against a male
employee with gender identity disorder because he did not conform to the employer’s
expectations of how a male should act and behave was discrimination based on stereotypical
gender norms and violated Title VII.
E. Gender-Plus Discrimination
1. An employer who places additional requirements on employees of a certain gender but not on
employees of the opposite gender violates Title VII.
II. Gender Discrimination in Pay
A. The Equal Pay Act
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a) The act applies to all employers “engaged in commerce (interstate commerce),” and it
applies to all employees of an “enterprise engaged in commerce.”
3. Provisions
a) The Equal Pay Act prohibits discrimination by an employer: between employees on the
basis of sex by paying wages to employees in such establishment at a rate less than the
rate at which he pays wages to employees of the opposite sex…for equal work on jobs
the performance of which requires equal skill, effort, and responsibility, and which are
performed under similar working conditions.
e) Equal Skill – includes substantially equivalent experience, training, education, and
ability. The skill, however, must relate to the performance of actual job duties.
f) Equal Responsibility – includes a substantially equivalent degree of accountability
required in the performance of a job, with emphasis on the importance of the job’s
obligations.
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B. Defenses Under the Equal Pay Act
1. When the pay differentials between male and female employees are due to a seniority system,
CASE 7.3 BLACKMAN V. FLORIDA DEPT. OF BUSINESS AND PROFESSIONAL
REGULATION
— Fed. Appx. —, 2015 WL 689622 (11th Cir. 2015)
Facts: Blackman viewed a public website with state salary information and learned that the DBPR was
paying her less than two male DPMW bureau chiefs and one of her male subordinates. Blackman alleged
that she was being paid less than five male employees on the basis of her gender in violation of Title VII
and the Equal Pay Act.
Issue: Was the disparity between the plaintiff’s salary and those of her alleged male counterparts a
violation of the Equal Pay Act?
Decision: No. The court found that the salary difference was a function of legislatively–mandated annual
C. Procedures Under the Equal Pay Act
1. The Equal Pay Act is administered by the Equal Employment Opportunity Commission
(EEOC). The act provides for enforcement actions by individual employees (Section 16), or
by the U.S. Secretary of Labor (Section 17), who has transferred that power to the EEOC.
4. In a case decided under Title VII, Ledbetter v. Goodyear Tire & Rubber Co., a divided
Supreme Court held that the receipt of individual paychecks reflecting a discriminatory
performance evaluation system did not constitute a separate violation of Title VII, but rather
simply reflected the effects of the discriminatory evaluation system.
a) The Ledbetter decision meant that an employee alleging sex discrimination in pay would
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D. Remedies
1. An individual plaintiff’s suit under the Equal Pay Act may recover the unpaid back wages
due and may also receive an amount equal to the back wages as liquidated damages under the
act.
a) Back pay can be recovered for the period from two years prior to the suit (three if the
E. Title VII and the Equal Pay Act
1. Title VII’s coverage extends beyond that of the Equal Pay Act.
2. The Equal Pay Act applies only when male and female employees are performing
substantially equivalent work. Can Title VII be used to challenge pay differentials between
5. Comparable Worth
a) The idea of comparable worth – that employees should receive equal pay for jobs of
equal value – is different from the equal-pay-for-equal-work requirements of the Equal
Pay Act.
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F. Gender-Based Pension Benefits
1. Gender-based actuarial tables used to determine premiums and benefits for pensions would
require that women pay higher premiums to receive the same levels of benefits as men of the
same age.
CASE 7.4 CITY OF LOS ANGELES V. MANHART
435 U.S. 702 (1978)
Background: The Department of Power and Water required female employees to make larger
contributions to its pension fund than men based on mortality tables. A group of female employees filed
suit against the Department, alleging that the practice of making female employees pay higher
contributions to receive equal benefits upon retirement violated Title VII.
Issue: Does the practice of requiring female employees to pay more into the pension system in order to
receive the same benefits upon retirement violate Title VII’s prohibition on sex discrimination in pay?
Decision: Yes. Employment decisions cannot be predicated on mere “stereotyped” impressions about the
ANSWERS TO CASE QUESTIONS
1. A person’s longevity is determined, among other things, by their lifestyle and diet, by their health, their
heredity and their environment, and by their gender. The Los Angeles pension plan only considered
gender in determining the premiums to be paid the employees.
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III. Pregnancy Discrimination
A. In General Electric v. Gilbert, the Supreme Court held that General Electric’s refusal to cover
pregnancy or related conditions under its sick-pay plan, even though male-specific disabilities
such as vasectomies were covered, did not violate Title VII.
B. In response to the General Electric v. Gilbert decision, Congress passed the Pregnancy
D. Employers who fire pregnant employees are clearly in violation of Title VII, as are employers
who fire pregnant employees because of the assumption that the employees will likely be absent
from work for lengthy periods.
E. Pregnancy and Hazardous Working Conditions
1. An employer wishing to avoid potential health problems for female employees and their
IV. Pregnancy and Hazardous Working Conditions
A. The U.S. Supreme Court in U.A.W. v. Johnson Controls, Inc. held that the employer’s restrictions
V. The Family and Medical Leave Act
A. Allows eligible employees to take up to 12 weeks unpaid leave in any 12 months due to birth,
B. FMLA Coverage
1. Applies to private sector employees with 50 or more employees; applies to public sector
employees regardless of the number of employees.
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2. Private employers may still be covered if they employ over 50 employees within a 75 mile
radius.
C. Entitlement to Medical Leave
1. Serious health condition – an illness, injury, or condition that requires inpatient hospital care,
or lasts more than 3 days and requires continuing treatment by a health-care provider, or
2. Leave Provisions
a) The leave may be taken all at once, or in certain cases, intermittently, or the employee
may work at a part-time schedule.
D. Military Leave Provisions
1. The 2008 National Defense Authorization Act amended the FMLA to allow employees to
take up to twelve weeks of unpaid leave during a twelve-month period for “qualifying
exigencies” arising out of an employee’s spouse, child, or parent being on active duty service
or called to active duty service as a member of the National Guard or Reserves.
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a) issues arising from a family member’s short notice deployment—deployment on notice
of seven days or less;
d) making or updating financial or legal arrangements to address a family member’s absence
due to the call to active duty; attending counseling (provided by someone other than a
health-care provider) for the employee, the family member called to active duty, or a
child of the person called to active duty, when the need for counseling arises from the call
to active duty or the active duty status of the family member;
g) any other event that the employer and employee agree is a qualifying exigency.
4. Military Caregiver Leave
a) Under this provision of the FMLA, an employee may take up to twenty-six weeks of
E. Notice Requirements for FMLA Leave
1. Must give 30 days’ advance notice if the need is foreseeable, or as soon as practicable if it
becomes foreseeable less than 30 days in advance.
3. Employer must provide notification of eligibility within 5 days of the request and give a
reason if not eligible.
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F. Job Restoration Requirements
1. The employer may requires that an employee on leave seeking to return to work provide
medical certification that the employee is capable of returning to work.
2. When the employee returns from FMLA leave, the employer must restore the employee to
CASE 7.5 NOVAK V. METROHEALTH MEDICAL CENTER
503 F.3d 572 (6th Cir. 2007)
Facts: Novak missed enough work that she was eventually terminated from her position. Novak had
submitted requests for FMLA leave which would have covered the leave, however the employer refused
to qualify the leave as FMLA protected. Novak claimed she was entitled to FMLA protection for two
reasons. The first reason was due to her continuing back pain. However, the employer questioned the
validity of her certification of a serious health condition. After learning the physician completed it based
on second hand knowledge, not her own medical observations, the company declared it invalid. The
second reason was that Novak took time off to care for her 18 year-old daughter who was in need of
assistance due to post-partum depressions. The employer claimed FMLA did not cover this type of
circumstance.
Issue: Was Novak entitled to FMLA leave because of her back pain and/or her caring for her daughter
and her grandson?
Decision: No. The sixth circuit ruled the company was justified in rendering the medical certificate
G. Effect of Other Laws on the FMLA
1. The FMLA does not preempt or supersede any state or local law that provides for greater
H. State Legislation
1. The California Fair Employment and Housing Act Law required employers to provide
pregnant employees up to 4 months of unpaid pregnancy leave and to reinstate female