Employment Discrimination “Because of Sex”: Then and Now

Since its last-minute addition to Title VII of the 1964 Civil Rights Act, the provision banning employment discrimination “because of sex” has been in a near-constant state of evolution. Taught by Gillian Thomas, Senior Attorney for the American Civil Liberties Union, and Mariann Meier Wang, Partner at Cuti Hecker Wang LLP, this program introduces the participant to the landmark decisions that still form the basis for Title VII sex discrimination claims, and highlights how they have been interpreted in recent years to address emerging forms of bias. Ms. Thomas and Ms. Meier Wang explore workplace sex discrimination claims in three main areas: pregnancy and motherhood, sex stereotypes, and sexual harassment.

As to pregnancy and motherhood, the course gives an overview of the provisions of the Pregnancy Discrimination Act, as well as other federal laws that are implicated in pregnancy discrimination claims, including the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), and the Fair Labor Standards Act (FLSA), with reference to applicable state and local laws, as well.

As to sex stereotypes, the presenters trace the extensive Supreme Court precedent disapproving employers’ reliance on all manner of sex stereotypes, up to and including its landmark decision in Price Waterhouse v. Hopkins (1989). That ruling’s implications with respect to Title VII claims by LGBT employees are also explained.

Last, Ms. Thomas and Ms. Meier Wang address current standards applicable to sexual harassment cases, including standards for imposing supervisor liability. They further discuss reference to emerging forms of harassment, such as through social media and other electronic media.

Learning Objectives: 

1. Gain a basic understanding of the major precedents governing sex discrimination claims under Title VII, as well as relevant EEOC guidance
2. Understand the interplay among the PDA, ADA, FMLA, FLSA, and state laws in defining employer obligations toward pregnant and parenting workers
3. Discuss the broad prohibition on sex stereotypes as criteria for decision making, and how such prohibition is applied to LGBTQ employees
4. Learn the substantive standards defining sexual harassment, employer obligations in preventing and remedying harassment
5. Raise awareness of unconscious bias as a motivating factor among employees and decision-makers alike