Sex Discrimination

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.)