Numerous federal, state, and local laws in the United States prohibit employers from making employment decisions based on an employee’s or job applicant’s sex and thus protecting employees from being discriminated against based on their “sex”. Title VII of the Civil Rights Act of 1964 is the principle federal law which prohibits discrimination based on sex in the workplace.  There are also many state and local laws which prohibit discrimination based on sex which may offer broader protection that that afforded by Title VII of the Civil Rights Act of 1964.

 What is discrimination based on sex?

Discrimination based on sex in the employment context can take many forms throughout the employment process. An employer may not refuse to hire, or screen out, a job applicant based on his or her sex.  Once an individual is hired, an employer may not make decisions affecting an employee’s job based on his or her sex such as job assignments, promotions, selection for training programs, transfers, compensation, benefits, and other terms, conditions or privileges of employment.  Finally, an employer is prohibited from terminating an employee’s employment because of his or her sex.  Sex discrimination can also take the form of sexual harassment and a hostile work environment based on sex.

 What is the definition of “sex”?

Discrimination based on “sex” under Title VII of the Civil Rights Act is not limited to a person’s sex assigned at birth, e.g., male or female, but also includes: (i) pregnancy; (ii) unfavorable treatment of a sub-category of one sex, for example, women with children as opposed to men with children; and (iii) a person’s gender presentation (the extent to which a person conforms to societal expectations of masculinity or femininity). This last category of “gender stereotyping” refers to the making of employment decisions that are based upon whether the person is or is not conforming to the societal and/or cultural expectations of how men or women are purportedly supposed to appear or act. Examples of unlawful sex discrimination based on gender stereotyping include: (i) not promoting a female employee because she is too aggressive or macho, traits traditionally presumed to be more culturally appropriate to men; (ii) terminating the employment of  front desk receptionist because she presents as a “tomboy”; (iii) not promoting a male employee because his appearance and mannerisms are deemed by the employer to be too feminine; and (iv) not promoting a female employee who has four children because the employer assumes that she, as a mother, has too much responsibilities at home.

The Equal Employment Opportunity Commission, the federal agency which interprets and enforces Title VII, has taken the position that that sex discrimination under Title VII includes discrimination against transgender individuals and discrimination based on gender identity or gender expression. Although some federal courts have agreed, not all courts have accepted sex discrimination claims by transgender individuals on the basis of gender identity or expression. Similarly, although Title VII does not specifically prohibit discrimination on the basis of sexual orientation, the EEOC has taken the position that sexual orientation discrimination is sex discrimination because sexual orientation is inextricably linked to sex.  When courts do uphold claims related to sexual orientation, it is often where the person alleges that an adverse employment action was taken which involved gender stereotyping or that the employer took the plaintiff’s sex into account.

 State and Local Laws Offer Broader Protection

Many states and local municipalities have enacted their own laws which provide broader protections to employees from discrimination based on sex. Over twenty states expressly prohibit employers from discriminating against employees based on sexual orientation, which include New York and California, and some states also expressly prohibit discrimination on the basis of gender identity or expression, or transgender status.





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