Sex / Gender Discrimination
Sex or gender discrimination in employment involves treating someone unfavorably because of the person’s sex, whether they are applying for a job or are a current employee. This page outlines answers to many of the common questions regarding this issue.
Sex or gender discrimination treats individuals unfavorably in their employment, precisely because of their sex, gender identity, sexual orientation, or pregnancy status. If you have been rejected for employment, fired, or otherwise harmed in employment because of your sex or gender, then you may have suffered sex or gender discrimination.
In everyday language and the law, the terms “gender” and “sex” are used interchangeably, but the two terms have different meanings. Social scientists use “sex” to refer to a person’s biological or anatomical identity as male or female, while reserving “gender” for characteristics culturally associated with maleness or femaleness. Discrimination is generally illegal regardless of whether it is based on sex, gender, or both sex and gender.
Here are some examples of potentially unlawful sex/gender discrimination that women, for example, may face:
- Hiring/Firing/Promotions: You apply for a job for which you have experience and excellent qualifications, but you are not hired because some of the company’s long-time clients are more comfortable dealing with men; you are told that you are laid off due to company cutbacks and reorganization, while men in the same job and with less seniority than you keep their jobs; you have worked for your company for several years, receiving exemplary reviews and an employee-of-the-year award, yet each of the five times you have applied for promotions, the positions you applied for are instead filled by less qualified men.
- Pay: You worked your way up from cook’s helper to chef. Your boss recently hired a male chef who is making more money than you; you are a top salesperson for your company, but are moved to a less desirable territory while a man with much lower sales is given your territory and client base, enabling him to make much more in commissions than you will make for several years.
- Job Classification: You work at a company for four years and put in many hours of overtime. After you return from having a baby, you tell your employer that you will not be able to put in as many hours of overtime. Your position is then changed to a lower level, and you get less pay. In contrast, male coworkers in similar positions can cut back their overtime hours for personal reasons without changing their positions or pay.
- Benefits: Your company’s health insurance policy does not cover your spouse, because it is assumed that he will have his own benefits, while your male coworkers have their wives covered by the policy. Because your husband is between jobs, you have to pay increased health benefits on his behalf that your coworkers do not pay for their wives.
If any of these things have happened to you on the job, you may have suffered sex or gender discrimination. Other forms of illegal discrimination, such as age, race, or disability, may accompany sex or gender discrimination. Pregnancy discrimination and sexual harassment are also considered forms of sex discrimination under the law.
Title VII of the Civil Rights Act of 1964 is a federal law that protects individuals from discrimination based upon sex. This law makes it illegal for an employer to discriminate against individuals in hiring, firing, and other terms and conditions of employment, such as promotions, raises, and other job opportunities because of their sex.
The laws of most states also make it illegal to discriminate on the basis of sex. For more information, see the question regarding sex discrimination and state law.
The Office of Federal Contracts Compliance Programs Executive Order 11246 prohibits federal contractors and federally‐assisted construction contractors and subcontractors, who do over $10,000 in Government business in one year from discriminating in employment decisions on the basis of race, color, religion, sex, sexual orientation, gender identity or national origin. The Executive Order also requires Government contractors to take affirmative action to ensure that equal opportunity is provided in all aspects of their employment. For more information on protections specific to employees of federal contractors, see our federal contractors page.
The U.S. Department of Labor implemented has publishednew sex discrimination regulations that update Executive Order 11246. It includes explicit protections against compensation discrimination, sexually hostile work environments, discrimination based on pregnancy, childbirth, or related medical conditions, and discrimination against unlawful sex stereotypes, gender identity, and transgender status. See the U.S. Department of Labor website for more information.
In October 2022, the Equal Employment Opportunity Commission (EEOC) updated its “Know Your Rights” poster that informs employees on federal laws prohibiting job discrimination and how they can file a complaint. One update to the poster “Clarifies that sex discrimination includes discrimination based on pregnancy and related conditions, sexual orientation, or gender identity.” A copy of the updated poster is here, and the EEOC has published Frequently Asked Questions about the poster here.
Title VII covers all private employers, state and local governments, and educational institutions that employ 15 or more individuals. These laws also cover private and public employment agencies, labor organizations, and joint labor-management committees controlling apprenticeship and training.
Many states also make it illegal to discriminate on the basis of sex. For more information, please see our page on the minimum number of employees needed to file a claim under your state law.
The law’s protections apply to both current workers and job applicants. For example, you are protected if you are a current employee and are fired, not promoted, or not accommodated due to your sex or gender. You are also protected if you are not hired due to your sex or gender,
No. Both Title VII and the Equal Pay Act (EPA) make it illegal to discriminate on the basis of sex in the payment of wages or benefits. The laws against discrimination in compensation cover all forms of compensation, including salary, overtime pay, bonuses, stock options, profit sharing and bonus plans, life insurance, vacation and holiday pay, cleaning or gasoline allowances, hotel accommodations, reimbursement for travel expenses, and benefits.
The EPA requires that men and women be given equal pay for equal work in the same establishment. The jobs need not be identical, but they must be substantially equal. It is the content of the job, not job titles, that determines whether jobs are substantially equal. Unlike the EPA, Title VII does not require that the job of the person claiming discrimination be substantially equal to that of a higher paid person of the other sex, nor does Title VII require the person claiming discrimination to work in the same establishment as the higher paid person. However, Title VII, unlike the EPA, requires proof of intent to discriminate on the basis of sex, while the EPA does not require proof of discriminatory intent.
Under the EPA, employers are prohibited from paying unequal wages to men and women who perform jobs that require substantially equal skill, effort and responsibility, and that are performed under similar working conditions within the same establishment. The law defines these terms as follows:
- skill: measured by factors such as the experience, ability, education, and training required to perform the job. The key issue is what skills are required for the job, not what skills the individual employees may have.
- effort: the amount of physical or mental exertion needed to perform the job.
- responsibility: the degree of accountability required in performing the job.
- working conditions: encompasses two factors: (1) physical surroundings like temperature, fumes, and ventilation, and (2) hazards.
- Employers may not reduce wages of either sex to equalize pay between men and women.
- A violation of the EPA may occur where a different wage is or was paid to a person who worked in the same job before or after an employee of the opposite sex.
While there are some differences between Title VII and the Equal Pay Act, the federal laws are enforced by the same administrative agency, the Equal Employment Opportunity Commission (EEOC).
Employers are also not allowed to condition benefits available to employees and their spouses and families on whether the employee is the “head of the household’” or “principal wage earner” in the family unit, since that status bears no relationship to job performance and discriminatorily affects the rights of women employees.
An employer cannot make benefits available:
- for the wives and families of male employees where the same benefits are not made available for the husbands and families of female employees;
- for the wives of male employees, which are not made available for female employees; or
- for the husbands of female employees who are not made available for male employees.
It is also against the law for an employer to have a pension or retirement plan which establishes different optional or compulsory retirement ages based on sex, or which differs in benefits based on sex.
No. Pregnancy discrimination, defined as discrimination on the basis of pregnancy, childbirth, and related conditions, is illegal under Title VII. In 1978, Congress passed the Pregnancy Discrimination Act (PDA) amending Title VII to clarify that discrimination based on pregnancy is a form of sex discrimination.
Under the law, pregnancy is considered a temporary disability, as are related medical conditions such as severe morning sickness, doctor-ordered bed rest, childbirth, recovery from childbirth, and any other related medical condition. Title VII prohibits employers from treating pregnant women differently from other temporarily sick, injured or disabled employees. Employers must therefore give pregnant employees and temporarily physically disabled new mothers the same treatment and benefits that they give to employees with other temporary disabilities.
At the federal level, the Civil Service Reform Act bans marital status discrimination in federal government hiring and employment. In addition, New York, California, Connecticut, Florida, Delaware, Illinois, and Washington have marital discrimination laws. See the U.S. Commission on Civil Rights website for a directory of state offices that can give you more information on marital status discrimination. Other states ban discrimination because of someone’s familial status or parental status, including Pennsylvania and Texas. See our page on family responsibilities discrimination for more information.
Parental status discrimination is not prohibited by the federal law, which prohibit discrimination based on race and color, sex, religion, national origin, age, and disability. However, several states have laws making it illegal to discriminate on the basis of parental status.
Parental status discrimination and sex/gender discrimination can often coexist. For example, a woman with young children, is rejected for a position involving frequent travel and overtime work because it is assumed that she should or will want to spend time with her children. Then, the position is offered to a man with small children the problem may be sex/gender discrimination instead of parental status discrimination. It is illegal for your employer to make assumptions based on gender stereotypes, even if those assumptions are partly motivated by your parental status. For more information, see our page on family responsibilities discrimination.
If you need leave from work to care for a newborn or a sick child or family member, you may also be protected by the Family & Medical Leave Act (FMLA). For more information, see our page on family leave.
Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Although Title VII does not specifically use “sexual harassment,” courts have held that sexual harassment is a form of illegal sex discrimination. While the laws of some states specifically use the words “sexual harassment,” other states have followed the legal developments under federal law by determining that sexual harassment is a form of illegal sex discrimination.
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature are all types of sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment. For more information, see our page on sexual harassment.
As noted throughout this page, there are other forms of discrimination on the basis of sex that is not sexual harassment, such as discrimination in hiring, firing, promotions or benefits, pay discrimination, and gender stereotyping. In addition, it is possible to have illegal, sex-based harassment that is not of a sexual nature, sometimes called gender-based harassment. An example of this would be a supervisor who makes frequent derogatory comments about women and constantly refers to female employees as “girls” or “bitches.”
Only in minimal situations. Title VII makes an exception to prohibiting sex discrimination when sex is an essential part of a particular job – also known by the legal term “bona fide occupational qualification” or BFOQ. For example, if a company needs an actor to play a female role or a “wet nurse,” then being a woman is a BFOQ for those positions.
The BFOQ exception as to sex has been interpreted very narrowly. As a result, jobs perceived as“men’s jobs” or “women’s jobs” tend to deny employment opportunities to one sex or the other unnecessarily. Therefore, in the following situations, the BFOQ concept will not apply:
- The refusal to hire a woman because of her sex is based on assumptions of the comparative employment characteristics of women. For example, the assumption isthat women’s turnover rate is higher than men’s.
- The refusal to hire an individual based on stereotyped characterizations of the sexes. Individuals should be considered on the basis of individual capacities and not on the basis of any characteristics generally attributed to the group. Such stereotypes include, for example, that men are less capable of assembling intricate equipment, or that women are less capable of aggressive salesmanship.
- The refusal to hire an individual because of the preferences of coworkers, the employer, clients, or customers except where it is necessary for authenticity or genuineness, such as hiring an actor or actress.
In a critical U.S. Supreme Court case known as Price Waterhouse, the Court ruled that discrimination based on gender stereotyping is illegal sex discrimination under Title VII. In Price Waterhouse, the employer delayed a female employee’s promotion, partly based on evaluation comments describing her as “macho” and advising her to “take a course in charm school.” This woman was treated differently because of her gender, and because she seemed too “male.” Therefore, a female employee who is discriminated against because she wears pants or other gender-neutral clothing may be able to argue that she faced discrimination based on gender stereotypes or notions of appropriate dress for women.
Many employers have dress codes or otherwise expect their employees to dress according to the customs of the profession. Nothing in the Price Waterhouse case prevents an employer from asking male and female employees to dress professionally. For example, an employer who requires its male employees to wear neckties at all times and its female employees to wear dresses or skirts would not likely be found to have violated the law, as courts have previously allowed employers to require employees to wear “suitable” business attire, even when the standards for what is considered suitable vary by sex. However, California has passed a specific law making it illegal for employers to prevent an employee from wearing pants because of sex.
An employer who requires employees to wear uniforms different for males and females is not engaging in discriminatory practices as long as the uniforms for both males and females are “suitable.” For example, women cannot be forced to wear short shirts or sexually revealing uniforms if men are not required to do so.
It depends. The general principle is that the requirements must be necessary for the safe and efficient performance of job-related tasks, because such requirements tend to disproportionately disadvantage women and members of some racial and ethnic groups.
Statistics show that minimum height requirements adversely affect women, and members of some racial and ethnic groups, because those groups, on average, are shorter than men or members of other races or national origins. An employer, therefore, must show that the requirement is necessary for the safe and efficient performance of job-related tasks to justify a minimum height requirement. If there is a less restrictive way to accomplish the same goal other than a minimum height requirement, employers will be required to use that alternative to avoid liability for discrimination.
For example, suppose a restaurant had a minimum height requirement for servers, presuming that shorter people generally cannot carry the required weight on a tray. In that case, a less restrictive alternative could be the requirement that all servers must be able to carry a set minimum weight on a tray. Of course, even if a restaurant or any other business implemented a minimum strength or lifting requirement, that requirement also must not significantly affect a protected class of people unless required for the safe and efficient performance of job-related tasks.
Weight requirements may be considered discriminatory because they often have an adverse impact on certain classes of people. In addition to problems with discrimination on the basis of sex or national origin, weight requirements also may constitute discrimination on the basis of disability. While weight-based disability claims have generally failed under the federal anti-discrimination law, the Americans with Disabilities Act, they have occasionally succeeded under the laws under certain states that either define disability differently or specifically make it illegal to discriminate on the basis of weight or personal appearance. It is also difficult to justify weight requirements as job-related if the purpose for the requirement is based primarily on physical appearance rather than the ability to perform a specific job-related task.
Federal Protections for nursing mothers include the amended section 7 of the Fair Labor Standard Act (FLSA), which took effect via the Affordable Care Act in 2010. This legislation requires that employers provide a reasonable break time for women to express milk after the birth of a child. The amendment also requires that employers provide employees with a space to express milk. This place must be something other than a bathroom, and must be shielded from view and intrusion of coworkers and the public. Some states also have laws on breastfeeding in the workplace. See workplacefairness.org for more information on federal and state laws.
The term “glass ceiling” refers to an artificial barrier based on attitudes or biases preventing qualified women from advancing into mid-level and senior-level management positions. In other words, women can advance so far, but hit an invisible barrier and can advance no farther. If you feel you have been discriminated against based on a “glass ceiling” at your company, you may bring a claim under Title VII or state or local anti-discrimination laws.
Employers can and should take some or all of the following steps to eliminate the glass ceiling from their companies.
- Make sure that nondiscriminatory practices and requirements are used.
- Examine subjective or neutral criteria to ensure they do not disproportionately impact women.
- Set up workforce diversity programs to eliminate disadvantages and create a work environment where all employees feel comfortable.
- Make sure to hire employees based on true qualifications, not stereotypical ideas of a candidate’s qualifications.
- Monitor and ensure the development of female employees.
- Establish network and mentoring programs to help train and inform employees of opportunities for promotion.
- Require all job postings to state promotion criteria and affirm the employer’s commitment to diversity in management.
The phrase “gender identity” refers to one’s self-identification, as a man, woman, gender non-conforming, or non-binary as opposed to one’s anatomical sex at birth. For many, , one’s gender identity matches one’s anatomical sex: people born with the physical characteristics of males usually identify as men,, and those with physical characteristics of females identify as women. However, for some people, gender identity does not always align with one’s anatomical sex. Thus, for transsexual people, gender identity and anatomical sex are not in agreement. For example, someone born male may have a strong internal self-image and self-identification as a woman, or someone born female may have a strong internal self-image and self-identification as a man. Some transsexual people seek medical treatment through hormone therapy or surgery to correct their physical sex and agree with their gender identity. The term “transgender” is an umbrella term to describe anyone who, in one or more ways,, does not conform to gendered stereotypes of gender identity and/or gender expression. Transgender people can face severe discrimination in the workplace, generally because of a failure to conform to traditional sex stereotypes or gender roles. An example of this is Caitlyn Jenner. Formerly known as Bruce Jenner, a retired Olympic Athlete, Caitlyn recently came out about her internal self-identification as a woman, which conflicted with her anatomical physical characteristics of a male.
Discrimination against an individual because of gender identity, including transgender status, or because of sexual orientation is discrimination because of sex in violation of Title VII. See the Equal Employment Opportunity websiteand workplacefairness.org for more information on gender identity discrimination.
The Department of Health and Human Services enforces Section 1557 and Title IX’s prohibitions on discrimination based on sex to include: (1) discrimination on the basis of sexual orientation; and (2) discrimination on the basis of gender identity. Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in covered health programs or activities. The update was made in light of the U.S. Supreme Court’s decision in Bostock v. Clayton County and subsequent court decisions.
The Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services (the Department) is responsible for enforcing Section 1557 of the Affordable Care Act (Section 1557) and regulations issued under Section 1557, protecting the civil rights of individuals who access or seek to access covered health programs or activities. Covered entities are prohibited from discriminating against consumers on the basis of sexual orientation or gender identity. See the Department of Health and Human Services website for more information.
The Equal Employment Opportunity Commission (EEOC) is the agency of the federal government responsible for investigating charges of job discrimination related to sex discrimination in workplaces of 15 or more employees. In addition, moststates have agencies that enforce state laws against discrimination. See Question 19 for state agencies that enforce sex discrimination.
Victims of sex discrimination can recover remedies, including:
- back pay
- front pay
- compensatory damages (emotional pain and suffering)
- punitive damages (damages to punish the employer)
- other actions that will make an individual “whole” (in the condition they would have been but for the discrimination)
Remedies also may include payment of:
- attorneys’ fees
- expert witness fees
- court costs.
An employer may be required to post notices to all employees addressing the violations of a specific charge and advising them of their right to be free of discrimination, harassment, and retaliation. If necessary, such notices must be accessible to persons with visual or other disabilities that affect reading.
The employer may also be required to take corrective or preventive actions regarding the source of the discrimination minimize, the chance it will happen again, and discontinue the specific discriminatory practices involved in the case.
National Organization for Women (NOW)
National Partnership for Women and Families: Employer Guide to Building Gender Equity in the Workplace
AFL-CIO: Gender Equality
See the National Conference of State Legislatures website for information on state laws related to sex, gender, and sexual identity discrimination.