Chapter 5

Sex, Pregnancy,
and Genetic
Discrimination
Discrimination Based on Sex

• The prohibition against sex discrimination applies to:

 Discrimination based on sex
 Discrimination based on sex-related characteristics
 Discrimination based on stereotypes
 Discrimination based on pregnancy
 Discrimination based on gender identity and sexual
orientation
• An employer may not make an adverse employment
decision based on any of these characteristics.
• These prohibitions apply to both men and women.
Defense to Discrimination
Based on Sex
• Customer preference is not a defense to a claim for
discrimination based on sex.
• A BFOQ may be a defense, but this defense is narrowly
defined and closely scrutinized.
Medical Benefits

• Employers are prohibited from discriminating when

medical benefits are provided to employees and their
spouses. Medical benefits must be provided to men and
women on the same terms.
• A health plan that excludes certain prescriptions that are
only appropriate for women (such as birth control pills)
would likely be considered discriminatory.
• An employer’s policy that provides different levels of
coverage to the spouses of male employees than it
provides to the spouses of female employees would violate
Title VII’s prohibition against sex-based discrimination.
Sex-Plus Discrimination

Discrimination based on an individual's gender as well as

an additional characteristic not unique to the gender.
Gender Identity and
Sexual Orientation
• Title VII does not explicitly include sexual orientation or
gender identity.
• The EEOC and courts interpret the prohibition of sex
discrimination as prohibiting discrimination based on
gender identity and sexual orientation.
Pregnancy Discrimination Act (PDA)

The Pregnancy Discrimination Act of 1978 (PDA) amended

Title VII to prohibit discrimination in all aspects of
employment based on pregnancy, childbirth, and related
medical conditions.
Pregnancy Discrimination Act (PDA)

• Amendment to Title VII

• Requires equal treatment of women affected by pregnancy,
childbirth, or related medical conditions in all aspects of
employment, including the receipt of fringe benefits.
• Common issues related to pregnancy discrimination relate to
 Pregnancy and maternity leave
 Medical and fringe benefits
• Applies to a health plan's exclusion of prescription
contraceptives
• Does not require that all employers provide contraceptives
to their employees
• Does require employers provide the same insurance
coverage for prescription contraceptives that they do for
other drugs, devices, or services that are used to prevent
the occurrence of medical conditions other than pregnancy
Equal Pay Act (EPA)

• The Equal Pay Act (EPA)—an amendment to the Fair

Labor Standards Act (FLSA)—provides another source of
protection against sex-based discrimination.
• This federal law requires employers to offer equal pay for
substantially equal work.
• Title VII, however, has a broader scope than the EPA
because it prohibits employers from compensating one
employee more than another based on sex, regardless of
whether the work they perform is equal.
Discrimination Based on Genetics
• The Genetic Information Nondiscrimination Act of 2008
(GINA) amended Title VII to include a prohibition against
workplace discrimination based on genetics.
• GINA subjects covered employers to an absolute prohibition
against the use of genetic information in making employment
decisions under any circumstances.
• Genetic information is broadly defined and relates to
information revealed through an individual's genetic test or the
test of a family member, as well as a family medical history.
Sexual Harassment

Note: Sexual harassment is a form of sex discrimination

that falls within the scope of Title VII.

See Chapter 15, Workplace Harassment, for a detailed

discussion of sexual harassment.