Women & The Law 2

SUMMARY OF EMPLOYMENT LAWS
A number of federal and state laws deal with discrimination in employment. The most
important have been three federal laws--two statutes and an executive order. The executive order
was rescinded in January 2025, but it’s relevant because it operated for nearly sixty years. This
memo summarizes the three laws, with some omissions and simplications.
Title VII of the Civil Rights Act of 1964
1. Overview. Title VII is a general prohibition of discrimination in employment practices
on the basis of race, religion, sex, or national origin. It applies to employers, labor unions, and
employment agencies. It is written to cover all types of employment practices, including hiring
and firing, compensation, and other conditions of employment.
2. Exceptions. The primary exception to the general prohibition of discrimination is that
hiring decisions can be made on the basis of religion, sex, or national origin (but not race) if one
of these characteristics "is a bona fide occupational qualification reasonably necessary to the
normal operation of that particular business or enterprise."
Two other significant provisions create what could be considered exceptions: one
indicates that it is not considered discrimination to give employment preference to military
veterans, while the other indicates that differences in wages or compensation on the basis of sex
are not unlawful if such differences are authorized by the minimum wage law, as amended by the
Equal Pay Act.
3. Pregnancy. A 1978 amendment requires that pregnancy be treated like other
disabilities in benefit programs for employees such as health and disability insurance.
4. Coverage. The employers subject to Title VII are essentially all those with fifteen or
more employees, including state and local governments. The federal government as employer is
covered under separate and somewhat different procedures. A 1991 amendment expanded
coverage to employees of Congress and of presidential appointees, as well as employees of state
and local elected officials; special procedures are used for these employees as well.
5. State Laws. Title VII is not intended to preempt similar state and local laws, which it
allows to continue in operation.
6. Remedies. If an employer or other organization is found to have violated a person's
rights under Title VII, a court can impose one or more of several remedies: an injunction against
further violations of the law; "affirmative action," which may include reinstatement or hiring of
employees, with or without back pay; other equitable relief that the court sees as appropriate;
and, in cases involving intentional discrimination, compensatory and punitive damages.
7. Procedures. Title VII created the Equal Employment Opportunity Commission as an

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agency to enforce it. An individual initiates the enforcement process by bringing a complaint to
the EEOC. If there is a state or local employment discrimination agency in the place in question,
the EEOC must give that agency sixty days to take action. If the case has not been resolved in
that time, it then returns to the EEOC.
The Commission is to investigate the complaint. If it does not find reasonable cause to
believe that there has been a violation of the law, it informs the complainant, who may then act
independently to take a case to federal district court. An individual may also take a case to court
if the EEOC has not acted satisfactorily within 180 days of the complaint. If the EEOC finds
reasonable cause, it must undertake conciliation efforts with the parties. If these fail, it may then
file suit itself on behalf of the individual (but in the case of a government employee, the case
must be referred to the Justice Department to file a case).
Independent of specific complaints, the EEOC also has the power to bring suits against a
pattern or practice of discrimination by an employer.
The Equal Pay Act
1. Overview. The Equal Pay Act of 1963 is an amendment to the Fair Labor Standards
Act of 1938, which is the minimum wage law. The Equal Pay Act prohibits discrimination
between employees in wages on the basis of sex.
2. Similarity of Work. The Act focuses on employees who are performing the same or
highly similar jobs, defined as follows: "equal work on jobs the performance of which requires
equal skill, effort, and responsibility, and which are performed under similar working
conditions..."
3. Exceptions. The Act lists four exceptions to the general requirement of equal pay, as it
is defined above. Differential wages are allowed where they are based on (a) a seniority system,
(b) a merit system, (c) a system in which wages are based on quantity or quality of production,
and (d) any factor other than sex.
4. Coverage. The provisions for coverage of employers are complicated. Essentially, the
Act applies to all employers that do not fall under certain exceptions, such as small farms and
retail establishments.
5. Remedies. The available remedies depend in part on the way that the Act is being
enforced. In lawsuits by individual employees, the primary remedy is back wages. In lawsuits
by the Equal Employment Opportunity Commission, both back wages and an injunction against
future violations can be obtained.
6. Procedures. Individuals can directly bring lawsuits challenging alleged violations of

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the Equal Pay Act. Alternatively, individuals can bring complaints to the EEOC for
investigation. (Prior to 1978, such complaints would go to the Wage and Hours Division of the
Labor Department, the agency that enforces the minimum wage law.) In response to employee
complaints, or acting on its own, the EEOC can file suit to recover back wages, to obtain an
injunction, or both.
Executive Orders 11246 and 11375
1. Overview. Executive Order 11246 was issued by President Johnson in 1965 to
prohibit racial and religious discrimination in employment practices by federal contractors--that
is, companies and other organizations that do work under contract for the federal government.
The Order was amended in 1967 by Executive Order 11375, which added a prohibition of sex
discrimination. E.O. 11246, and with it 11375, was rescinded by President Trump in 2025.
2. Contract Provision. The Executive Order required that all contracts between
employers and the federal government include an equal employment opportunity clause. In this
clause the employer agreed not to discriminate in its employment practices and to accept certain
penalties if it fails to meet the non-discrimination requirement.
3. Affirmative Action. The Order required that employers "take affirmative action" to
ensure that employment decisions are non-discriminatory. Such affirmative action may involve
the whole array of employment decisions, such as promotion, recruitment advertising, and
selection for training.
4. Coverage. All employers contracting with the federal government were subject to the
Order, except that the Secretary of Labor was allowed to establish exemptions on various bases.
The most important of these bases was that contracts for less than a minimum amount of money
specified by the Secretary could be exempted. If an employer was subject to the Order, all
employees--whether or not they are involved in contract work for the government--were covered.
5. Remedies. The primary sanction under the Order was that an employer's contracts
with the federal government may be cancelled, terminated, or suspended; further, the employer
could be debarred from future contracting with the federal government until the employer
establishes compliance with the Order. Recommendations of other legal sanctions against the
employer (for instance, a Title VII lawsuit) also could be made.
6. Procedures. Enforcement responsibility lay with the Office of Federal Contract
Compliance Programs (OFCCP) in the Department of Labor. The OFCCP could act in response
to complaints or through administrative reviews that identify possible noncompliance with the
Order.

The first thing to understand about implementation of Title VII is the procedural paths

that complaints of employment discrimination take in the EEOC and that cases take in the

federal courts. Those paths are shown in the slides on the EEOC, federal district courts, and

federal courts of appeals. You don’t need to remember all the steps that complaints and cases go

through. But you should keep in mind the key elements of the paths that complaints and cases

take—that is, the elements that help to determine their ultimate outcomes. Also important are the

roles of the EEOC and the federal courts in determining what happens to complaints brought

under Title VII. Note the differences between that roles of the Office for Civil Rights and the

federal courts for Title IX complaints, including the relative importance of administrators and

judges.

In discussing the implementation process in the EEOC and in federal court, I present a lot

of numbers and percentages, some of which are on slides. Don’t worry about those specifics;

they’re just a way of making the process more concrete. The things to focus on are (a) the overall

patterns in what actually happens in the EEOC and in court and (b) the sources of those patterns.

I’ll discuss specific aspects of those patterns in the next two paragraphs.

The EEOC deals with a large volume of complaints, and a good many employment

discrimination cases go to court. The large volume in the EEOC has some effects on what

happens to complaints that you should understand. Even with this large volume, we know that

most people who think they have been the subjects of discrimination in employment don’t bring

complaints to the EEOC, and even fewer go to the federal courts. We discussed the reasons for

that fact in the topic on laws against discrimination during the first week of class, and you should

keep that material in mind. The data that we have on the numbers of sex discrimination

complaints involving various kinds of employment practices (such as hiring and firing) provide

some clues about why people do or don’t bring complaints, so make sure that you understand

those clues.

You should also know the patterns of outcomes for Title VII complaints that are brought

to the EEOC and Title VII cases that are brought to court. In both the EEOC and the courts,

many people who bring actions for discrimination are successful. But as a group, those people

have a low rate of success, and that is especially true in the courts. We have some sense of the

reasons for that low rate of success, and you should understand what we know about those

reasons. I have asked you to read Nancy Gertner’s article about why plaintiffs in employment

discrimination cases aren’t more successful in court because she offers an interesting explanation

that is based primarily on her own experience as a judge. Make sure you understand that

explanation and the logic about judges’ perspectives on which it rests.

I’ve given you a lot of reading on this topic. I apologize for the heavy workload, but I

thought it was important for you to learn about several of the issues that we’ll discuss from those

opinions. Please give special attention to this guide so that you can save time by honing in on the

elements of the opinions and the Senate Report that I think are important.

This topic works through several issues about the interpretation of Title VII that all

involve expansions beyond the kinds of discrimination on which members of Congress and

others focused when the Civil Rights Act of 1964 was enacted. I’ll want you to understand what

these issues are and how they’ve been resolved up to now, and you should also understand some

aspects of the decisions in which you’re reading opinions.

The first expansion involves disparate impact as a category of discrimination. To start

with, make sure you understand the distinction between disparate treatment and disparate impact

well enough to identify which category fits a specific instance of possible discrimination. The

Supreme Court ruled that disparate impact cases could be brought under Title VII. That was an

important choice, because it meant that employment practices can violate Title VII even if there

was no intent to discriminate. In this respect Title VII as interpreted by the courts is quite

different from equal protection, so it’s important to keep that difference in mind. This is

connected with the fact that the dichotomy of disparate treatment and disparate impact is

somewhat different from the dichotomy of explicit and implicit discrimination under equal

protection, even though they look similar in some ways, and the differences between those two

dichotomies are also important to keep in mind.

The Supreme Court has set up three-part analytic schemes for disparate treatment cases

and disparate impact cases. There’s no need to remember the details of the two analytic schemes.

But be familiar with the general structure of the schemes in order to help you describe and apply

them.

The second expansion involves two ambiguous situations in which it was unclear whether

Title VII applied. The first (though not chronologically) is discrimination based on sexual

orientation or gender identity. The Court addressed this issue in Bostock v. Clayton County. I’ve

asked you to read the syllabus and excerpts from the majority opinion and primary dissenting

opinion in Bostock. You should understand the positions that the two sides took and the logic

that underlay those positions.

The opinions in Bostock are also a good example of how justices interpret statutes in the

current era, so think about the opinions from that perspective as well. I need to give you some

background for that. In the past four decades, conservatives in the legal community have favored

an approach to interpretation of statutes that is labeled textualism. The idea behind textualism is

simple: judges should base their interpretations solely on the text of the statute itself and not give

attention to evidence about the intent of the members of Congress who enacted the statute. All

the Court’s current conservatives favor textualism, and the liberal justices have given that

approach some support as well. Of course, the text of statutes can be read in different ways, and

that’s what happened in Bostock. Justices Gorsuch and Kavanaugh are committed textualists, but

they disagreed vehemently about what the text of Title VII means as applied to discrimination

based on sexual orientation and gender identity. In reading their opinions, look for the differing

ways that they think statutory text should be interpreted.

The other ambiguous situation that we’ll look at concerns employment benefits and

pregnancy: does it constitute illegal discrimination if pregnancy is excluded from an employment

benefits program? The Supreme Court addressed that question in relation to disability benefits

under equal protection in Geduldig v. Aiello, which we’ve already talked about a little, and under

Title VII in General Electric v. Gilbert. I’m having you read excerpts from the opinions in

Gilbert, even though Gilbert refers to Geduldig a lot, because Gilbert is the Title VII case. You

should know what the Court ruled in the case and the bases on which the majority and dissenting

opinions reached different judgments about whether the exclusion constituted sex discrimination.

Congress responded to Gilbert with the Pregnancy Discrimination Act. In reading the Senate

Report that accompanied this statute, focus on the language that Congress added to Title VII,

subsection (k) (on page 16 of the report) and the material on the background of the bill and its

provisions on pages 1-6. Make sure you understand the legal status of the Geduldig and Gilbert

decisions after Congress enacted this law, as well as the general principles concerning the

powers of Congress and the Supreme Court that this episode illustrates.

The third expansion is generally called “sex-plus,” which refers to situations in which an

employer discriminates on the basis of a combination of sex and another factor. There are a lot of

situations of that type, and some of the other situations in this topic have elements of sex-plus to

them. In our class session, I’ll give attention to gender stereotyping, in which people are treated

differently because they don’t conform to stereotypes of what men and women should be like.

I’ve asked you to read portions of Price Waterhouse v. Hopkins, the classic general stereotyping

case. Work through the opinion so that you can understand the logic by which it reaches the

conclusion that Hopkins was discriminated against on the basis of sex.

The first legal question that had to be resolved on sexual harassment was whether it could

be defined as sex discrimination and thus could potentially violate Title VII. Make sure you’re

familiar with this as a conceptual and legal question, and think about why federal judges came to

accept the argument that harassment could violate Title VII.

Once sexual harassment was treated as a Title VII issue, two broad questions remained.

The first is the circumstances under which harassment potentially violates Title VII; the second

is the extent of employers’ responsibility under Title VII to prevent and deal with sexual

harassment. You should understand what the Supreme Court has said about both issues in

general terms. The key decision on the first issue was Harris v. Forklift Systems, which is

summarized on a slide. The key decision on the second issue was Burlington Industries v.

Ellerth, so you can use the syllabus of the Court’s decision in that case to get a good picture of

the Court’s position. There is a lot of technical and convoluted language in the Ellerth syllabus,

so don’t worry if you can’t follow everything. The key part of the syllabus is section (f), which

isn’t necessarily easy to follow; use the slide on the decision to help put everything in order.

The Supreme Court has also addressed sexual harassment of students under Title IX.

Here, the key question is similar to the second question under Title VII: the extent of schools’

responsibility under Title IX to deal with sexual harassment. The Supreme Court addressed that

question for harassment by teachers in Gebser v. Lago Vista, and in that decision it gave a

somewhat different answer from its answer for Title VII in Ellerth. Make sure you understand

the difference between the two rules that the Court established on Title VII and Title IX and how

Justice O’Connor’s opinion for the Court in Gebser justified this difference. I’ll also discuss

schools’ responsibility for harassment of students by other students, and you just need to have a

general understanding of what the Supreme Court said about that issue in Davis v. Monroe

County.
Issues related to equity in pay between women and men are the primary subject of this

topic. But we’ll also discuss the “bona fide occupational qualification” provision of Title VII,

generally abbreviated to BFOQ.

We’ve already considered levels of pay and the “wage gap” on an earlier topic, and we’ll

look a little more closely at pay levels to provide context for our examination of pay equity under

Title VII. The higher levels of pay that men receive on average reflect both differences in

average pay for men and women within the same job categories and differences in the

distribution of men and women among job categories. That second difference is our concern on

this topic.

Our primary focus will be a theory that is usually labeled comparable worth. This theory

starts with the fact that there is a correlation between the percentages of men and women in

different occupations and the average level of pay in those occupations. Working with that fact,

proponents of comparable worth argue that this difference reflects discrimination against women

and an argument about how that discrimination should be remedied. Make sure that you

understand both those arguments.

Proponents of comparable worth sought to incorporate it into the law. The Equal Pay Act

cannot be used as a basis for comparable worth because it is limited to comparisons of women

and men who hold the same jobs. That is something you should keep in mind in thinking about

the possible impact of the Equal Pay Act on the wage gap. For that reason, Title VII was the

vehicle for lawsuits that were based on the comparable worth theory. As we will discuss, federal

courts of appeals rejected the use of Title VII to encompass comparable worth. I’ve asked you to

read excerpts from the opinion in one of the court of appeals decisions, American Nurses’

Association v. Illinois. Because some of the opinion is difficult to follow, I’ve added an appendix

on the opinion to help you work through it and get the information you need.

In the two topics before this one, we discussed several ways in which the Equal

Employment Opportunity Commission and the federal courts interpreted Title VII broadly, so

that it applied to matters that members of Congress didn’t have in mind when they enacted Title

VII. In effect, administrators and judges rethought the meaning of sex discrimination to broaden

that meaning. But they did not accept the comparable worth theory of discrimination in pay,

rejecting that potential broadening. Think about why comparable worth was the exception.

Focusing on the courts, why did judges react to the comparable worth theory in a different way

from their responses to the other potential expansions of Title VII that they accepted?

The BFOQ provision is the most important exception to the general prohibition of sex

discrimination in title VII. You should know what the provision says and how the EEOC and the

Supreme Court have interpreted the provision overall. The Court’s key decision is United Auto

Workers v. Johnson Controls. Make sure you understand the issue in the case and the Court’s

ruling. The decision was unanimous, but there was a concurring opinion by Justice Byron White.

In reading the majority opinion and Justice White’s concurrence, give attention to how their

interpretations of the BFOQ provision differed.

Appendix on American Nurses’ Association v. Illinois

I would like you to get three things from Judge Posner’s opinion. The first is his general

view of comparable worth as a theory of discrimination under Title VII. The second is the

premises that underlie his view of comparable worth—premises that relate to the slide on “a key

point of contention.” The third is his conception of what a plaintiff would have to show in order

to win a case based on the comparable worth theory.

Judge Posner’s general view and the premises that underlie that view are laid out most

directly in the first two pages of the excerpts from his opinion on Carmen and in the paragraph

that runs from page 7 to page 8. His conception of what a plaintiff would have to show is

scattered through the opinion. One passage that illuminates this conception is the discussion of

the Gunther and AFSCME cases that begins near the top of page 3 and continues through the

second full paragraph on page 4. Another passage starts with the last paragraph on page 6

(“Subparagraphs...”) and continues through the next paragraph. And another passage goes from

the last paragraph on page 7 (“Maybe the allegations...”) through the end of the opinion. I think

this last passage comes the closest to clarifying Posner’s conception of what a plaintiff would

have to show, so you might focus your attention on it.

I think the discussion of equal protection on pages 4-5 is interesting but not directly

relevant to our concerns. The same is true of a lot of the discussion of paragraph 9 of the

complaint that begins on page 5. So don’t worry about understanding all the material—though,

as I’ve said, I think that the last part of the discussion of paragraph 9 provides the clearest picture

of what Posner thinks a plaintiff would have to show to win a Title VII case based on

comparable worth.

On this topic, we cover several different issues relating to the legal meaning and status of

marriage. The first issue is the basic legal character of marriage. You should understand the key

elements in the traditional law of marriage, those that pertain to marriage as a contract and those

that pertain to merger of identities. Make sure you know how those elements are reflected in

specific legal rules on the law of conspiracy, interspousal immunity from lawsuits, control over

the couple’s legal domicile, and the doctrine of necessaries. Also get a general sense of how

those legal rules have changed over time.

Because states impose terms for marriage contracts, one important question is the extent

to which couples can alter a state’s terms. We’ll discuss this question in our class session. Borelli

v. Brusseau provides a good example of the dominant rule on alteration of the state’s terms (in

the majority opinion) and a good example of questioning of that rule (in the dissenting opinion).

Use the opinions in conjunction with our discussion to understand the dominant rule, and use the

opinions to understand the competing arguments about the desirability of that rule.

On property rights in marriage, you should have a general understanding of how wives’

property rights have evolved over time. States adopted two different systems of rules to govern

the allocation of property that was obtained during the time of marriage, the common law and

community property systems. You should know how the systems differ and the impact of the

differences between them on allocation of property after a marriage ends through divorce or

death.

The one major exception to the dominant rule concerning alteration of a state’s terms for

the marriage contract concerns modification of statutory rights to property that is obtained during

marriage. Make sure you recognize this exception alongside the dominant rule. I’ve asked you to

read In re Bonds, a state supreme court decision on prenuptial agreements to modify property

rights, along with the California statute that was enacted after the court’s decision in Bonds. You

should understand what the court ruled in the case and the rationale that the court’s opinion

provided for that ruling. You should also understand how the new statute changed the law and

what effect the statute would have had on the Bonds case if it had been enacted before the

couple’s prenuptial agreement. (To identify that effect, look at the rules described in the statute

in relation to the facts of that case.)

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Public policy toward same-sex marriage went through several stages during the period

from the 1960s to the mid-2010s. You should understand what that history looked like in

general terms. More specifically, give attention to the Hawaii Supreme Court decision in Baehr

v. Lewin and the state and federal laws that were enacted in response to that decision; the set of

court decisions and state legislative actions that legalized marriage for same-sex couples in many

states; and the U.S. Supreme Court decisions in U.S. v. Windsor and Obergefell v. Hodges that

established acceptance of same-sex marriage as a national policy. (Except for the Obergefell

decision, which I’ll get to next, your understanding of those decisions and the broader history on

this issue need not be detailed.)

In reading the decision syllabus and the excerpt of Justice Kennedy’s opinion for the

Court in Obergefell, focus on the line of reasoning that Kennedy uses to reach his conclusion.

What provisions of the Constitution does he invoke as a basis for the Court’s decision, and how

does he justify the judgment that prohibitions of same-sex marriage violate those provisions?

Kennedy’s reasoning is complicated, and you don’t need to worry about every aspect of it. But

make sure that you understand the heart of that reasoning; the syllabus is helpful in providing an

overview of the opinion’s line of analysis. The dissent written by Chief Justice Roberts

fundamentally disagrees with the majority opinion; make sure you can identify the main points

of Roberts’s criticism of the majority.

What stands out most in the sequence of events on same-sex marriage is that there was a

fundamental change in state and national policies that came about over a relatively short time.

We’ll talk a little about the sources of those changes, and this is something for you to think

about.

In our class session, I’ll talk about developments that have occurred since the Obergefell

decision. Give attention to a couple of things: the extent to which state and local officials have

complied with the decision, and how the Supreme Court has ruled on issues that arose after

Obergefell.

Unmarried relationships raise several kinds of legal questions, including property and

income rights of the partners in those relationships, the status of children and parental rights

related to children, and availability of benefits from government and from employers. You

should understand the state of the law on each of these issues. On property and income rights of

partners, the legal rules changed quite substantially, beginning with the decisions of the

California (Marvin v. Marvin) and Oregon Supreme Courts in 1976. Make sure that you know

the pre-1976 rule and how the law has changed. In reading the opinions in Marvin, identify (a)

the court’s rationale for allowing some economic rights to develop in non-marital relationships

and (b) the circumstances under which the court thought that rights do develop. All you need to

know about Justice Clark’s concurring and dissenting opinion is what he disagrees with the

majority about and his reason for disagreeing.

The Supreme Court has addressed several issues relating to the rights of children whose

parents are not married, issues that arise under the Constitution (primarily equal protection). I’ll

present information about the Court’s decisions on the various issues. But don’t worry about

individual decisions; all you need to know is the general pattern of those decisions. Specifically,

to what extent does the Court require that governments treat children of unmarried parents the

same as children of married parents, and to what extent does the Court allow differences in

treatment between those two sets of children?

On rights of mothers and fathers, the issues arise under due process and equal protection.

The Court struck down some state limits on the rights of unmarried fathers in a series of

decisions in the 1970s, which are summarized in the majority opinion in Lehr v. Robertson. In

Lehr, the Court addressed another limit. In reading the opinions, make sure you understand the

New York limitation, the conclusions reached by the majority and dissenting opinions, and the

basic rationales each offered for its conclusion. Taking Lehr and the earlier decisions into

account, how would you summarize the Court’s position on fathers’ rights relative to those of

mothers when the parents have not married?

Some unmarried couples have brought cases arguing that benefits provided by

government to married couples should be extended to unmarried couples. All you need to know

about that issue is the overall pattern of courts’ decisions on these arguments.

As a preface to our discussion of unmarried relationships, I’ll discuss common law

marriage. Get a sense of what it is, what the basic criteria for it are, and how its legal status

compares with the legal status of formal marriage.