Blanchard & Walker Weekly

Topic of the Week  Sex / Gender Discrimination

  • Is it illegal to give different benefits to male and female employees? 
  • Can an employer treat me differently because I can or have become pregnant?
  • What's the difference between sex discrimination and sexual harassment?

Is it illegal to give different benefits to male and female employees?

Yes. As discussed above, even though differences between the sexes may result in different benefit costs to an employer, it is against the law for an employer to discriminate between men and women with regard to benefits.

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 which 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 differentiates in benefits on the basis of sex.

Can an employer treat me differently because I can or have become pregnant?

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.

What's the difference between sex discrimination and sexual harassment?

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 the words “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 are 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.”

Thought of the Week

"Men, their rights, and nothing more; women, their rights, and nothing less."

–Susan B. Anthony

Weekly Comic by Jerry King

Weekly Comic by Jerry King

Blog of the Week

Top Five News Headlines

    List of the Week

    from Forbes

    Gender Bias In STEM: Women In Tech Still Facing Discrimination

    • 49% of women have experienced some form of discrimination in the workplace
    • 20% of women have resigned in the past because of discrimination or harassment in the workplace
    • 58% of women want to see more flexible working practices that support parents.

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