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EMPLOYMENT LAW GUIDE: - page 14 / 134





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example, if an employer terminates a female employee rather than a male because the female

is married and therefore can rely on her husband as the “breadwinner,” or the employer

considers the marital status of a female employee because of concern that she may have



Sex/Gender – Pregnancy

Pregnancy and childbirth are sex-linked characteristics. Thus if an employer takes an

adverse action against an employee because of pregnancy, child birth or maternity leave, that

can be a form of sex discrimination. Employers cannot treat employees and applicants for

employment who are pregnant less favorably than they treat other employees, including other

employees who are affected by other conditions but who are similarly able or unable to work.

Such disparate treatment may constitute sex discrimination.


Sex/Gender – Wage Discrimination

A number of statutes, including Chapter 151B and Title VII, prohibit an employer

from paying men and women differently because of their gender. The Federal Equal Pay

Act, 29 U.S.C. § 206(d), also prohibits gender-based pay discrimination. A violation of the

statute is established if a female employee performs work that is “substantially” equal to the

work of a male employee, but is paid at a lower rate, unless the employer can show that the

pay differential is a result of: (1) a seniority system, (2) a merit system, (3) a system that

measures quantity or quality of production, or (4) any other factor other than sex. Under the

analogous Massachusetts statute, the Massachusetts Equal Pay Act, Mass. Gen. L. c. 149, §

105A, gender based pay discrimination is established if a female employee performs work

that is “comparable” to the work of a male, but is paid at a lower rate. Under Massachusetts

law, the only exception is for seniority-based differences.


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