Book Review: Because of Sex by Gillian Thomas St. Martin’s Press 2016
It is fair to say that the Civil Rights Act of 1964 brought the United States into the 20th Century. That comprehensive law made it illegal to engage in racial, gender, and national origin discrimination in public accommodations–like hotels and restaurants–and employment. Yet, the law says very little about what exactly constitutes discrimination. Unlike most extensive congressional enactments, as the law was drafted and enacted quickly, the Civil Rights Act contains no formal legislative history in which lawmakers set forth their views about what the law means and how to enforce it. Congress left it to the courts to decide how to apply Civil Rights Act. In fact, the prohibition against gender discrimination was added to the Civil Rights Act as an afterthought.
In her book, Because of Sex, American Civil Liberties Union attorney Gillian Thomas shows how the courts have interpreted Title VII of the Civil Rights Act, which prohibits employment discrimination “because of sex.” For many, reading about the law is a boring exercise involving statutes, regulations and arcane legal concepts. Thomas steers clear of that, lively examining ten cases in which the Supreme Court applied the prohibition against discrimination “because of sex” in specific cases, humanizing these precedents and reminding us that every landmark court ruling began the day an aggrieved client called a local attorney for the first time to see if she had any redress from an unfair termination. No one ever thinks her case will end up at the Supreme Court, or that she will become a household name among lawyers. For these ten women, that’s what happened.
An Austere Statute
The challenge in resolving employment discrimination cases stems from the lack of what lawyers call direct evidence in the form of admissions by a decision-maker that the employee was fired or denied a promotion because of her gender. Discrimination cases are usually won on the basis of circumstantial evidence, that is, the woman is fired under suspicious circumstances that would allow a jury to believe sex discrimination motivated the decision, such as when management claims the plaintiff was fired because of poor job performance when, in fact, she had excellent evaluations and she was replaced by a less-qualified male job applicant. Title VII says nothing about what kinds of circumstantial evidence makes out a case. Over the last 50 years, federal judges have devised formulas and guidelines to help courts and juries resolve these claims. Since juries are not allowed to speculate about what motivated an adverse employment decision, many of these cases are dismissed prior to trial for lack of evidence.
The cases in Because of Sex succeeded. That success was all the more remarkable because they were groundbreaking cases in which judges had to determine whether the female plaintiffs were fired or mistreated because of their gender, or whether they were simply the victims of unfair, but legal, employment practices that had nothing to do with their gender. What is more, in many of these cases, the judges themselves had no direct experience interpreting or handling Title VII cases before they reached the bench. They relied on the advocacy of the lawyers who appeared before them and their own sense of what constitutes gender discrimination.
Sexual Harassment
The most striking stories here relate to sexual harassment. Title VII says nothing about sexual harassment, and what we regard as unlawful harassment today was the norm when the Act was passed. Congress certainly did not intend to make it lawful to pollute the workplace with sexist language and unwanted touching. Most likely, Congress intended to make it unlawful to terminate employment or deny someone a position because of gender. However, one lesson from this book is that society’s views about what constitutes sex discrimination change over time. Sooner or later, the courts catch up to the new social rules. That is how the Supreme Court ruled in 1986 that sexual harassment violates Title VII.
The first and most important sexual harassment case decided by the Supreme Court originated in a small law office above a hardware store in Washington, D.C. Consulting with a lawyer in the late 1970s, Mechelle Vinson said she “couldn’t take it anymore.” When Vinson’s lawyer asked her to explain, Vinson talked about the sexual harassment she suffered as a bank teller. The lawyer recalled, “it was horrible. My jaw just dropped.” For more than three years, Vinson’s supervisor had sexually abused her, forcing her to have sexual intercourse and oral sex and exposing himself to her. While the lawyer believed Vinson’s story, she lacked the expertise to handle the case and needed to refer her to another lawyer. Another problem was that it was entirely unclear whether Vinson had a case. The courts had first recognized sexual harassment as a Title VII violation in 1976, but the contours of such a claim were unclear. Was it worth it to file a lawsuit on Vinson’s behalf? Her attorneys took a chance. While Vinson’s case lost at trial, the Court of Appeals reversed and said she had a claim after all. The Supreme Court resolved the case in 1986, eight years after Vinson was fired from the position.
By 1986, the Supreme Court had been interpreting Title VII’s gender discrimination language for 15 years. Along the way, the Justices had resolved less glamorous cases. In Dothard v. Rawlinson (1977), the Court held that facially-neutral employment policies that negatively impacted female employees were illegal unless the employer could prove that “business necessity” justified the policy. In Dothard, the Court ruled that a requirement that jail employees satisfy a minimum weight threshold of 160 pounds discriminated against women even if the Alabama Department of Public Safety had not expressly intended to favor male employees. The Department had also imposed a height requirement; employees had to be at least 5 feet 9 inches. These requirements prevented Rawlinson from working as a police officer. But while Rawlinson won the battle, she lost the war. While the Court cleared the way for gender equality in the workplace nationwide by closely scrutinizing facially-neutral employment policies that hurt women, it deferred to the jail’s argument that smaller and lighter women were potentially more susceptible to attacks from the violent inmates in Alabama’s prisons.
The sexual harassment ruling in Meritor unanimously held that Title VII prohibits a hostile work environment on account of gender. In other words, the statute prohibits sexual harassment. The sort of sexual misconduct that ran rampant prior to the enactment of Title VII–as best shown in the TV series “Mad Men”—was now illegal. The Court adapted the “because of sex” to apply in modern times. In 1991, Vinson settled the case against Meritor Savings Bank, five years after the Supreme Court ruled on her case. This book demonstrates how even landmark lawsuits have anticlimactic results, years after these plaintiffs first called a lawyer in exasperation over their working conditions.
Eight years later, the Court returned to sexual harassment in Harris v. Forklift Systems, which set forth more precise standards for determining when a female employee has proven a hostile work environment, emphasizing that the plaintiffs do not have to prove they suffered substantial emotional distress to win their cases. Thomas’s discussion of Harris further humanizes the way that Title VII operates, allowing lawyers who have cited the Harris precedent numerous times in their own cases to know what brought Harris to court in the first instance.
After quitting her construction job because of a sexually-abusive boss, Teresa Harris saw a local lawyer in Nashville who had never handled a sexual harassment case before. Harris’s case was an uphill battle because the courts in her jurisdiction had previously ruled that sexual harassment cases cannot proceed without proof that the harassment had “seriously affect[ed] [her] psychological well-being.” As Thomas writes, the Sixth Circuit Court of Appeals had held in Rabidue v. Osceola Refining Co. (1986) that “‘sexual jokes, sexual conversations and girlie magazines’ were always going to be part of the American workplace, and Title VII was not meant to change that.” When the difficult legal standard in Rabidue doomed Harris’s case, she vowed to persevere in the Supreme Court after a tense meeting with her former employer, who wanted Harris to drop the case once and for all. At that meeting, when Harris demanded a modest settlement amount, her boss threatened to ruin her. Harris replied, “I will sell every fucking thing I own. I will take my case to Sandra Day Fucking Day O’Connor!”
O’Connor was the first female Justice appointed to the Supreme Court. When Harris’s case reached the Court, it had a second female Justice, Ruth Bader Ginsburg, appointed by President Clinton. Ginsburg was a legal pioneer who had won a series of womens’ rights cases in the Supreme Court during the 1970s. In 1993, the Court unanimously ruled in Harris that sexual harassment victims are not required to prove they suffered “serious psychological injury.” Opening the door for additional sexual harassment victims to proceed in court, the Supreme Court stated: [W]hether an environment is “hostile” or “abusive” can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. The effect on the employee’s psychological well being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required.
Those words were written by Justice O’Connor. Harris’s threat to her former boss came true. As a consequence of the Meritor and Harris rulings, nearly every large employer in America circulates a lengthy sexual harassment policy that places employees on notice of what constitutes harassment and the consequences for violating the policy. Meritorious sexual harassment lawsuits today can destroy corporate and personal reputations, and they can yield large damages awards.
Gender Stereotyping
Thomas also covers another form of sex discrimination that Congress most likely never contemplated in 1964: gender stereotyping. By the 1980s, no one disputed that professional firms could not decline to promote female accountants simply because of their gender, But Ann Hopkins’s case asked whether it was illegal for Price Waterhouse to deny her a partnership because she did not confirm to traditional gender stereotypes.
When Hopkins was up for a partnership, Thomas writes, she “had generated more business and billed more hours than any of the other eighty-seven candidates–all of them men.” But she was denied the partnership because the male evaluators thought Hopkins was not feminine enough. As the Supreme Court noted: “[S]ome of the partners reacted negatively to Hopkins’ personality because she was a woman. One partner described her as ‘macho;’ another suggested that she ‘overcompensated for being a woman’; a third advised her to take ‘a course at charm school.’ Several partners criticized her use of profanity; in response, one partner suggested that those partners objected to her swearing only ‘because it’s a lady using foul language.’ Another supporter explained that Hopkins ‘ha[d] matured from a tough-talking somewhat masculine hard-nosed mgr to an authoritative, formidable, but much more appealing lady [partner] candidate.’ But it was the man who…bore responsibility for explaining to Hopkins the reasons for the Policy Board’s decision to place her candidacy on hold who delivered the coup de grace: in order to improve her chances for partnership, Thomas Beyer advised, Hopkins should ‘walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”
While personality problems typically constitute an excellent defense to most employment discrimination lawsuits, these comments went beyond that. Ruling on Hopkins’s case in 1989, the Supreme Court concluded that gender stereotyping violates Title VII. The ruling certainly helped Hopkins; she was able to return to Price Waterhouse in 1991, working there for another 10 years. The ruling also helped millions of other American woman, each of whom is protected against discrimination on the basis of gender stereotypes. While the law was unclear in the 1980s whether gender stereotyping violated Title VII, that issue is settled now, and every human resources department in the country is on the lookout for negative employment decisions infected with gender stereotyping.
The Future Of Sex Discrimination Laws
Thomas concludes by noting the far-reaching effects of Title VII and the case law interpreting it. She writes: “The legal and cultural change effected by Title VII has been nothing short of revolutionary. The right to remain employed during pregnancy, the right to be a working mother, the right to hold a job historically deemed for “men only,” the right to be assessed on one’s own merit rather than group traits, the right to be free from the indignity of sexual harassment, the right to look and act like oneself, whether that’s traditionally “feminine” or something else–all of these advances and more are owed to Title VII, and to the cases profiled here.
But much work remains to be done. Thomas notes that “[b]latant bias against mothers… is still a big part of the problem.” Pregnancy discrimination is also a barrier to workplace equality. While Congress enacted the Pregnancy Discrimination Act in 1978, and the Supreme Court in 2015 ruled in favor of a pregnant worker in United Parcel Service v. Young, “pregnancy discrimination remains one of the most pernicious barriers to working women’s equality,” particularly for women of color and those working in low-wage jobs. Thomas supports the Pregnant Workers Fairness Act, which would entitle women to a reasonable workplace accommodation during their pregnancies.
One form of workplace discrimination that may fall within Title VII’s prohibition against gender discrimination is the mistreatment of gay and lesbian employees. While some state and local laws prohibit discrimination on the basis of sexual orientation, efforts to amend Title VII to prohibit this discrimination nationwide have failed. All the while, the Equal Employment Opportunity Commission–the federal agency charged with enforcing Title VII – ruled in 2015 that sexual orientation discrimination is in fact gender discrimination. The agency noted that “Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms. ‘Sexual orientation’ as a concept cannot be defined or understood without reference to sex. A man is referred to as ‘gay’ if he is physically and/or emotionally attracted to other men. A woman is referred to as ‘lesbian’ if she is physically and/or emotionally attracted to other women.” Moreover, the EEOC stated, “Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex. For example, assume that an employer suspends a lesbian employee for displaying a photo of her female spouse on her desk, but does not suspend a male employee for displaying a photo of his female spouse on his desk. The lesbian employee in that example can allege that her employer took an adverse action against her that the employer would not have taken had she been male. That is a legitimate claim under Title VII that sex was unlawfully taken into account in the adverse employment action.”
Further logic from the EEOC notes that, if courts have held that Title VII prohibits management from discriminating against a white employee because of his association with a black friend or fiancé, it must also prohibit discrimination against an employee because of her association with someone of a particular sex, including a same-sex relationship. No federal appeals court has adopted the EEOC’s reasoning, but that may change soon. In July 2016, a three-judge panel of the Seventh Circuit Court of Appeals in Chicago declined to overturn its prior precedent holding that discrimination on the basis of sexual orientation does not violate Title VII. More recently, that Court struck that ruling and set the case down for a hearing before the full Seventh Circuit Court of Appeals, presumably because enough judges on the entire Court want to reconsider the Seventh Circuit’s prior ruling and determine whether the EEOC’s interpretation of Title VII is correct. If the Seventh Circuit charts new judicial ground in this area, Supreme Court review of this issue is almost certain.
Stephen Bergstein is a civil rights attorney in upstate New York. He is handling a case the Second Circuit Court of Appeals in New York City that alleges that sexual orientation discrimination violates Title VII.
