Friday, February 21, 2014

Civil Rights Lemonade: Title VII, Gender, and Working Options for Working Families

The title of this post comes from this recent piece by Professor Tristin Green on the procedural hurdles to employment discrimination claims for sex-based exclusion. Here's the abstract: 

UnknownErected barriers can sometimes open up new avenues of thought that we might otherwise have missed. So the title of this article, Civil Rights Lemonade, written on the theme of “Procedural Barriers to Civil Rights” for the 2014 Stanford Law School Symposium: The Civil Rights Act at Fifty. I set out to make three contributions in this article. First, I show that recent procedural setbacks in the area of employment discrimination law are rooted at least in part in the Supreme Court’s concern about fairness to large organizations. The Court’s decisions in Ashcroft v. Iqbal, Ledbetter v. Goodyear, and Wal-Mart v. Dukes can all be understood in this way. Second, I urge the telling of a new story of the importance of Title VII that can serve as a counterweight to the Court’s concern: the need to open working options for working families. I begin to tell this story through the lens of rural communities that have recently experienced substantial labor market shifts that make balancing work and family more difficult and yet that continue to see substantial sex segregation in work. Third, I highlight several ways in which existing procedural tools might be useful to plaintiffs seeking to tell this story in courts to challenge sex-based exclusion.

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