Friday, March 11, 2016
Because of Sex takes readers through ten landmark sex discrimination cases that helped dismantle a “Mad Men” world where women could only hope to play supporting roles, where bosses’ leers and propositions were as much a part of the air women breathed as cigarette smoke, and where pregnancy meant getting a pink slip. Readers will meet Ida Phillips, denied an assembly line job because she had a preschool-age child; Kim Rawlinson, who fought to become a prison guard—a “man’s job”; Mechelle Vinson, who endured sexual abuse by her boss before “sexual harassment” even had a name; Ann Hopkins, denied partnership at a Big Eight accounting firm because the men in charge thought she needed "a course at charm school”; and most recently, Peggy Young, forced off her UPS delivery route while pregnant because she asked for a temporary reprieve from heavy lifting.
Gillian is a Senior Staff Attorney with the American Civil Liberties Union’s Women’s Rights Project. She previously litigated sex discrimination cases at the U.S. Equal Employment Opportunity Commission and Legal Momentum (formerly NOW Legal Defense and Education Fund).
NYT, Book Review "Because of Sex," by Gillian Thomas
Thomas’s “Because of Sex” has many such stories — important reminders that laws have an impact that often exceeds lawmakers’ initial intentions. One strength of the book is her acute awareness of how people have responded to chance accidents, improbable circumstances and unimagined consequences. In fact, it was an 11th-hour amendment to Title VII, brought by Howard Smith, a segregationist congressman, that would ban discrimination in employment “because of sex.” As Thomas puts it, “Today most American working women would probably be surprised to know that they have an unrepentantly racist, male octogenarian to thank for outlawing sex bias on the job.”
Like Fred Strebeigh’s “Equal” (2009), “Because of Sex” is both meticulously researched and rewarding to read. The cases Thomas discusses put the muscle on the new law’s bones. Smith’s last-minute amendment created a blank slate: Congress had not given any clues to what sex equality might look like. Women’s refusal to accept the status quo would determine the law’s meaning.
Thomas is a gifted storyteller, and the changing circumstances of these women’s lives as their cases drag on, along with the unpredictability of the courts, give her plenty to work with. She provides lots of head-shaking moments. Surely, you say to yourself, that couldn’t have been legal — such as when a city utility required women to contribute 15 percent more to their pension fund because they lived longer than men. [See Department of Water & Power v. Manhart, 435 U.S. 702 (1978)]
Wednesday, March 9, 2016
The complaint was filed Tuesday against Berkeley Law School Dean Sujit Choudhry and the University of California Board of Regents.
Choudhry’s executive assistant, Tyann Sorrell, claims in the lawsuit that when Choudhry became dean in July 2014, he began kissing and touching her and giving her unwanted bear hugs, according to court documents.***
The complaint states that university officials reduced the dean’s salary by 10 percent for one year and required him to write a letter of apology to Sorrell.
Sorrell claims in the lawsuit that a university official later told her he had “seriously considered terminating the dean but that the reason he had decided not to was because it would ruin the dean’s career, that is, destroy his future chances for higher appointment,” according to Fox affiliate KTVU.
Thursday, February 4, 2016
Karin Paparelli, Gender Equality and Women at Law in Cuba
Gender equality and more specifically, the role of women in the legal profession in Cuba, presents a paradox of cultural restraint amid progressive policies. In a traditionally patriarchal society, Cuba has actually outpaced the United States and other nations when it comes to gender equality. Cuban women are found in staggering numbers in the legal profession, politics and high-level ministerial positions. ***
Curiously, traditionally “male” professions in Cuba include science, engineering, information technology, and mathematics and exclude medicine, education and law. Nearly 70 percent of health care workers including doctors, 80 percent of the education workforce, and surprisingly, 66 percent of all lawyers and judges in Cuba are women.
Friday, January 29, 2016
The Obama administration is proposing a new rule to address unequal pay practices by requiring companies with more than 100 employees to submit salary data by race, gender and ethnicity.
The announcement comes seven years after President Obama signed the Lilly Ledbetter Fair Pay Act — his first piece of legislation as president — which makes it easier for women to challenge discriminatory pay in court.
But a stubborn, substantial pay gap between men and women persists — and it affects black and Latina women the most, Obama said Friday as he introduced the proposal. The president said he'd continue to work to reduce the gap as long as he was in office."Social change never happens overnight," he said. "It is a slog and there are times when you just have to chip away and chip away ... it's reliant on all of us to keep pushing that boulder up the hill."
"Social change never happens overnight," he said. "It is a slog and there are times when you just have to chip away and chip away ... it's reliant on all of us to keep pushing that boulder up the hill."
Seven years ago today, President Barack Obama signed into law his first piece of legislation as President, the Lilly Ledbetter Fair Pay Act. At today's event celebrating the anniversary, the president directed the Equal Employment Opportunity Commission (EEOC), in partnership with the U.S. Department of Labor (DOL), to publish a proposal to annually collect summary pay data by gender, race, and ethnicity from businesses with 100 or more employees. This step also expands on and replaces an earlier AAUW-supported plan DOL to collect similar information from federal contractors.
The new proposal will cover over 63 million employees, and the data collected would provide critical insights into the gender and racial pay gap. This step, stemming from a recommendation of the President's Equal Pay Task Force and a Presidential Memorandum issued on Equal Pay Day 2014, will help focus public enforcement of equal pay laws and provide better insight into discriminatory pay practices across industries and occupations.
DOL has identified the Equal Employment Opportunity Commission (EEOC) as the best collector of this summary data from employers. AAUW has long asserted that this kind of transparency is associated with a smaller gender pay gap, and that the implementation of this nationwide data collection is an important step in our efforts to ensure fair pay for all.
Wednesday, January 27, 2016
Elizabeth Rose Schlitz (St. Thomas), Motherhood: Benefit or Burden to Business, International Study Seminar on “Women and Work”, Pontifical Council for the Laity, Rome, Italy (2015)
Abstract:This essay is a contribution to an International Study Seminar on the topic of “Women and Work”, convened by the Pontifical Council for the Laity in Rome, Italy, on December 4-5, 2015, to be published with the complete proceedings of the conference.
In recent decades, the Catholic Church has come to share the widespread social consensus about the urgent need for the insights of the feminine genius in all sectors of society – in the home as well as the halls of government, schools and universities, and businesses. However, an argument for women in the workplace does not, in itself, furnish a compelling business case for mothers in the workplace. Is there something unique about the gifts, talents, and perspectives of women who are mothers, or something unique about what women who are mothers add to the dynamic of men and women working together?
This essay argues that persuasive arguments for accommodating mothers in workplace are crucial for two reasons: First, to ensure that employers who want to achieve gender balance do not follow the lead of companies such as Facebook and Apple, offering incentives for women to remain childless during their most productive years as ‘ideal workers’ rather than accommodating parenting. Second, to ensure the continued presence in workplaces and national and international governing bodies of people with personal stakes in advocating for policies to enable parents to balance their work and their caregiving responsibilities, and in reminding their nations and the world of the reality that the overwhelming proportion of the world’s poverty population is composed of women and children – across the globe, in countries of all stages of development.
The essay offers four arguments for the value of mother in the workplace: (1) businesses want women workers, and most women workers want to be mothers; (2) businesses benefit long term from the caregiving work of mothers, and should thus shoulder some of its cost; (3) accommodating motherhood is not, in fact, as much of a burden on businesses as is commonly thought; and (4) mothers offer some unique and valuable skills to the workplace.
Wednesday, January 20, 2016
Tessa L. Dover, Brenda Major, Cheryl R. Kaiser, Diversity Policies Rarely Make Companies Fairer, and They Feel Threatening to White Men, Harv. Bus. Rev.
U.S. companies spend millions annually on diversity programs and policies. Mission statements and recruitment materials touting companies’ commitment to diversity are ubiquitous. And many managers are tasked with the complex goal of “managing diversity” – which can mean anything from ensuring equal employment opportunity compliance, to instituting cultural sensitivity training programs, to focusing on the recruitment and retention of minorities and women.
Are all of these efforts working? In terms of increasing demographic diversity, the answer appears to be not really. The most commonly used diversity programs do little to increase representation of minorities and women. A longitudinal study of over 700 U.S. companies found that implementing diversity training programs has little positive effect and may even decrease representation of black women.
Most people assume that diversity policies make companies fairer for women andminorities, though the data suggest otherwise. Even when there is clear evidence of discrimination at a company, the presence of a diversity policy leads people todiscount claims of unfair treatment. In previous research, we’ve found that this is especially true for members of dominant groups and those who tend to believe that the system is generally fair.
All this has a real effect in court. In a 2011 Supreme Court class action case, Walmart successfully used the mere presence of its anti-discrimination policy to defend itself against allegations of gender discrimination. And Walmart isn’t alone: the “diversity defense” often succeeds, making organizations less accountable for discriminatory practices.
Wednesday, December 30, 2015
The Atlantic, Gender Equity Requires Changes in Law, Not Just Culture
Women’s labor-force participation doesn’t alone signify economic freedom, but it is one of the mechanisms by which women can build wealth and gain financial independence. A new report from the World Bank takes a look at the legal status of women around the world and finds that while there has been progress in many countries when it comes to making financial freedom more accessible, laws still exist that can make women especially economically vulnerable.
Legal barriers that restrict women’s opportunities to work are the most obvious culprits of gender inequality across the globe. In Russia, for instance, researchers found that women are legally barred from working 456 different (and pretty specific) jobs including woodworking and driving trucks that carry agricultural goods. Similar laws are also prevalent in the Middle East, Sub-Saharan Africa, and North Africa. And while wealthier, more developed nations are less likely to have explicit legal prohibitions on women working, they do exist. Eight of 32 OECD high-income countries, including Israel, France, the Republic of Korea, and Japan, have laws that bar women from certain jobs. French law prohibits women moving loads that weigh more than 45 kilograms via a wheelbarrow. And in Argentina, women are barred from loading and unloading ships, the paper finds.
Friday, December 18, 2015
UW Law student Harlan Mechling couldn’t go to his little sister’s graduation from Willamette University, but his father did call to tell him she was graduating as a member of Phi Beta Kappa, a nation-wide honor society, with 42 other women and 16 men. Those numbers stood out to Mechling, instigating his research on gender inequity.
“The more I thought about it, the more I realized that’s not surprising because it’s consistent with my experience,” Mechling said. “Throughout my life, girls have always been at the top of the class.”
Mechling’s research revealed that women account for more than 60 percent of students graduating with honors, 9 percent higher than their percent of the student population. Despite these feats, most women will likely be getting paid only 78 percent of what their male colleagues will earn.
Kellye Testy, dean of the UW School of Law, believes her students face persistent gender discrimination once they’re out in the work world.
“One of the areas I’ve always been interested in is legal education,” Testy said. “We’ve been admitting women in law school a roughly equal number as men for a few decades now.
But if you look at the world and the number of CEOs, governors, law school deans, etc., the percentage of women is much lower than it should be.”
She clarified that it is not just the UW law school that is graduating equal numbers of men and women.
Mechling’s research used statistics from Phi Beta Kappa. He gathered stats from emails sent out to those who qualified and the number of people in the society, from 27 private and public universities. Mechling wanted to measure academics because it was one of the only measurements that was consistent across universities in different states.
He began his research thinking maybe the high percentage of women in honors was just a Northwest thing, but was surprised to find consistency among schools.
The research paper Mechling created, titled “Follow California’s lead — help women recover damages for workplace sex/gender discrimination,” also states that even with the same amount of work experience, women teachers are paid 11 percent less than male teachers within a year of graduating college. In business and management jobs, women make 86 percent of what men are paid. In sales it is even less, with women earning 77 percent of what men get paid, according to Mechling.
Testy believes it is because of implicit bias. She said gender equity is certainly moving in the right direction, but there’s a long history in the United States of gender discrimination.
Mechling said one way to address these issues is for states to have better non-discrimination laws.
“The best solution is a federal law amending the Equal Pay Act of 1973,” Mechling said. “There have been attempts to do that, but House Republicans keep shooting it down. I think the state is the only way it’s going to work because Congress has shown repeatedly that it’s not going to happen on the federal level.”
States tend to interpret the Equal Pay Act very broadly, according to Mechling. Usually there are four defenses for unequal pay and gender inequity, one of which allows employers to justify pay disparity as long as it’s any factor other than sex.
Cited in his research, the American Bar Foundation found only 6 percent of employment discrimination filings between 1987 and 2003 went to trial. Only one-third of those cases were successful. Even for employment discrimination cases, 40 percent are dismissed or lost at summary judgment.
Martina Kartman, a UW law student who was an intake investigator at the Seattle Office for Civil Rights, did the initial interviews at the office to determine if a discrimination case would be taken or not.
“I think one of the things that was most difficult about discrimination laws and enforcing them is that they are from the ‘60s,” Kartman said. “Our laws haven’t always kept up with change.”
Tuesday, November 3, 2015
(Muller v. Oregon, 1908)
At the NE Ohio Faculty Colloquium last week, I presented on the topic derived from my forthcoming book chapter on the long history of the ERA.
For this presentation, I focused on the early history of ERA, introduced by Alice Paul in the midst of the Supreme Court's detour into Lochnerism. A close review of the Lochner cases on maximum hours law, shows how gendered these cases were. The Court struck down laws like that in Lochner limiting men's work, while easily upholding the same limitation for women. The advent of the Brandeis Brief (or more appropriately the Kelley Brief since it was mostly written by Florence Kelley) in Muller v. Oregon (1908) added sociological facts of women's weakness, primary material function, and need for protection research designed to justify the rationality of the state legislature's determination that women needed protection.
My takeaways on looking at Lochner through the gendered lends were:
1. It explains some of the flip-flops and seeming inconsistencies of Lochner to understand legalistic exceptions were made for women.
2. It shows how grounded Lochner was in masculinity: real mean don’t need “protection.” Men were tough, strong, and could withstand or counter the abuse of workplace. (Except maybe in the case of coal mining, see Holden v. Hardy, 1898)..
3. And perhaps most importantly, it reveals the historical depth of what Joan Williams calls the “ideal worker.” The ideal worker since industrialization was male, able to work unlimited hours at a moment's notice, needed the job as a family breadwinner, and never needs any accommodations like pregnancy leave, nursing breaks, or family leave. Women are defined as "other" than the ideal, or even regular work. Women themselves defined female workers this way, attuned to the realities of women's working class experience.
Friday, October 16, 2015
The Marine Corps has long held concerns that integrating women into combat units could erode morale in all-male platoons and lead to increased sexual tension that would undermine fighting capability. But a Marine Corps study made public by a women’s advocacy group this week found that after months of testing mixed-gender combat units, troops reported morale equal to that of all-male groups and higher than noncombat integrated groups
In addition, the study found sexual assault levels no higher than in the Marines as a whole.
Thursday, October 15, 2015
Cleveland.com Democratic Ohio Lawmakers Introduce "Equal Pay" Bill
Two Northeast Ohio representatives introduced legislation aimed at closing the pay gap between Ohio men and women by requiring state employers to review employee salaries and encouraging all employers to adopt policies supporting equal pay among men and women working comparable jobs.
Democratic Reps. Stephanie Howse of Cleveland and Kathleen Clyde of Kent said Wednesday the bill is necessary because Ohio women make 78 cents for every dollar a man earns. Nationally, black women earn 63 cents and Hispanic and Latina women earn 54 cents for every $1 earned by white men.
"Part of our bill seeks to root out the systemic undervaluing and undperpaying of women's work," Clyde said at a Wednesday news conference.
House Bill 330 has little chance of clearing the Republican-controlled Statehouse. The bill has 24 co-sponsors, all Democrats.
The Ohio Equal Pay Act would require state and local governments to evaluate employee pay for comparable work across job categories and eliminate pay associated with "women's work." Positions that have similar duties, responsibilities, and general requirements would be considered in the same "class." A class would be considered women-dominated if more than 70 percent of those employees are female and men-dominated if more than 80 percent of those employees are male.
Thursday, October 8, 2015
Sandra Sperino (Cincinnati), Title VII is Not a Tort
In several posts, I will be blogging about how federal courts are pushing federal discrimination law out of a public law model and into a more private law frame....
In upcoming posts, I will explain why Title VII is not a tort in any way that conveys specific, textual meaning. The claim that Title VII is a tort ignores the history of the statute and its text. It also unnecessarily muddies an already confusing jurisprudence and leads to odd results in what would otherwise be fairly easy cases.
When I say Title VII is not a tort, what I mean is that it does not fit precisely into the mold of any traditional tort. Calling Title VII a tort in some general sense does not help to answer the vast majority of questions that arise in discrimination cases. The tort label is dangerous because it allows courts to claim that tort law demands particular results in discrimination cases. This is simply not true.
Tuesday, September 15, 2015
The U.S. Court of Appeals for the Second Circuit has reinstated an Equal Employment Opportunity Commission sex discrimination case against the nation’s largest jewelry retailer, ruling for the first time that courts should not scrutinize the sufficiency of the agency’s pre-suit investigation.
The case, brought in 2008 under Title VII of the Civil Rights Act of 1964, alleged that Akron, Ohio-based Sterling Jewelers Inc., which operates several jewelry store chains including Kay Jewelers and Jared -The Galleria of Jewelry, had a nationwide practice of discriminating against its female sales employees in both pay and promotion.
U.S. District Judge Richard Arcara of the Western District of New York had granted summary judgment to Sterling in 2014 based on the report of a magistrate judge who concluded that the EEOC’s pre-suit investigation hadn’t been nationwide.
Wednesday’s ruling by the Second Circuit expanded on the U.S. Supreme Court’s April 29 decision inMach Mining v. EEOC, which held that judges could review on a limited basis the agency’s efforts at conciliating claims prior to filing suit.
In a case of first impression, the Second Circuit found that the EEOC, in demonstrating it conducted a pre-suit investigation, did not need to “describe in detail every step it took or the evidence it uncovered.”
Writing for the appellate panel, Judge John Walker said, “Under Title VII, courts may review whether the EEOC conducted an investigation, but not the sufficiency of an investigation.” He added, “Extensive judicial review of this sort would expend scarce resources and would delay and divert EEOC enforcement actions from furthering the purpose behind Title VII – eliminating discrimination in the workplace.”
EEOC Associate General Counsel Jennifer Goldstein praised the ruling. “The court of appeals recognized that Title VII gives the EEOC ‘expansive discretion’ in investigating claims of discrimination,” she wrote in an email. “Such discretion is critical for EEOC as it makes decisions about how to expend scarce resources.”
Tuesday, September 8, 2015
On Monday, the California Senate unanimously passed an equal pay bill with the strongest measures aimed at closing the gender wage gap in the country. Gov. Jerry Brown (D) has said that he’ll sign it into law.
The bill has a number of provisions, but the piece that stands out the most is one that requires employers to pay men and women the same for “substantially similar work,” not just the exact same job, unless differences are based on productivity, merit, and/or seniority.
This provision is what used to be called pay equity: not just requiring the same pay for the same job, but for different jobs that are similar in terms of effort, responsibility, and skill. While it isn’t mentioned much anymore, in the 1980s there was a strong movement toward laws that would require pay equality based on this concept. By 1989, 20 states had made adjustments among their own workforces based on “comparable worth,” or the idea of paying the same for substantially similar work in different jobs. More than 335,000 women got a raise and 20 percent of their gender wage gap was eliminated. That reduced the overall wage gap, and in five states it closed by 25 to 33 percent.
Monday, September 7, 2015
Legal History Blog, Woloch's "Class By Herself"
A Class by Herself explores the historical role and influence of protective legislation for American women workers, both as a step toward modern labor standards and as a barrier to equal rights. Spanning the twentieth century, the book tracks the rise and fall of women-only state protective laws—such as maximum hour laws, minimum wage laws, and night work laws—from their roots in progressive reform through the passage of New Deal labor law to the feminist attack on single-sex protective laws in the 1960s and 1970s
Tuesday, September 1, 2015
The Equal Employment Opportunity Commission has determined that the University of Denver’s Sturm College of Law is violating the Equal Pay Act by paying its female professors less than males.
The EEOC threatened suit over the gender pay gap in a letter sent to the university on Friday, report the Denver Post and KUSA. The agency said pay disparities at the law school appear to be a “continuing pattern” dating back to 1973. To comply with federal law, the university has to boost the wages of female law professors and give them back pay, the letter says.
The EEOC acted in response to a complaint filed by University of Denver law professor Lucy Marsh, whose $109,000 annual salary in 2012 made her the school’s lowest paid full professor. Marsh learned about the salary differences in a 2012 memo from the school dean that discussed merit raises and made salary comparisons.
The memo by law dean Martin Katz indicated that female full professors made $16,000 less on average than male full professors. Katz noted the pay disparity but said salary differences may be due to several factors, including differing merit raises and starting pay.
The law school defended its system of evaluation and merit pay for law professors in a statement by Chancellor Rebecca Chopp. The school cites a consultant’s findings that pay differences are due to a professor’s rank, duties, age and performance scores. The statement said Marsh’s salary was lower because of her “substandard performance in scholarship, teaching and service.”
Marsh counters that she has won several teaching awards and her Tribal Wills Project was recently recognized by the state supreme court.
Saturday, August 22, 2015
L. Camille Hebert (Ohio State), Disparate Impact and Pregnancy: Title VII's Other Accommodation Requirement
From the Abstract:
There has been a good deal of attention focused recently on questions concerning how employers are allowed to treat pregnant women in the workplace under Title VII of the Civil Rights Act of 1964. The Equal Employment Opportunity Commission has issued revised guidance addressing issues of pregnancy, including the requirements imposed by Title VII with respect to the accommodation of disabling conditions experienced by women who are pregnant or who have recently given birth. And the United States Supreme Court has recently decided a case, Young v. United Parcel Service, Inc., which addresses the circumstances under which an employer will be found to have violated Title VII’s prohibition against intentional discrimination for refusing to provide the same accommodation to women affected by pregnancy as that employer provides to a number of other categories of employees.
The disparate treatment theory, on which both the Young case and the EEOC guidance are focused, is undoubtedly an important resource for women who are affected by pregnancy and childbirth to seek accommodations similar to those provided to other employees. But neither the Young case nor the new EEOC guidance focuses on the provision of Title VII that is most likely to provide a mandate for employers to provide accommodation to women affected by pregnancy who experience temporary inability to perform part or all of their job functions. That provision, not raised at all in the decision before the Supreme Court and slighted by the EEOC guidance, is the prohibition on employers maintaining even pregnancy-neutral policies and practices that disproportionately disadvantage women on the basis of pregnancy and cannot be justified by business necessity. It is the disparate impact theory, rather than the disparate treatment theory, in which Title VII’s requirement to accommodate pregnancy is most likely to be found.
Thursday, August 20, 2015
Police Officer Akema Thompson felt the energy in the air the moment she walked into the Manhattan precinct station. And as soon as she stepped into the women’s locker room, she knew why.
A sign on the wall announced a preparatory course for officers interested in taking the sergeant’s exam. The Civil Service test, an initial step to climbing the career ladder in the New York Police Department, was being offered for the first time in two years, and her station was buzzing.
Officer Thompson, who dreamed of becoming a lieutenant or a captain, knew right away that this was her shot. She signed up for the $769 prep course. “I wanted that opportunity,” she said.
A month later, she discovered she was pregnant. Her due date? Oct. 19, 2013, the date of the sergeant’s exam. Officer Thompson, who was 31 at the time, was not worried. She had heard that the city offered makeup tests. “I’ll make some phone calls and everything will be fine,” she remembered telling herself.Police Officer Akema Thompson sent an email to the Department of Citywide Administrative Services requesting other options for taking the test because Oct. 19, 2013 was the same day as her due date.
She could not have been more wrong.
Wednesday, July 22, 2015
Hillary Clinton was asked during an interview to respond to Mitch McConnell's charge that she plays the "gender card." Her response was apt, it seemed to me:
Clinton’s response — a riposte that the gender card is being played “every time Republicans vote against giving women equal pay, deny families access to affordable child care or family leave, refuse to let women make decisions about their health or have access to free contraception” — was a forthright appeal for women’s votes — and the latest signal that, yes, Clinton’s gender will be front and center in her campaign this time around.
Eight years ago, her first presidential campaign downplayed any focus on running as a woman. But Democrats say gender is not only a plus this time, but also crucial to Clinton’s strategy for winning a general election where she will need to boost the turnout of female voters, who are more likely to vote Democratic.
The campaign followed up on on the Facebook chat Tuesday, releasing a slick video replaying McConnell’s remark and then featuring the records of some of the GOP candidates when it comes to issues that affect women: Sens. Marco Rubio, Rand Paul and Ted Cruz voted against paid sick leave; Gov. Scott Walker repealed an equal pay law in his state; and Jeb Bush made a comment offensive to poor women back in 1994, saying, “women on welfare should get their life together and find a husband.”
“There she goes again with the women’s issues,” Clinton says in a clip featured in the video, pulled from an appearance in Iowa last week. “Well, I’m not going to stop, so get ready for a long campaign.”
Saturday, July 18, 2015
On Thursday, the Equal Employment Opportunity Commission dropped a bombshell: Sexual orientation discrimination in the workplace, the EEOC ruled, is already illegal under Title VII of the Civil Rights Act of 1964. This ruling—which is binding on EEOC conciliations between employers and employees, and is an extremely persuasive authority for courts—has been a long time in the making. In fact, it can be traced back to a unanimous 1997 Supreme Court opinion written by none other than Justice Antonin Scalia.
That case, Oncale v. Sundownerdealt with Title VII’s prohibition of discrimination “because of sex.” Joseph Oncale worked on an oil rig with seven other men, who sexually harassed him physically and verbally. Oncale sued his employer, arguing that he faced discrimination because of his sex. But the court ruled against him, holding that Title VII did not protect men against sex discrimination by male co-workers.
In a terse opinion, Scalia emphatically rejected this reasoning. Male-on-male sexual harassment, Scalia acknowledged, “was assuredly not the principal evil Congress was concerned with when it enacted Title VII.” (The principal evil, of course, was male-on-female workplace discrimination.) Still, Scalia explained: "Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed."
This passage has formed the bedrock of the EEOC’s expansion of Title VII’s protections to sexual and gender minorities. In a 2012 decision holding that Title VII bars discrimination based on gender identity and transgender status, the EEOC placed Scalia’s “comparable evils” declaration at the center of its analysis. On Thursday, the commission pulled the same maneuver, faithfully quoting Scalia and noting that the text of Title VII does not exclude sexual minorities from the law’s protections. And now, thanks in part to Scalia, LGBT employees in every state are protected from workplace discrimination by federal law.