Wednesday, June 27, 2018
On May 30, Illinois became the 37th state to pass the Equal Right Amendment (ERA), which says, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Next, advocates aim to secure the final state needed to ratify the amendment. They will probably target Virginia, North Carolina or Georgia.
True, the deadline to ratify the ERA came and went in 1982. But that may not be a dealbreaker. Some legal strategists argue that since other amendments had no time limit for ratification, the ERA should not have had one, either. Others argue that Congress simply needs to extend the deadline.
Suddenly, almost a century after it was first proposed, the ERA might be within reach.
The law is overdue, culturally and legally. Many Americans assume that the United States already has gender-equality rules. After all, the Civil Rights Act, Title IX and the Equal Pay Act all offer protections against discrimination. But these are pieces of legislation. New laws and Supreme Court rulings can diminish their power.
For more on the legal and social history of the ERA as well as the current movement, see my book chapter with historian TJ Boiseau, After Suffrage Comes Equal Rights? ERA as the Next Logical Step in 100 Years of the Nineteenth Amendment: An Appraisal of Women’s Political Activism (Holly McCammon & Lee Ann Banaszak eds.) (Oxford Univ. Press 2018)
Gerald Magliocca, Buried Alive: The Reboot of the Equal Rights Amendment
This Article addresses the recent effort to revive the proposed Equal Rights Amendment (ERA) to the Constitution. Following ratifications by Nevada (2017) and Illinois (2018), the ERA stands close to the three-fourths vote in the states required for ratification under Article Five. But these recent ratifications are of uncertain validity, as Congress imposed a deadline for the ERA's ratification that expired in 1982.
The paper argues that Congress can waive the expired ratification deadline but should not do so until should not do so until there is no doubt that 38 states have voted for ratification.There is room for doubt on that score because five states rescinded their ratification votes in the 1970s. Congress is free to disregard these rescissions on the ground that a state may not repeal its ratification of a proposed constitutional amendment. Ignoring these state rescissions in addition to waiving the ratification deadline, though, would raise substantial concerns about the ERA’s legitimacy and may lead a future Congress to attempt the reversal of that recognition.
Thus, the wise course is for Congress to refrain from taking action on the ERA until 38 states can be counted as yes votes without the five rescinding states. If Congress decides to include these five states as part of the ratification total, then at least two-thirds of the Senate and the House of Representatives should be required to support that decision—in accord with a precedent established by Fourteenth Amendment--to quiet the doubts about the validity of the ERA’s ratification.
Tuesday, June 19, 2018
The CAL state senate passed a bill that would require public companies with "principal executive offices" in CAL to have a minimum of one woman on their corporate board. That increases to two women in the second year of the bill, and three women in the third year for boards of more than 6 people.
The full text of the bill is here: SB-826: Corporations: Board of Directors
"[F]ive other states (MA, IL, PA, OH and CO) have already passed precatory resolutions encouraging corporations within their states to promote gender diversity in the boardroom." See California State Senate Passes Bill That Would Impose Gender Quotas on Public Company Boards
For my thoughts and legal analysis in support of gender quotas, see Tracy A. Thomas, Reconsidering the Remedy of Gender Quotas, Harv. J. L. & Gender (online) (Nov. 2017).
Wednesday, June 13, 2018
Watch the hearing here on CSPAN Senate Committee Examines Workplace Misconduct in the Federal Judiciary, June 13, 2018
Joan Biskupic, CNN, Senate Judiciary Committee Takes up #MeToo in the Courts
The Senate Judiciary Committee will hear testimony related to judicial misconduct on Wednesday, including from a Washington lawyer who says she collected numerous accounts of sexual harassment by judges, in the first public airing of US judges' #MeToo moment.
Live tweeting commentary on the hearing by Courtney Milan (pen name of former law prof and Kozinski judicial clerk Heidi Bond) @courtneymilan
For more on the Working Group Report from the committee which studied the issue:
Wednesday, April 18, 2018
Dennis R. Lassila, Murphy Smith & Daqun (David) Zhang, Negative Social and Economic Effects of the Marriage Penalty Tax on Women and Society
For decades the marriage penalty tax (MPT) has been debated, reduced, increased, and muddled in the US tax system. The issue is important to individual taxpayers, as well as to policy-makers, academic researchers, and society overall. Research shows that the MPT has a negative impact on marital stability, resulting in particularly deleterious effects on women and children, as single females, especially single-parent females, are more likely to be in poverty. Consequently, the MPT is a gender issue in that women are more negatively affected by it than men are, but to varying degrees all members of society are negatively affected, women, men, and children. The purpose of this study is to review how the MPT was affected by the new tax law, the Tax Cuts and Jobs Act of 2017, and briefly review the history of the MPT and its impact on individuals and society. While the MPT was greatly reduced by the 2017 Act, notably regarding tax rates, the MPT, as connected to the earned income tax credit, continues to have a major detrimental impact on low to moderate income couples, discouraging marriage and having a particularly negative effect on their children.
Monday, March 26, 2018
Jennifer Hendricks, The Wages of Genetic Entitlement: The Good, The Bad, and the Ugly in the Rape Survivor Child Custody Act, 112 Northwestern L. Rev. Online 75 (2017)
This Essay analyzes flaws and assumptions in the recently enacted Rape Survivor Child Custody Act. The RSCCA offers a window into the problems with defining parenthood in terms of genes instead of caretaking relationships, which is what led to the problem of rapists being able to claim parental rights in the first place. Rather than address that underlying defect in family law, the statute attempts a solution that might work if all rapists were strangers, all rapists were men, and all rape victims were women, but glosses over complicated problems of violence and coercion in relationships. Despite this failure to grapple with hard cases, the RSCCA helps us see how the biological processes of reproduction are necessarily intertwined with the definition of legal parenthood.
Amidst a crowd of students and advocates rallying for stronger gun regulations, Oregon Gov. Kate Brown signed Monday the first piece of legislation addressing the issue since the deadly shooting at Marjory Stoneman Douglas High School last month.
The law expands the prohibition of gun ownership to people convicted of domestic violence against non-married intimate partners — closing the so-called "boyfriend loophole."
It also blocks people convicted of misdemeanor stalking from owning a gun.
"Closing the 'intimate partner' is an important step to keep Oregonians safer from gun violence," Brown said. "I'm hopeful that the tide is turning on our nation's gun debate."
The legislation was one of Brown's top priorities coming into the short legislative session, which ended Saturday.
Wednesday, March 14, 2018
On March 30, state Sen. Jeff Jackson, a Democrat, filed a bill that would change this horrific law. (He filed a similar bill with two Republican co-sponsors in 2015.) The text of SB 553 is short and to the point, reading, in part: "a person may withdraw consent to engage in vaginal intercourse in the middle of the intercourse, even if the actual penetration is accomplished with consent and even if there is only one act of vaginal intercourse."
Currently, the bill sits in the Senate's Rules Committee, where it is likely to be tabled. Jackson tells Broadly he plans to refile the bill again next year. "This really shouldn't be a controversial matter," he says. "North Carolina is the only state in the country where no doesn't really mean no. Right now, if a woman tells a man to stop having sex he is under no legal obligation to do so, as long as she initially consented. If sex turns violent, the woman has no right to tell the man he must stop."
Jackson says he first encountered this loophole when he worked as a criminal prosecutor, when his office was forced to dismiss a rape charge because of these circumstances. "Very few legislators are aware that this is the current state of our law," he says. "They're very surprised when I tell them. Most of my conversations have been educating our members about this plainly unacceptable loophole in our rape law. I have not had any members defend the loophole. Every legislator I've spoken to agrees we need to fix this. . . .
While North Carolina may be the only state where women explicitly can't withdraw consent after sexual intercourse has begun, most other states see this as a gray area. Only South Dakota, Connecticut, California, Illinois, Maine, Maryland, Kansas, and Minnesota affirmatively recognize that consent can be withdrawn at any time during sex; Illinois is the only one that's made it law.
Tuesday, February 27, 2018
Massachusetts Sen. Elizabeth Warren and Nevada Rep. Jacky Rosen introduced legislationTuesday that would require public companies to publicly report allegations of sexual harassment and other types of harassment in the workplace.
The Democrats argue investors are entitled to know the specifics of harassment allegations — and any settlements public companies have made. The legislation, called the “Sunlight in Workplace Harassment Act,” was first reviewed by BuzzFeed News before its introduction.
If passed, Warren and Rosen’s legislation would require public companies to annually report the number of settlements they entered related to sexual harassment and the total amount of money spent on them. It would also require reports on settlements made based on complaints related to race, religion, sex, gender identity, genetic information, sexual orientation, national origin, disability, service-member status, or age discrimination.
The bill would also require the companies to report the “average length of time” for an employer to resolve a complaint regarding sexual harassment. But the bill specifically prohibits the disclosure of the names of employees involved in the settlements.
“What the #MeToo movement has taught us is that we're not going to change the culture where this misconduct is brushed aside or openly tolerated in workplaces across America without more transparency on how these issues are being handled.”
Tuesday, February 13, 2018
The UK Labour Party has long utilised All-Women candidate shortlists in an aim to ensure that female representation in the House of Commons increases. This has always been controversial, however it has been responsible for a noted increase in the number of female MPs in general and female Labour MPs in particular. Here, Mary Nugent and Mona Lena Krook dispel some of the myths around All-Women Shortlists, and show that gender quotas do not pose a threat to "merit," and that the diversity they have fostered has brought about a number of important democratic outcomes.
Tuesday, January 30, 2018
The House passed a bill on Monday night that protects amateur athletes from sexual abuse by enforcing mandatory reporting regulations and extending the statute of limitations for child victims.
The bill, which was sponsored by Sen. Dianne Feinstein (D-Calif.), came up for a vote one week after Larry Nassar was sentenced in what was the largest sexual abuse scandal in sports history. Congress agreed to use the Senate’s version of the bill to speed up its passage; it passed with a vote of 406-3. It just needs President Donald Trump’s signature to be made into law. ***
The bill has a three-pronged approach to protecting athletes and regulating governing bodies of amateur athletics.
First, it requires coaches, trainers and others to report any sexual abuse allegation to the police within a 24-hour period. Several women said they reported Nassar to MSU representatives and others as early as 1997, but Nassar’s abuse was allowed to continue because no one adhered to mandatory reporting regulations.
Secondly, the legislation extends the statute of limitations to up to 10 years after a victim realizes he or she was abused. It’s not uncommon in child sexual abuse cases for survivors to have a delayed realization of the abuse they endured. Many of Nassar’s victims did not realize they had been abused until other women came forward with their stories.
Lastly, the bill limits athletes under the age of 18 from being alone with an adult who isn’t their parent. Nassar often abused young girls while he was alone with them during medical visits, and many survivors said the isolation of elite gymnasts allowed the abuse to continue. ***
Thursday, December 14, 2017
Women in Ohio would be prohibited from receiving abortions because of a fetal Down syndrome diagnosis under a bill that passed the state senate on Wednesday and is heading to Republican Governor John Kasich’s desk.
Lawmakers voted 20-12 in favor of the law, which criminalizes abortion if the physician has knowledge that the procedure is being sought due to a diagnosis of Down syndrome, a genetic disorder caused when abnormal cell division results in an extra full or partial copy of chromosome 21.Doctors would lose their medical licenses in the state and face a fourth-degree felony charge under the law if they were to perform an abortion with that knowledge. Mothers would not face criminal charges.
The bill makes Ohio the third state to pass a law outlawing abortions due to fetal anomalies. Similar laws were passed in Indiana and North Dakota. The Indiana provision was struck down by a U.S. District Judge in September after a lawsuit filed by the American Civil Liberties Union.
A bill banning abortion after a fetal diagnosis of Down syndrome has cleared the Ohio General Assembly and will now go to Gov. John Kasich's desk.
Three Republicans, including Gayle Manning of North Ridgeville and Matt Dolan of Chagrin Falls, voted with Democrats against the bill.
Kasich, who has signed 18 abortion restrictions into law since 2011, told cleveland.com last month he generally supported the idea but wanted to see the legislation before deciding how to act.
Friday, December 8, 2017
Sen. Kirsten Gillibrand, D-N.Y., is leading the effort in the Senate. She has previously disclosed that she has been harassed by unnamed male colleagues. She has also worked on combating sexual abuse in the U.S. military. "There is a serious sexual harassment problem in Congress and too many congressional offices are not taking this problem seriously at all," Gillibrand said.
- Waive 30-day requirements each for counseling and mediation sessions before a formal complaint can be filed
- Create a new, optional in-house victims' counsel position to provide legal advice and representation for complainants
- Eliminate requirements that complainants to sign nondisclosure agreements as a condition for filing a complaint, although nondisclosures are still allowed as part of a negotiated settlement
- Create an online system to initiate complaints
- Require lawmakers to pay out of pocket for any settled claim where they are identified as the harasser. Other claims are still paid for by taxpayers
- Require public disclosure of the employing office when a claim is settled and to disclose the settlement amount
- Require an anonymous "climate survey" of congressional employees every two years
- Extend all employer protections to interns, fellows and pages
Capitol Hill lawmakers on Wednesday introduced another bill to combat sexual harassment, addressing one of the legal mechanisms that employers often use to keep accusers silent.
The bipartisan legislation from Rep. Cheri Bustos (D-Ill.) and Sen. Kirsten Gillibrand (D-N.Y.) would ban employers from holding employees to forced arbitration clauses, which often prevent sexual misconduct survivors from speaking publicly about abuses in the workplace, and places power in the hands of the perpetrator.
Forced arbitration clauses can prohibit an accuser from going to court or dealing with the incident in other public means. They can include a private monetary settlement and/or a nondisclosure agreement. Victims often are forced out of their jobs, while the harasser remains.
“That is not a fair choice, and it is something that no one should have to put up with,” Gillibrand said at a press conference on Capitol Hill.
“To executives who think this should be an episode of ‘Mad Men,’ stop it, and stop it now,” Bustos said. “For the waitress, for the journalist, for the factory worker, for all the women who want to go to their job and do it well, we are to here to say, no more.”
The Senate bill is also backed by Sens. Lindsey Graham (R-S.C.), Lisa Murkowski (R-Alaska) and Kamala Harris (D-Calif.). The House version has support from Reps. Walter Jones (R-N.C.), Elise Stefanik (R-N.Y.), and Pramila Jayapal (D-Wash.).
Gillibrand and Rep. Jackie Speier (D-Calif.) recently introduced the Me Too Act, which aims to overhaul that complaint system and make it more transparent and less biased toward the perpetrator.
Bustos is also a co-sponsor on a House bill that would ban taxpayers from having to foot the bill for sexual harassment settlements on Capitol Hill.
Tuesday, November 28, 2017
Victims of domestic violence would get protections under bills introduced last week by Democrats in the House of Representatives and Republicans in the Senate.
The Democrats' bills would protect the wages and benefits for victims of domestic violence and prohibit landlords from discriminating against victims.
The Republican legislation would protect the confidentiality of the victims by prohibiting the disclosure of addresses in voter records or release of school records to parents who are the subject of personal protection orders. Another bill would exempt victims from jury duty.
"This is a package of bills that will conceal where a victim of domestic violence lives so they can't be stalked," said Sen. Rick Jones, R-Grand Ledge, one of the sponsors of the GOP package of bills. "Most states are doing this now and you have to deal with all the different ways you can find people."
Monday, November 27, 2017
Since 1997, Congress has paid at least $15 million to settle complaints about sexual harassment, racial discrimination, and violations of the Americans With Disabilities Act under the umbrella of the Congressional Accountability Act (CAA) of 1995.
The payments made to Rep. Conyers’s alleged victim came out of his taxpayer-funded office budget. Generally, though, these payments aren’t made by members of Congress or their offices. They’re made by a special section of the Department of the Treasury established under Section 415 of the CAA — and ultimately by the American taxpayer.
The process by which victims of sexual harassment on the Hill seek justice is long and arduous — it takes up to three months before a formal complaint can be filed. If a settlement is reached, it’s kept secret. The source of the money in the fund is excluded from the standard appropriations budget made public by Congress each year. There’s no process by which voters — or potential employees — can find out who the harassers in office are, what they’ve been accused of, or if they’ve settled with victims before.
The fund used to settle violations of the CAA is perhaps just one of the several pockets of money throughout the government used to handle judgments made against government employees. As harassment accusations topple prominent men in media, comedy, and Hollywood, it’s come under more scrutiny.
The Settlement and Awards Fund comes from an effort to hold Congress accountable for the federal laws that all other employers have to follow.
But as prominent men in other fields have faced snowballing accusations of sexual harassment, it’s instead shielded members of Congress from publicity.
In 1995, Congress passed the CAA, an effort to apply 12 federal laws to the legislative branch, including the Americans With Disabilities Act; the Fair Labor Standards Act, which requires that employers pay at least the minimum wage; and Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race, religion, national origin, color, or gender — including sexual harassment.
The CAA was, in part, a delayed legislative response to the Supreme Court's decision in Davis v. Passman (1979), implying a Bivens remedy for sex discrimination by Member of Congress from Louisiana, but with a 5-4 split and a dissent calling for Congressional immunity in employment matters absent a statutory extension of Title VII.
Tuesday, November 21, 2017
In Last Year, 40 Lawmakers in 20 States Publicly Accused by 100 People of Sexual Misconduct or Harassment
Since last year, at least 40 lawmakers – nearly all men – in 20 states have been publicly accused by more than 100 people of some form of sexual misconduct or harassment, a USA TODAY NETWORK analysis found.
The total, which doesn’t include confidential or anonymous complaints or government staffers who have been accused of sexual misdeeds, reflects unprecedented levels of scrutiny on statehouses across the country.
Swift action has been taken against high-profile men, including Hollywood producer Harvey Weinstein, and others accused of sexual harassment. There have been varying degrees of punishment for lawmakers.
Two weeks ago, Kentucky House Speaker Jeff Hoover resigned from his leadership position amid growing pressure over a report that he settled a sexual harassment complaint made by a staff member.
Florida's Senate president earlier this month ordered an investigation into allegations that Sen. Jack Latvala, who is running for governor, made inappropriate comments or touched six women. Latvala has denied the claims.
Earlier this year, Rep. Mark Lovell, a freshman Tennessee lawmaker, resigned amid allegations of sexual harassment. The resignation followed last year's expulsion of former Rep. Jeremy Durham, who had inappropriate sexual contact with at least 22 women, according to an attorney general's investigation.The ways lawmakers have handled sexual harassment and assault allegations has left some experts looking for change.
“The consequence must fit the transgression,” said Jennifer A. Drobac, an Indiana University law professor and expert on sexual harassment cases. “You have to withdraw the privileges, kick them out of Congress or out of the statehouse. Take away the privileges of their employ and their health care benefits.”
Debbie Dougherty, a professor in the Department of Communication at the University of Missouri who has written several reports on sexual harassment, said the latest wave of sexual harassment allegations against powerful men follows a slow but steady stream of similar accusations against officials at FOX News, Uber and the National Park Service.
“It’s like a stone rolling downhill. You see some and then you see some more and then you see a lot,” said Dougherty.
“The problem has been ignored and minimized for so, so many years that I think we’re just seeing the tip of the iceberg.”
Monday, November 20, 2017
An amendment to the tax reform bill working its way through Congress would deny businesses the ability to write off sexual harassment settlements as business expenses.
The Senate tax bill, passed by the Senate Finance Committee Thursday, includes an amendment that says businesses cannot deduct settlements, payouts, attorney fees or other expenses related to sexual harassment or sexual abuse, if such payments are subject to a nondisclosure agreement.
The amendment was proposed by New Jersey Democratic Senator Bob Menendez.
The proposal could affect sexual harassment settlements in a couple of ways. Businesses would no longer be allowed to write off legal settlements, fines and other expenses associated with sexual assault and harassment as "ordinary and necessary business expenses." And by denying these deductions, the amendment would make it costlier for companies to cover up misconduct.
"Right now a company can secretly settle allegations of sexual harassment in the workplace, silencing the victim and making it harder for other victims to come forward to seek justice," wrote Juan Pachon, spokesperson for Menendez, in an email to CNNMoney. "To add insult to injury, these same corporations can actually take a tax break for those payouts. Senator Menendez believes it's wrong for corporations who fail to protect their employees from sexual harassment to be able to write it off as an 'ordinary business expense."
Daniel Hemel, assistant professor of law at the University of Chicago law school, says the amendment's specific mention of non-disclosure agreements seems intended to disincentivize them -- a move that stops short of banning their use altogether.
"This is a pretty soft punishment if you're trying to deter closed agreements," he says. "I would think of this as largely symbolic legislation, but not exclusively so. It may change the way that some subset of sexual harassment cases are handled. But look, if an employer has a very strong preference for a closed agreement, then the tax deduction is unlikely to convince them to have an open agreement."
So at the end of the day businesses can still right off the settlements as long as they have an open, transparent agreement.
The question is what impact what tax restrictions might have on settlements. The availability of the deductions could actually helps victims at it increases or leverages the available monies employers have to settle the cases and provide compensation to victims.
Tuesday, October 10, 2017
With the stroke of a pen, Education Secretary Betsy Devos rescinded Obama-era Title IX guidance—effectively undoing nearly half a century of policy and advocacy work that helped to protect women and girls from sexual assault and advance equal access to education. The Department of Education’s updated guidance on Title IX allows schools to mediate rather than adjudicate sexual assault cases, revokes the suggested timeline for investigations and revises the suggested “preponderance of evidence” standard for sexual assault cases to make room for schools to enforce “clear and convincing evidence” standards.
Colleges and universities have been swift to respond, speaking out against the new interim guidance and pledging to uphold the old standards by following the procedures with which they were imbued under the Obama-era guidance. In a statement on Friday, UC Berkeley said it “stands firmly in support of the profoundly important policies enacted in recent years that seek to ensure a more efficient and fair system for all parties in cases of sexual harassment and sexual violence.” Penn State stated that it was their goal “to keep our reporting mechanisms and supportive services for responding to incidents of sexual and gender-based harassment and discrimination as effective and accessible as possible.” Washington University announced that “regardless of decisions at the federal level” they “have no intention of turning back on our commitment or resolve.”
These responses are undeniably uplifting and important—but laws are only as good as their enforcement. Without the proper mechanisms for effective enforcement that the previous guidance provided, it is hard to say whether schools will hold themselves accountable to the law or let their promises ring empty. Rather than hope for the best, California Senator Hannah-Beth Jackson (D-Santa Barbara) authored a bill that would enshrine into California law the Obama guidelines that guaranteed girls and women equal access to education.
SB 169 sends a message that the state does not want to sit idly by as the federal government attempts to propel women’s rights into the past. “In California, we will not go back,” Jackson said in a statement on Friday. “Both houses of the Legislature made a clear bipartisan statement by passing my bill, SB 169, to protect the Obama-era guidelines that strike an appropriate balance that were put in place during his tenure. We will not back down from the progress we have made on sexual assault and sexual violence.”
SB 169 passed with a 28-10 vote and is awaiting a signature from Governor Jerry Brown (D)
Monday, October 9, 2017
New legislation making its way to President Trump’s desk would guarantee women a seat at peace and security decision-making tables.
The Women, Peace and Security Act—passed by the Senate in August and the House in October—mandates that federal agencies make women’s participation a priority internally and in their work on-the-ground in conflict zones around the world. The legislation, which strengthens an Obama-era executive order on women’s participation in peace and security processes, gives Congress oversight of its implementation.
The WPS Act is five years in the making, but it has passed at a uniquely critical time. The Trump administration—one of the most male-dominated in modern history—has already shown a tendency to erase women from strategic frameworks related to peace and security. And around the world, while tensions rise, women remain vastly underrepresented at peace-making tables and in security forces.
Allison Peters, former Director of Policy and Security Programs at Inclusive Security and foreign policy and defense adviser in the U.S. Senate, penned an op-ed for USA Today presenting the comprehensive case for the historic legislation:
Critics might note that the U.S. is dealing with numerous foreign policy challenges and security threats and argue that focusing on women’s participation would be a “soft” distraction from these priorities. However, research shows us time and again that gender diverse groups are more likely to effectively prevent and resolve conflicts in the long-term.
Monday, September 25, 2017
Arianne Renan Barzilay, Parenting Title VII: Rethinking the History of the Sex Discrimination Prohibition, 28 Yale J.L. & Feminism 55 (2016)
It is a pillar of employment discrimination law that Title VII’s prohibition of “sex” discrimination lacks prior legislative history. When interpreting the meaning of sex discrimination protection under Title VII, courts have stated that it is impossible to fathom what Congress intended when it included “sex” in the Act. After all, the sex provision was added at the last minute by the Southern arch conservative congressman Howard “Judge” Smith in an attempt to frustrate the Civil Rights Act’s passage. Courts have often interpreted the sex provision’s passage as a “fluke” that has left us bereft of prior legislative history that might guide judicial interpretation. It is not surprising, then, that Title VII’s sex discrimination prohibition has been rather narrowly construed.
This Article rethinks this received narrative and emphasizes its implausibility in light of the pre-Civil Rights Act contributions feminists made to the national discourse on sex discrimination. It considers not only scholarship on Equal Rights Feminists’ role in passing Title VII’s sex provision, but also scholarship on the often-overlooked Working-Class Social and Labor Feminists. The Article also explores the contestations between these two groups over the meaning of sex discrimination. It provides a more complex narrative of the provision’s parentage than the one previously recognized.
The Article reframes the narrative by broadening the scope of inquiry in two ways: first, by focusing on Working-Class Social and Labor Feminists’ agitation for equality in the workplace, and second, by looking further back in time in order to reconceptualize debates over workplace equality as formative of the discourse on sex discrimination. The Article begins with early twentieth century contestations over protective labor legislation and argues that Working-Class Social Feminists supported labor regulation based not merely on sex stereotypes, but on their understanding of labor regulation as a means to combat sex discrimination. It continues through the New Deal, when an early sex anti-classification provision was inscribed in federal law by Social Feminists to provide equal pay for men and women. It examines the debates over workplace sex discrimination that reverberated in the decades following World War II and persisted through the early 1960s—when Congress passed the Equal Pay Act and the President’s Commission on the Status of Women issued its report. The Article considers these developments as part of feminists’ sustained efforts to combat sex discrimination, and as stage-setters for the sex provision’s passage. It claims that Working-Class Social and Labor Feminists’ long agitation for women’s equality de-facto constitutes decades’ worth of legislative history for the sex provision. When Congress voted to include “sex” discrimination in Title VII, it was already well aware of its robust meanings, thanks in large part to these feminists’ efforts to ameliorate systemic disadvantages facing women in the workforce.
Working-Class Social and Labor Feminists’ actions and ideology should be considered important influences on the context of the sex provision’s birth. As law is the dynamic and indeterminate product of human interaction, its interpretation must account for the complexity of the legacies that infuse it with meaning. To this end, after re-conceiving the history of the sex provision’s birth, the Article suggests this history may provide a richer notion of Title VII sex discrimination, one that emphasizes structural features of the market and requires employers to take affirmative measures to offset the features that often result in discrimination.