Monday, March 11, 2019
"Defensive Glass Ceilings" as Unlawful Structural Barriers to Women's Equal Employment Opportunities
Anthony Michael Kreis, Defensive Glass Ceilings, 88 GW L. Rev. (forthcoming)
The #MeToo Movement is a grassroots effort mobilized by victims of sexual assault and sexual harassment to end sexual violence and sex-based discrimination against women. Though in its infancy, the movement has been a catalyst for significant legal and cultural reform. It has also claimed the careers of prominent men credibly accused of various sex-based misconduct. Nervous men have reacted in poor form in response, electing to avoid women in the workplace and hedge against allegations of wrongdoing or the appearance of impropriety. The American workplace stands to be more sex-segregated if this trend takes hold as a consequence.
At the same time, women are punished on the job for being too friendly at work or discriminated against because they are perceived as too attractive, mistreatment stemming from men’s fears that they could fall victim to their ow inability to exercise self-control, that women are “overly-sensitive,” or that women might make baseless accusations against them. Too often courts have declined to recognize these invidious employment practices as unlawful sex discrimination because judges fail to see these behaviors as part of a systemic gender policing. Judges, instead, chalk it up to a few bad apples misbehaving. This Article posits that defensive work environments must be viewed as products of structural bias, not individual malevolence.
The goal of this Article is to use the hue and cry of this paradigm-shifting moment as an opportunity to reconsider the law’s prior understanding of sexual harassment and sex discrimination in the workplace. This Article argues that employment practices that create different rules of engagement for the primary benefit of men— erecting defensive glass ceilings— should be understood in the aggregate as a product of ambivalent sexism that creates a structural barrier to women’s employment opportunities in the workplace and are thus unlawful.