The New Gender Discrimination Claims that Must Confront the Abuse of Power in the Workplace

June Carbone, Nancy Levit & Naomi Cahn, Abuse of Power in the Workplace: The New Gender Discrimination Claims, 56 Univ. Pacific L. Rev. (forthcoming)

 This article draws on our book, Fair Shake: Women and the Fight to Build a Just Economy, to show how the fight for gender equality has changed. Anti-discrimination laws took hold during an era of relative economic equality; the fight for gender equality was a fight to gain access to the rights of white men. Today’s economy creates much greater inequality and reserves the greatest rewards for a much smaller group, again predominately white and male, who can defy the rules and get away with it. In such contexts, anti-discrimination law premised on a fight for equality can provide only limited remedies and cannot be the principal line of offense. These workplaces, while they increase gender disparities, do not act to promote men over women in the distinct identity-based group terms that Title VII was designed to combat. Instead, they select for certain types of managers who are both more likely to be male and to exploit all workers where it serves the purposes of those at the top. Accordingly, the fight for gender equity cannot be cast in terms of an equal right to ascend to the ranks of those oppressing others. Instead, it becomes a fight to confront the abuse of power that shortchanges women in order to enrich the few.

The most effective solutions to tame abuses of power incorporate new bases of liability and new litigation tactics to address the abuses. The most lawless workplaces both exacerbate gender disparities and exacerbate sexual harassment, retaliation, and unscrupulous business practices. The emerging strategies, which the best lawyers have already begun to employ, recognize that abuse of power, once made visible, is hard to justify and becomes a source of employer vulnerability rather than strength.

This article argues that the fight for gender equality today must take place alongside a fight to tame corrupt and abusive workplaces. This article first shows how the abuse of power in today’s workplaces is different from wholesale exclusion of protected groups. The next section examines the limits of conventional sex discrimination claims in promoting gender parity because they cannot challenge the underlying abuses of power that structure workplaces or affect the political environment that allows such abuses to continue. The third section points to new tactics that have had some success in creating accountability, and the final section provides larger structural suggestions on how to move forward.