Wednesday, March 28, 2012
Kim Yuracko (Northwestern) has just posted on SSRN her article (forthcoming, 2012 U. Pa. L. Rev.) Soul of a Woman: The Sex Stereotyping Prohibition at Work. Here's the abstract:
In 1989 the Supreme Court in Price Waterhouse v. Hopkins declared that sex stereotyping was a prohibited from of sex discrimination at work. This seemingly simple declaration has been the most important development in sex discrimination jurisprudence since the passage of Title VII. It has been used to extend the Act’s coverage and protect groups that were previously excluded. Astonishingly, however, the contours, dimensions and requirements of the prohibition have never been clearly articulated by courts or scholars. In this paper I evaluate four interpretations of what the sex stereotyping prohibition might mean in order to determine what it actually does mean in courts’ current sex discrimination jurisprudence. I reject the interpretations most often offered by scholars — namely that the prohibition requires either freedom of gender expression or sex-blind neutrality. I argue that the prohibition reflects not a coherent antidiscrimination principle but a pragmatic balancing test. I conclude by arguing that the prohibition has not lived up to its rhetorical promise. Indeed, the implications of the prohibition are both dangerous and ironic in ways not previously recognized. While the prohibition has extended Title VII’s protection to workers who had previously been excluded, it does so by relying on and reinforcing traditional gender categories. Moreover, by doing so the prohibition actually protects some individuals at the expense of the class whose subordination stemming from socially salient gender norms remains intact.