The Law of Gender Stereotyping and the Work-Family Conflicts of Men

49 Pages Posted: 19 Aug 2013 Last revised: 9 Sep 2015

See all articles by Stephanie Bornstein

Stephanie Bornstein

University of Florida Levin College of Law; University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group

Date Written: 2012

Abstract

This Article looks back to the early equal protection jurisprudence of the 1970s and Ruth Bader Ginsburg’s litigation strategy of using men as plaintiffs in sex discrimination cases to cast a renewed focus on anti-discrimination law as a means to redress the work-family conflicts of men. From the beginning of her litigation strategy as the head of the ACLU Women’s Rights Project, Ginsburg defined sex discrimination as the detrimental effects of gender stereotypes that constrained both men and women from living their lives as they wished — not solely the minority status of women. The same sex-based stereotypes that kept women out of the market sphere kept men out of the domestic sphere, and both were unlawful. Through a handful of key cases, Ginsburg challenged sex-based stereotypes that cast men as breadwinner and women as caregiver, succeeding in convincing the Supreme Court to establish a standard of heightened scrutiny for sex-based classifications. By combining jurisprudence under equal protection doctrine, Title VII of the Civil Rights Act of 1964, and the Family and Medical Leave Act, this Article argues that courts are failing to recognize actionable sex discrimination against men in the work-family context. Following the reasoning first adopted by the Supreme Court in the cases litigated by Ginsburg in the 1970s, penalizing men at work for acting as caregivers instead of unencumbered breadwinners is sex discrimination under Title VII.

Suggested Citation

Bornstein, Stephanie, The Law of Gender Stereotyping and the Work-Family Conflicts of Men (2012). Hastings Law Journal, Vol. 63, 2012. Available at SSRN: https://ssrn.com/abstract=2311754

Stephanie Bornstein (Contact Author)

University of Florida Levin College of Law ( email )

P.O. Box 117625
Gainesville, FL 32611-7625
United States

University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group

Boalt Hall
Berkeley, CA 94720-7200
United States

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