The Law of Gender Stereotyping and the Work-Family Conflicts of Men
49 Pages Posted: 19 Aug 2013 Last revised: 9 Sep 2015
Date Written: 2012
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.
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