Taking Sex Discrimination Seriously

Abstract

The fiftieth anniversary of Title VII’s ban on sex discrimination provides an occasion to reflect on its successes and failures in achieving workplace sex equality. Although considerable progress has occurred, advances have been both uneven and unsteady. This Article shows that a primary limit on legal reform has been attitudinal. Before and after Title VII’s enactment, private and public officials have defended sex discrimination and inequality by appealing to naturalized conceptions of sex difference. Persistent stereotypes portray women as more devoted to family roles than work roles and, consequently, less committed to their jobs than men. Similar stereotypes portray women as primarily interested in female-typed jobs said to reward feminine traits and values. Viewed through the lens of such assumptions, sex-based disparities in employment are not inequalities: They are the inevitable expression of innate and cultural sex differences.

How, then, has progress occurred under Title VII? The answer lay in reformers challenging essentialist claims about sex difference.

During Title VII’s first decade, this Article shows, agencies and courts adopted an expansive reading of Title VII only because the leaders of the emerging women’s rights movement pulled activists together to mount a strong, clear, concerted challenge to the existence and relevance of sex difference. Crafting a new conception of equality that captured American women’s growing sense of discontent while promising greater freedom to both women and men, early feminists overcame governmental resistance and achieved genuine legal progress. By the mid-1970s, they secured favorable rulings from the agencies, the Supreme Court, and the lower courts under both Title VII and the Constitution and consolidated these gains in Congress.

Yet progress was not universal and the initial momentum did not last. Rather, this Article argues, in areas of the law where feminist groups failed to establish a significant presence, or where they began to take a divided or less decisive stance as the women’s movement fractured and faded, the absence of activist demands and oversight permitted courts to retain or revert back to older views attributing workplace inequality to women’s difference. Two areas of law illustrate these dynamics. In cases raising women’s lack of interest as a defense to sex discrimination, women’s rights groups’ failure to regularly contest this arcane defense in the courts and agencies, coupled with resurfaced internal division over questions of difference that conveyed a mixed message about women’s work preferences, freed conservative judges to accept this defense and legitimate the underlying stereotypes in a wide swath of cases. Pregnancy discrimination law provides a second example, showing how courts stalled, and later backpedaled, as feminists initially wavered and later split over whether to characterize pregnancy as a uniquely female reproductive experience unlike other medical conditions or as a temporary disability similar to others that may affect an employee’s ability to work. Despite federal laws and agency rulings adopting the latter approach, images of pregnancy as unique and distinct from other disabilities have continued to resurface, limiting the law’s capacity to address this persistent form of discrimination.

Progress under anti-discrimination law is thus difficult to achieve and sustain: It requires continuing, cohesive efforts to challenge difference as a rationale for inequality and renew public support for change. This Article suggests that, going forward, equality advocates can make further headway by disputing not only the existence and relevance of alleged group-based differences, but also their presumed stability and sources. New evidence reveals that many sex, race, and other group-based differences typically said to explain and justify inequalities at work are actually produced there through institutional practices that foster an unnecessary, negative sense of difference and division among employees. The hope is that, by contesting such practices and exposing their self-reinforcing quality, reformers can further erode both enduring workplace inequalities and the persistent stereotypes cited to justify them.

Keywords: law, social movements, legal history, sex discrimination, gender discrimination, employment discrimination, Title VII, feminism, feminist theory, gender, women's movement, pregnancy discrimination

JEL Classification: J7