Defensive Glass Ceilings
58 Pages Posted: 28 Apr 2019 Last revised: 9 Aug 2019
Date Written: March 10, 2019
The #MeToo Movement is a grassroots effort mobilized by victims of sexual assault and sexual harassment to end sexual violence and sex-based discrimination against women. Though in its infancy, the movement has been a catalyst for significant legal and cultural reform. The movement has also brought to light credible accusations of various sex-based misconduct, causing the careers of prominent men to nosedive. Men have reacted by doubling down on decades-old workplace sex-based inequities and practices to avoid women in the workplace and hedge against allegations of wrongdoing or the appearance of impropriety. The American workplace will be more sex-segregated if recent anecdotal evidence of men increasingly dodging women is indicative of a wider, long-term trend.
At the same time, women are punished on the job for being too friendly at work or because they are perceived as too attractive, mistreatment stemming from men’s fears that they are unable to exercise self-control, that women are “overly-sensitive,” or that women might make baseless accusations against them. Too often courts have declined to recognize these invidious employment practices as unlawful sex discrimination because judges fail to see these behaviors as manifestations of systemic gender policing. Judges, instead, chalk it up to a few bad apples misbehaving. The hue and cry of this paradigm-shifting moment is ripe to reconsider the law’s prior understanding of sexual harassment and sex discrimination in the workplace.
This Article advances two primary arguments. First, employment practices that create different rules of workplace engagement, which are motivated by ambivalent sexism and are for the primary benefit of men, form defensive glass ceilings — a term first introduced by this Article. Second, because defensive glass ceilings are a structural barrier to women’s employment opportunities, the employer practices that create them are prohibited under existing employment anti-discrimination laws. In advancing this position, the Article offers the most detailed and extensive discussion published to date of uses for an infrequently utilized provision of Title VII, § 703(a)(2), to make disparate treatment claims.
Keywords: Title VII, Sexual Harassment, Sex Discrimination, Pence Rule, Employment Discrimination, #MeToo
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