Pour Myself a Cup of Ambition
It feels indulgent to have the chance to respond to reviews of my book, Nine to Five: How Gender, Sex, and Sexuality Continue to Define the American Workplace (Cambridge 2016)—all the more so given that the back-and-forth is almost instantaneous. I so appreciate Concurring Opinions for providing a forum to hear what readers have to say, and for giving me the last—or at least the next—word.
Nancy Dowd posted first with an important and provocative set of questions. She makes the accurate observation that the book is “unabashedly” focused on women. Indeed, it is. She encourages that we ask the “other questions,” invoking the advice of Mari Matsuda to look at objectionable patterns and practices and ask whether there isn’t something other than the obvious thing going on. In other words, when you identify a practice that is harmful to women, ask whether it might also involve race or class. And even when looking at problems from a strictly gender perspective—think about men. Where are they in the equation? Dowd is the perfect person to encourage this broadening of perspectives, as she has been a pioneer in the emerging field of masculinities theory (her 2010 book The Man Question is a staple in the field) and has done a brilliant job in her more recent work of unmasking the racial biases in the juvenile justice system. So why didn’t I ask more complex questions about race, class, gender identity, and the intersectional effects of these characteristics? The cheeky answer is that a book that managed to ask all those questions would be long enough to be slapped with a cover price that would deter all potential readers. But the real answer is that my focus on women as individuals and as a category was purposeful. It was an effort to refute a complacency that has developed specifically around gender. People tend to think that because the law embraces gender equality, we have achieved it. References to a post-gender millennium and headlines saying “We did it!” (with a picture of Rosie the Riveter) make me crazy. What I see when I look at the experience of women at work is that gender is everywhere and it operates largely to the disadvantage of women.
The book relies on the stories of individual cases and individual women, with an overlay of statistics and social science research, to show that there is a significant gap between the law’s aspirations and its achievements and, in some cases, the law’s version of equality is simply not good enough. The more layers of complexity, the harder it is to make this point. Plaintiffs who raise claims based on more than one characteristic—say, race and sex—have a lower chance of winning than those who allege only one form of discrimination. This phenomenon has several potential explanations, but one is that fact-finders are overwhelmed by trying to figure out how these different causes might have contributed to the adverse outcome that prompted litigation and throw their hands up—in practical terms, the employer who behaves worse sometimes faces less liability. Although readers do not face the same task as judges or jurors, I do not want to raise so many issues that the one I intend to focus on—gender—gets lost in the shuffle. I do touch on gender identity, sexual orientation, race, and class, but always through a gender lens. So consider this book an opening salvo in a much broader debate about workplace equality. As I continue my work, I will pay more attention to asking the questions Dowd encourages—she’s absolutely right that they matter deeply—and hope others will draw on expertise that is different or greater than mine to weigh in as well.
Verna Williams joined the symposium with a probing insight: sex equality has been stymied by courts that continue to reduce all problems of gender to problems of biology. As she writes, this practices means they “fail to address structural barriers that relegate women and other gender non-conformists to the lowest rungs of the social hierarchy.” She only needed a few hundred words to make a point that took me 140,000 words. Perhaps that is because before her stellar career in academia, she spent years in the trenches of sex equality litigation (including a stint as the lawyer for the plaintiff in Davis v. Monroe County Board of Education, the case in which the Supreme Court held that educational institutions could be held liable under Title IX for peer sexual harassment). One cannot live in those trenches without encountering judges, lawyers, and commentators who just do not know sex inequality when they see it. And the collective lack of appreciation for how deep it runs and how it is embedded into almost every structure in society makes it hard to remedy. Williams suggests at the end of her review that I have provided a “game plan of sorts for feminist legal advocacy,” but I think she gives me too much credit. I may have perfected the art of pointing out sex inequality—and gesturing to some low-hanging fruit that courts and legislators could grab—but, as June Carbone argued in a later post, the real problem may require a deeper and more structural understanding of the economy and markets.
In Katherine Silbaugh’s contribution, I appreciate most that she thinks that the book “works.” (I love the comparison of my “fresh and present” columns to a “bloodless retrospective analysis of the cases and events.”) There was always a worry that in collecting essays written over a long period of time that the sum would never be more than its parts. Maybe it would even be less. But one of the things I discovered when I first began this project—and maybe this shouldn’t have surprised me—is that there is a coherence to the individual writings because they were all written by, well, me. And, like any other person, I bring my own biases, interests, and insights to every writing project. I write my columns on developments I find interesting or relevant; and I find things interesting or relevant because they relate to my body of work or to legal or policy debates about which I have opinions. Yes, I said it, I have opinions. In Silbaugh’s words, a “point of view.” As the legal academy faces tough questions about the role of faculty scholarship—and questions about what makes something scholarly—I find myself defending what people sometimes pejoratively refer to as “advocacy scholarship.” Gender law could not exist as a field if it didn’t have equality as an underlying goal. What is the point of “asking the woman question” if we are not allowed to criticize the patterns, practices, and institutions that subordinate women?
On the substance of the book, Silbaugh captures in one sentence a point I belabor in the book. “Put together,” she writes, “the cases and incidents discussed in this book show a persistent pre-occupation by courts and in the culture with fear that legal rights of employees will unreasonably burden employers, a pre-occupation that makes courts quick to place procedural hurdles in the way of such claimants.” Silbaugh has a gift for stepping back and asking “what is really going on here.” In her own work, she has explored everything from urban planning to contracts about household labor to understand the many structural components that determine women’s status in the family, the workplace, and society. A comparison of our resumes would show that I was unwittingly following in Silbaugh’s footsteps a few years behind—same college, same women’s rights organization, same law firm. I’m still following her, but this time in search of a greater understanding of gender dynamics in society and illumination of a path to equality.
In his contribution, Sam Bagenstos focuses on the pregnancy discrimination aspect of Nine to Five. This is not a surprising choice, as he and I worked together on Young v. UPS, the 2015 case in which the Supreme Court restored the second clause of the Pregnancy Discrimination Act (PDA), which had slowly been read out of existence by lower courts. This clause mandates that employers treat pregnancy-related disability the same as they treat temporary disability from other causes. But in case after case, federal courts upheld policies that provided accommodations to some groups of workers, but not to pregnant workers. As long as the dividing line was not pregnancy/non-pregnancy, courts held that these policies were “pregnancy blind” and therefore not in violation of the PDA. I first got interested in this issue because I wrote a column about one of these cases in 2006. The court’s analysis seemed odd to me, although I was by no means an expert at the time in pregnancy discrimination law. But I made myself an expert—researching the issue at length, writing several law review articles, attending conferences, and so on. And the conclusion I drew after doing this work was that pregnant workers faced two obvious problems: the PDA was not being given its due, and, even if it was, it wasn’t broad enough to protect women who needed temporary accommodations for the physical effects of pregnancy. By the time the Young case appeared on the radar, I was primed to force the first of these issues to the Supreme Court. As Bagenstos mentions, not all women’s rights advocates agreed with this strategy. But, to my mind, the UPS policy, which granted accommodations to three large groups of workers—but not to workers with pregnancy-related disability—was the perfect one to demonstrate how far courts had gone toward dismantling the PDA. Bagenstos (successfully and with great analytical gifts on display) represented the plaintiff as she sought review by the Supreme Court and, when they agreed to hear the case, briefed and argued it. I had the distinct pleasure, along with Deborah Brake, of writing amicus briefs at the cert and merits stage of the case. To my mind, this was the perfect marriage of scholarship and advocacy. I developed expertise in the usual scholarly fashion—and then applied it to a real case. The icing on the cake was that it was a Supreme Court case (always fun to be a part of), and it changed the course of pregnancy discrimination law. Peggy Young won her case, although, as Bagenstos notes, he and I have somewhat different assessments of the ruling’s impact. (Writing this book has generally given me a more pessimistic outlook on women’s workplace equality.) But I had cause for optimism when reading Justice Breyer’s majority opinion, in which he asked the question I have been asking for a decade: “[W]hy, when the employer accommodated so many, could it not accommodate pregnant women as well?” Until we dismantle the practices and structures that are built around the ideal (male) worker, women will always be left behind.
Jennifer Hendricks picks up where Bagenstos leaves off—observing that “the next phase in the development of discrimination law will be defined by whether it can move past the ideology of the market.” This is a theme of several of the contributions in this symposium and one that will guide where I go next in my gender studies. Hendricks takes this theme and offers a fascinating riff on the title of my book, Nine to Five. I use the 1980s movie of the same name—which has an opening scene that takes the audience on a tour at breakneck speed of all the ways in which women are discriminated against in the workplace—to ask why the modern workplace still resembles this farcical one from more than thirty years ago? But Hendricks drills down on the term “9 to 5”—its shifting meanings over time from a “pejorative term for a corporate drone” to “the aspirational tone of the past—the wish for a work day that really ends at 5, an office job that stays at the office.” She quotes Robert Owen, who proposed the following allocation of each 24-hour day: “8 hours labour, 8 hours recreation, 8 hours rest.” As an athlete who also has hobbies, I love the idea of 8 hours of recreation per day. But I have children, who demand to be fed each and every day, three times a day (except, as they will tell you, in June 2015, when I was so immersed in time-sensitive work that dinner didn’t seem to appear very often). And of course that is just the beginning of the tasks that occupy the 8-hour-leisure slot. But Hendricks, with whom I have the pleasure of sharing multiple intellectual interests, uses this casual term to make the case that we have shifted “from human-centered goals to market-centered rules, which ultimately place the values of the market above all else.” Discrimination law is a weak opponent against a society that exalts the market in this way. As Hendricks notes, Nine to Five explores this conflict in several contexts—disparity in pay for male and female coaches that is attributed to market differences, to take just one obvious example. Hendricks provides cogent examples that I don’t cover in the book—such as the practice in our own field that “the only way to increase one’s salary is to get a job offer elsewhere,” a system that has obvious gender effects—that support her conclusion that the “market defense, writ large, puts artificial limits on aspirations for equality.” That I find the contributions in this symposium more interesting than my own book is a sign that it is time to move on to these harder questions. I accept the challenge.
Gillian Thomas, the author of the recently released and groundbreaking book Because of Sex: One Law, Ten Cases, and Fifty Years that Changed American Women’s Lives at Work , is uniquely situated to react to a book on women and work. In her book, she tells the story behind ten of the most important Title VII cases involving sex discrimination. Even though I’ve worked in this field for almost twenty years and just published my own book on a very similar topic, there was hardly a page in Thomas’s book that didn’t teach me something. The broad theme of her book is that Title VII’s ban on sex discrimination did not just spring into existence, fully formed. Rather, it was developed, case by case, woman by woman, over decades. In some ways, my book begins where hers leaves off. The question I ask is whether the ban on sex discrimination, more or less now fully formed, is working. What I find—and what she sees as a lawyer for the ACLU Women’s Rights Project—is that courts are best at seeing discrimination when it is clearly motivated by animus. They struggle—as in the pregnancy accommodation cases—when the adverse effects on women are masked by ostensibly neutral rules or structural aspects of the workplace. And, in Thomas’s words, a constant frustration is the “maddeningly inconsistent jurisprudence relating to sex stereotypes, the root from which so much discrimination springs.” Dismantling sex stereotypes would perhaps do more to advance workplace equality—not only for women, but also for men, LGBT individuals, people of color, and, well, everyone—than anything else. We are lucky that someone with as keen an eye for the big picture as the minute details is litigating these cases.
June Carbone’s contribution to this symposium provided the perfect conclusion. But like a commencement ceremony, it was really a beginning rather than an end. She draws on her experience as a trial attorney for the Department of Justice both to affirm that sex discrimination is real and rampant, but also to question whether the individual plaintiffs in the early sex discrimination cases, whom she says “were rarely ideal employees,” were really changing the workplace with their lawsuits. Their biggest impact, she writes, is on “the experience of the next generation of employees.” The immediate world probably changed very little, and, as we now know, employees who bring discrimination suits are very often the victims of retaliation. Carbone questions the role of litigation, at least in some circumstances, an assessment with which I largely agree. Especially so given the data showing that employment discrimination plaintiffs have a lower win rate than virtually any other civil litigant. I think Nine to Five ultimately supports the conclusion that even when the law is enforced as intended, the workplace remains unequal. As many employment discrimination scholars have explored in the last decade, antidiscrimination law tends to look only for the “bad actor,” rather than looking for structural or root causes of inequality, and is not very good at capturing implicit bias. This has to be true because otherwise the robust development of antidiscrimination law—chronicled, among other places, in Gillian Thomas’s new book (above), would have brought us closer to equality. After considering several issues raised in Nine to Five, in beautiful and provocative style, Carbone observes that a “general norm shift” would be a more effective solution than individual litigation. True dat, as Omar would say in The Wire. Here is where I’m glad to know how hard so many people—advocates, lawyers, employees, and scholars—are working to figure out how to make that happen. Carbone has modeled this type of thinking in many ways, but most recently in her Marriage Markets book (with Naomi Cahn), in which she steps outside of family law almost completely to take a broader look at choices about marriage. In the end, Carbone, like other contributors, pushes me to focus more on the market and social norms like individualism and growing “ideological opposition to greater protections for employees” that keep equality at a distance.
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And with that, I will stop talking, except to say, again, thank you to Naomi Cahn for spearheading this symposium, to Concurring Opinions for making the virtual space available, and to my amazing readers who I’m sure had many other important things to do this week!