Nine to Five: A Mini-Treatise on Gender Discrimination at Work

 

Introduction

Joanna Grossman’s Nine to Five: How Gender, Sex, and Sexuality Continue to Define the American Workplace, a collection of timely and lively essays from her online columns on Justia’s Verdict and Findlaw’s Writ, tracks legal and social developments affecting women over the course of fifteen years. Grossman’s reach in this mini-treatise is broad and deep. She covers topics ranging from legal protections for men coaching women athletes, sexual harassment in the television writers’ room, and baffling court opinions holding that lactation is not “pregnancy-related” to former presidential candidate Mitt Romney’s (in)famous “binders of women.” Grossman also makes recommendations for addressing such stubborn problems as pregnancy discrimination and the wage gap. But, for my money, the structure of the book is particularly illuminating, as it highlights a major failing in courts’ analysis of sex discrimination.

The More Things Change…

As I read the essays, I was struck by how jurists continue to conceptualize sex discrimination as a concern rooted in—and limited to—biology. Courts practically require female plaintiffs provide a male comparator in order to prevail, rather than looking at whether a given practice is rooted in or perpetuates constraining gender ideologies. Despite Title VII’s expansive mandate to eradicate bias in the workplace, courts persist in making what Katherine Franke has called the “central mistake” in this area: separating sex from gender. And, in so doing, they fail to address structural barriers that relegate women and other gender non-conformists to the lowest rungs of the social hierarchy.

Twenty-one years ago, Franke observed that judges limited the law’s potential for change by overreliance on biological notions of sex. The error was especially apparent when transgender employees challenged dress codes. For example, in Ulane v. Eastern Airlines, the Seventh Circuit held that Title VII didn’t apply to a trans female’s claim of unlawful discharge. According the court, “even if one believes that a woman can be so easily created from what remains of a man, that does not decide this case. . . if the term ‘sex’ as it is used in Title VII is to mean more than biological male or biological female, the new definition must come from Congress.” (742 F.2d 1081, 1087 (7th Cir. 1984))(my emphasis) Franke argued that biological sex and gender are not separate, indeed “almost every claim with regard to sexual identity or sex discrimination can be shown to be grounded in normative gender rules and roles. “ (Franke at 2) Writing only a few years after the Supreme Court’s decision in Price Waterhouse v. Hopkins, Franke urged courts to build upon that precedent recognizing the harm and prevalence of gender stereotyping. The legal timeline comprising Nine to Five’s essays demonstrates that the law has inched toward Franke’s directive, particularly with respect to cases involving transgendered workers.

Transgender Discrimination: Illuminating Gender

As Grossman observes, federal and state courts have begun enforcing rights of transgender employees to be free from discrimination. She further notes that the EEOC has determined that bias based on gender identity violates Title VII “because the social and cultural expectations of gender are as much an aspect of sex as biological and anatomical differences.”   (Grossman, 38) Following in those progressive footsteps, the Departments of Education and Justice last month issued a “Dear Colleague” letter clarifying that discrimination based on gender identity, transgender status, or gender transition constitutes sex discrimination that violates Title IX. In response, eleven states and two school districts filed suit against these agencies, claiming that the Obama Administration’s policy offends the Administrative Procedures Act and, in a throwback to the civil rights era, the principle of state sovereignty. As this latest imbroglio suggests, the notion of sex discrimination being intertwined inextricably with intractable gender roles remains deeply contested, which Nine to Five also illustrates in two examples that follow.

The Case of Sex on a Desk

The essay “Sex Behind Bars” details one such instance. Plaintiff Connie Orton-Bell was a substance abuse counselor at a maximum security prison in Indiana. Her The work environment was highly sexualized, with a supervisor inviting his paramour and other attractive women to staff meetings for no other purpose than to ogle them; male employees gawking as their female co-workers got pat-down; and, most disturbing and disgusting of all, unknown persons having sex on the plaintiff’s desk after hours. The Seventh Circuit found that, because Orton-Bell could not prove that the nocturnal interludes occurred because she was female, they did not constitute a sexually hostile work environment. By focusing on the plaintiff’s biology, the court missed the gendered implications of the staff’s sexual misconduct: it telegraphed the unmistakable message that this workplace was a sexual playground where female employees were toys.

Gilbert, Resuscitated

The cases Nine to Five tracks demonstrate that courts’ insistence on treating sex discrimination strictly as a problem of biology is even more extreme when it comes to pregnant women and mothers on the job. Consider the Supreme Court’s decision in AT&T v. Hulteen, discussed in the aptly named chapter “The Supreme Court Deals a Blow to Once-Pregnant Retirees.”   The plaintiffs were former employees required to take unpaid disability leaves during pregnancy, which resulted in lost service credit at the time, and ultimately, diminished pensions at retirement. The Court found no Title VII violation here because, at the time AT&T enforced this policy, distinctions based on pregnancy weren’t considered discriminatory, thanks to the Supreme Court’s outlandish and ultimately repudiated decision in General Electric Co. v. Gilbert (holding that pregnancy discrimination was not sex discrimination under Title VII). As a result, the disparity in question fell within an exception to Title VII’s mandate for equal pay. In dissent, Justice Ginsburg noted that even before Gilbert, the EEOC’s guidelines required employers to treat pregnant workers the same as other workers similarly disabled, a view other appellate courts held, casting doubt on the notion that the policy at issue was legal at the time plaintiffs were subjected to it. Moreover, and more to the point for our purposes, she explained why pregnancy discrimination is “based on sex” as a legal matter: “certain attitudes about pregnancy and childbirth, throughout human history, have sustained pervasive, often law-sanctioned restrictions on a woman’s place among paid workers and active citizens.” (229)

Conclusion

Women’s biology long has justified limiting their participation in society and, as Grossman concludes, “doom[ed] women to a type of second-class citizenship, which prevents them from capturing the rights and benefits of societal membership.” (229) The trajectory of Grossman’s essays amply demonstrates that, while the law of sex discrimination has come a long way (to borrow the old Virginia Slims line), it remains tethered to biological blinders that prevent courts from addressing the structural inequalities too many women continue to face. In highlighting both the ongoing judicial errors and the openings for progress, however, Nine to Five provides the makings of a game plan of sorts for feminist legal advocacy.

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