Nine to Five and the Limits of Litigation
Joanna Grossman has written a wonderful, mid-level guide to the law that protects women in the workplace. As a comprehensive account of recent employment cases, it is more engaging than law treatises or law review articles. She tells the stories of the plaintiffs who have brought precedent setting cases, and explains the significance of the rulings with a minimum of legalese. Yet, the chapters still provide a much more in-depth account than journalistic reports. She brings a law professor’s careful analysis to the recent decisions and scenarios she selects, describing the way that they expand or restrict the legal protections available to working women. Lawyers and law students will find not only succinct summaries of the substantive law, but suggestions about what will be necessary to establish the required elements in future cases, and attention to the procedural implications of the decisions. Grossman also does not hesitate to rate the outcomes, telling her readers when the courts go astray and when they get things right. Indeed, one of the intriguing tidbits is her commentary on Supreme Court Justice Clarence Thomas’s opinions. The former Chair of the Equal Employment Opportunity Commission, he tends to be a doctrinaire conservative on most issues, and was, of course, the subject of a sexual harassment charge that threatened to derail his nomination to the Court. Grossman nonetheless suggests that his positions on the issues that arose while he was at the EEOC are more nuanced than those arising thereafter.
Grossman’s critiques the judicial decisions that have come down the pike in terms of their implications for individual litigants (and their lawyers). She tends (though not invariably) to cheer those rulings that make it easier for plaintiffs to prevail, and dissent from those that create more obstacles, leavening these judgments with commentary on whether the new decisions can be reconciled with earlier precedents and workplace realities. She links her analysis of the allegations in individual cases to the systematic factors that make it difficult for women to achieve true equality in the workplace: unequal pay, sex stereotyping, sexual harassment, maternity discrimination, and the maternal wall that limits the positions open to involved parents (most typically mothers with substantial childcare responsibilities).
Nine to Five further includes extended commentary on newly enacted and pending legislation, and it pays considerable attention to the circumstances that make it difficult for women to take advantage of the protections the law provides. It thus offers a thorough account of the existing state of the law told through the lens of unfolding developments; standing by itself it could serve as a text for the right law school course or as a primer on women’s employment rights. The one issue it does not address, however, is the role of litigation itself; indeed, the book’s focus on individual cases often makes it seem as though the primary effect of employment law is to provide a means for individual employees to realize vindication. While Grossman often does incorporate the social science research that shows women’s overall progress and the shortcomings that remain, and while she acknowledges the limitations of grievance and other administrative procedures (pp. 128, 142, noting that while 40% of working women continue to experience sexual harassment, they rarely file complaints of any kind), she only occasionally acknowledges the question that underlies a volume like this: what role does litigation play? In particular, to what degree do individual cases contribute to a change in workplace conditions and when they do, to what extent are there unacknowledged costs?
In examining these issues in the context of this review, I begin with my own experiences litigating cases like these. I started my legal career as a trial attorney with the Department of Justice (DOJ) in Washington, D.C., and handled the defense of a number of employment discrimination cases while I was there. The experience left me with two firm conclusions. The first was that discrimination certainly existed. On the wall of the office in which I served there was a picture of the office attorneys in 1977, a year before I joined DOJ. The attorneys were all white and all male, with the exception of one white woman in a short skirt. By the time I left five years later, the office was almost half women and approximately a quarter minorities. Moreover, in that five year period, office culture changed with the new generation of attorneys. Lunch time banter became less of an assumed measure of effectiveness in the courtroom and women began to assume supervisory positions, in part because, while the best of the men often left for higher paying law firm jobs, the best of the women often stayed because of the more reasonable hours, with family needs pushing both trends. Our clients in discrimination cases were typically other federal agencies who lagged behind.
The second lesson I took from those years was that employment discrimination plaintiffs, like the woman described above, were rarely ideal employees. Even in cases where we defense attorneys had our suspicions about an office’s efforts to include women or minorities, the individual plaintiff was rarely the person who had suffered the greatest wrong. In one case, for example, a woman at the Department of the Interior’s Bureau of Land Management had applied for a higher paying job as a title examiner and did not get it because the office preferred candidates with law degrees and had no trouble attracting them. The agency’s Equal Employment Opportunity office concluded that to require a law degree where the position description said one was “preferred” (but not mandatory) had a disparate impact on women, who in that era were significantly less likely than men to attend law school. In investigating the case, however, I learned that even without the law degree requirement, the office would have viewed the particular plaintiff as a weak candidate. It would have preferred another woman, with significantly better qualifications, who had since taken another job. The people who pursue the expense and inconvenience of litigation often do so either because they are incensed or because their relationship with a particular employer had already been destroyed. Those with other options take them.
Taken together, I concluded that litigation had its greatest impact in changing the experience of the next generation of employees. The better qualified women and minorities who applied for subsequent openings in these agencies benefitted from the changing law and the changing employment ethos – without ever going near a courtroom.
How do these experiences from the long ago eighties relate to the cases of today that Grossman documents? I believe that the lessons from these early days of women’s inclusion in the workplace continue to frame the questions that determine when litigation can be an effective tool. First, these lessons are important in underscoring the fact that litigation is a blunt instrument. It is expensive, time-consuming and cumbersome, even for those who eventually win. Complete vindication either for plaintiffs who have suffered a serious wrong or for defendants who have been wrongly accused is rare. Second, litigation had the greatest effect when it changed office practices in a systematic way; a challenge to the government civil service exam, for example, which occurred while I was at DOJ, led to a negotiated settlement that encouraged much greater employee diversity. Third, litigation is sometimes the only way to challenge bad actors, who are unlikely to change without outside intervention. Some supervisors needed to be replaced. Finally, litigation imposes costs even when the net effects are worthwhile. I suspect, for example, that some of the supervisors whose decisions I defended would never again fire another civil servant, however poor their performance.
Reading Nine to Five with these insights in mind changes the perspective, though perhaps not many of the final conclusions. Many of Grossman’s commentaries focus on the ability of individual employees to receive redress, often for reasons rooted in the procedural obstacles the courts place in the way. Yet, her broad categories address systemic practices, such as access to pregnancy leave or contraception, that affect women’s full workplace inclusion. The book thus captures the changing nature of the challenges women face.
Grossman’s discussion of sexual harassment, which occupies a major section of the book, illustrates these issues. As Grossman explains, the courts initially viewed the idea of sexual harassment as a form of employment discrimination with skepticism, treating it instead as a “personal proclivity, peculiarity or mannerism . . .” (p. 72). Survey data indicates that sexual harassment in the eighties was pervasive. Many workplaces had a locker room atmosphere, with the men viewing women as appropriate subjects of sexual humor or sexual advances. Catherine MacKinnon persuasively argued in The Sexual Harassment of Working Women: A Case of Sex Discrimination (1979) that such behavior re-enforced sex-segregated jobs, and drove out or relegated women to inferior positions when they worked alongside men. The courts and the EEOC quickly accepted MacKinnon’s analysis, and recognized sexual harassment as a form of sex discrimination either when sexual favors become a condition of employment or sexual advances, comments and conduct create a hostile work environment (p. 74). The Supreme Court ultimately found that when supervisors sexually harass their employees, the company is automatically liable for their behavior, even if the individual behavior violated company policy (p. 75).
Grossman picks up with the issue before the courts today, starting with the question of whether the reformation of the workplace to insure greater gender equality will continue. A single case, one that Grossman believes gets it right, illustrates almost all of the issues that underlie an assessment of litigation’s role. Orton-Bell v. Indiana (p. 98) involved a prison counselor, who complained that night shift employees were having sex on her desk. An investigator confirmed her allegations, but dismissed them as trivial, and advised her to “wash off your desk every day” (p. 97). Soon thereafter, however, the Prison Superintendent ordered an investigation into Orton-Bell’s relationship with another employee in violation of prison rules and had them both fired. Orton-Bell alleged that the termination was brought in retaliation for her complaints about the desk, the male employee was discharged in accordance with more favorable terms than she, and the work environment was rife with sexual comments and conduct. The district court dismissed the entire complaint on the basis of a summary judgment motion, but the Seventh Circuit reversed and remanded for a hearing on the allegations of a hostile work environment and unequal treatment.
The district court seemed to treat this case as one of an employee who made a minor complaint (about the sex on the desk) and was then dismissed for a clear violation of prison rules. And the Seventh Circuit did affirm that part of the lower court ruling. Having other employees conduct their liaisons on a fellow employees’ desk (which of course became the subject of derision from other colleagues) is annoying, but not, the court concluded sex discrimination because there was no evidence she had been singled out on the basis of gender. And to the extent that her supervisors retaliated against her because of the complaint, she enjoyed no protection because the complaint itself did not address protected activity. This type of behavior (the sex on the desk) may be more likely to bother women than men, and women whose desks are used in this way may be more likely to become the butt of office jokes or to suffer more from the ribbing. Orton-Bell did not offer any evidence that her desk had been singled out for impermissible reasons, however, and if the alleged retaliation itself constituted a separate cause of action, then every employee complaint could give rise to a lawsuit. The courts have little interest in policing office conduct generally and Grossman concurs that the court correctly granted summary judgment on this part of the case.
The rest of the complaint received a more sympathetic hearing on appeal. Whether or not it had anything to do with her dismissal, Orton-Bell’s complaint alleged that the workplace included a constant barrage of sexual comments and conduct. The most dramatic included the former superintendent’s insistence that attractive women unnecessarily attend meetings so that he “could look down the table” at them, and extended public pat-downs of the female employees conducted for the entertainment of male staff (p. 97). In addition, she argued that the more lenient treatment accorded her male paramour was sex-discrimination. The Court of Appeals agreed that the complaint should have survived the summary judgment motion and it reversed and remanded the case for trial (p. 99).
This case demonstrates what sexual harassment litigation can do. The allegations in the complaint, taken at face value as they should be in the context of a motion for summary judgment, constitute a hostile work environment in which women are treated as sexual objects. Taken as a whole, they clearly constitute a violation of the law, which once made visible becomes difficult to ignore or justify. In addition, the dismissal offered a seemingly straightforward discrimination case: a man and a women engaged in the same alleged misconduct, but with substantially different consequences for each. Yet, the case arose only because of Orton-Bell’s dismissal and the fact that it seriously affected her future job prospects. She had little to lose by suing, and once she did, a seemingly weak case contesting her dismissal became a much stronger one because of the misogynist work environment and the direct comparison with a male co-worker. While the Seventh Circuit decision did not guarantee that Orton-Bell would prevail on remand, it dramatically increased the settlement value of the case. As a practical matter, therefore, the existence of such a work environment makes it easier for dissatisfied employees to sue, and those most likely to do so are women like Orton-Bell who face what might otherwise be seen as a justified dismissal. The result creates an incentive to clean up a toxic workplaces that has less to do with the merits of Orton-Bell’s individual circumstances than the risk of continuing future liability and the negative scrutiny it generates.
While the Orton-Bell decision largely addressed settled law, many of the cases Grossman discusses are important because they challenge established practices, particularly those addressing pregnancy and child care needs, that limit women’s full inclusion in the workforce. As Grossman presents them, many of these cases involve punitive responses to pregnancy that seem inexplicable. In a case that went to the U.S. Supreme Court, for example, UPS forced a pregnant delivery driver out of her job until after she gave birth because she could not lift heavy packages, even though it offered temporary accommodations to other employees who could not lift such packages and even though she rarely needed to lift packages that exceeded the weights allowed during the pregnancy (Young v. United Parcel Service, Inc., pp. 208-209). Much of the analysis in the case had to do with finding the right comparators: the question was whether pregnant women had to be offered the same accommodations as any other employees who suffered from temporary disabilities or from a policy that discriminated in the provision of accommodations based on the source of the disability (e.g., pregnancy versus an automobile accident or back injury). The case illustrates the role – and limits – of litigation in this area.
As Joan Williams has long argued, companies that value their workers should be able to accommodate family and pregnancy needs in the same way that they deal with employee illnesses and other workforce interruptions. Yet, pregnancies differ from back injuries in that the timing can be planned. If a company has a reputation for generous (or in some cases even minimally adequate) pregnancy benefits, it might find itself with a workforce more likely to become pregnant. In my DOJ office of 90 attorneys, for example, once the number of female attorneys increased, nine gave birth in the same year, seven between July and September. The office, which had accepted occasional requests for part-time returns to work, stopped approving them. UPS could find itself in a similar situation. Accommodations that do not seem that onerous for a single employee could become substantially more burdensome if a substantial number of employees ask for them at the same time.
The much more effective solution, therefore, would be a general norm shift, requiring all employers to accommodate the effects of pregnancy and caretaking. Yet, as Grossman points out, this is unlikely to happen. The law, rather than mandate pregnancy or child care benefits, only requires that employers not discriminate in the provision of benefits that they do provide. This does little to promote family supportive workplace norms. Grossman notes the limited protections of the Family and Medical Leave Act do not cover all workers, and many covered workers cannot afford to take the guaranteed unpaid leaves the act provides (p. 263). The anti-discrimination provisions at issue in individual cases such as that involving UPS could lead to a cutback in accommodations for all workers rather than expanded provisions for the pregnant. As Grossman observes, the United States has a long way to go in catching up with other developed nations in guaranteed paid medical and caretaking leave (p. 259).
Moreover, one of the changes over time has been the ideological opposition to greater protections for employees. Although Grossman does her best to provide evenhanded commentary on the legal developments, it is virtually impossible to ignore the impact of increased partisanship in, as Grossman puts it, “making a mess of pay discrimination law” (p. 285). That partisanship was particularly evident in the Supreme Court’s 5-4 decision in Ledbetter v. Goodyear Tire & Rubber Co (p. 277). Grossman argues persuasively that Justice Alito’s majority opinion cannot be convincingly reconciled with earlier precedents, and as a practical matter, it dramatically cut back on the ability to seek redress for equal pay violations. With Democratic control of both houses of Congress, President Obama signed the Lilly Ledbetter Fair Pay Act, reversing the decision, as one of the first acts of his presidency in January, 2009 (p. 291). Grossman provides a thorough account of the case, the legislation and its implementation.
At the end, Grossman takes stock of the progress that women have made in the workforce and the distance still to go. Yet, she does not fully acknowledge the forces that have not only undermined political support for more effective legal remedies, but have exacerbated gender inequality more generally. In discussing Wisconsin’s repeal of that state’s Equal Pay Act, for example, she quotes a state senator who insisted that the men and women have difference goals in life and money “is more important for men” while women take more time off and refuse to work 50 or 60 hours a week because of their greater involvement in childrearing (p. 299). Grossman responds that the gendered wage gap remains even after controlling for factors such as labor force interruptions and hours worked (p. 300). Grossman’s data, however, is more than a decade old. Since the late nineties, pay has become more steeply hierarchical in the United States with the greatest rewards going to those who work the longest hours. And both the greatest increases in pay and the greatest gender disparities tend to be in positions such as the top executive ranks and the financial sector that place disproportionate emphasis on financial rewards tied to reductionist measures such as short term earnings. The AAUP has concluded that gender disparities have grown with greater emphasis on the values of competition and individualism. Individual litigation cannot and should not be expected to address these disparities. Thus, while Grossman provides a superb account of the state of employment law, truly addressing women’s role in the marketplace requires a commitment not just to combat sex discrimination, but to create a more just and equal society. The fight for gender equality will be a lengthy one.