Working 9 to 5: What a Way to Make a Living

Joanna Grossman’s Nine to Five:  How Gender, Sex, and Sexuality Continue to Define the American Workplace is an invaluable contribution to the popular understanding of how gender works – or doesn’t – at work.  With wry humor and a clarity that’s all-too-rare among those who write about the law, Grossman provides a comprehensive, must-read primer for the lay reader.  But Nine to Five also is a bracing corrective to the notion that the issues raised by the popular 1980 movie of the same name are remotely as anachronistic as the bad fashion sported onscreen by Dabney Coleman, Jane Fonda, Dolly Parton, and Lily Tomlin.

Grossman, a nationally-recognized expert on gender and the law, has been as prolific outside of academia as she has been within it.  For fifteen years, she wrote a biweekly column for the online legal publications Justia and then FindLaw, amassing a body of work totaling 350 pieces, out of which 57 have been collected for Nine to Five.  In her column, Grossman could be counted on to provide plain-English dissections not only of Supreme Court decisions and other landmark rulings, but also of lesser-known cases that were noteworthy for bringing knotty issues into especially stark relief.  This collection is a rewarding sample of that body of work.

Grossman is a scholar with her ear attuned to the messiness of the real world, which in turn has informed her scholarship.  Nowhere is this focus on the law’s practical implications more on display than in Nine to Five’s chapters about pregnancy and motherhood.  Regardless of our cultural reverence for mothers, when the symptoms of pregnancy or the quotidian details of child-rearing conflict with a job – and conflict they will, again and again – Grossman reminds us that “the burden of juggling reproduction and work falls almost exclusively on women.”  Indeed, these burdens have arisen even in the absence of pregnancy – for instance, where an employer’s otherwise comprehensive prescription plan does not cover  contraceptives (a cost now eradicated under the Affordable Care Act, unless one is unlucky enough to work for an employer like Hobby Lobby), or where a woman needs to take time off to undergo fertility treatment.  Then there are the nine months of pregnancy itself, when physically strenuous or dangerous work can interfere with health.  And those burdens continue into motherhood, first when the ability to breastfeed depends on a boss providing a safe, private place to pump, and then when a woman is stereotyped as being less dedicated to her job because she now has “a little one” at home, resulting in lower pay and diminished opportunities – penalties not experienced by fathers.

While the courts have been willing to see discrimination when pregnancy motivates an employer’s adverse action, they’ve balked when it comes to requiring more affirmative measures that could uncharitably be termed “special treatment.”  Both in Nine to Five and in her scholarship generally, Grossman has done invaluable work illustrating the ways in which gaps in current law leave most pregnant women and mothers to fend for themselves.  We may have the Pregnancy Discrimination Act, but its protections are merely comparative, in that employers are required to treat pregnant workers only as well as they decide to treat others who are “similar in their ability or inability to work.” It also has been inconsistently applied when it comes to breastfeeding, with many courts finding, incredibly, that lactation is not a medical condition “related” to pregnancy.   We may have the Family and Medical Leave Act, but it only applies to the largest employers – leaving out roughly 40 percent of the workforce – and only provides unpaid leave, a luxury most can’t afford.  We may have the Americans with Disabilities Act, but “normal” pregnancy isn’t considered a disability that entitles a woman to accommodation.

A particular focus of Nine to Five is the maddeningly inconsistent jurisprudence relating to sex stereotypes, the root from which so much discrimination springs.  (Relatedly, Grossman writes frankly about the personal challenge of trying to raise sons who won’t see the world as divided into pink and blue – even though, in so many ways, it still is.  After her son points out the car window at an all-male road crew and says, “Hey, look at those guys fixing the power line,” she wrestles with whether to correct him.  After all, it was only guys fixing the power line.)    In 1989, the Supreme Court in Price Waterhouse v. Hopkins ruled that denying partnership to a woman for being insufficiently feminine – and too “macho” – was just as much sex discrimination as an outright “men only” partnership rule.  Since then, as Grossman describes, Price Waterhouse has been the touchstone for other employees who face bias for failing to conform to sex stereotypes, and in recent years has been extended to protect transgender workers from discrimination.  The reasoning, of course, is that a man who presents as a woman is not conforming to societal expectations of masculinity.  At this point, four appeals courts have ruled that discrimination against trans individuals is sex discrimination under Title VII of the 1964 Civil Rights Act and other federal statutes, and the Equal Employment Opportunity Commission has reached the same conclusion.

But that progressivism hasn’t benefited all employees, as Grossman illustrates with a number of case studies.  For instance, even though the Supreme Court vindicated Ann Hopkins’ “wash and wear” personal style, courts have continued to grant latitude to certain employers – usually those whose business depends to some degree on its “image”– to impose grooming codes that turn workers into human Barbies and Kens.  As Grossman notes, such codes may seem like de minimis facts of life, but they’re really the bricks and mortar of “a gender hierarchy, in which a working woman is evaluated on both appearance and job performance.”   (They also sustain a race hierarchy, in which all hair is presumed to be straight and long, not braided or twisted or dreadlocked, and where one kind of hair is attractive and the other is . . . ethnic.)

Exemplifying this line of cases is the Ninth Circuit’s 2006 decision in Jespersen v. Harrah’s, in which the court upheld a Reno casino’s “Personal Best” appearance rules that required female employees to have their hair “teased, curled, or styled” and to wear stockings, tinted nail polish, and makeup.  For their part, men only had to keep their hair cut and their nails short – and refrain from any nail polish or makeup.  When longtime bartender Darlene Jespersen challenged the policy, the court focused not on the plainly stereotyped notions of femininity and masculinity that it enforced, but instead, on whether it interfered with Jespersen’s ability to do her job.  Because the appearance code did not pose an “unequal burden” on women versus men, the court ruled, Title VII was satisfied.  (Plainly the members of the Ninth Circuit majority have never set foot inside Sephora.)

Courts’ deference to employer appearance codes have even worked to punish transgender employees who otherwise might have found shelter under Title VII.  Grossman tells the story of Amber Creed, a transgender woman fired from her job at an Indiana convenience store for failing to conform to the store’s policy that men wear their hair short, and eschew makeup and jewelry.  Because she identified as female, Creed insisted that she be assessed according to the code for women, which allowed long hair and makeup and jewelry.  The court disagreed, and approved Creed’s discharge.  That’s right:  even though Creed complied with the policy consistent with her gender identity – adopting an appearance that undoubtedly would have met Harrah’s stringent “Personal Best” standards for women – the court found that the store’s right to impose a grooming code trumped Creed’s right, under Price Waterhouse, not to adopt a stereotypically “male” appearance.

The great irony in courts’ stereotyping jurisprudence is that sexual orientation – the ultimate failure to conform to assumptions about how “real” men and women should act – has yet to be recognized by an appellate court as falling within Title VII’s definition of sex.  LGB plaintiffs have succeeded when they can attribute their adverse treatment to having an appearance or mannerisms that don’t conform to stereotype – e.g., effeminate men or “butch” women – but without such visible proof of gender-nonconformance, they’re far less likely to succeed.  (That was the case David Martin, a gay prison guard in New York who, explains Grossman, was found insufficiently effeminate to prove that gender stereotypes motivated his peers when they called him a “faggot,” “pervert,” and “queer.”)  That is, being punished gender non-conformity when it comes to whom one loves, without more, is generally not enough to earn Title VII’s protections.

As Grossman details, these decisions reflect profound ambivalence in the courts about requiring employers to relinquish their sex-differentiated standards and perceptions.  As so often is the case with sex discrimination, such rulings tell “a cautionary tale about the limited power of law to change culture.”  Indeed, when public figures like Governor Arnold Schwarzenegger happily mocks legislators who opposed him as “girlie men,” as Grossman recounted in 2004, or when a Long Island soccer coach chides his 10-year-old male charges for “playing too womany” (as Grossman witnessed after one of her son’s games) – let alone when a major party’s presidential candidate attributes a female reporter’s tough questions to her period – it’s clear we have not come as far as we might like to think from the world inhabited by Mr. Hart, Judy, Doralee, and Violet.  It’s enough to drive you crazy — if you let it.

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