Saturday, June 11, 2016
After perfecting the concise, online column over a period of years, Joanna Grossman has invented a new book format in the legal world with Nine to Five: How Gender, Sex, and Sexuality Continue to Define the American Workplace. Grossman provided engaging, tightly written and informative columns to Findlaw’s Writ and Justia’s Verdict on a range of gender-related cases and legal events as they occurred. With primarily case-based discussions explaining the relevance of seemingly technical doctrinal distinctions to larger equity problems, Grossman’s columns addressed the immediate case as it came down, quickly situating it in a larger framework while distilling its importance into an easily digestible format.
Writing any of these columns requires a speed and focus anyone would admire; writing 350 of them must have become an intellectual discipline and practice of its own over the last fifteen years. But one of the challenges of timely writing, and probably the reason so few legal scholars sustain it over this impressive length of time, is that it seems to disappear quickly, swallowed by the next news event grabbing reader attention. If a writer has a point of view, which Grossman does, no single column can feel like it has made the convincing case for that point of view. Each column suggests an addition to the argument, but each is incremental. When writing each, it must have been challenging to accept that the contribution could add to the overall case only incrementally. So by taking 57 of her columns and publishing them in this format, Grossman has done more than cataloged them for our convenience. Instead, she’s done something substantively more interesting: she’s made the case for her point of view with circumstantial evidence in such numbers that the pattern becomes hard to dispute. That’s a big payoff for fifteen years of labor! The book is not about any one column or one argument. Instead, the book makes a convincing case that law has been somewhat helpful, but really not exceptionally helpful, in advancing sex equality in the workplace. Each column is fresh and present to its case and its moment, written in the direct wake of a decision or event, which a more bloodless retrospective analysis of the cases and events would likely not replicate. But this book provides the benefit of a retrospective by cumulating data points for a larger picture. Journal entries over fifteen years, recorded in their moment, give us a trustworthy living perspective on how the risks and significance of a decision were perceived in the moment, inviting us to decide whether over time and in the light of persistent inequity the risks (excessive litigation, for example) were overstated.
For example, at one point Grossman discusses a potential technical morass required for a successful retaliation claim, resting on whether an employee’s belief that a serious incident would give rise to a solid discrimination claim was accurate. I couldn’t help thinking how conventional, and reasonable, that employee’s belief is culturally, even if incorrect legally. That incorrect belief that legal claims are readily available and easily brought to bear is a perfect expression of the gap between conventional views of strong employee rights and actual legal barriers to realizing those rights. Put together, 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 claimants. There’s nothing new in that observation, of course, but the accumulation of rich and present discussions of 57 disappointing responses to inequity drives the observation home in a particular way. Despite Grossman’s wit and entertaining writing style, the book is sobering.