Category: Symposium (NIne to Five)

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the Medium and the Message

Saturday, June 11, 2016

9:18 AM

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.

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the Medium and the Message

Saturday, June 11, 2016

9:18 AM

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.

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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. Read More

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Women and Work: Ask the Other Questions Too

The persistence of gender inequality at work makes it a continuing necessity that we analyze and strategize for change. It is also an area where it might seem that law might most make a difference. Yet law has fallen short, reminding us of the power of inequality to domesticate and subdue even the most radical efforts, and the strength cultural and structural barriers.

Joanna Grossman’s new book Nine to Five: How Gender, Sex and Sexuality Continue to Define the American Workplace powerfully focuses on these dilemmas. Composed of her columns over a 15 year period written for Justia’s Verdict and Findlaw’s Writ, this unique collection of 57 or 350 columns includes a rich array of insights and questions about gender and work. The way in which this material is presented is powerful: a series of intellectual zingers.

Organized around four key themes (what is sex discrimination; sexual harassment; pregnancy and motherhood; pay equity and the glass ceiling), the book does not purport to cover everything, but it does present the opportunity to consider a range of issues, as well as trigger other subjects and questions. It is supremely accessible, a volume that could be read by anyone. Its witty, crisp writing (and wonderful cartoons), keen intellectual insights and questions that prick one’s curiosity and challenge stock answers, make the book a natural for students, in courses on gender discrimination, gender theory, and employment discrimination.

If I were to use the volume to teach students, I would be tempted to tease out several further themes in approaching the issue of the persistence of gender inequality at work.

The focus of the book is unabashedly on women. I would “ask the other question.” Or questions. Using Mari Matsuda’s long ago insight, this means that whenever you look at a pattern or problem, and think that you have identified the core of it, you should ask if anything else might be going on that you haven’t noticed. If you think police brutality is about race, ask also about gender; if you think the transgender bathroom controversy is about gender identity, ask about gender; if you think the pay gap is about gender, ask about race. So, when we look at the workplace, and ask whether all workers are treated equally on the basis of sex, the data and statistics, as well as the qualitative accounts, many of which are presented in Grossman’s book, tell us that women are not treated equally in a host of ways. Indeed, in the last section of the book she summarizes her prior segments and details the particularly deep ways that core issues of pay and types of jobs as well as job advancement are persistently unequal.

What other questions should we ask in the face of these patterns? First, we should ask, is it the same for all women? This is the intersectionality question, the reminder that if we do not ask about race, we obscure the differentiation of women’s inequalities and reinforce the troubled and persistent critique that gender inequality analysis is solely a white women’s game. Race is present as a thread in the book, most explicitly in the last section of the book, particularly chapter 52. In addition to thinking about gender and race as separate categories of workplace inequality, intersectionality challenges that separation as potentially masking the realities of inequalities by adopting an implicit norm that makes gender raceless (white) and race genderless (male).

Asking the other question about women and race will lead us also to ask the other question about class, to explore how gender inequality plays out differently for low income and middle or high income women. Some of those themes implicitly appear in Grossman’s chapters particularly on light duty work, as many of those cases involve lower or low-middle income women in traditionally male blue collar jobs. The constraints of such jobs, whether traditionally male or female, are very different ones from the challenges of professional women in areas such as law.

We might also ask the other question about men. Where are men in this pattern of inequality; are we correct in assuming that all men benefit from this pattern, from the patriarchal dividend? Are men subordinated? And what is the role of men in challenging gender inequality? If we pursue the man question, we also must echo the questions we have raised about women: do all men have the same position in this pattern?

Certainly men are present in Grossman’s book not only as perpetrators of discrimination, but also as its victims. The book begins with the sex discrimination claim of a man, albeit one that does not evoke much sympathy (ladies night at a bar). Men are present in every segment. These provide opportunities to raise the other question, this series of questions about men and work. For example, the Hibbs case, brought by a man to validate his ability to use the federal leave statute discussed in the book provides one such opportunity among many to consider stereotypes about men as carers, limits on men, and the subordination of men. Discussion of racial harassment as compared to sexual harassment in the book provides another opportunity, reminding us of the ability of race to trump gender privilege. Asking about men brings in as well as the insights of masculinities studies. It enables us to consider men’s role in ending discrimination, a subject raised in the volume as well, when a man voices concerns over discrimination against women. One prominent effort to encourage male advocacy is that of the UN’s He4She campaign.

Grossman also provides the opportunity to consider variability among men by presenting chapters on discrimination suffered by gay men and several chapters on transgender discrimination. The transgender chapters both involve male-to-female transgendered persons, suggesting that it is this particular configuration that triggers the strongest discriminatory response. These patterns among men also encourage us to return to ask the other question, once again, about women. What about discrimination against lesbian women, or transgender female-to-male persons?

And perhaps the best opportunity to raise the man question is at the end of the book, when she reflects on her own life as the mother of two sons, and her question of how to raise a son. There are so many layers to that question, as it begs us again to ask other questions that matter that might affect the answer: What race is your son? What is his sexual orientation?

Asking the other question(s) embedded in this volume provides a fuller, richer picture of the complexity and dynamic of inequality, so that it can be called out, and remedied, in ways that do not have the unintended result of reinscribing some other inequality. A recent reminder of this comes outside of the area of workplace inequality, in the handling of a rape case. The Stanford swimmer Brock Turner who sexually assaulted an unconscious woman was convicted of felony rape, but then given an extremely light sentence of 6 months plus 3 years’ probation. The passionate letter of his victim protesting this outcome, coupled with the outrageous letter of the swimmer blaming his actions on campus culture, and the letter of his father minimizing his son’s conduct, ignited a firestorm that has generated an effort to remove the sentencing judge from office. All of this seems right: to find a way to sanction the continued inadequacy of the legal response to sexual response particularly when the perpetrator is an elite athlete at an elite university. Yet more analysis is required; ask the other question. In a nuanced and carefully worded opinion piece, Paul Butler raises the possibility that the message of such a successful removal might be to encourage judges to err on the harsh side of sentencing. That outcome, he points out, given the disproportionate presence of youth and adult men of color in every phase of the juvenile and adult criminal justice system, would disproportionately fall on them, reinforcing the already strong biases of the system against them. Other commentators have mused about the attention to this case in comparison to the relative lack of attention to the Holtzclaw case, which involved an Oklahoma City police officer who used his power to prey on women with criminal records and coerce them into sex. This was a case that was excruciatingly difficult to bring to justice, although he was ultimately convicted in 2015 of 18 of 36 charges. The difference in attention between the Turner case and the Holtzclaw case suggests a comparison between the victims: multiple Black women in one, a single presumed white victim in the other.

As we search for solutions and press for change in all areas of inequality, teaching our students well requires that we encourage them to ask these other questions. This wonderful volume provides us with a starting place to raise those inquiries.

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Nine to Five Book Symposium

grossman-book-nine-to-five-lawnews

Concurring Opinions is delighted to introduce Professor Joanna Grossman, and the participants in our online symposium on Nine to Five: How Gender, Sex, and Sexuality Continue to Define the American Workplace (Cambridge University Press 2016).

  Grossman’s important book is an accessible, witty, and opinionated guide to the jurisprudence of sex discrimination that explores laws and policies regulating sex, sexuality, and gender identity in the American workplace. By bringing together almost 60 columns that Grossman has written over the past 15 years for online sites, the book documents the law’s approach to various issues of sex discrimination, including, sexual harassment, pregnancy discrimination, and pay equity. Although each essay was written to address a specific case or legal development (sometimes court cases provide the basis for the column, while other columns start with cultural developments, such as David Letterman’s acknowledgement of his intra-office sexual relationships – “Late–Night Affairs with David Letterman”), Grossman has organized the essays around 4 distinct themes, and has provided introductory and connecting analyses, so the book provides a coherent and cogent approach to sex discrimination. In fact, I am considering assigning it to my feminist legal theory students next semester!   The essays crisply note both the victories and defeats along the road to gender equality. Through the cumulative volume of these columns, we – somewhat painfully — see the obstacles to working women’s equality.

As Nine to Five explores numerous provocative and timely issues about the meaning of gender equality, it also raises questions about the role of law in achieving gender equality. Are Title VII and Title IX and the Equal Protection Clause and the Pregnancy Discrimination Act adequate to challenge pervasive gender role stereotypes? While these laws may have succeeded in opening doors to women in the workplace, can they help women deal with sexual harassment (Part II of the book) and pregnancy discrimination and the maternal wall (Part III) and pay equity and the glass ceiling (Part IV)? To consider these and many other issues raised by Grossman’s book, we have invited an all-star cast of thinkers:  Sam Bagenstos, June Carbone, Nancy Dowd, Jennifer Hendricks, Kate Silbaugh, Gillian Thomas, and Verna Williams.

We look forward to this discussion, and please join in with comments!