Law Commons^™

It's Complicated: Age, Gender, And Lifetime Discrimination Against Working Women - The United States And The U.K. As Examples, Susan Bisom-Rapp, Malcolm Sargeant

Faculty Scholarship

This article considers the effect on women of a lifetime of discrimination using material from both the U.S. and the U.K. Government reports in both countries make clear that women workers suffer from multiple disadvantages during their working lives, which result in significantly poorer outcomes in old age when compared to men. Indeed, the numbers are stark. In the U.S., for example, the poverty rate of women 65 years old and up is nearly double that of their male counterparts. Older women of color are especially disadvantaged. The situation in the U.K. is comparable.

To capture the phenomenon, the article …

Disabling The Gender Pay Gap: Lessons From The Social Model Of Disability, Michelle Travis

Michelle A. Travis

As we celebrate the fiftieth anniversary of Title VII’s prohibition against sex-based compensation discrimination in the workplace, the gender wage gap remains robust and progress toward gender pay equity has stalled. This article reveals the role that causal narratives play in undermining the law’s potential for reducing the gender pay gap. The most recent causal narrative is illustrated by the “women don’t ask” and “lean in” storylines, which reveal our society’s entrenched view that women themselves are responsible for their own pay inequality. This causal narrative has also embedded itself in subtle but pernicious ways in antidiscrimination doctrine, which helps …

Wengler V. Druggists' Mutual Insurance Company: No More Skirting The Issue Of Sex Discrimination In Workers' Compensation Dependency Statutes, Teresa A. Saggese, Lawson A. Cox Ii

Pepperdine Law Review

No abstract provided.

Newport News Shipbuilding & Dry Dock Company V. Eeoc: Expanding The Scope Of Title Vii , Mark D. Klein

Pepperdine Law Review

Title VII of the Civil Rights Act of 1964 as amended by the Pregnancy Discrimination Act of 1978 prohibits sex discrimination on the basis of pregnancy. In Newport News Shipbuilding and Dry Dock Co. v. EEOC, the United States Supreme Court extended the scope of the Act to include not only female employees, but also female dependents of male employees. The author examines the Supreme Court's analysis of and the legislative intent behind the Pregnancy Discrimination Act and explores the future impact of the decision.

Flexible Scheduling And Gender Equiality: The Working Families Flexibility Act Under The Fourteenth Amendment, Lane C. Powell

Michigan Journal of Gender & Law

The Working Families Flexibility Act (“WFFA”) as proposed in 2012 would create a federal right for employees to request flexible work arrangements. However, the bill contains no private right of action for employees to enforce this new right. By reframing the WFFA as an anti-discrimination statute targeting unconstitutional sex discrimination on the part of the States, the WFFA could be upheld under Section 5 of the Fourteenth Amendment, allowing Congress to provide a private right of action for both private and state employees. This Note uses the Supreme Court’s decisions on the Family Medical Leave Act in Hibbs and Coleman …

The Cost Of Non-Compensable Workplace Harm, Henry L. Chambers, Jr.

Law Faculty Publications

This essay briefly addresses the limited fashion in which Title VII remedies sex discrimination in the workplace. Those limitations fall into three broad categories. The first encompasses how courts have applied procedural rules to Title VII claims. The second involves Title VII's explicit limitation on its coverage. The third includes substantive limitations that courts have placed on causes of action that are clearly covered by Title VII. This essay addresses those categories in turn.

Teaching The Post-Sex Generation, Kerri Lynn Stone

Faculty Publications

There is a trend that I have observed in the course of leading my classes in discussions about the kinds of behavior that may constitute unlawful discrimination: the emergence of an attitude among students that society is simply “post-sex,” or no longer in need of most or all anti-sex discrimination jurisprudence. This Article details my own approach to teaching and to raising and conducting discussions about how anti-discrimination legislation and jurisprudence works in theory, in practice, and how it would/could work in an ideal world. I enjoy teaching students with a diversity of viewpoints. However, when I began to encounter …

Paramours, Promotions, And Sexual Favoritism: Unfair, But Is There Liability?, Mitchell Poole

Pepperdine Law Review

No abstract provided.

Keeping Discrimination Theory Front And Center In The Discourse Over Work And Family Conflict, Laura T. Kessler

Pepperdine Law Review

This essay is a contribution to a symposium on balancing career and family. It frames the problem of work/family conflict as a form of sex discrimination. It demonstrates that many of the constructs commonly used to illustrate an absence of employment discrimination - such as the accident, opt-out, time-lag theories - actually fit quite comfortably within various discrimination frameworks. It also contextualizes the problem of work/family conflict within the larger issue of gender bias in the workplace, demonstrating how each contributes to and works together to produce workplace inequality for women. This approach contrasts with the traditional bifurcation of gender …

Discrimination Against Mothers Is The Strongest Form Of Workplace Gender Discrimination: Lessons From Us Caregiver Discrimination Law, Stephanie Bornstein, Joan C. Williams, Genevieve R. Painter

UF Law Faculty Publications

Work-family reconciliation is an integral part of labor law as the result of two major demographic changes: the rise of the two-earner family, and the pressing concern of elder care as Baby Boomers age. Despite these changes, most European and American workplaces still assume that the committed worker has a family life secured so that family responsibilities do not distract from work obligations. This way of organizing employment around a breadwinner husband and a caregiver housewife, which arose in the late eighteenth century, is severely outdated today. The result is workplace-workforce mismatch: Many employers still have workplaces perfectly designed for …

The Law Of Gender Stereotyping And The Work-Family Conflicts Of Men, Stephanie Bornstein

UF Law Faculty Publications

This Article looks back to the early equal protection jurisprudence of the 1970s and Ruth Bader Ginsburg's litigation strategy of using men as plaintiffs in sex discrimination cases to cast a renewed focus on antidiscrimination law as a means to redress the work-family conflicts of men. From the beginning of her litigation strategy as the head of the ACLU Women's Rights Project, Ginsburg defined sex discrimination as the detrimental effects of gender stereotypes that constrained both men and women from living their lives as they wished-not solely the minority status of women. The same sex-based stereotypes that kept women out …

"Mancession" Or "Momcession"?: Good Providers, A Bad Economy, And Gender Discrimination, Joan C. Williams, Allison Tait

Chicago-Kent Law Review

In the aftermath of the 2008 economic downturn, two of the hardest hit industries were manufacturing and construction. As a result, men became unemployed at a higher rate than women, and consequently, women—for the first time ever—became over fifty percent of the employment. This "mancession" gave rise to great debate over the place of women in the workforce and the important role that employment plays in shaping male identity. An intervening critique came in the form of the "momcession" discourse that focused on the impact of the recession on mothers, who were often responsible for caretaking, homemaking, and providing the …

Sex Equality's Unnamed Nemesis, Veronica Percia

Michigan Journal of Gender & Law

Sex inequality still exists. However, its manifestations have evolved since the early sex inequality cases were heard in courts and legislatures first began structuring statutory regimes to combat it. In particular, so-called "facial" discrimination against men and women on the basis of sex has no doubt decreased since the advent of this legal assault on sex inequality. Yet the gendered assumptions that structure our institutions and interactions have proven resilient. With sex discrimination now operating more covertly, the problem of sex inequality looks considerably different than it once did. Courts, however, have failed to successfully respond to the changing contours …

Removing Categorical Constraints On Equal Employment Opportunities And Anti-Discrimination Protections, Anastasia Niedrich

Michigan Journal of Gender & Law

It has been the "historical tendency of anti-discrimination law to use categories to define protected classes of people." This Article challenges the categorical approach and seeks to change that limited framework. This Article focuses on the flaws with Title VII's categorical approach and discusses why there is a desperate need for change to combat the different types and targets of workplace discrimination today, focusing on the transgender community as one example. After discussing the current framework and operation of Title VII, this Article analyzes the insurmountable flaws inherent in the categorical approach to anti-discrimination law, and specifically considers Title VII's …

Making-Up Conditions Of Employment: The Unequal Burdens Test As A Flawed Mode Of Analysis In Jespersen V. Harrah's Operating Co., Megan Kelly

Golden Gate University Law Review

Part I of this Note reviews Title VII and foundational caselaw, including cases regarding sex discrimination and appearance standards. Part II examines the Ninth Circuit's Jespersen opinion. Part III compares the Supreme Court decision in Price Waterhouse v. Hopkins, which expanded Title VII protection to include gender stereotyping, with the Jespersen holding. Part III also explores a Seventh Circuit case, Carroll v. Talman Federal Savings and Loan Association of Chicago, and Judge Thomas's dissent in Jespersen, which both argue for inclusion of less tangible factors such as gender stereotyping in the unequal burdens test. Part III finally contends that the …

Eastern Men, Western Women: Coping With The Effects Of Japanese Culture In The United States Workplace, Becky Kukuk

Golden Gate University Law Review

This article examines the kaigaitenkinsha's effects on women employees in the U.S. workplace and recommends solutions to mitigate their potentially discriminatory impact. Part II, Section A, surveys the kinds of sex discrimination that women encountered at Japanese companies aside from those alleged at Mitsubishi. Section B reviews U.S. equal employment opportunity laws to provide a framework from which to understand U.S. women's employment rights and to compare the Japanese employment laws outlined in the next section. Section C seeks to explain why the kaigaitenkinsha discriminate against women by reviewing the history of women's employment in Japan and Japan's equal employment …

Considering Hybrid Sex And Age Discrimination Claims By Women: Examining Approaches To Pleading And Analysis - A Pragmatic Model, Sabina F. Crocette

Golden Gate University Law Review

This Comment examines two ways in which the legal system does not adequately consider older women's claims of discrimination. The issues are presented in two conceptual groupings. The first grouping discusses how barriers to the recognition of hybrid age and sex discrimination claims are created when courts do not analyze the evidence of discrimination together as evidence of discrimination against "older women." Often, courts analyze hybrid claims of age and sex discrimination separately under Title VII and the ADEA, even when the evidence of discrimination points to a hybrid claim involving discrimination directed at a subset of a protected group, …

Employment Discrimination, Marcia Leitner

Golden Gate University Law Review

No abstract provided.

California Federal Savings & Loan Association V. Guerra: The State Of California Has Determined That Pregnancy May Be Hazardous To Your Job, Susan Spalter Berman

Golden Gate University Law Review

In California Federal Savings & Loan Association v. Guerra, the United States Court of Appeals for the Ninth Circuit upheld the facial validity of California Government Code section 12945(b)(2). The court vehemently rejected a federal preemption argument and held that a law setting a minimum leave for pregnancy disabilities did not, on its face, discriminate against men or conflict with the purpose of Title VII of the Civil Rights Act of 19644 as amended in 1978 by the Pregnancy Discrimination Act (PDA). The issue of whether the PDA allows any different treatment for pregnancy has divided the feminist community.

Pregnancy Benefits, Benign Sex Discrimination, And Justice: Why Does It Matter How We Ask The Questions?, Patricia Ann Boling

Golden Gate University Law Review

One purpose of this essay will be to respond to this argument by showing what sorts of considerations are pertinent and what conclusions are warranted if one considers the underlying issue in pregnancy benefits cases to be distributive justice, and then contrasting this with the considerations and judgments indicated by a more comprehensive view of sex discrimination. There are other reasons as well for maintaining the debate about the proper perspective on pregnancy disability issues. The Court's difficulties in convincingly justifying the refusal to equate pregnancy with sex-based discrimination in Geduldig and Gilbert, and in distinguishing the seniority and pregnancy …

Equal Pay For Comparable Worth, Jolie Lipsig

Golden Gate University Law Review

This Comment will briefly trace the history of job segregation from colonial America to the present, and explore the relationship between the Equal Pay Act and Title VII in light of the controversial Bennett Amendment. The interpretation of this Amendment, which limits the effect of the Equal Pay Act on Title VII, has lead to arguments both for and against adoption of a comparable worth standard by the courts. A comparison of opinions of the various courts concerning the amendment will follow, focusing on the emerging theory of equal pay for comparable worth. A discussion of different job evaluation techniques …

Remedies For Sex-Discriminatory Health And Safety Conditions In Male-Dominated Industrial Jobs, Ellen Shapiro

Golden Gate University Law Review

No abstract provided.

Job-Related Sexual Harassment And Union Women: What Are Their Rights?, Barbara M. White

Golden Gate University Law Review

No abstract provided.

Sexual Harassment In The Workplace: A Practitioner's Guide To Tort Actions, Alice Montgomery

Golden Gate University Law Review

No abstract provided.

Discrimination Outside Of The Office: Where To Draw The Walls Of The Workplace For A "Hostile Work Environment" Claim Under Title Vii, Douglas R. Garmager

Chicago-Kent Law Review

Title VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for an employer . . . to discriminate against any individual" on the basis of sex. Accordingly, in Meritor Savings Bank, FSB v. Vinson, the Supreme Court recognized that sex discrimination in employment can give rise to a hostile work environment claim under Title VII. The scope of a hostile work environment claim has not been interpreted uniformly by the lower courts, however, as a circuit split exists today over whether conduct occurring outside the workplace is relevant to a hostile work environment claim. …

Erasing Boundaries: Masculinities, Sexual Minorities, And Employment Discrimination, Ann C. Mcginley

University of Michigan Journal of Law Reform

This Article analyzes the application of employment discrimination law to sexual minorities-lesbians, gays, bisexuals, transgender and intersex individuals. It evaluates Title VII and state anti-discrimination laws' treatment of these individuals, and is the first article to use masculinities research, theoretical and empirical, to explain employment discrimination against sexual minorities.

While the Article concludes that new legislation would further the interests of sexual minorities, it posits that it is neither necessary nor sufficient to solving the employment discrimination problems of sexual minorities. A major problem lies in the courts' binary view of sex and gender, a view that identifies men and …

The Antidiscrimination Paradox: Why Sex Before Race?, Kimberly A. Yuracko

Faculty Working Papers

This paper seeks to explain a paradox: Why does Title VII's prohibition on sex discrimination currently look so much more expansive than its prohibition on race discrimination? Why in particular, do workers appear to be receiving greater protection for expressions of gender identity than for expressions of racial identity? I argue that as a doctrinal matter, the paradox is illusory—the product of a fundamental misinterpretation of recent sex discrimination case law by scholars. Rather than reflecting fundamentally distinct antidiscrimination principles, the race and sex cases in fact reflect the same traditional commitments to ending status discrimination and undermining group-based subordination. …

The New Sex Discrimination: Family Responsibilities, Cynthia Thomas Calvert

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Do You Want To Be An Attorney Or A Mother - Arguing For A Feminist Solution To The Problem Of Double Blinds In Employment And Family Responsibilities Discrimination , Heather Bennett Stanford

American University Journal of Gender, Social Policy & the Law

No abstract provided.

A Matter Of Context: Social Framework Evidence In Employment Discrimination Class Actions, Melissa Hart, Paul M. Secunda

Publications

In litigation disputes over the certification of employment discrimination class actions, social scientists have come to play a central, yet controversial, role. Organizational behavioralists and social psychologists regularly testify for the plaintiffs, offering what is commonly referred to as social framework testimony. These experts explain the general social science research on the operation of stereotyping and bias in decision making and examine the challenged workplace to identify those policies and practices that research has shown will tend to increase and those that will tend to limit the likely impact of these factors. Defendants fight hard against the admission of social …