Law and Gender Commons^™

Queering Bostock, Jeremiah A. Ho

All Faculty Scholarship

Although the Supreme Court’s 2020 Title VII decision, Bostock v. Clayton County, Georgia, is a victory for LGBTQ individuals, its doctrinal limitations unavoidably preserve a discriminatory status quo. This Article critically examines how and why Bostock fails to highlight the indignities experienced by queer minorities under decades of employment discrimination. In Bostock, Justice Gorsuch presents a sweeping textualist interpretation of Title VII that protects against sexual orientation and gender identity discrimination. Yet, the decision sparsely recognizes queer lived experiences, compared to prior pro-LGBTQ cases where such recognition contributed to developing an anti-stereotyping framework that confronted some of the heteronormative biases …

Challenges In Bringing Gender Equity Into The Workplace: Addressing Common Concerns Women Have When Deciding To Hold Employers Accountable For Gender Discrimination, Siobhan Klassen

Journal of Race, Gender, and Ethnicity

No abstract provided.

Amen Over All Men: The Supreme Court’S Preservation Of Religious Rights And What That Means For Fulton V. City Of Philadelphia, Christopher Manettas

Journal of Race, Gender, and Ethnicity

No abstract provided.

Compared To What? Menstruation, Pregnancy, And The Complexities Of Comparison, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

When crafting a sex discrimination argument, finding the right comparison can be crucial. Indeed, comparison-drawing has been a key strategy for advocates challenging the constitutionality of the tampon tax. In their 2016 lawsuit challenging New York’s tampon tax, the plaintiffs alleged that the New York State Department of Taxation and Finance had imposed a “double standard” when deciding which products would be considered tax-free medical items and which would not. Similar arguments were made in the subsequent challenge to Florida's tampon tax. In both cases, the arguments had powerful rhetorical force, helping to effectuate legislative repeal of the tampon taxes …

Rbg And Gender Discrimination, Eileen Kaufman

Scholarly Works

No abstract provided.

Workplace Diversity, Equity, And Inclusion Programs: Inclusive Environments And Diversity Promotion Programs, Zachary Mccoy

University of San Francisco Law Review

No abstract provided.

A Labor Of Love: Finding Justice For Victims Of Workplace Sexual Harassment Excluded From Title Vii, Abigail M. Whitmore

American University Journal of Gender, Social Policy & the Law

I. Introduction

“Sexual harassment perpetuates the interlocked structure by which women have been kept sexually in thrall to men and at the bottom of the labor market. Two forces of American society converge: men’s control over women’s sexuality and capital’s control over employees’ work lives.”

I first began working with children as a college student in a part-time daycare position and eventually moved into a full-time nanny position after graduating. Working as a nanny was the perfect option for me at the time, as I was seeking temporary work in between my undergraduate education and law school. The opportunity also …

A Textuary Ray Of Hope For Lgbtq+ Workers: Does Title Vii Mean What It Says?, Eduardo Juarez

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

The Politics Of Pregnancy Accommodation, Stephanie Bornstein

UF Law Faculty Publications

How can antidiscrimination law treat men and women “equally” when it comes to the issue of pregnancy? The development of U.S. law on pregnancy accommodation in the workplace tells a story of both legal disagreements about the meaning of “equality” and political disagreements about how best to achieve “equality” at work for women. Federal law has prohibited sex discrimination in the workplace for over five decades. Yet, due to long held gender stereotypes separating work and motherhood, the idea that prohibiting sex discrimination requires a duty to accommodate pregnant workers is a relatively recent phenomenon—and still only partially required by …

Breaking The Binary: Desegregation Of Bathrooms, Timothy J. Graves

Georgia State University Law Review

This note discusses how the binary view of gender in relation to public bathroom segregation is insufficient to meet the diverse needs of the public and proposes the desegregation of bathrooms as the solution to promote gender equality and reduce gender-based social imbalances. This note will focus on the bathroom rights of individuals who identify outside of the binary options of male and female, viewed through the lens of how transgender people identifying within the binary have been treated by the courts. For the purposes of this note, the term non-binary will be used to refer to these individuals. Part …

Bostock V. Clayton County, Georgia: Brief Of Statutory Interpretation And Equality Law Scholars As Amici Curiae In Support Of The Employees, Richard Primus

Appellate Briefs

Amici are law professors who specialize in statutory interpretation and/or equality law issues. Amici are well versed in this Court's statutory interpretation and Title VII precedents and have written on these issues. Although amici have otherwise diverse views, they agree that a textualist analysis compels the conclusion that discrimination against individuals because of their sexual orientation or their transgender status is a form of discrimination "because of ... sex" within the meaning of Title VII.

The question presented in these cases is whether Title VII prohibits discrimination against individuals because of their sexual orientation or their transgender status. This Court's …

R.G. & G.R. Harris Funeral Homes, Inc. V. Equal Employment Opportunity Commission: Brief Of Professors Samuel R. Bagenstos, Michael C. Dorf, Martin S. Lederman, Leah M. Litman, And Margo Schlanger As Amici Curiae In Support Of Respondent Stephens, Sameul Bagenstos, Leah Litman, Margo Schlanger

Appellate Briefs

Amici are legal scholars who teach and write on constitutional law and civil rights law. They submit this brief to call attention to one particular means of resolving this case that would not require the Court to determine whether Title VII prohibits discrimination against transgender individuals based upon their transgender status, as such. More broadly, amici seek to offer guidance on how to interpret Title VII in cases where employers require employees to comply with sex-specific dress, grooming, and presentation requirements in the workplace.

In order to resolve this case, it is not necessary for the Court to decide whether …

Is Title Vii > Ix?: Does Title Vii Preempt Title Ix Sex Discrimination Claims In Higher Ed Employment?, Mckenzie Miller

Catholic University Law Review

Across all job sectors, women working full-time earned about 80 percent of what men earned in 2016. Within higher education this gender gap persists in salary, hiring, promotions, and other aspects of academic employment. Professors can seemingly attempt to remedy this under Title VII of the Civil Rights Act or Title IX of the Education Amendments, both of which prohibit sex discrimination in higher education. Circuits, however, have split as to whether Title VII preempts Title IX in actions for employment discrimination in higher education.

The Third Circuit revived this split in Doe v. Mercy Catholic Medical Center, and …

The Statutory Public Interest In Closing The Pay Gap, Stephanie Bornstein

UF Law Faculty Publications

This Essay explores the role that the statutory public interest should play in the enforcement of rights under the Equal Pay Act of 1963 (EPA). Current data shows that, even fifty-five years after the enactment of federal law outlawing sex based pay discrimination, the gender pay gap inflicts huge costs on women, their families, and the U.S. economy, echoing the public concerns that led to the statute’s original passage. That Fair Labor Standards Act of 1938 (FLSA) and EPA rights cannot be waived by an employee calls into question two common employer pay-setting practices often excused under federal law: setting …

An Intersectional Critique Of Tiers Of Scrutiny: Beyond “Either/Or” Approaches To Equal Protection, Devon W. Carbado, Kimberlé W. Crenshaw

Faculty Scholarship

For the past forty years, Justice Powell’s concurring opinion in University of California v. Bakke has been at the center of scholarly debates about affirmative action. Notwithstanding the enormous attention Justice Powell’s concurrence has received, scholars have paid little attention to a passage in that opinion that expressly takes up the issue of gender. Drawing on the theory of intersectionality, this Essay explains several ways in which its reasoning is flawed. The Essay also shows how interrogating Justice Powell’s “single axis” race and gender analysis raises broader questions about tiers of scrutiny for Black women. Through a hypothetical of a …

Battle Of The Sexes: Title Vii’S Failure To Protect Women From Discrimination Against Sex-Linked Conditions, Brooks Land

Georgia Law Review

No abstract provided.

Following The Fifth Circuit: Title Vii As The Sole Remedy For Employment Discrimination On The Basis Of Sex In Educational Institutions Receiving Federal Funds, Alicia Martinez

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Breaking The Silence: Holding Texas Lawyers Accountable For Sexual Harassment, Savannah Files

St. Mary's Journal on Legal Malpractice & Ethics

Following the 2017 exposure of Harvey Weinstein, the #MeToo movement spread rapidly across social media platforms calling for increased awareness of the prevalence of sexual harassment and assault and demanding change. The widespread use of the hashtag brought attention to the issue and successfully facilitated a much-needed discussion in today’s society. However, this is not the first incident prompting a demand for change.

Efforts to bring awareness and exact change in regards to sexual harassment in the legal profession date back to the 1990s. This demonstrates that the legal profession is not immune from these issues. In fact, at least …

Legitimacy And Protection Against Sexual Orientation Discrimination Under Title Vii, Matt Snodgrass

Indiana Law Journal

Until relatively recently federal courts have held that claims of discrimination based in sexual orientation fall beyond the purview of Title VII protection. Even after the landmark holding in Price Waterhouse that recognized discrimination based in sex stereotypes and subsequent amendment to Title VII, courts resisted “bootstrapping” sexual orientation claims with sex discrimination claims. The result has been a number of puzzling outcomes—for example, extending Title VII protection to gay men who received adverse employment treatment due to stereotypically “effeminate” mannerism but not to gay men who meet cultural standards of masculinity— rigidly applying the structure of protected categories in …

Sick And Tired Of Hearing About The Damn Bathrooms, Colin Pochie

Chicago-Kent Law Review

Gavin Grimm’s struggle to access restrooms which align with his gender identity brought the plight of transgender students to the fore of national consciousness. With it came scrutiny of the judiciary’s historical failure to understand transgender individuals’ place in the law. The trend in cases like G.G. ex rel. Grimm v. Gloucester County School Board and Whitaker ex rel. Whitaker v. Kenosha Unified School District No. 1 Board of Education is reliance on equality theory and the law of sex stereotyping. And yet sex-stereotyping law does not mesh soundly with equality theory. Equality theory eradicates gendered difference—but the law of …

“Sex” Is Messy (And Always Has Been): A Textualist Argument For Application Of Title Vii To Sexual Orientation Discrimination, Rebecca J. Ok

Lewis & Clark Law Review

Three recent cases have created a circuit split as to whether Title VII’s prohibition on discrimination “because of . . . sex” applies to sexual orientation discrimination, priming this issue for Supreme Court review. Events suggesting a textualist turn on the Supreme Court mean the advocate must consider whether a textualist argument can be made for application of Title VII to sexual orientation discrimination. Treatment of the topic of sexual orientation by the medical community, the commercial film industry, and the mainstream news media in the 1960s is examined. It is argued that treatment of the topic of sexual orientation …

Equal Work, Stephanie Bornstein

UF Law Faculty Publications

Most Americans have heard of the gender pay gap and the statistic that, today, women earn on average eighty cents to every dollar men earn. Far less discussed, there is an even greater racial pay gap. Black and Latino men average only seventy-one cents to the dollar of white men. Compounding these gaps is the “polluting” impact of status characteristics on pay: as women and racial minorities enter occupations formerly dominated by white men, the pay for those occupations goes down. Improvement in the gender pay gap has been stalled for nearly two decades; the racial pay gap is actually …

The Masculinity Motivation, Ann C. Mcginley

Scholarly Works

In this essay, Professor Ann McGinley explores a phenomenon she coins the Masculinity Motivation. Society and courts ignore that harassing behaviors and the motives behind them are nearly identical in schools and workplaces. Moreover, the motives driving same-sex harassment are often the same as those causing sex-based harassment of women and girls. These motives include proving the perpetrators' and their group's masculinity, punishing those who do not adhere to gender expectations, and upholding conventional gender norms. Professor McGinley advocates for courts to broadly define "because of sex" under Titles VII and IX by clarifying that harassment motivated to denigrate the …

How Is Sex Harassment Discriminatory?, Noa Ben-Asher

Faculty Publications

(Excerpt)

What is sexual harassment, and what is its actual harm? Since the 1980s, these two questions have perplexed lawmakers, policymakers, feminists, and the public. Today, with the rise of #MeToo, and with increased national attention to Title IX claims regarding sexual violence on college campuses, these questions are once again in the spotlight. As some commentators have observed, in the last several years lawmakers and policymakers have been increasingly influenced by a feminist antisubordination approach to sexual harassment and assault. This growing influence is currently reflected in more strict standards of consent (“affirmative consent”) to sex, in higher procedural …

Feminism And The Tournament, Jessica A. Clarke

Vanderbilt Law School Faculty Publications

Naomi Bishop, the protagonist of the 2016 film "Equity," is the rare "she-wolf of Wall Street."' At the beginning of the film, Bishop appears on a panel at an alumni event. She explains her career choices to the young women in the audience as follows: I like money. I do. I like numbers. I like negotiating. I love a challenge. Turning a no into a yes. But I really do like money. I like knowing that I have it. I grew up in a house where there was never enough. I was raised by a single mom with four kids. …

Wisconsin Must Cover Employee Transition Costs, Arthur S. Leonard

Other Publications

No abstract provided.

Pushback: Title Vii Takes On Hobby Lobby, Carole Okolowicz

DePaul Journal of Women, Gender and the Law

In Hobby Lobby, the U.S. Supreme Court decided that a for-profit corporation could avoid the requirement under the Affordable Care Act that it pay for coverage of female contraception in the employee health plan due to the employer’s religious objections to birth control. In so deciding, the Court allowed the employer to discriminate against its female employees in their employee benefits. Such a decision raises the possibility of a claim of sex discrimination by the corporation’s female employees under Title VII. This article explores the main issues and pitfalls in such a claim.

The two main issues with the possible …

Amicus Curiae Brief Of Equality Ohio In Support Of Intervenor Urging Reversal, Doron M. Kalir, Kenneth J. Kowalski

Law Faculty Briefs and Court Documents

Title VII’s plain language bars discharge of “any individual”—whether transgender or not—“because of such individual’s . . . sex.” It applies whenever employers take gender into account in making employment decisions. It is undisputed that the employer in this case based his decision to terminate Ms. Stephens solely on sex-based considerations. To be sure, he could have terminated Ms. Stephens for a wide array of reasons—tardiness, failure to perform, disciplinary issues—or for no reason at all. Under those circumstances, such termination—even of a transgender person—would not be “because of such individual’s sex.” But that is not the case here. Here, …

Frontiers Of Sex Discrimination Law, Jessica A. Clarke

Michigan Law Review

Review Gender Nonconformity and the Law by Kimberly A. Yuracko.

Same-Sex Sex And Immutable Traits: Why Obergefell V. Hodges Clears A Path To Protecting Gay And Lesbian Employees From Workplace Discrimination Under Title Vii, Matthew W. Green Jr.

Law Faculty Articles and Essays

This article is set forth in five parts. Part II is largely descriptive and focuses on two aspects of Obergefell: (1) the Court's clarification that adult, private, consensual, same-sex sexual intimacy is a fundamental right, protected by the U.S. Constitution's Fourteenth Amendment Due Process Clause and (2) the Court's recognition that leading mental health and medical groups consider sexual orientation to be immutable. Part III examines how courts and the EEOC have treated sexual orientation discrimination under Title VII and contains a normative discussion which argues—consistent with the position of other commentators, some courts, and the EEOC—that sexual orientation …