With the recent accusations and resignation of Roger Ailes, the former CEO and founder of Fox News, sexual harassment is again in the news. In the weeks after Gretchen Carlson accused her boss of sexual harassment in June 2016, 25 other women emerged to reveal that they too had suffered unwanted touching, sexual propositions, and inappropriate comments in the workplace. Ailes, the powerful, influential, and seemingly invulnerable leader of the most watched cable news network, was felled by a chorus of women’s voices who revealed their boss’s decades-long pattern of sexism, behavior that has been deemed illegal, thanks to Title VII.
Title VII, part of the 1964 Civil Rights Act, profoundly changed the working world for women. Prior to the passage of Title VII, which prohibits discrimination by employers based on race, sex, religion, or national origin, public and private sector jobs were often segregated by sex: pilots, police officers, firefighters, and operators of heavy construction equipment were all men; flight attendants, nurses, secretaries, and hairdressers were all women. Job ads were categorized by sex. Different workplace requirements and expectations for men and women were common. In Because of Sex: One Law, Ten Cases, and Fifty Years that Changed American Women’s Lives at Work, Gillian Thomas examines ten legal cases that challenged and subsequently defined the meaning of employment discrimination “because of sex.” These cases provide a fascinating glimpse into both past and present social expectations about femininity and women’s gender roles and introduce us to the women who had the courage and fortitude to take their cases to court.
Currently a senior staff attorney specializing in equal employment opportunity for the ACLU’s Women’s Rights Project, Thomas’s familiarity with this topic is not merely academic. She gained experience litigating employment discrimination for women working in male-dominated fields when she served as the Senior Trial Attorney for the U.S. Equal Employment Opportunity Commission in New York and during her tenure as Senior Staff Attorney with Legal Momentum (formerly called the NOW Legal Defense and Education Fund). It is her experience with her own clients that inspired this book, women who are still fighting the sex discrimination in employment that was outlawed by Title VII. Thomas and her clients are fortunate enough to use the precedents set by these ten cases, but the women who brought these earlier lawsuits were often facing tremendous uncertainty when they took their cases to court. As Thomas explains in the introduction, “[f]orging ahead with a sex discrimination lawsuit where the odds of a favorable outcome were so uncertain, and where the culture was still so skeptical of working women, took a special brand of moxie. I wanted to know these women, and to tell their stories.”
Thomas’s gift is in showing us that the law is not only about dry statutes and regulations that affect people’s lives, but also about the ways these individual women impacted and shaped the law.
Thomas is a skilled writer; the legal cases she relates are filled with drama, suspense, setbacks, and victories. Written for a general audience, Thomas seamlessly familiarizes us with the legal terminology without bogging the reader down with arcane jargon. And speaking of legal contracts, it is often said that the devil is in the details, but much of the beauty of Tomas’s book lies precisely in her vivid and compelling narrative of the intricacies of these fascinating and complex cases.
Thomas includes more than the legal details; she paints rich personal portraits of the women at the center of these cases, and we see the devastating effects caused by the sex discrimination they encountered in the workplace. Thomas’s gift is in showing us that the law is not only about dry statutes and regulations that affect people’s lives, but also about the ways these individual women impacted and shaped the law.
Before she relates the stories of these brave women, Thomas recounts the bizarre circumstances that lead to the category of sex being included in the 1964 Civil Rights Act. In June 1963, President John Kennedy introduced the bill, which aimed to end racial segregation and discrimination in public facilities and eliminate restrictive voter registration requirements that effectively kept African Americans away from the ballot box. The bill soon became tied up in the House Rules Committee where the chair, Howard Smith, a powerful segregationist from Virginia, intended to bury it. Once Kennedy was assassinated and Lyndon Johnson became President, he skillfully guided the bill out of committee and onto the floor of Congress for debate. As Thomas reveals, during the eighth and final day of debate on the bill, Smith proposed a surprise amendment to Title VII. To the section that addressed employment discrimination, he wanted to add sex to the other protected categories of race, color, religion, and national origin. Smith insisted that his addition was sincere, but his colleagues and scholars have since debated his motives with some arguing that his goal was to defeat the bill. Regardless of his intent, the bill passed with Smith’s addition of sex.
The category of sex discrimination, however, was not initially taken very seriously by the U.S. Equal Employment Opportunity Commission (EEOC), the new government agency established by Title VII and given the task of enforcing the law. This dismissive attitude is captured by one of the first executive directors of the EEOC who characterized the inclusion of sex discrimination as a “‘fluke’ that was ‘conceived out of wedlock.’” Pressured internally from EEOC women staff attorneys and externally from the National Organization for Women (NOW), the agency started to give sex discrimination more thought and attention. By 1972, Congress amended Title VII to give the EEOC the power to pursue ligation, and it began to file cases that bolstered other sex discrimination suits around the country.
In Because of Sex, each of the ten chapters focuses on a separate lawsuit; organized chronologically, the cases range from 1971 to 2015. The ten chapters can be broadly separated into three categories: basic sex discrimination, sexual harassment, and reproductive issues (my categories, not Thomas’s). The basic sex discrimination lawsuits involved blatant bias that created significant barriers for women seeking and maintaining employment and eliminated double standards for working men and women. Two of the cases addressed different requirements and expectations of male and female applicants or employees, conditions that placed women, but not men, at a tremendous disadvantage.
In Phillips v. Martin Marietta Corporation (1971), Ida Phillips sued when she was deemed ineligible to apply for a job working on the assembly line for Martin Marietta, a missile manufacturer, because she had a preschool child, even though male applicants and employees were not subjected to the same policy. The Supreme Court heard the case in January 1971 and in a unanimous opinion, ruled that there could not be one hiring policy for men and another for women who each had preschool-aged children.
Almost 20 years after the Phillips case, another instance of double standards for men and women reached the Supreme Court. In Price Waterhouse v. Hopkins (1989), Ann Hopkins sued her company, one of the “Big Eight” global accounting firms, for failing to promote her to partner. Her success at the firm was never in question, but despite her impressive record, she was denied promotion. Her failure to conform to traditional gender norms, not her work performance, was why she failed to be promoted. The Supreme Court ruled that gender stereotyping was sex discrimination. As Justice Brennan wrote, “[a]n employer who objects to women being aggressive but whose positions require this trait places women in an intolerable and impermissible catch-22; out of a job if they behave aggressively and out of a job if they are not. Title VII lifts women out of this bind.”
Working women were expected to endure the groping, sexual comments, and bodily objectification by their male colleagues and supervisors. The phrase “sexual harassment” did not even enter the lexicon until the mid-1970s, when three professors at Cornell University coined the term to describe the experiences of a secretary who resigned her position in the physics department after three years of unwanted sexual advances by her boss.
The second set of cases about sexual harassment reveals the ways that accepted behavior in one era can become not only offensive and deplorable but actually illegal in another. The popular TV show Madmen reminds us of how ubiquitous harassment was in American work environments in the 1960s and before. Working women were expected to endure the groping, sexual comments, and bodily objectification by their male colleagues and supervisors. The phrase “sexual harassment” did not even enter the lexicon until the mid-1970s, when three professors at Cornell University coined the term to describe the experiences of a secretary who resigned her position in the physics department after three years of unwanted sexual advances by her boss. Unlike racial harassment that had been recognized in the early 1970s as illegal discrimination, sexual harassment had a more difficult time gaining legitimacy in the legal community. By 1976, women were beginning to win sexual harassment cases, but all the women who won had rejected their boss’s advances. That was not the situation in Meritor Savings Bank, FSB v. Vinson (1986) where Mechelle Vinson had acquiesced to her supervisor’s threats and demands for sex. While she lost at the District Court level, primarily because the judge refused to allow other women at the bank who had also experienced sexual harassment from Taylor to testify, she won at both the Appellate and Supreme Court level.
Mechelle Vinson’s sexual harassment case is one of three such cases that Thomas features. The other two, Harris v. Forklift Systems (1993) and Burlington Northern & Santa Fe Railway v. White (2006), resolved important issues left unaddressed by Meritor Savings Bank, FSB v. Vinson. In the former, the court provided more guidance for what constituted an “abusive working environment” that was needed to prove sexual harassment. Harris v. Forklift Systems was part of an increasing tide of sexual harassment cases that occurred in the early 1990s, and Thomas provides important context for this rise. The Anita Hill-Clarence Thomas hearings in October 1991 brought national attention, as well as controversy, to the issue. Anita Hill’s accusations against the Supreme Court nominee Clarence Thomas contradicted many assumptions and misperceptions about sexual harassment, showing that “[h]arassers usually don’t look like drooling perverts, the harassed usually don’t look like helpless victims, and harassment, even if it’s only words, can be traumatic.” Many women who watched the hearings were able for the first time to put a name to their experiences. Rather than intimidating women into silence, Hill’s testimony emboldened and inspired women to report their own experiences of sexual harassment.
New issues developed as the numbers of sexual harassment cases rose. One important question was whether an employer was liable for a supervisor’s sexual harassment if he never knew about it. In Faragher v. City of Boca Raton and Ellerth v. Burlington Industries, the Court decided that the employer is liable if the supervisor uses his authority to act against the employee, such as firing or demoting her, but the employer can avoid the liability of creating a hostile environment by taking preventative measures, such as sexual harassment training, and implementing a complaint process. As a result, companies across the nation developed policies and procedures about sexual harassment and required employees to learn about them in order to avoid incidents for which the company could be liable. One unintended consequence of instituting corporate responses to sexual harassment was an increase in the number of complaints. With more complaints, came more opportunities for employers to retaliate against those filing a grievance.
Retaliation against a sexual harassment complaint is at the center of the Burlington Northern & Santa Fe Railway v. White case. When an employee lodges a complaint about discrimination, Title VII protects that individual from retaliation from her employer, but the law was not clear about what defined illegal retaliation. Sheila White, a fork-lift operator, was the only woman in her department of 100 employees at a rail yard in Memphis, Tennessee. From her first day on the job, White suffered a variety of sexual taunts and insults, from her direct supervisor to her co-workers. She ultimately filed a sexual harassment complaint with her company, and while her supervisor was reprimanded, she was removed from her forklift job and assigned duties of a track laborer, a much more physically demanding job. Certain that her job change was a result of the complaint she made, White filed another charge alleging illegal retaliation for her sexual harassment complaint. The Supreme Court agreed that White had suffered retaliation when she was given different duties, even if those duties were within the same job classification and not officially a demotion. In this ruling, the Supreme Court rejected a more stringent standard for proving retaliation, instead requiring that employees show that the adverse action taken by the employers would have “dissuaded a reasonable worker from making or supporting a charge of discrimination.”
One unintended consequence of instituting corporate responses to sexual harassment was an increase in the number of complaints. With more complaints, came more opportunities for employers to retaliate against those filing a grievance.
In these three sexual harassment cases that span a 20-year period, one can see the slow, but steady dismantling of a culture of sexual harassment that made women feel unwelcome in the workplace, caused numerous women emotional distress, and drove countless others from their jobs. These cases reveal the interaction between the legislative process and legal interpretation. As the courts worked to define sex discrimination, sexual harassment was ultimately identified as illegal behavior in the workplace, but even after the initial cases that defined it as such, the exact delineations and limits of the term took decades, and the courts continue to shape and define what constitutes sexual harassment.
Just as sexual harassment was legal before Title VII became law, so was firing employees who became pregnant. Pregnancy has been one of the most significant barriers to and vulnerabilities of employment. Once Title VII became law, however, the extent of pregnant women’s rights was not clear from the language of the statute. Early interpretations of Title VII by both the EEOC and the Supreme Court regarding pregnant employees were inconsistent and even contradictory. After the Court decided in several cases in the early 1970s that pregnant women could be excluded from short-term disability policies, a coalition of feminists, civil rights leaders, and labor groups lobbied Congress, and in 1978, Congress passed the Pregnancy Discrimination Act (PDA), which prohibited discrimination “on the basis of pregnancy.” As important as this piece of legislation was for women, there were many “critical gaps,” according to Thomas. The PDA failed to require that employers offer maternity leave, reserve her job for her if she took time off to have her baby, or allow pregnant women to use sick days to deal with any health-related pregnancy concerns. Thomas discusses a couple of the cases that address the last two issues.
In California Federal Savings & Loan Association v. Guerra (1987), Lillian Garland returned to work in April 1982 from her three-month maternity leave to find that her receptionist job at the California Federal Savings & Loan Association had been filled by the replacement that Garland trained before she had her baby. The Supreme Court heard the case in 1986 and in a 6-3 decision, they sided with Garland. Justice Thurgood Marshall wrote, “we agree with the [Ninth Circuit’s] conclusion that Congress intended the PDA to be ‘a floor beneath which pregnancy disability benefits may not drop—not a ceiling above which they may not rise. … By ‘taking pregnancy into account,’ California’s pregnancy disability-leave statute allows women, as well as men, to have families without losing their jobs.”
The other case, Young v. United Parcel Service, Inc. (2015), explores the kinds of work accommodations employers must make for pregnant women. Peggy Young, a United Parcel Service (UPS) driver, had taken a leave of absence from her job in order to undergo in vitro fertilization. She became pregnant, and at the end of her first trimester, she wanted to return to work. The company demanded that she obtain a letter from her health care provider outlining her work restrictions. Even though her midwife’s initial reaction was that she did not need any restrictions, she wrote a note recommending that Young not lift over 20 pounds. Since Young delivered packages sent by air that were typically small and light, the restriction did not promise to be burdensome, but because she was under the 70-pound limit mandated by the UPS job description for all drivers, UPS placed her on an unpaid leave of absence for the rest of her pregnancy. She was denied the opportunity for temporary assignment to lighter duties since her request was due to pregnancy, a condition not covered in the three circumstances that made employees eligible for reassigned duties: a job-related injury; a situation covered under the Americans with Disabilities Act; if the driver became ineligible to hold a commercial driver’s license. The District Court granted the motion filed by UPS to dismiss the case since Young was not singled out for harsh treatment; she was treated like other workers who were injured off the job and also denied alternative work accommodations, so the Court concluded that this was not a case of pregnancy discrimination. The Fourth Circuit Court of Appeals also sided with UPS, but the Supreme Court ruled differently. By a 6-3 vote, the Court reversed the Fourth Circuit’s decision and found that UPS was guilty of pregnancy discrimination. The Court did not grant pregnant women “most favored-nation status,” but if pregnant employees could show that “many” workers received better treatment, then this would be seen as a “pretext” for discrimination.
Peggy Young’s pregnancy discrimination case was decided by the Supreme Court just last year, 44 years after Ida Phillips was denied an application to work at Martin Marietta because of her pre-school child. It might have been difficult for Phillips to imagine how much the working world had changed for women. While the women at the center of these ten cases are all different, coming from different backgrounds, time periods, and expectations, there are some striking similarities. Many of them suffered tremendous hardships because of the discrimination they suffered and because of their commitment to legally challenge their employer’s discriminatory behavior. The time involved in taking their cases to court was not insignificant, and a number of the women endured periods of unemployment while their cases wound their way through the legal system. While most of the women received some type of financial settlements, many found the compensation disappointingly little. Ida Phillips received $13,507 for her lost wages after the Supreme Court decided her case in 1971 for the job she did not get in 1966.
Yet while the economic payback was often disappointing, it is clear that these women were not expecting to win the jackpot; rather, they recognized that they were unfairly treated, and they were interested in righting a wrong. Sheila Wright, who won her case against the Burlington Northern & Sante Fe Railway Company, was also unhappy with her financial settlement, and she had suffered from devastating psychological and economic consequences during her employment and legal battle with her company. After her Supreme Court victory, though, she was able to put her fight into perspective: “I came to realize that this action would have far-reaching results that would overshadow my own difficulties … I was thrilled that the Court’s decision would touch so many people. … This decision vindicated me … No one can take away this sense of accomplishment and feeling of satisfaction.” Lillian Garland, the woman who was not allowed to return to her receptionist job at California Federal Savings and Loan after her maternity leave, described her legal fight as “five years of hell,” but she added, “even if it had taken twenty years I’d do it again.” Thanks to their courage and persistence, the work world for women has profoundly changed. Practices that were accepted, such as refusing to hire women with pre-school children, and behaviors that were ubiquitous, such as supervisors requesting sex in exchange for raises, are no longer tolerated in the workplace.
Motherhood remains particularly difficult for working women. In addition to the lack of supportive public policies, such as paid maternity/paternity leave, and affordable, universal childcare, that would make life much more manageable for employed women, there is still overt discrimination against mothers.
Yet, as Thomas outlines in the “Epilogue,” women who work for pay outside the home still face barriers to employment that is equal in opportunity and advancement to men. Motherhood remains particularly difficult for working women. In addition to the lack of supportive public policies, such as paid maternity/paternity leave, and affordable, universal childcare, that would make life much more manageable for employed women, there is still overt discrimination against mothers. In “The Motherhood Penalty v. The Fatherhood Bonus: A Child Helps Your Career If You’re a Man,” a 2013 article cited by Thomas, the author finds that while men’s earnings increased more than 6 percent when they had children, women’s actually decreased 4 percent for each child. The study accounts for a variety of confounding factors and concludes that much of the motherhood penalty is because of cultural stereotypes and employer expectations of mothers.
In addition to bias against mothers, Thomas finds pregnancy discrimination “one of the most pernicious barriers to working women’s equality.” Shockingly blatant discrimination still exists, and Thomas cites an example from 2015. The United Bible Fellowship Ministries had a policy that prohibited employees to be, or become, pregnant. The District Court found the nonprofit guilty of sex discrimination and forced it to pay the fired pregnant employee $75,000. Perhaps not surprisingly, the women most vulnerable to pregnancy discrimination are women of color who work in low-wage jobs. For other pregnant employed women, the question is how and whether their employer will respond if she needs work modifications in order to have a healthy pregnancy. The full implications of the recent Supreme Court’s decision in Young v. UPS are not yet clear, and it will take future court rulings to see how and if employers are required to accommodate pregnant women.
Thomas also notes that women have not been the only beneficiaries of these sex discrimination victories. Gay men who have been ridiculed at work for being too feminine and employees who have experienced job discrimination because of their status as transgender individuals have also used Title VII to their advantage. An area that remains problematic, however, is appearance and grooming codes mandated by employers. Such codes often “require women employees to conform to a hyper-feminine, even hyper-sexualized standard … and … they are usually approved by the courts, out of exaggerated deference to business’s interest in building its brand.”
… a 2013 article cited by Thomas finds that while men’s earnings increased more than 6 percent when they had children, women’s actually decreased 4 percent for each child.
Finally, Thomas comments on the ways in which recent Supreme Court rulings have made it more difficult to find employers responsible for sex discrimination. She points to several barriers created by these latest court decisions: first, the burden of proof has shifted from the employer to the employee. In the past, the employer had to prove that it had taken sufficient action against erring supervisors in order to fight the discrimination claim. Now, the employee must show that she complained enough about her mistreatment. Second, in the 2013 Vance v. Ball State University, the Court limited who qualified as a supervisor. Since co-worker harassment is more difficult to prove, fewer harassment cases are likely to be considered. Finally, in University of Texas Southwestern Medical Center v. Nassar (2013), the Court raised the bar for retaliation plaintiffs, ignoring previous precedents. While the Court had previously allowed a “mixed-motive” defense, the 2013 ruling now required that retaliation was the employer’s sole motive, making cases much more difficult for the plaintiff.
Thomas’s book chronicles the progress and setbacks for women in the workplace. Through the ten cases, Thomas not only illuminates the significance of Title VII of the 1964 Civil Rights Act, but how individuals subsequently shaped and defined its meaning over time. Through the compelling narratives of these brave women who brought their cases into the public light, Thomas reveals the broader significance and impact this law has had on the world in which men and women work. However, as Thomas suggests in the discussion of the increased barriers that women now face in proving sexual harassment, the composition of the courts, especially the Supreme Court, has a profound impact on the outcome of a case. With one existing vacancy, and with two judges, Ruth Bader Ginsburg and Anthony Kennedy, in their 80s, the current President of the United States may significantly influence the make-up of the Court and, as Thomas’s book compellingly illustrates, the lives of countless women.