Because of Sex by Gillian Thomas

Source of book: Borrowed from the Library

Occassionaly, I check the “new books” section of our library to see if there is anything interesting, and this one caught my eye. Written by Gillian Thomas, staff attorney for the ACLU’s Women’s Rights Project, it promised to be the sort of book that would appeal both to my feminist side, and to my lawyer side. In addition to this, it turned out also to clarify to me exactly what is at the heart of the culture wars here in the United States. 

First, a summary. Because of Sex discusses ten Supreme Court cases interpreting Title VII in the Civil Rights Act of 1964, which prohibited employment discrimination “because of sex.” The book presents these cases in chronological order, starting with Phillips v. Martin Marietta Corporation (1971) and ending with a recent case, Young v. United Parcel Service, Inc. (2015)

Thomas has done her homework, with extensive citations to primary sources, interviews of those parties and attorneys still living, and background information that brings the realities of the cases to life.

After reading this book, I think I have clarified in my own mind exactly what the heart of the so-called “culture wars” here in America are about. I’m not going so far as to say this is the only issue, but it is so foundational and important that it colors - taints really - the rest. The issue is “what is the purpose for which women exist?” As these cases illuminate, for centuries, (possibly since the beginning of recorded history actually) the answer has been “for reproduction of the human race.” Or, perhaps more accurately, since the question has always been tied together with issues of class and race, “to ensure that the genes of certain males are propagated.” With this question comes the related question of just how much control the law, society, and employers could exert to ensure that women fulfil this “biological destiny” despite their own wishes, dreams, and desires. The related question of how society can be ordered so that women do not have to choose between reproduction and financial independence and self determination is still, shall we say, pending. I have come to realize that a certain side of the culture wars is actively hostile to the idea that women themselves should be able to choose this for themselves.

This all assumed a specific narrative of how the world was - or at least how it was expected to be. For white women, the narrative was that the husband worked and brought in money, while the woman stayed home and kept house and raised the children. Thus, for a white woman, a job was never a necessity for survival, but something to tide one over until marriage, or a hobby thereafter. Childbearing and childcare would always take precedence over employment, therefore, and the law tended to reflect a concern that (white) women might impair their reproductive capacity by overexertion.

The narrative for minority women was much different, of course, as women of color have always had to work, and have been expected to work. From slavery on down, there was the expectation of hard, menial, and often dangerous labor. Such women were expendable to a large degree. After emancipation, there was no longer any “benefit” to women of color bearing children, so instead the attitude arose that such women should focus on their jobs, or risk losing them. Even today, the attitude on the right toward lower class women is “don’t have babies you can’t afford.” They are the workers, not the breeders.

This narrative has been reflected in the laws of the past and the attitudes of the present with the goal of worshipping and preserving those past narratives. Thus, the fight has been against these factors attempting to keep things how they were. For example, several of these cases involved policies that had the effect (and usually the intention) of keeping women out of the best jobs. The ones with higher pay, benefits, and job security. Some of these were dressed up as “protection” for women, as in the case of policies that prohibited women from doing “dangerous” jobs. Conveniently, these policies seemed to only be in place in male-dominated workplaces. The dangerous jobs that women were already doing, such as textile work or nursing (like my wife) had no such policies. If you excluded the women, there is no workforce, so those dangers are fine. Just not the ones that might mean men have to share good jobs.

The narrative also drives other issues, such as laws that women would be fired if they got married or pregnant, and the ongoing problem of sexual harassment (which assumes that women exist for gratification and control.)

These issues, and others, are brought to light in this book through the cases that interpreted Title VII and brought a greater degree of equality to the workplace.

Thomas starts the book with a brief introduction to the law, and the history is fascinating.

When Congress was considering the 1964 Act, a pro-segregation congressman named Howard Smith introduced an amendment, both as a joke, and as, perhaps, a last ditch effort to torpedo the bill. That amendment added “sex” to the list of categories for which discrimination was prohibited. (Others were race, color, religion, and national origin.) There was widespread laughter and derision as a result - until congresswoman Marsha Griffiths took control of the discussion by noting that without the amendment, a black man would have more rights than a white woman. This calculated gambit paid off, as the amendment passed - as did the bill itself. So it is not a little ironic that a “joke” by a racist attempting to stop a civil rights bill ended up granting rights to women that would, in practice, be a substantial benefit to women of color.

The cases themselves are fascinating. The first, Phillips v. Martin Marietta Corporation involved a young mother denied an assembly line job because she had a preschool child. It was undisputed that the company hired men with preschool children, but the trial court judge didn’t find that convincing. He believed that “[t]he responsibilities of men and women with small children are not the same, and employers are entitled to recognize these different responsibilities in establishing hiring policies.” Fortunately for Ida Phillips and working mothers ever since, the Supreme Court would eventually disagree with this assessment.

It is easy enough to see what the underlying issue was: a belief that child care was “women’s work.” That any particular set of parents might do things differently was irrelevant, as was the thought that maybe mothers with small children needed income too. On the one hand, hiring men with small children assumed that a woman would be there to care for them, and on the other, that refusing to hire women assumed that their incomes weren’t important to the family.

As a female judge once put it when we were discussing the issue, our society assumes that men are free to neglect their children, but women aren’t.

This is a particularly meaningful case to me, because both my wife and I work, and our incomes are equally important to our family. That is why, when she has been scheduled to work, I am the one who stays home with sick kids (and sometimes vice versa.) Neither of us assumes the other will be primary all the time.

Again, this assumes a certain picture: man works, woman cares for the kids - a picture which was only true for half of households back in 1969, let alone today. Furthermore - and this is crucial - the numbers were far lower for lower income and African American households. Even back in the 1960s (and before, honestly), millions of households were dependent on the wages of women.

In the case of the assembly line job, the reason the gig was desirable was that it paid more than those jobs dominated by women. The same instinct to keep the best jobs for men can be seen in the cases involving “protection” regulations. Whether enacted into law as they were in the early 20th Century, or just a policy of an employer, these rules excluded women from good jobs even as they “protected” employers from having to provide safe working conditions. Illustrative was International Union, United Auto Workers of America v. Johnson Controls (1991). The company barred women from working with lead (which happened to be the best paid job - and the way to get into management) on the grounds that women’s fetuses, present and future, might suffer from lead poisoning. There were two big problems with this. First, it was equally as scientifically established that men suffered reproductive damage from lead. Thus, the company should have reduced exposure to make a safe workplace, not just banned women from working.

The second was also problematic. The policy assumed that all women of childbearing age should be kept from working with lead. Unless they submitted proof of sterilization. Sterilization of the woman. Proof of the husband’s sterilization would not do. I am not making this up. Most of us would probably expect that our employers had no right to know something so personal, and would expect that our possible unknown future reproductive plans shouldn’t keep us out of a job.

But that is exactly what the company expected. Unable to work unless sterilization proved. All women are “potentially pregnant.”

It is policies like this that really show just how ingrained the “woman as baby incubator” belief is ingrained in our society. Ellen Goodman would write in connection with this case:

“I was struck, from the first time I read of this case by a company policy that assumed every woman was a pregnancy waiting to happen. The life of this policy didn’t begin at conception; it began at menses and ended at menopause or sterility.”

One final point on this matter. As I mentioned above, these restrictions on female work have always applied to the jobs that men want. Back in the days of slavery, women, pregnant or otherwise, were expected to work seven days a week, for long hours, at backbreaking work. Even after emancipation, there has never been a serious concern for the bodies of poor women or for the safety of their work conditions. They have been considered expendable. It was only when women threatened to take jobs that men wanted that there was suddenly this concern.

The closing quote in the opinion of the court is worth quoting:

“It is no more appropriate for the courts than it is for the individual employers to decide whether a woman’s reproductive role is more important to herself and her family than to her economic role. Congress has left this choice to the woman as hers to make.”

The assumption that men worked for pay, and women cared for children was true for another case, Dothard v. Rawlinson (1977), which involved law enforcement jobs. Dothard was a composite case by the time it reached the Supreme Court, with different laws at stake. What they had in common were “requirements” of the job that either explicitly excluded women, or that had the effect of excluding women. An example of the latter was a policy of hiring only persons 5’8” or taller. (This would have excluded me, by the way.) There was some evidence that the requirements were put in place for the express purpose of excluding women, but the court eventually held that it was enough to show that the policy tended to exclude women, and that the requirements were not necessary for the job. This was easy enough to show. There is nothing inherent in the job that required people of a certain height. The question instead should have been if they could do the work, and the plaintiff in that case clearly could - better than a number of men who were hired.

In this case, the opinion at the appeals court level had a particularly pithy line which I loved:

“One lesson the women’s rights movement has taught us is that many long-held conceptions regarding the sexes have been found to be erroneous when exposed to the light of empirical data and objectivity.”  

I could not have said it better myself.

One of the central areas in which such empirical data has shone a light on long-held prejudices is in the area of pregnancy. “Most women now work until late in their pregnancies, and most return to work after having their babies.” This was certainly true of my wife, who worked up until the end of each pregnancy, and returned after her FMLA leave was up three months later. (Goodness knows, if I hadn’t been self-employed, I would have done the same. No rest for the wicked, alas…)

The always pithy Thurgood Marshall, in California Federal Savings & Loan Association v. Guerra, upholding California’s watershed law guaranteeing pregnancy leave, put it thus:

“California’s pregnancy disability-leave statute allows women, as well as men, to have families without losing their jobs.”

This issue, perhaps more than any other, has bedeviled the law since the statute was enacted. The problem is to figure out how to accommodate pregnancy without discriminating by sex. The “solution” many employers have found is to find creative ways of terminating women for having the audacity to reproduce. As Marshall recognized, men have always been able to have families and keep their jobs. Women, not so much.

It was in the last case in this book, Young v. United Parcel Service, Inc. that the sex based nature of the problem became apparent.

UPS enacted a policy that allowed employees to get “light duty” jobs under some circumstances: on-the-job injury, reasonable accommodations under the ADA, and restrictions based on their driver’s licenses. UPS, after “determining” against her will that she shouldn’t be lifting items, told Peggy Young that she would be put on unpaid leave for the rest of her pregnancy. This was particularly problematic, because she could not receive disability benefits because she wasn’t incapable of all work, just (arguably) a certain kind of work.

The reason this policy turned out to be both sexist and ludicrous was that it turned out that if an employee had their license suspended because of drunk driving, they would get a light duty assignment, but if an employee got pregnant, she would lose her paycheck. Likewise, an employee with a permanent disability would get accommodation - even if the injury occurred away from work - but the temporary disability of pregnancy would not be accommodated.

It is rules like this that have made it, as columnist Rebecca Traister put it, so “[t]he simple - and celebrated - act of having a baby turns out to be a stunningly precarious economic and professional choice.”

Laws like the Family and Medical Leave Act have made a positive difference, many women cannot afford three months of unpaid leave. Even states like my native California provide only partial disability benefits. So in practice, women are expected to bear the burden of childbearing themselves.

I’m hardly the first person to point this out, but for some reason, we here in the United States seem to have decided that the parents should (ideally) bear all the burden of children, even as society reaps the benefits. Even the earliest human societies (and those of social animals) have recognized that children need support from the entire society, and assisted parents in various ways during those times. Not so much anymore, where “don’t have children you can’t afford” has become the rallying cry. Accompanied of course by, “why do so many people not want kids?” Hmm.

I just want to touch on a couple of other points.

First is that Price Waterhouse v. Hopkins (1989) is a great read on the question of “should a woman be required to be ‘ladylike’?” As we can see readily even today, a woman who is strong and forceful tends to be considered a “bitch” or a “ballbuster.” My wife has seen this in action in cases where doctors expect female nurses to be “nicer” - to let the doctor think things are his idea, and not hers. She is working to change that, in part by insisting that harassment be reported and dealt with. This isn’t the 1950s anymore.

And that leads to the issue of Sexual Harassment. The cases on this are fascinating. I first became acquainted with the topic when my father worked for the FAA. The government was, as usual, ahead of the private sector on this issue (see, for another example, Civil Rights in general…) and he had to deal with reports in his supervisory capacity. I remember him talking about cases, and I think that I learned a lot about the dynamics of the workplace from him. In retrospect, I realize that he handled cases correctly, and contributed to a safe work environment. If all supervisors would do so, the world and the workplace would be far better for everyone.

One of the legal issues that is still problematic in this area is that some cases seem to be tilting the discussion toward the employee and away from the conduct of the harasser. In other words, a particularly resilient employee might have more difficulty proving harassment, even though the behavior was egregious. This is backwards, in my opinion (and the opinion of the author.) Bad behavior is bad, even if the victim “takes” it.

I should also mention a few things that I found interesting as a lawyer.

One major case on sexual harassment (and it is an ugly one), ended up involving a whole constellation of legal figures who would go on to become famous. The D. C. Circuit denied a request for an en banc hearing of the case, but there were three dissenters: Robert Bork, Antonin Scalia, and Kenneth Starr. Ever heard of them? Also, the EEOC had changed leadership, and the new boss didn’t want the EEOC to support the suit. His name? Clarence Thomas. Ever heard of him? And, a young attorney with the EEOC supported the suit. That would be Anita Hill.

The subsequent history is well known: Scalia and Thomas would become Supreme Court Justices, Bork would be voted down (in significant part because of his views on women), and Kenneth Starr would become associated with perhaps the most famous sexual harassment case of all time. (It is easy to forget that the Monica Lewinsky thing was a side issue to the underlying sexual harassment suit.) Starr would later resign from Baylor University after a scandal where athletes were raping and harassing women while the university covered it up.

Thomas too would face allegations that he sexually harassed Anita Hill - and the facts of that look a lot worse in 2016 now that sexual harassment has become better understood and more widely acknowledged.

A bit more about Scalia. I was not surprised that he dissented in a few of the cases in this book, but I was more surprised to find that he voted with the majority, and was (some of the time) far more progressive on the issues than I expected. Love or hate him, his questions to the attorneys (quoted in many cases in this book) are often highly pertinent. (The acid questioning in the lead exposure case is classic Scalia.)

On a related note, I was surprised at how many of these cases were unanimous decisions. Even the ones that were not were not clearly partisan, which I found interesting.

I don’t have space here to list all the many lawyers who did outstanding work in these cases, but I will note that whatever you think of her as a jurist, Ruth Bader Ginsberg was one badass litigator, and women everywhere owe her a debt of gratitude.

The last bit that is a lawyer thing to notice: most appeals do not end the case; the case is sent back to the trial court to make new findings based on the ruling. (At least, if the trial court is reversed, which it often was in the cases in this book.) However, very, very few cases are ever retried. Instead, they settle. I greatly appreciate that Thomas goes to the trouble of following the cases after the ruling. While she couldn’t discover the actual settlement amounts in every case (confidentiality clauses), she closes the loop by telling the stories of what happened to the plaintiffs after the end of the case.

When I first started law school, women’s issues were, shall we say, not that important to me. After all, I was raised by a stay-at-home mom, and had it drilled into me that this was “God’s Way™.” I was expected to be the sole breadwinner, and my wife to devote herself to the home.

Things changed dramatically when I met my wife. She had a clear goal of being a nurse - a vision she had since she was three years old. In fact, given the batshit crazy group she spent her teens in, she assumed that she would never marry, because of what she would have to give up. (Such minor details as a career, self determination, financial independence, and the right to make her own decisions about her life…) So we knew from early on that we were not likely to follow the script. Suddenly, women’s issues meant a whole lot more. I’m embarrassed to admit that it took until then for me to see the light, but better late than never.

During the course of her career, Amanda has had the benefit of Title VII and a number of these cases. She has utilized the FMLA and California’s pregnancy leave laws. Sexual harassment and misogynist doctors need not be tolerated for her to keep her job. She has never had to choose between having a family and earning a living. And you know what? It isn’t just she who has benefited. I too have benefited from these laws, because workplace equality benefits men, women, and children. (Even Scalia realized that.)

That’s just one reason why I get riled up when people start dismissing sexual harassment as a real issue, or talk cavalierly about how unfair pregnancy leave is, or make cutting remarks about how women belong at home. It isn’t just sexist, it directly affects my family. And these issues are, if anything, far more important to millions of households with lower income, less job security, and thinner margins.

A final word about this book: many of us middle aged sorts tend to take for granted these victories of the past. I imagine for the young folks it is even more so. We cannot remember the “good old days” of segregation, sexual harassment, and limited opportunities for women. This book is a much-needed reminder that the past wasn’t always better, but often much worse - and also that positive change takes hard work, time, and the willingness to stand up to the bullies who are unwilling to voluntarily relinquish their power and privilege.  

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Just to clarify, my wife’s family fully supported her education, and has supported her career in a multitude of ways since the beginning. It was the people she was surrounded by that considered her to be a threat because of her career minded ways. 

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If you have never become acquainted with Chimamanda Ngozi Adichie, you really should. I reviewed Purple Hibiscus here. But I also highly recommend her lecture on Feminism. Her line that Feminism is nothing more or less than the belief in the social, economic, and political equality of the genders is the best summary I have ever heard. As Because of Sex shows, there has been a tremendous effort to deny women economic equality, and the fight continues today. 

It isn’t related to this review, but Adichie’s lecture on the importance of multiple stories is also amazing, and really influenced my views on race.