The way I write about Title VII, the main federal antidiscrimination law, it’s just there. It broadly bans employers from discrimination on the basis of sex and a host of other characteristics. Courts do or don’t apply it correctly. The law is or isn’t sufficiently broad enough to cover practices that clearly operate to the disadvantage of women.
In her new book, Because of Sex: One Law, Ten Cases, and Fifty Years That Changed American Women’s Lives at Work (St. Martin’s Press 2016), Gillian Thomas digs deeper. Profiling ten of the most important Supreme Court cases considering challenges to sex discrimination at work, she tells the story of how the law became what it is today—the women who bravely challenged inequality often at great personal cost, the lawyers who represented them, the courts that stumbled and fumbled through new claims and new ideas, and, finally, the ten opinions in which the Supreme Court incrementally—yet monumentally—advanced women’s quest for workplace equality.
This book has all the hallmarks of a good book. It is jam-packed with information, yet written in an easy, digestible style. It is scholarly, but entirely free of jargon and cumbersome language. It showcases real people and individual stories, but situates their experiences in the context of broader legal, social, and political developments. It alternately reinforces one’s world-view and disrupts it. It compels you to turn each page.
Perhaps the biggest unitary contribution of Because of Sex is Thomas’s recounting—and preserving—of the story of each case, before, during, and after the Supreme Court opinion to which it gets reduced. As first-year law students are always disappointed to learn, the majority of things they painstakingly learned about each case is all but irrelevant by the time they start outlining the course. A full appellate opinion becomes reduced to a holding and a handful of relevant facts. Even the case name often fades unless it is a name that comes to represent a particular doctrine or is an important Supreme Court case. Judicial opinions stand for some proposition or other, but, beyond that, they don’t matter.
What students don’t realize is that by the time the full opinion appears in a textbook, so many more details have already dropped out—the plaintiff’s life and work situation, the contemporary social norms, and so on. And what happens to the plaintiff afterwards never makes it into the opinion, of course, nor into the history books. But these stories matter—and not just as some historical curiosity. We can learn from the experiences of these women.
One lesson from these stories is that the people who challenge workplace discrimination rarely see substantial (if any) benefit from their efforts, and yet suffer enormous costs. In every case profiled in the book, the plaintiffs won in the Supreme Court. But most of them got little or nothing by way of damages. And even for those who were awarded damages, the amounts were dwarfed by the economic and non-economic harms they had suffered and the years—sometimes more than a decade—that they had been in litigation and, often, out of a job. Yet, without their commitment and personal sacrifice, future generations of women would have faced the same problems all over again.
A second lesson is about how cases get chosen and litigated. Thomas’s accounting of these cases includes fascinating details about the arbitrary happenings and coincidences that turn a problem into a case. Take Dothard v. Rawlinson, a case in which Alabama imposed height and weight requirements for guard positions that had no proven relation to job performance, but had a steeply disparate impact on women. Kim Rawlinson, the named plaintiff, abandoned a lifelong dream of working as a correctional officer and became a “shampoo girl” at a hair salon called A Kut Above. A star lawyer at the Southern Poverty Law Center went there to get a hair cut, heard about Kim’s story, and took her case. Although Rawlinson succeeded in getting the Supreme Court to invalidate the unfair height/weight requirement, the Court upheld, in a separate part of the case, a “no-women” rule for certain maximum security prison guard positions on the ground that a woman’s “very womanhood” made her a target for sexual assault and thus unable to maintain prison safety. (Never mind that the prison was dangerous because it maintained unconstitutional conditions that it was under a court order to remediate.)
Ida Phillips—the woman who was denied a job because the employer would not hire women with preschool-age children—was first turned down by a white lawyer before she called a black lawyer, whom she assumed would understand discrimination (and who did end up taking her case). It was her fight that led the Court to establish in Phillips v. Martin-Marietta Corp. that “sex-plus” classifications were unlawful sex discrimination under Title VII.
And piled onto the arbitrary moving forces were the strategic ones. Many of the antidiscrimination cases that make it to the Supreme Court are chosen by advocates who think the case presents the issue in a promising way or at a promising time given Court composition, public opinion, or other factors. But there is often disagreement between local lawyers who get the cases to a certain point and the national advocacy groups who want to argue the case, brief it in a particular way, or, in some instances, kill it to prevent the Court from issuing a bad ruling. But by and large, the national advocacy groups have been absolutely essential in the advances in antidiscrimination law. For example, as Thomas notes in a chapter about UAW v. Johnson Controls, in which the Court held a battery manufacturer could not bar all non-sterile women from working in jobs with exposure to lead, women’s groups had been mobilizing against fetal protection policies for more than a decade and had created a litigation template based on joint work by doctors, public health professionals, labor advocates, and women’s rights activists. Civil rights rulings may appear to just, well, appear, but they are often the result rather than the cause of greater equality.
A third lesson is how mystifying courts find a simple prohibition not to discriminate on the basis of sex. In the oral argument in Phillips (mentioned above), Justice Hugo Black’s question was whether “the law require[s] that the employer give the woman a job of digging ditches and things of that kind?” Justice Blackmun chimed in to ask this question: “[S]uppose a hospital for years had employed nothing but female registered nurses. And then today after the passage of this Act, a male nurse applicant comes along. Do I understand your interpretation of the Act to be that just because they have always had female RNs and like them and got along well, they could not refuse to hire the male nurse. . . .?” And what, Justice Burger wanted to know, about a federal judge who, “as a matter of general policy would decline to hire a law clerk who had an infant child, a lady law clerk, but was willing to hire a man whose wife had infant children, they would be in violation of the statute, if the statute applied to them?” Now these three questions came in rapid fire in a single oral argument before the Supreme Court. But they came seven years after Congress had declared sex discrimination in employment illegal and were asked by justices on the highest court in the land whose job it was to apply that law. If they couldn’t even imagine adhering to a policy of non-discrimination in their own chambers, how could we expect employers of all sizes and all types to implement such a policy?
The Court did rule in favor of Ida Phillips—and against the employer who wanted to filter out a group of mothers who it expected would be less committed. But these questions are emblematic of just how very hard it was to build the law of sex equality—rung after rung, ladder after ladder. And while it also must have been difficult to build this story case by case, page by page, Thomas never lets on. She makes it seem effortless, and we will all reap the benefits.