Sex Discrimination In Employment Research Articles

Ask a Political Scientist: A Conversation with Catharine A. MacKinnon about Power, Politics, and Political Science

Ask a Political Scientist: A Conversation with Catharine A. MacKinnon about Power, Politics, and Political Science

Menstruation Discrimination and the Problem of Shadow Precedents


 
 
 The burgeoning menstrual justice movement highlights that women, girls, transgender men and boys, and non-binary persons may face discrimination or harassment due to their menstruation in workplaces, schools, prisons, and many other aspects of life. In recent years, a few courts have suggested such discrimination may violate Title VII, the federal law that prohibits sex discrimination in employment. Their analysis focuses on the Pregnancy Discrimination Act (PDA), an amendment to Title VII passed in response to a Supreme Court case holding that pregnancy discrimination was not sex discrimination. The PDA overrode the decision by explicitly defining sex as including “pregnancy, childbirth, or related medical conditions.”
 The menstruation discrimination cases thus implicate more general questions of how statutory overrides should be interpreted, a subject I’ve explored extensively in prior work. My research suggests that this nascent litigation campaign may face two distinct challenges. The first is that courts will simply deny the claims, reasoning that menstruation is not directly addressed by the text of the PDA and therefore should not be recognized as sex discrimination. The second—which is more subtle, and also perhaps more likely—is that courts could find such discrimination to be actionable, but do so relying solely on the PDA’s explicit reference to “medical conditions” related to pregnancy. While that would be helpful for addressing discrimination in workplaces, it could open the door to arguments that menstruation is outside the ambit of sex discrimination laws that were not amended in a manner analogous to how Title VII was amended.
 
 
 
 To avoid these potential risks, theorists and advocates should seek to establish that menstruation discrimination is discrimination on the basis of “sex” itself, in that it is a condition linked to female reproductive organs and associated with stereotypes about women’s inferiority. That reasoning, which suggests that the PDA is properly interpreted as signaling Congress’s disapproval with the Supreme Court’s unduly narrow understanding of what constitutes sex discrimination in the earlier pregnancy case, should apply not only to Title VII, but also to the interpretation of statutory and regulatory prohibitions on sex discrimination in non-employment contexts.
 
 
 
 
 

Bostock, LGBT Discrimination, and the Subtractive Moves

In Bostock v. Clayton County, the Supreme Court held that Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in employment, covers discrimination on the basis of sexual orientation and gender identity. The dissenting Justices, following the reasoning of several Court of Appeals judges, embraced a series of subtractive argumentative moves in order to argue that the statute does not prohibit discrimination that is explicitly within its scope, and which is part of the mischief that the statute aims to remedy. This article catalogues and critiques the subtractive moves. One may focus on (1) the law’s prototypical referent, or (2) the categories of objects that it happens to bring to mind, or (3) distinctions that feel familiar but which do not appear in the statute, or (4) formalist exceptions that are unrelated to the law’s language, or (5) the general expectations that were part of the law’s cultural background. One may also (6) claim that the law, read in its cultural context, simply doesn’t mean what it literally says. Each of these reaches outside the statute in order to defeat the law’s literal command. This strategy maximizes judicial discretion and betrays the promise of textualism.

Hülya Ebru Demirel v. Turkey: Testing the Limits of the European Convention of Human Rights Protection against Sex Discrimination in Employment

Hülya Ebru Demirel v. Turkey: Testing the Limits of the European Convention of Human Rights Protection against Sex Discrimination in Employment

LGBT Discrimination and the Subtractive Moves

The Supreme Court will shortly consider whether Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in employment, covers discrimination on the basis of sexual orientation and gender identity. The lower courts are split on whether such protection is granted by the plain language of the statute. The judges who reject the discrimination claim argue that the statute does not prohibit activity that is explicitly within its scope, and which is part of the mischief that the statute aims to remedy. Their subtractive strategy, an innovation in statutory interpretation, comprises a number of different argumentative moves, with a common aim: to draw upon the cultural context at the time of enactment to avoid an unwelcome implication of a statute’s plain language. This strategy however maximizes judicial discretion and betrays the promise of textualism.

Employer Conscience after Hobby Lobby and the Continuing Conflict between Women's Rights and Religious Freedom

Thirty-seven years have passed since Congress amended Title VII of the Civil Rights Act of 1964 to declare that workplace discrimination on the basis of pregnancy, childbirth, or related medical conditions is illegal sex discrimination. Yet, women in the workplace today continue to experience high levels of discrimination, particularly as it relates to their reproductive capacity or choices. Oftentimes, religious beliefs form the basis for the sex stereotypes that have been used to justify discrimination against women. This Article examines the ongoing conflict between women’s rights and religious liberty interests by discussing the risks associated with for-profit employer conscience exemptions to current anti-discrimination laws. The Article begins in Part I, explaining the origins of prohibitions against sex discrimination in employment and the protections they have provided since their enactment. In Part II, the Article examines well-established religious exemptions to anti-discrimination laws found in statutory and case law. Part III reviews the majority reasoning in Hobby Lobby within the anti-discrimination framework and explores how the decision in that case could expand current religious exemptions. Part IV analyzes whether an employer can use RFRA as a shield to defend itself against discrimination claims brought by or on behalf of employees, and concludes that, while an employer can do so, a RFRA defense should fail when applied to anti-discrimination laws, notwithstanding the Hobby Lobby decision. Part V cautions against the expansion of the corporate religious liberty interest and employer conscience exemption created in Hobby Lobby. Part VI concludes. Throughout the Article, the role of legislation and case law examining or prohibiting workplace discrimination against women based on their reproductive capacity are used as the case study for the impact of the post-Hobby Lobby legal landscape.

Claiming a Space in the Law School Curriculum: A Casebook on Sex-Based Discrimination

INTRODUCTION We are gathered here today to celebrate the 40th anniversary of Justice Ginsburg's appointment in 1972 as Columbia's first woman law professor. That auspicious date also marks the beginning of my collaboration with her on a law school casebook published in 1974 on the newly-created subject of sex-based discrimination. (1) Linda Kerber traced the general history of this and other casebooks that appeared about the same time (2) in her wonderfully insightful historical essay, Writing Our Own Rare Books, presented at a symposium held at Yale School in April 2000. (3) In recalling those heady times today, I will offer a more detailed account of how our first edition came into being, as well as a comparison of how its coverage--and the subject itself--has changed over the ensuing thirty-eight years. I. How the RBG-KMD-HHK Collaboration Came About and Why It Was Published as the KMD-RBG-HHK Casebook The demand for law school courses on and the Law followed closely after the rapid increase of women law students beginning in the late 1960s, (4) who did notfind the legal issues that affected them covered in the traditional curriculum. All three of us responded individually to requests from our students to create such courses. In 1971, Kenneth M. Davidson was an Associate Professor at SUNY Buffalo, where he was teaching a course on Women and the Law, primarily focused on sex discrimination in employment, to law students and undergraduates, and using his own mimeographed materials. A year earlier, Ruth Bader Ginsburg had launched a course on Women's Rights: Sex Discrimination and the Law, at Rutgers, Newark. She thus explained: Around 1970, women students whose conscience had awakened at least as much as mine, women encouraged by a vibrant movement for racial equality, asked for a seminar on Women and the Law. I repaired to the Library. There, in the space of a month, I read every federal decision ever published involving women's legal status, and every law review article. That was no grand feat. There were not many decisions and not much in the way of commentary. Probably less altogether than today accumulates in six months time. (5) Berkeley women students brought a similar request to me at about the same time: in 1970, I helped them persuade a practitioner, Colquit Meacham Walker, to offer a Women and the Seminar by promising to attend all of the class sessions. No casebooks existed for such a course. Ken wanted to turn his materials into a casebook, but he also wanted to recruit co-authors to join the project and add materials on other areas where sex discrimination was beginning to make itself felt. He sent his materials to me. I read them and was immediately struck by how well a chapter on Family would work with Ken's employment materials: the connections between the stereotypes ingrained in the roles of and office wife (which were just beginning to be explored) were even then too clear to overlook. Ken welcomed my participation, and we both agreed that the projected casebook would need the collaboration of an expert on Constitutional Law. Both of us thought of Ruth Bader Ginsburg, who as the Director of the ACLU's Women's Rights Project was already litigating the path-breaking Equal Protection cases before the United States Supreme Court that would ultimately write women into the Constitution for the first time in its history. Neither of us knew her personally, so we arranged to meet her at the AALS-sponsored Conference on The School Curriculum and the Legal Rights of Women that she had helped to organize which was to take place at NYU School on October 20-21, 1972. (6) A major topic of discussion at the Conference was whether the subject of Women and the should remain a stand-alone course, or whether coverage of the subject should be distributed more broadly across the curriculum. …

The Legal and Policy Implications of the “Flexibility Stigma”

American workplace law prohibits employment decisions based on gender stereotypes and forbids retaliation against employees who take certain job‐protected family leaves. Yet the studies in this Issue documenting the “flexibility stigma” indicate popular perceptions and attitudes that run counter to these legal proscriptions. Three key aspects of the flexibility stigma as documented suggest legal and policy implications. First, because the flexibility stigma is rooted in gender stereotypes, its effects may be litigable under federal law prohibiting sex discrimination in employment. Second, workplace policies that provide leave or flexible scheduling must also recognize and address bias against those who use them or the policies risk being undermined by workers engaging in bias avoidance. Third, the flexibility stigma operates in workplaces across the class spectrum, indicating a greater urgency for public policy to counteract its effects.

Editorial

Anti-discrimination legislation and case law dealing with employment discrimination are among the most topical labour law issues in Europe. As a result, The International Journal for Comparative Labour Law and Industrial Relations has received so many manuscripts on questions related to employment discrimination that we have decided to dedicate a complete issue to this matter. One reason why employment discrimination is such a hot topic is the fact that in recent years extensive EC legislation proscribing employment discrimination has been passed: Directive 2000/43/EC prohibiting discrimination on grounds of race and ethnic origin, Directive 2000/78/EC banning discrimination on grounds of religion or belief, disability, age or sexual orientation, and finally Directive 2002/73/EC amending Directive 76/207/EEC barring sex discrimination in employment and occupation. And a correction in the paper by Kees J. Vos (Vol 21.3)

Race and Sex Discrimination in Employment in Canada. Theories, Evidence and Policies

After having examined three theoritical approaches, the author presents public policy relating to race and sex discrimination in employment and analyzes 74 cases decided by the boards of enquiry and courts.

Private Nurses and Playboy Bunnies: Explaining Permissible Sex Discrimination

Discrimination on the basis of sex in employment is illegal--usually. In cases in which employers contend that sex-based hiring is necessary to protect the privacy interests of their customer, however, and in cases in which employers contend that sex-based hiring is necessary to provide a particular type of sexual titillation for their customers, courts sometimes do allow employers to discriminate. Courts say that they allow sex discrimination in employment when it is necessary to preserve the "essence of the business." This Article shows, however, that there is no plausible conception of business "essence" that can explain and make sense of the existing case law. The Article therefore looks beyond the courts' rhetoric to explain and defend why courts distinguish in the ways they do between permissible and impermissible sex discrimination in employment.

Genus och arbete: vad berättar forskningen från 1990-talet?

In this article I discuss parts of tny book Gender in and as Organization. An Overview of Swedish Research on Work & Gender. The overall aim of the book is to describe and analyze research on gender and work in organizations in Sweden during the 1990s and it focuses in particular on six domains of research. This article builds on three of these: 1) Structural Transformation, 2) Leadership and 3) Technology and Organization. Studies of structural transformation usually focus on more encompassing changes in the organization of production, such as the transformation of the public sector in the 1990s, as well as on more minor themes such as the closing down of local industries. On a general level, the studies show that men become unemployed less frequently and furthermore that they have greater opportunities to get new permanent jobs in times of structural change. The opportunities for women to get new jobs seem dependent on the local labour märket and to what degree it can offer traditional women's jobs in the public sector. In the research on leadership, studies show that women seldom become leaders/ managers in the private sector. Only 17 percent of the leaders in the private sector were women in 1999. Studies of the development in the public sector show a change from 29 percent of women leaders in 1990 to 51 percent in 1999. Qualitatively oriented studies provide explanations for these figures. The equal opportunity strategies and the law against sex discrimination in employment seem to have had a more profound impact in the public organizations - a state of affairs which most probably has its roots in the close connection between these organizations and "the state". The overall results from research on technology and organization show that in most organizations, when new technology and/or new ways of organizing work are introduced, gender regimes are resistant to change. Initially some changes due to the gender division of labour can be seen, but after only a short period of time most organizations go back to "normal", i.e. an organization with a traditional and stereotypical gendered division of labour.

PAPER ABSTRACTS GENDER & DIVERSITY IN ORGANIZATIONS.

Academy of Management Annual Meeting Proceedings includes abstracts of all papers and symposia presented at the annual conference, plus 6-page abridged versions of the “Best Papers” accepted for inclusion in the program (approximately 10%). Papers published in the Proceedings are abridged because presenting papers at their full length could preclude subsequent journal publication. Please contact the author(s) directly for the full papers. ArticlesPAPER ABSTRACTS GENDER & DIVERSITY IN ORGANIZATIONS.Published Online:13 Dec 2017https://doi.org/10.5465/apbpp.2000.5439160AboutSectionsPDF/EPUB ToolsDownload CitationsAdd to favoritesTrack Citations ShareShare onFacebookTwitterLinkedInRedditEmail AbstractThis article presents abstracts of articles related to gender and diversity in organizations including "The Impact of Legal Age Discrimination on Women in Professional Occupations," by Nancy Kurland, "Cultural Diversity: A Configurational Theory for Overcoming the Negative Consequences," by Amy McMillan and "The Persistence of Gender Inequality in Management Over Time: Evidence from Senior Women Managers in Europe," by Margaret Linehan.FiguresReferencesRelatedDetails Vol. 2000, No. 1 Permissions Metrics in the past 12 months History Published online 13 December 2017 Published in print 1 August 2000 InformationCopyright of Academy of Management Journal is the property of Academy of Management and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder’s express written permission. However, users may print, download, or email articles for individual use.KeywordsABSTRACTSWOMEN employees -- AbstractsSEX discrimination in employment -- AbstractsWOMEN executives -- AbstractsDIVERSITY in the workplace -- AbstractsDownload PDF

Book Review: Justifications for Sex Discrimination in Employment

Book Review: Justifications for Sex Discrimination in Employment

The Legal Evolution of Sexual Harassment

In this article, we examine the legal evolution of sexual in the workplace. The U.S. Supreme Court's 1993 unanimous decision in Harris v. Forklift Systems, Inc., clarified some aspects of law. Here, a lower court ruling was overturned that would have restricted the chances of persons successfully bringing sexual suits. Just prior to the handing down of this decision, the Equal Employment Opportunity Commission (EEOC) issued proposed guidelines intended to clarify what constitutes and what obligations employers have in preventing and eliminating harassment. The guidelines apply broadly to harassment based on race, color, religion, gender, national origin, age, or disability (emphasis added). The Supreme Court regarded the proposed regulations sufficiently authoritative to discuss them in the Harris decision. As will be seen, the judicial and executive branches of the government have begun developing a coordinated approach to combatting sexual in the workplace. The discussion here, as the title of this article suggests, is primarily legal in nature. A thorough review of the literature is forgone for an examination and analysis of primary legal sources. These sources include decisions made by the federal courts and guidelines issued by the Equal Employment Opportunity Commission. Major emphasis is given to what is known as hostile-environment harassment, since the subject has been the main focus of attention in sexual court cases. Sex Discrimination, Sexual Harassment, and the Harris Case The existence of sex discrimination in employment is well documented. Women's salaries are typically lower than those of men (Lee, 1989; Willoughby, 1991), and discrimination often presents a glass ceiling that thwarts women in advancing their careers (Bullard and Wright, 1993; Guy, 1993; Kelly, et al., 1991; Merit Systems Protection Board, 1992). Those who are sexually harassed can experience severe harm in terms of their careers, personal finances, and mental health (Kreps, 1993; McCann and McGinn, 1992; Wagner, 1992). Discrimination can lead to lower overall productivity of an organization's work force. A wide assortment of laws has addressed sex discrimination. The Equal Pay Act of 1963 required equal pay for equal work between the sexes (Aldrich v. Randolph Central School District, 1992; Greenlaw and Lee, 1993). Title VII of the Civil Rights Act of 1964 prohibited sex discrimination with respect to terms, conditions, and privileges of employment (such as in hiring, promoting, and firing employees). An amendment to Title VII, the Pregnancy Discrimination Act of 1978 prohibited discrimination based on pregnancy, childbirth, or related medical conditions (Gedulig v. Aiello, 1974; General Electric v. Gilbert, 1976). The U.S. Supreme Court in two Title VII-based cases banned sex discrimination with respect to retirement plan contributions and benefits (City of Los Angeles, Department of Water and Power v. Manhart, 1978; Arizona Governing Committee for Tax Deferred Annuity and Deferred Compensation Plans v. Norris, 1983). Special protections against various forms of sex discrimination are available to government workers through the due process clause of the Fifth and Fourteenth Amendments, and the equal protection clause of the Fourteenth Amendment. In addition, state and local cases may be filed using the Civil Rights Act of 1871. The cases are known as Section 1983 suits, since the 1871 legislation is codified at 42 U.S.C. 1983. The topic of sexual is of increasing importance as women--the usual subjects of harassment--have come to constitute a greater proportion of the work force. In a study of federal workers, 42 percent of the women reported being sexually harassed within a two-year period (Merit Systems Protection Board, 1988; 2). Half or more of working women can expect to be sexually harassed during their careers (National Council for Research on Women, 1991; 9). …

Sex Discrimination in Employment: Everyone's Problem

The differences between men and women have existed since the beginning of time. These differences, when integrated into cultural norms over time, serve as the basis for acceptable gender roles and behaviour. In today's American society, nowhere are these roles more apparent than in the workplace. Conse‐quently, gender‐related conflicts are commonplace in corporate American culture and ultimately affect everyone in some manner. This article explores some of the reasons for these conflicts, identifies the affected parties, and recommends strategies aimed at improving the overall situation.

Sexual harassment of critical care nurses: a costly workplace issue

Sexual harassment in the workplace is a prevalent form of impermissible sex discrimination in employment. The high profile of this issue in the media, together with laws prohibiting sexual harassment, have not prevented this problem for working nurses. To describe and determine the extent of sexual harassment incidents experienced by nurses working in critical care areas, and to determine attitudes about, and presence of policies regarding, sexual harassment in hospitals. For this descriptive study the federal government's definition of sexual harassment and a list of sexually harassing behaviors was mailed with a survey to 188 critical care nurses. Findings indicated that 46% of the respondents had been harassed. Offensive sexual remarks (56%), unwanted physical contact (53%), unwanted nonverbal attention (27%), requests for dates (16%), and sexual propositions (9%) were types of sexual harassment experienced. Sexual assault was experienced by one woman. Harassers were physicians (82%), coworkers (20%), or immediate supervisors (7%). A majority of the incidents (69%) were not reported. Most nurses (80%) had not received training, nor were there policies and procedures to follow in most cases for reporting harassment. These results suggest that many critical care nurses are harassed and that relatively few hospitals have sexual harassment policies known to employees. They also indicate that sexual harassment training, policies, and procedures are needed to provide a safe, healthy work environment for critical care nurses.

The subsidiary woman

Abstract This article examines the divergence between the approach of the European Court of Justice to sex discrimination in employment and its recent decisions on similar discrimination in social welfare provision. An explanation may be found through the application of the distinction between the market or public sphere, which is the province of European integration, and the domestic or private sphere, which is still considered to be primarily a matter of Member State competence. This divide contains echoes of the current debate over the principle of subsidiarity within the European Union. Subsidiarity therefore does not simply concern the respective competences of the European Union and the Member States, but also has implications for social organisation and women's access to welfare and employment

Sex discrimination in employment

Sex discrimination in employment

Justification for Indirect Sex Discrimination in Employment: European Community and United Kingdom Law Compared

Justification for Indirect Sex Discrimination in Employment: European Community and United Kingdom Law Compared