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215 Conclusion The Future of Masculinities This book explains masculinities research, its application to discrimination in workplaces, and the way understanding this body of work can aid lawyers, judges, and juries in making just and accurate decisions in employment discrimination claims brought under Title VII of the Civil Rights Act of 1964. It explains theory using real-­ life examples, applies theory to create new interpretations of Title VII antidiscrimination law, and makes practical suggestions for how legal actors can use masculinities research to enhance their understanding of the phenomena surrounding discrimination in the workplace and to communicate it in litigation. Articulating Theory The theory in this book relies largely on ethnographic, empirical, and theoretical work performed by social scientists over a period of approximately the last forty-­ five years. I combine masculinities research with feminist legal theory, critical race theory, and intersectionality and multidimensionality theories to enhance understandings of multidimensional masculinities theory, a new concept that Frank Rudy Cooper and I articulated in Masculinities and the Law: A Multidimensional Approach (Cooper and McGinley 2012; McGinley and Cooper 2012). Multidimensional masculinities theory is a critical theory of law that “assumes that law distributes power by relying upon assumptions about human behavior that reproduce preexisting social relations. Law and culture are co-­ constitutive: cultural norms influence law and legal norms simultaneously influence culture” (McGinley and Cooper 2012, 1) (citations omitted). Multidimensional masculinities theory differs from masculinities studies in that it takes a multidimensional approach in a legal environment: it considers not only gender but also other identities, 216 | Conclusion as they are performed in context. Thus, in the case of Title VII, the workplace context is central to an understanding of how and why masculine structures affect performances at work. Applying Theory to Title VII The book then applies multidimensional masculinities theory to the employment discrimination law of Title VII of the Civil Rights Act. It explains Title VII law and proof mechanisms that judges use to determine whether discrimination has occurred, and recommends, with examples from real cases, how multidimensional masculinities theory can benefit that interpretation. In a number of situations, it makes law reform proposals, based on a multidimensional masculinities analysis, to change the standards used by the courts to determine whether plaintiffs have suffered illegal discrimination. Two concepts are key to understanding the application of multidimensional masculinities theory to law reform proposals in this book. First, employment discrimination law should provide a broad remedy to those experiencing discrimination based on race, sex, gender, and other covered identity characteristics. Courts should not limit Title VII remedies to victims who suffer adverse employment consequences as a result of individual employers’ conscious discriminatory views. Rather, the law should remedy discriminatory structures that cause unequal treatment at work as well as individual animus and hidden biases reflected in individual actions. Moreover, the law should create incentives to employers to deter themselves and their employees from endorsing, using, and responding to structures and behaviors that cause discrimination against members of protected groups. Second , human beings often rely on common sense to make decisions about whether behaviors are race, sex, national origin, or gender based. Masculinities theory demonstrates that employers’ and judges’ reliance on common sense to make and evaluate workplace decisions can be problematic because it allows persons’ implicit biases to distort their perception, and may lead to inaccurate decision making. This decision making tends to underestimate the prevalence of discriminatory actions, in large part because of cultural understandings that are embedded in society and translated into law. Conclusion | 217 Admitting Expert Evidence The book also explains the law surrounding the ability to introduce expert evidence in court to help judges and juries determine whether discrimination has taken place. It argues that judges should admit into evidence reliable, probative expert testimony on masculinities to counter hidden biases that occur unconsciously when fact finders and judges use their common sense. Common sense, while often useful in directing a person’s judgment, is problematic because it relies on embedded and unconscious biases communicated to individual actors through culture. The law, when it endorses the exclusive use of common sense, can often embed discriminatory structures into its analysis. The book also argues that judicial education should include information on multidimensional masculinities theory in order to assure understanding and just procedural responses to pretrial motions and adjudication during and after trial. Future Considerations In the fifty-­ odd years since its enactment, Title VII has had enormous positive effects on workplaces. Consider the number of white women and persons...


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