- Because of Sex: One Law, Ten Cases, and Fifty Years That Changed American Women's Lives at Work by Gillian Thomas
New York: St. Martin's, 2016
xi + 291 pp., $26.99 (cloth); $18.00 (paper)
Title VII of the Civil Rights Act of 1964, which bars discrimination in employment because of race, color, religion, national origin, or sex, is now a central topic in women's labor history. Recent works by Nancy MacLean, Serena Mayeri, and Katherine Turk, among others, draw attention to this crucial piece of labor law. The history of Title VII is full of surprises. The amendment that added "sex" to Title VII in 1964, last minute and contested, was a leap into the unknown. No one could foresee its consequences. One result: the law has generated a cascade of complex litigation. Gillian Thomas, a lawyer at the American Civil Liberties Union Women's Rights Project, turns to the impact of Title VII and to its ramifications for women at work.
Because of Sex explores a sequence of Supreme Court cases that interpret Title VII and shape workplace rights, from Phillips v. Martin Marietta (1971), a case that assured a job to a mother of a preschooler, to Young v. United Parcel Service (2015), a contest over employer accommodation of physical limitation related to pregnancy. No case was typical, but each edged interpretation of the law forward. The decisions that Thomas presents enabled women to hold jobs while pregnant or while mothers of young children, to enter vocations from which women had been excluded, to enjoy equal retirement benefits, to labor in workplaces free of sexual harassment, and to be judged on the basis of individual qualifications not group identity. "Title VII requires that we focus on fairness to individuals rather than fairness to classes," as Justice John Paul Stevens stated in a 1978 decision that barred sex discrimination in pension funds (78).
What factors hold these cases together? Most involve workplaces or work situations that were traditionally all male, including the partnership roster at a big accounting firm: in Price Waterhouse v. Hopkins (1989), a senior manager, Ann Hopkins, sued to win the rank of partner. Other cases discussed concern workplaces where plaintiffs guarded prisoners, ran forklifts, or drove delivery trucks. Blue-collar employees or managers, women workers who challenged employment discrimination were determined and tenacious; each case lasted for years as it crawled up through the federal court system. Title VII enforcement is a story of mounting complexity and rising resistance, especially as corporate lawyers sought to defend discriminatory labor practices. Collectively, the cases reveal at once the persistence of the litigants, the precariousness of their lawsuits, the cumulative significance of their victories, and the elusive nature of workplace equality.
Thomas tells much about the lawyers who pressed Title VII cases—often solo practitioners—and how they faced challenges. She shows, for instance, the importance of the amicus brief, a tactic that served to instruct judges in equality law. Pressure exerted by women's rights advocates through amicus briefs grew over time and helped to steer [End Page 128] decisions in Title VII cases. Thomas conveys, too, the effective way that Title VII lawyers used moot courts, or legal dress rehearsals, to prepare their arguments and help one another. She also explains the role of public interest groups, such as the Southern Poverty Law Center, that provided assistance to Title VII lawyers; the influence of out-of-court events, such as the sway of the 1991 Anita Hill–Clarence Thomas hearings on the development of sexual harassment law; and the interplay of court decisions with acts of Congress. In some instances, as in pregnancy law, court decisions led to passage of further legislation to bar sex discrimination, such as the Pregnancy Discrimination Act of 1978, a Title VII amendment that generates its own barrage of cases, and the Family and Medical Leave Act of 1991.
Finally, we see how opponents of Title VII shaped the impact of the law by undermining it. Employers sought variously to circumvent the antidiscrimination measure...