tag:theconversation.com,2011:/id/topics/title-vii-54653/articlesTitle VII – The Conversation2023-05-15T12:33:01Ztag:theconversation.com,2011:article/2044352023-05-15T12:33:01Z2023-05-15T12:33:01ZCo-workers could bear costs of accommodating religious employees in the workplace, as Supreme Court reinterprets 46-year-old precedent<figure><img src="https://images.theconversation.com/files/524981/original/file-20230508-21-hntq0s.jpg?ixlib=rb-1.1.0&rect=152%2C53%2C5840%2C3585&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Supreme Court may require employers to be more accommodating to religious requests in the workplace. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/midsection-of-woman-using-laptop-at-home-royalty-free-image/1350046560?phrase=prayer%20workplace">Victor Plop/500px via Getty Images</a></span></figcaption></figure><p>The Supreme Court <a href="https://www.supremecourt.gov/opinions/22pdf/22-174_k536.pdf">issued a unanimous decision</a> that will transform the role of faith in the workplace in a way that could elevate the rights of religious workers at the expense of their colleagues.</p>
<p>On June 29, 2023, the <a href="https://www.nbcnews.com/politics/supreme-court/supreme-court-rules-christian-postal-worker-refused-work-sundays-rcna84868">court ruled unanimously in favor</a> of a Christian postal worker who quit his job and sued the U.S. Postal Service for, in his view, not doing enough to accommodate his request to not work Sundays. </p>
<p>The case, known as <a href="https://www.scotusblog.com/case-files/cases/groff-v-dejoy/">Groff v. DeJoy</a>, <a href="https://theconversation.com/how-far-must-employers-go-to-accommodate-workers-time-off-for-worship-the-supreme-court-will-weigh-in-198499">addressed an employer’s obligation</a> to accommodate religious employees’ requests under federal law.</p>
<p>The upshot is that the ruling means religious employees may have an easier time getting their companies to accommodate requests. But while on the surface it may seem businesses will bear the costs of doing so, as a <a href="https://zicklin.baruch.cuny.edu/faculty-profile/debbie-kaminer/">scholar of employment discrimination</a> I believe other employees may ultimately pay for much of the burden of accommodation.</p>
<h2>Religious rights in the workplace</h2>
<p>Employers are required to accommodate the religious needs of employees under <a href="https://www.eeoc.gov/religious-discrimination">Title VII of the Civil Rights Act of 1964</a>, so long as they can do so without imposing an “undue hardship.”</p>
<p>Congress didn’t define what that term meant, and it took another dozen years for the Supreme Court to do so in <a href="https://www.oyez.org/cases/1976/75-1126">Trans World Airlines v. Hardison</a>. The court determined that Title VII does not require employers to bear more than a “de minimis,” or minimal, cost in accommodating religious employees. The new ruling requires a higher level of accommodation by employers.</p>
<p>Relying on this “de minimis” standard, employees requesting religious accommodation in the workplace have generally <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4393316">fared poorly in the courts</a>. Supporters of more religious accommodation in the workplace have tried many times to amend Title VII to redefine undue hardship as a “significant difficulty or expense.” </p>
<p>From 1994 to 2013, <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4393316">over a dozen bills attempting to codify this definition</a> were introduced in Congress, with none coming close to passage. After failing to persuade Congress to amend Title VII, religious advocates turned to the Supreme Court. The court’s decision to hear this case in the first place was highly unusual because it suggested it was considering overturning its own long-standing precedent.</p>
<p>The other key issue in the case was whether or not a religious accommodation that imposes on co-workers can count as an undue hardship on the employer. </p>
<p>Since Trans World Airlines v. Hardison, <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4393316">most federal appellate courts</a> have determined that accommodations affecting religious employees’ co-workers – such as requiring them to take over undesirable weekend shifts – can be an undue hardship, even if the business is not directly harmed. In practice, that has made it easier for an employer to avoid accommodating a religious request. </p>
<h2>Business interests vs. religious rights</h2>
<p>Ultimately, the court didn’t overturn the precedent set in TWA v. Hardison. </p>
<p>Instead, it took the equally unusual position of explaining that for almost half a century both the lower courts and Congress misunderstood that decision and that de minimis had never been the appropriate standard. Rather, the court noted that the earlier Supreme Court decision stated three times that accommodation is required unless it results in “substantial” – not minimal – costs. </p>
<p>Relying on this long-ignored language, the <a href="https://www.supremecourt.gov/opinions/22pdf/22-174_k536.pdf">new ruling</a> revised “undue hardship” to mean “when a burden is substantial in the overall context of an employer’s business.”</p>
<p>The court’s compromise ruling left unclear what “substantial” means, so I expect more court cases to come as employees push the limits of what can be accommodated.</p>
<p>In addition, the ruling seems to permit employers to sometimes shift this increased accommodation cost to co-workers. While the court provided little guidance on when an accommodation would burden co-workers, this could have the effect of limiting other employees’ rights.</p>
<p>Take, for example, one common type of <a href="https://www.eeoc.gov/laws/guidance/what-you-should-know-workplace-religious-accommodation">accommodation request</a>, which is time off from work for religious observance.</p>
<p>In those cases, either co-workers can bear the cost of accommodation, by covering for the religious employee without necessarily earning more income, or the employer can bear the cost of accommodation, by hiring additional workers, paying premium wages or suffering a loss of productivity. </p>
<p>The Supreme Court ruling determined that a cost to co-workers can only count as an undue hardship <a href="https://www.courthousenews.com/supreme-court-backs-sabbath-sunday-accommodations-for-workers/">if those impacts</a> also affect the overall business. That means employers might be able to shift the cost of accommodation onto co-workers – for example, requiring them to work an undesirable weekend shift.</p>
<figure class="align-center ">
<img alt="rainbow flag is seen with the supreme court's columned building in background" src="https://images.theconversation.com/files/525447/original/file-20230510-11901-6tptgf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/525447/original/file-20230510-11901-6tptgf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/525447/original/file-20230510-11901-6tptgf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/525447/original/file-20230510-11901-6tptgf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/525447/original/file-20230510-11901-6tptgf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/525447/original/file-20230510-11901-6tptgf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/525447/original/file-20230510-11901-6tptgf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The court appeared to elevate employees’ religious rights at the expense of their LGBTQ+ colleagues.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/CongressEqualityAct/80eed63ec6f44e1ea62a6ae0d1051f18/photo?Query=LGBTQ%20supreme%20court&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=70&currentItemNo=32">AP Photo/Susan Walsh</a></span>
</figcaption>
</figure>
<h2>Co-workers bearing the brunt</h2>
<p>Co-workers could also be harmed in cases involving accommodation of religious expression. This is of particular concern in cases in which religious expression demeans LGBTQ+ people.</p>
<p>In 2004, the <a href="https://openjurist.org/358/f3d/599">9th Circuit Court of Appeals determined</a> that it would pose an undue hardship and be demeaning to co-workers for a religious employee to post in his cubicle the Bible verse “If a man also lie with mankind … both of them have committed an abomination; they shall surely be put to death.” </p>
<p>With the new ruling, employers might be required – by a civil rights law originally aimed at prohibiting employment discrimination – to accommodate religious expression that demeans LGBTQ+ employees.</p>
<p>This all suggests religious employees’ co-workers, not companies, could end up bearing the increased cost of accommodation. </p>
<p>At its heart, the case pit business rights versus religious rights. By making it easier to pass the costs onto workers, the ruling allows the Roberts court to maintain its reputation as being both the most <a href="https://www.axios.com/2022/08/04/supreme-court-john-roberts-business">pro-business</a> and the <a href="https://www.nytimes.com/2022/06/22/briefing/supreme-court-religion.html">most pro-religion court</a> in recent memory.</p>
<p><em>This is an updated version of an article originally published on May 15, 2023.</em></p><img src="https://counter.theconversation.com/content/204435/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Debbie Kaminer does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Supreme Court on June 29, 2023, changed the definition of ‘undue hardship’ so that employers have to accommodate more of workers’ religious requests.Debbie Kaminer, Professor of Law, Baruch College, CUNYLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1394532020-06-29T12:10:21Z2020-06-29T12:10:21ZAs professional sports come back, members of the US women’s soccer team are still paid less than the men’s<figure><img src="https://images.theconversation.com/files/343077/original/file-20200621-43214-bwdauh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Fans rally for the U.S. women's soccer team.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/fans-with-an-equal-play-equal-pay-banner-supporting-the-news-photo/520040916?adppopup=true">Tim Clayton/Corbis via Getty Images</a></span></figcaption></figure><p>The U.S. women’s soccer team reported being “<a href="https://www.npr.org/2020/05/02/849492863/federal-judge-dismisses-u-s-womens-soccer-team-s-equal-pay-claim">shocked and disappointed</a>” by a federal judge’s dismissal in May of the team’s lawsuit against the U.S. Soccer Federation.</p>
<p>The lawsuit alleged discriminatory pay practices by the federation between its men’s and women’s team, which seemed especially unfair because the women’s team was so successful compared to the men’s team. The U.S. women’s soccer team dominated the <a href="https://time.com/5620124/team-usa-womens-world-cup-final/">2019 FIFA Women’s World Cup</a> tournament last summer, taking a record fourth World Cup title.</p>
<p>The U.S. <a href="https://www.usatoday.com/story/sports/2017/10/10/usmnt-world-cup-qualification-trinidad-tobago/752568001/">men’s soccer team</a>, on the other hand, failed to qualify for the World Cup in 2018. </p>
<p>On June 24, the federal judge denied the women’s team request to <a href="https://www.si.com/soccer/2020/06/24/uswnt-equal-pay-case-judgment-appeal-delay-us-soccer">immediately appeal</a> their equal pay claim. Members of the U.S. women’s soccer team are the first professional athletes in the United States to return to sports when the National Women’s Soccer League began its <a href="https://www.washingtonpost.com/sports/2020/06/25/nwsl-challenge-cup-opens-this-weekend-making-womens-soccer-first-us-team-sport-back/">Challenge Cup</a> on June 27.</p>
<p><a href="https://kelley.iu.edu/faculty-research/faculty-directory/profile.cshtml?id=JMAGID">I study</a> employment <a href="https://onlinelibrary.wiley.com/doi/10.1111/ablj.12082">discrimination and inclusion</a> – and I wasn’t as surprised as the members of the women’s team. That’s because their claims were made under the <a href="https://www.eeoc.gov/statutes/equal-pay-act-1963">Equal Pay Act</a> and <a href="https://www.eeoc.gov/statutes/title-vii-civil-rights-act-1964#:%7E:text=L.%2088%2D352">Title VII</a> of the Civil Rights Act of 1964.</p>
<p>Despite the purpose of the laws – protecting employees from discrimination in the workplace based on specific characteristics – both are particularly hard to use to prove pay discrimination.</p>
<p>The EPA rejects deviations in responsibilities – for example, the deviation in the women playing more games – and Title VII requires a “similarly situated” individual, or someone who has the same situation as the women soccer team but are paid better. These evidentiary requirements often work to undermine gender pay discrimination claims.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/343079/original/file-20200621-43229-q20tzk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/343079/original/file-20200621-43229-q20tzk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=320&fit=crop&dpr=1 600w, https://images.theconversation.com/files/343079/original/file-20200621-43229-q20tzk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=320&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/343079/original/file-20200621-43229-q20tzk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=320&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/343079/original/file-20200621-43229-q20tzk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=402&fit=crop&dpr=1 754w, https://images.theconversation.com/files/343079/original/file-20200621-43229-q20tzk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=402&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/343079/original/file-20200621-43229-q20tzk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=402&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">John F. Kennedy signs the Equal Pay Act into law.</span>
<span class="attribution"><a class="source" href="https://en.wikipedia.org/wiki/Equal_Pay_Act_of_1963#/media/File:American_Association_of_University_Women_members_with_President_John_F._Kennedy_as_he_signs_the_Equal_Pay_Act_into_law.jpg">Abbie Rowe/JFK Presidential Library and Museum</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<h2>The history of women’s rights</h2>
<p>Both the Equal Pay Act and Title VII evolved out of a conflict between women’s role in the workplace and women’s role in the family.</p>
<p>This year marks <a href="https://www.nytimes.com/2019/08/15/arts/design/womens-suffrage-movement.html">100 years</a> since the ratification of the 19th Amendment gave women the right to vote. The suffrage movement is early evidence of the conflict between those who supported a role for women outside the home and the <a href="https://www.npr.org/sections/npr-history-dept/2015/10/22/450221328/american-women-who-were-anti-suffragettes">anti-suffragists</a> who were concerned about the loss of privilege for women and elevated status of motherhood if they became embroiled in politics. </p>
<p>Similar concerns were expressed in the 1908 decision by the U.S. Supreme Court <a href="https://www.oyez.org/cases/1900-1940/208us412">Muller v. Oregon</a>. The court endorsed limiting the role of women in the workplace, emphasizing the protection of women for the larger purpose of preserving the “well‐being of the race.” As a result, states were permitted to enact a range of laws that restricted women’s ability to work outside the home in a way that men were not restricted.</p>
<p>Women did not voluntarily enter the workforce in large numbers until during World War II. When this happened, the prevailing policy of protective legislation drew more detractors. </p>
<p>[<em>Get the best of The Conversation, every weekend.</em> <a href="https://theconversation.com/us/newsletters/weekly-highlights-61?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=weeklybest">Sign up for our weekly newsletter</a>.]</p>
<p>The idea of equal rights began to receive more attention as the language of the Equal Rights Amendment, originally drafted in 1923, gained additional support. The notion of equality for women in the workplace advanced in public policy discussions when President John F. Kennedy established the <a href="https://www.nacw.org/history.html">Commission on the Status of Woman</a> in 1961, appointing Eleanor Roosevelt as the chairwoman. </p>
<p>The final report of the commission, often referred to as the <a href="https://guides.library.harvard.edu/schlesinger_presidents_commission_on_the_status_of_women">Peterson Report</a> after <a href="https://www.radcliffe.harvard.edu/sites/default/files/documents/report_of_the_presidents_commission_on_the_status_of_women_background_content_significance.pdf">Esther Peterson</a>, assistant secretary of labor and director of the U.S. Women’s Bureau, was published in 1963. Although the Peterson Report avoided the most controversial issue of the day, the Equal Rights Amendment, it nonetheless chose the path of moving away from protecting women’s position in the home as mothers and toward equality.</p>
<p>After documenting discrimination against women’s full participation in the workplace, the Peterson Report made several key recommendations, including equal employment opportunity, paid maternity leave and affordable childcare.</p>
<h2>Equal pay for equal work</h2>
<p>The <a href="https://www.eeoc.gov/statutes/equal-pay-act-1963">Equal Pay Act</a>, enacted in 1963, is the first federal legislation reflecting the equal employment opportunities advocated by the commission.</p>
<p>The EPA prohibits discrimination based on gender in wages paid for the same job. Determining when jobs are the same is often when it becomes difficult, as was the case in the U.S. women’s soccer team case.</p>
<p>As described in the law, “equal work” means “the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” For the soccer teams, collective bargaining agreements negotiated between the players’ associations and U.S. Soccer created significantly different pay structures with significantly different job requirements, such as number of games played.</p>
<p>Even absent the soccer teams’ collective bargaining agreements, the EPA has a number of exceptions to its equal pay mandate.</p>
<p>Exceptions to equal pay include, “a seniority system; a merit system; a system which measures earnings by quantity or quality of production; or a differential based on any other factor other than sex.” This final “<a href="https://www.nwlc.org/sites/default/files/pdfs/FactorOtherThanSex.pdf">any factor other than sex</a>” is often used by courts to determine that the pay disparity between jobs is nondiscriminatory.</p>
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<img alt="" src="https://images.theconversation.com/files/343078/original/file-20200621-43209-2qfo0q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/343078/original/file-20200621-43209-2qfo0q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/343078/original/file-20200621-43209-2qfo0q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/343078/original/file-20200621-43209-2qfo0q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/343078/original/file-20200621-43209-2qfo0q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/343078/original/file-20200621-43209-2qfo0q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/343078/original/file-20200621-43209-2qfo0q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The U.S. women’s soccer team plays Mexico.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/crystal-dunn-of-united-states-tries-to-break-free-from-news-photo/1232168378?adppopup=true">Ira L. Black/Corbis via Getty Images</a></span>
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<h2>Unequal pay as wage discrimination</h2>
<p>Congress enacted Title VII in 1964 to address employment discrimination based on race, color, religion, sex and national origin. Title VII continued the concept of equality to mean that of “sameness.”</p>
<p>To prove their claim of wage discrimination, the women’s soccer team had to identify men who were <a href="https://www.forbes.com/sites/ericbachman/2019/04/01/who-is-a-similarly-situated-employee-in-an-employment-discrimination-case/#79f1b2633d6e">“similarly situated”</a> to them but paid better, a “comparator” to show that their pay was discriminatory.</p>
<p>Since the men’s soccer team was determined by the court to not be “similarly situated” to the women’s soccer team in pay based on collective bargaining agreements and different requirements for games and friendlies – such as exhibition matches – the pay claim failed.</p>
<p>The judge allowed two claims of discrimination made by the women’s soccer team against their employer, the U.S. Soccer Federation, to continue to trial. The women’s team identified different treatment than the men’s team in travel conditions – specifically charter flights and hotel accommodations – and medical and training support.</p>
<h2>What about now?</h2>
<p>Though Congress adopted a path of equality in both the EPA and Title VII,
in the decades that followed, “any factor other than sex” meant nonperformance-based factors such as differences in academic degrees led to dismissal of EPA claims and an inability to find the same or <a href="https://www.forbes.com/sites/ericbachman/2019/04/01/who-is-a-similarly-situated-employee-in-an-employment-discrimination-case/#7fb60c983d6e">“similarly situated”</a> individual – because of differences in supervisors, job evaluations or discipline records – became a barrier to equal pay under Title VII. This has allowed the <a href="https://www.pewresearch.org/fact-tank/2019/03/22/gender-pay-gap-facts/">gender pay gap</a> to remain almost 60 years after the EPA and Title VII became law.</p>
<p>The gap is more pronounced for women who have children, often referred to as the “<a href="https://www.shrm.org/resourcesandtools/hr-topics/compensation/pages/wage-gap-is-wider-for-working-mothers.aspx">motherhood penalty.</a>”</p>
<p>I would argue that the focus on “sameness” in equality has failed to offer progress in building diversity and inclusion in organizations, including addressing the wage gap. A normative workplace is one that does not recognize differences in how someone can be successful.</p>
<p>All people are not the same and organizations that <a href="https://sproutsocial.com/adapt/diversity-equality-inclusion/">level the playing field</a> offer different people different tools or support to succeed. A stand-up desk for one and a left handed workstation for another, for example. </p>
<p>Leveling the playing field generates equity. Given the evidentiary requirements of the EPA and Title VII, a level playing field has not happened through federal legislation but many organizations now promote a culture of <a href="https://www.siliconrepublic.com/careers/equity-equality-diverse-workforce-hubspot">equity</a>. </p>
<p>The four-time World Cup champions U.S. women’s soccer team created renewed awareness about the intransigence of gender pay discrimination and the dismissal of its pay claim in the federal court highlights the limits of current legislation but should further the discussion of equity. This would mean avoiding one-size-fits-all workplaces and rewarding those who respond with dominating performances.</p><img src="https://counter.theconversation.com/content/139453/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Julie Manning Magid does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A scholar explains why the players are having so much trouble with their equal pay claim.Julie Manning Magid, Professor of Business Law, IUPUILicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1409032020-06-16T19:15:39Z2020-06-16T19:15:39ZSupreme Court expands workplace equality to LGBTQ employees, but questions remain<figure><img src="https://images.theconversation.com/files/342266/original/file-20200616-23231-17gklex.jpg?ixlib=rb-1.1.0&rect=49%2C0%2C5472%2C3645&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">People gather near the Stonewall Inn in New York City to celebrate the Supreme Court's landmark ruling on LGBTQ workers' rights.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/people-gather-at-the-historic-stonewall-inn-to-celebrate-news-photo/1220372240">John Lamparski/NurPhoto via Getty Images</a></span></figcaption></figure><p>Even before the Supreme Court’s June 15 decision, many Americans <a href="https://www.reuters.com/article/us-usa-lgbt-stonewall-equality/americans-perception-of-lgbtq-rights-under-federal-law-largely-incorrect-reuters-ipsos-idUSKCN1TC120">already – and incorrectly – believed</a> that federal law protected lesbians, gay men and transgender people from being fired or otherwise discriminated against at work.</p>
<p>The road to the <a href="https://www.scotusblog.com/2020/06/opinion-analysis-federal-employment-discrimination-law-protects-gay-and-transgender-employees/">ruling confirming that belief</a> involved years of advocacy and many losses – and while this <a href="https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf">decision</a> is a landmark in that effort, more legal work remains to be done to determine the full scope of LGBTQ workers’ rights.</p>
<h2>Concerns about sex discrimination</h2>
<p>The <a href="https://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=3038&context=bclr">Civil Rights Act of 1964</a> was a historic law that banned U.S. employers from discriminating against workers on the basis of their race, color, religion, national origin and sex. </p>
<p>During the bill’s debate, members of the House and Senate had lengthy discussions about discrimination on the basis of race, color, religion and national origin – but <a href="https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1377&context=lawineq">the “sex” category sparked little serious debate</a>. </p>
<p>Early legal and advocacy efforts from <a href="https://doi.org/10.1111/lasr.12155">the National Organization for Women and the Equal Employment Opportunity Commission</a> helped lead the Supreme Court to begin to acknowledge, in the early 1970s, that some forms of discrimination against women were illegal. The first major ruling on this issue was in 1971, <a href="https://supreme.justia.com/cases/federal/us/400/542/">striking down an employer policy of not hiring mothers</a> of preschool-age children, though fathers of children in that age group were welcomed. Sex stereotyping, the court explained, violated the law.</p>
<p>In 1978, the court followed up, ruling that an <a href="https://supreme.justia.com/cases/federal/us/435/702/">employer could not require women to contribute more</a> to pension funds than men, even though women tend to live longer than men.</p>
<h2>The struggle for LGBTQ rights</h2>
<p>Protecting gay, lesbian, and transgender rights was still a ways off. In 1979, the Ninth U.S. Circuit Court of Appeals found that <a href="https://law.justia.com/cases/federal/appellate-courts/F2/608/327/249197/">discrimination on the basis of sexual orientation</a> was not sex discrimination, and therefore was not illegal. That same year, the Fifth Circuit <a href="https://law.resource.org/pub/us/case/reporter/F2/597/597.F2d.936.78-3536.html">dismissed a similar suit</a>. In 1984, the Seventh Circuit likewise found that a person who had been fired after fully transitioning to a woman <a href="http://www.transgenderlaw.org/cases/ulane.htm">could not sue for discrimination</a>.</p>
<p>It wasn’t until 1998 that the Supreme Court acknowledged the existence of LGBTQ issues in the workplace. In <a href="https://www.law.cornell.edu/supct/html/96-568.ZO.html">Oncale v. Sundowner Offshore Services</a>, a male plaintiff claimed that he had faced sexual harassment from his male co-workers. Their employer responded that the law did not prohibit same-sex harassment. A unanimous court, led by Justice Antonin Scalia, disagreed and allowed the suit to proceed.</p>
<p>But that ruling did not make clear whether workers could be fired, demoted or disciplined on the basis of their sexual orientation or gender identity. Congress tried to address the question, and the Senate and the House of Representatives have <a href="https://time.com/5554531/equality-act-lgbt-rights-trump/">separately passed bills recognizing this form of discrimination</a> – but never in the same legislative session, which means it couldn’t become law. And different appeals courts have issued rulings that disagree with each other, producing inconsistent national standards.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/342269/original/file-20200616-23266-98zinj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/342269/original/file-20200616-23266-98zinj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/342269/original/file-20200616-23266-98zinj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/342269/original/file-20200616-23266-98zinj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/342269/original/file-20200616-23266-98zinj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/342269/original/file-20200616-23266-98zinj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/342269/original/file-20200616-23266-98zinj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/342269/original/file-20200616-23266-98zinj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">A man holds a pride flag in front of the U.S. Supreme Court building after a ruling protecting LGBTQ workers’ rights.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/joseph-fons-holding-a-pride-flag-in-front-of-the-u-s-news-photo/1249824201">Chip Somodevilla/Getty Images</a></span>
</figcaption>
</figure>
<h2>Three cases come to Washington, D.C.</h2>
<p>In fall 2019, the Supreme Court agreed to review three cases about employment discrimination against LGBTQ workers. </p>
<p>Two of the cases, <a href="https://www.scotusblog.com/wp-content/uploads/2018/06/17-1618-opinion-below.pdf">Bostock v. Clayton County</a> and <a href="https://casetext.com/case/zarda-v-altitude-express-inc-1">Altitude Express v. Zarda</a>, involved gay men who claimed they were illegally fired for being gay. The plaintiff in the third case was Aimee Stephens, who <a href="https://casetext.com/case/equal-empt-opportunity-commn-v-rg-gr-harris-funeral-homes-inc-5">lost her job</a> shortly after informing her employer that she intended to transition and would begin representing herself at work as a woman.</p>
<p>The core question in each was how to understand the law’s ban on sex discrimination.</p>
<p>Associate Justice Neil Gorsuch, appointed to the court by President Donald Trump in 2017, wrote the majority opinion in <a href="https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf">the 6-3 ruling</a> that resolved all three cases. Joined by Chief Justice John Roberts and Associate Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, he declared that discrimination against homosexual, bisexual, and transgender people is inherently sex discrimination, and therefore illegal. </p>
<p>Gorsuch’s reasoning was straightforward: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.” He imagines two model employees, one man and one woman, arriving at the boss’s holiday party with their wives: If the woman would be fired but not the man, Gorsuch wrote, that is sex discrimination.</p>
<h2>A changing understanding</h2>
<p>Gorsuch is best known as a conservative jurist, concerned about the <a href="https://www.washingtonpost.com/news/the-fix/wp/2017/02/01/neil-gorsuch-antonin-scalia-and-originalism-explained/">specific texts of laws and the original intentions</a> behind them. He rested his interpretation of the Civil Rights Act on the evolution of the law over the years. Since the law’s passage, the Equal Employment Opportunity Commission and federal courts have come to understand a broader definition of sex discrimination, covering motherhood, differential pension programs, pregnancy and sexual harassment. </p>
<p>This history, Gorsuch wrote, signals that the law was meant to be read, and used, in inclusive ways: “refus[ing] enforcement … because the parties before us happened to be unpopular at the time of the law’s passage … would tilt the scales of justice in favor of the strong … and neglect the promise that all persons are entitled to the benefit of the law’s terms.”</p>
<p>He summarized the court’s finding: “An employer who fires an individual merely for being gay or transgender defies the law.”</p>
<h2>Concerns, and questions, remain</h2>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/342267/original/file-20200616-23217-1dkfvxv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/342267/original/file-20200616-23217-1dkfvxv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/342267/original/file-20200616-23217-1dkfvxv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=994&fit=crop&dpr=1 600w, https://images.theconversation.com/files/342267/original/file-20200616-23217-1dkfvxv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=994&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/342267/original/file-20200616-23217-1dkfvxv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=994&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/342267/original/file-20200616-23217-1dkfvxv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1249&fit=crop&dpr=1 754w, https://images.theconversation.com/files/342267/original/file-20200616-23217-1dkfvxv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1249&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/342267/original/file-20200616-23217-1dkfvxv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1249&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Aimee Stephens, a transgender woman whose firing from her job was at the center of the Supreme Court case, died in May, before the ruling in her case was delivered.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Aimee-Stephens-Has-Passed-Away-at-59/7a9a0f359b254479a771de1f6c3597a8/3/0">Patsy Lynch/MediaPunch /IPX</a></span>
</figcaption>
</figure>
<p>Dissents came from Associate Justice Samuel Alito, joined by Clarence Thomas, and from Associate Justice Brett Kavanaugh. </p>
<p>Alito expressed concern that the new ruling “will threaten freedom of religion, freedom of speech, and personal privacy and safety.” He offered specific example concerns, including allowing people with penises to use women’s bathrooms, stacking women’s athletic competitions with athletes with “the strength and size of a male … and students who are taking male hormones,” assigning college roommates based on gender identity rather than sex, requiring religious organizations to hire LGBTQ people, and limiting free speech disapproving of LGBTQ individuals or their relationships.</p>
<p>Alito also feared that the court’s opinion might lay broader groundwork for a constitutional ruling protecting people from discrimination based on sexual orientation and gender identity as strictly as it protects them from sex discrimination. </p>
<p>Many of these concerns may come before federal courts, and ultimately the Supreme Court, in years to come. Gorsuch’s ruling specifically did not decide on whether the results might, in some cases, tread inappropriately on religious liberty. </p>
<p>LGBTQ advocates are celebrating a major acknowledgment of their human rights, though with some sadness: <a href="https://www.nbcnews.com/feature/nbc-out/donald-zarda-man-center-major-gay-rights-case-never-got-n852846">Donald Zarda</a> and <a href="https://www.nytimes.com/2020/05/12/us/aimee-stephens-supreme-court-dead.html">Aimee Stephens</a>, two of the three people at the center of the cases, died before learning of their cases’ resolution. And advocates know many more disputes – and court cases – are yet to come.</p>
<p>[<em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>.]</p><img src="https://counter.theconversation.com/content/140903/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Julie Novkov does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Federal law now protects lesbians, gay men and transgender people from being fired or otherwise discriminated against at work. But there are more questions and court cases to come about their rights.Julie Novkov, Professor of Political Science and Women’s, Gender and Sexuality Studies, University at Albany, State University of New YorkLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1252902019-11-05T12:16:51Z2019-11-05T12:16:51ZDoes the Civil Rights Act protect LGBT workers? The Supreme Court is about to decide<p>The complicated history of <a href="https://www.history.com/topics/black-history/civil-rights-act">the Civil Rights Act</a> in the U.S. is about to get even more so.</p>
<p>In 1964, the act – specifically, <a href="https://www.eeoc.gov/laws/statutes/titlevii.cfm">Title VII</a> of the act – made it illegal for employers to discriminate based on race, religion and sex, among other things. </p>
<p><a href="https://www.nytimes.com/2019/10/08/us/politics/supreme-court-gay-transgender.html">In October 2019</a>, the U.S. Supreme Court <a href="https://www.scotusblog.com/case-files/cases/altitude-express-inc-v-zarda/">heard three cases</a> that raise the question whether <a href="https://www.scotusblog.com/case-files/cases/bostock-v-clayton-county-georgia/">the act prevents discrimination</a> toward <a href="https://www.scotusblog.com/case-files/cases/r-g-g-r-harris-funeral-homes-inc-v-equal-opportunity-employment-commission/">LGBT workers</a> on the basis of sex.</p>
<p>Two of the cases were brought by men who allegedly lost their jobs because they are gay. The third case addresses transgender discrimination in the workplace.</p>
<p>I’m a <a href="https://kelley.iu.edu/faculty-research/faculty-directory/profile.cshtml?id=JMAGID">professor of business law</a> and I’ve done extensive research in <a href="https://onlinelibrary.wiley.com/doi/full/10.1111/ablj.12082">Title VII policy and practice</a>. I believe these cases could be some of the most important in the Civil Rights Act’s history.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/299047/original/file-20191028-114005-1kglyum.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/299047/original/file-20191028-114005-1kglyum.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=480&fit=crop&dpr=1 600w, https://images.theconversation.com/files/299047/original/file-20191028-114005-1kglyum.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=480&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/299047/original/file-20191028-114005-1kglyum.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=480&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/299047/original/file-20191028-114005-1kglyum.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=603&fit=crop&dpr=1 754w, https://images.theconversation.com/files/299047/original/file-20191028-114005-1kglyum.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=603&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/299047/original/file-20191028-114005-1kglyum.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=603&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Lyndon B. Johnson presents Martin Luther King Jr. with one of the pens used to sign the Civil Rights Act.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Associated-Press-Domestic-News-Dist-of-Columbi-/4cb26dee64e5da11af9f0014c2589dfb/30/0">AP Photo</a></span>
</figcaption>
</figure>
<h2>A brief history of sex discrimination</h2>
<p>Title VII’s protected class of sex was <a href="https://www.aauw.org/what-we-do/legal-resources/know-your-rights-at-work/title-vii/">complicated from the start</a>.</p>
<p>The original bill didn’t include protections for sex discrimination. U.S. Rep. Howard W. Smith of Virginia added those protections with a one-word change to the bill during the <a href="https://www.jofreeman.com/lawandpolicy/titlevii.htm">debate on the House floor</a>. </p>
<p>Later, in 1978, Congress added the <a href="https://www.eeoc.gov/laws/statutes/pregnancy.cfm">Pregnancy Discrimination Act</a> to the Civil Right Act. The change came after the Supreme Court ruled in 1976 that <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1744-1714.2001.tb00908.x">pregnancy discrimination was not “because of sex”</a> and couldn’t be found illegal under the original Title VII language. </p>
<p>This history is important given <a href="https://www.stanfordlawreview.org/online/spotlight-textualism-originalism/">the rise of “statutory originalism” and “textualism”</a> in judicial interpretation.</p>
<p>Originalism means courts should interpret laws based on their original intent or purpose. </p>
<p>Relatedly, judges who subscribe to textualism believe they should evaluate the words of a statute enacted by Congress only and not consider evidence outside the statutory language.</p>
<p>One of the <a href="https://www.supremecourt.gov/about/biographies.aspx">two new justices</a> sitting on the Supreme Court hearing the cases of LGBT workplace rights, Justice <a href="https://www.britannica.com/biography/Neil-Gorsuch">Neil Gorsuch</a>, employs <a href="https://www.politico.com/magazine/story/2019/10/15/lgbt-discrimination-supreme-court-gorsuch-textualism-229850">textualism</a> and <a href="https://time.com/5670400/justice-neil-gorsuch-why-originalism-is-the-best-approach-to-the-constitution/">originalism</a> in judicial interpretation.</p>
<h2>A path to LGBT rights</h2>
<p>LGBT rights weren’t debated as part of the original Title VII, suggesting that Gorsuch and other judges inclined to originalism would not consider them protected by the act.</p>
<p>If the Supreme Court could find pregnancy discrimination was not “because of sex” and required an amendment to Title VII to prohibit pregnancy discrimination, it suggests that the Court could interpret the <a href="https://www.acslaw.org/expertforum/understanding-the-role-of-textualism-and-originalism-in-the-lgbt-title-vii-cases/">protected class of sex very narrowly</a>.</p>
<p>However, <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3244473">critics reject</a> this “original meaning” approach to Title VII interpretation related to LGBT rights.</p>
<p>And it is true that the court’s interpretation of the meaning of sex discrimination within Title VII – case law that has developed over more than 50 years – includes Supreme Court decisions that offer broader meaning to its language, specifically with regard to sex-stereotyping.</p>
<p>In 1989, the court held that Title VII prohibited an employer from denying opportunities to a woman based on “<a href="https://www.economist.com/democracy-in-america/2019/04/30/does-the-civil-rights-act-protect-gay-and-transgender-workers">stereotypical notions about women’s proper deportment</a>” in <a href="https://caselaw.findlaw.com/us-supreme-court/490/228.html">Price Waterhouse v. Hopkins</a>.</p>
<p>In that case, Ann Hopkins received advice from her employer that, if she wanted to make partner at the firm, <a href="https://caselaw.findlaw.com/us-supreme-court/490/228.html">she should act more feminine</a>. The Court’s ruling meant that negative employment actions by an employer based on employee’s gender non-conformity are prohibited under Title VII.</p>
<p>Title VII protections expanded further with <a href="https://caselaw.findlaw.com/us-supreme-court/523/75.html">Oncale v. Sundowner Offshore</a> in 1998 when a unanimous Supreme Court held that same-sex harassment is sex discrimination under Title VII. The case involved a man working on an oil rig being bullied by other men because he was considered effeminate.</p>
<p>The majority opinion was written by Justice <a href="https://www.supremecourt.gov/about/biographyScalia.aspx">Antonin Scalia</a>, then the <a href="https://www.law.virginia.edu/news/2010_spr/scalia.htm">avowed originalist</a> on the Court. </p>
<p>These precedents in sex-stereotyping and same-sex harassment offer an avenue for the Court to hold that Title VII prohibits discrimination against LGBT individuals in employment.</p>
<h2>Same-sex marriage and the Cakeshop case</h2>
<p>Despite this, some <a href="https://onlabor.org/looking-back-at-justice-scalias-decision-in-oncale-because-of-sex/">lower courts</a> have routinely held that Title VII does not bar discrimination on the basis of sexual orientation.</p>
<p>Lower courts’ inconsistent interpretations of Title VII have resulted in varying rights for employees depending on the location of their workplace. A Supreme Court decision on this question would create the same set of rights for employees across the country.</p>
<p>Just four years ago, the Supreme Court required all states to grant and recognize same-sex marriages in <a href="https://www.oyez.org/cases/2014/14-556">Obergefell v. Hodges</a>. Justice <a href="https://www.law.cornell.edu/supct/justices/kennedy.bio.html">Anthony Kennedy</a>, who wrote the majority opinion in that narrow decision, <a href="https://www.washingtonpost.com/politics/courts_law/justice-kennedy-the-pivotal-swing-vote-on-the-supreme-court-announces-retirement/2018/06/27/a40a8c64-5932-11e7-a204-ad706461fa4f_story.html">has since retired</a> and has been <a href="https://www.vox.com/2018/7/11/17555974/brett-kavanaugh-anthony-kennedy-supreme-court-transform">replaced by Trump appointee Brett Kavanaugh</a>.</p>
<p>Also since the same-sex marriage decision, many states have passed religious liberty statutes and the Court has considered the religious liberty claim on a national level. In <a href="https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-ongoing-challenge-to-define-free-speech/not-a-masterpiece/">Masterpiece Cakeshop v. Colorado Civil Rights Commission</a>, the Court found that <a href="https://harvardcrcl.org/masterpiece-cakeshop-a-hostile-interpretation-of-the-colorado-civil-rights-commission/">a Colorado Civil Rights Commission</a> was hostile toward the religious objections of a cake shop owner who refused services to a couple entering a same-sex marriage.</p>
<p>In that case, the Court was able to issue a narrow ruling that sidestepped the broader First Amendment issues of free exercise of religion and free speech.</p>
<p>Could that happen here? I think the Court is unlikely to sidestep the central question of Title VII’s application to LGBT employees presently under consideration, both because the circuit courts have issued inconsistent rulings and because the justices’ questions during oral arguments squarely addressed the claims.</p>
<p>If I’m right, these cases will be among the most important workplace discrimination cases in decades and will redefine the rights of LGBT employees across the country. The decision is expected in mid-2020.</p>
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<p class="fine-print"><em><span>Julie Manning Magid does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The U.S. Supreme Court will rule on how the Civil Rights Act applies to LGBT people. A business law scholar explains why it could be one of the most consequential discrimination cases in decades.Julie Manning Magid, Professor of Business Law, Indiana UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1205612019-10-08T19:15:07Z2019-10-08T19:15:07ZWorkplace sex discrimination claims are common – but they’re not making it into court<p>Several cases addressing whether it’s legal to fire a worker because of their sexual orientation and gender identity were taken up by <a href="https://www.washingtonpost.com/politics/courts_law/supreme-court-to-decide-if-anti-discrimination-employment-laws-protect-on-basis-of-sexual-orientation-and-gender-identity/2019/04/22/175fca02-6503-11e9-a1b6-b29b90efa879_story.html">the Supreme Court this week</a>.</p>
<p>While these legal questions deserve significant attention, those concerned about equality on the job should not lose sight of the broader, yet equally important issue – the continued prevalence of sex discrimination in the workplace as a whole. </p>
<p>And while workplace sexual harassment has taken center stage in the past couple of years, women are still facing these other longstanding problems of discrimination.</p>
<p>Even if workers successfully convince the Supreme Court that sexual orientation should be protected by federal law, <a href="https://scholar.google.com/citations?user=m-jBTzAAAAAJ&hl=en">my work shows</a> that their fellow employees will still be faced with the daunting task of trying to litigate such claims.</p>
<p>In the vast majority of cases, these claims of discrimination don’t even make it to a court.</p>
<h2>Voices not heard</h2>
<p>Only about 6% of civil rights lawsuits in the U.S. find their way to trial, according to <a href="http://www.americanbarfoundation.org/uploads/cms/documents/jels_final.pdf">a recent study</a> that examined about 1,800 lawsuits filed in federal courts between 1988 and 2003. </p>
<p>The study, discussed in a <a href="http://www.abajournal.com/magazine/article/myths_show_the_harsh_realities_of_civil_rights_litigation/P1">2017 article published in the American Bar Journal</a>, included not just cases of sex discrimination, but also those filed alleging discrimination based on race, age and disability. </p>
<p>Of those that actually did go to trial, only about a third of the plaintiffs won their cases, the researchers found. </p>
<p>That’s at least in part because <a href="https://www.cambridge.org/core/books/supreme-courts-new-workplace/83109F79F885301B81C127B3B693667A">rulings by the U.S. Supreme Court over the past decade have made it harder</a> to file complaints, and have restricted the ability of multiple plaintiffs to bring claims and share costs through a class action lawsuit.</p>
<p>In the most widely publicized example, in 2011 <a href="https://www.npr.org/2011/06/20/137296721/supreme-court-limits-wal-mart-discrimination-case">the Supreme Court overturned</a> a lower court’s decision against Walmart and prohibited more than a million women from making the case that the company engaged in unfair pay and promotion practices.</p>
<p><a href="https://www.supremecourt.gov/opinions/10pdf/10-277.pdf">In the 5-4 decision</a>, the majority said that the women did not have sufficient “commonality” under the law to proceed as a class, arguing that the alleged victims “have little in common but their sex and this lawsuit.”</p>
<p><a href="https://www.law.cornell.edu/supct/html/10-277.ZX.html">Justice Ruth Bader Ginsburg</a> criticized that approach in her dissent, writing that “the ‘dissimilarities’ approach” of the majority led it “to train its attention on what distinguishes individual class members, rather than on what unites them.”</p>
<p>While the courts have been slow to recognize and punish sex discrimination, <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3269469">my research has shown</a> that illegal workplace bias against women is pervasive. </p>
<p>Here are three areas where it is a problem, though this list is not exhaustive.</p>
<h2>1. Pay inequity</h2>
<p>Women make less money than men, as the U.S. women’s soccer team <a href="https://www.cnbc.com/2019/06/19/us-womens-soccer-games-now-generate-more-revenue-than-mens.html">dramatically highlighted</a>. In their lawsuit, they estimate that they are paid <a href="http://money.com/money/5646612/world-cup-2019-womens-soccer-salary-prize-money/">about 38% of what male players earn</a>.</p>
<p>Pay gaps between men and women have existed for a long time. </p>
<p>In 1960, <a href="https://fraser.stlouisfed.org/title/45/item/8131/toc/270056">surveys conducted by the U.S. Department of Labor</a> showed that women working full-time made 60.8% of the median pay that men did. </p>
<p>A male bank teller, for example, “received US$5.50 to $31 per week more than their female counterparts,” while a male machine tool operator “averaged $2.05 per hour compared with $1.71 for women,” according to <a href="https://pdfs.semanticscholar.org/bc53/859f1312c80dce8a94cd1ceb752859882f01.pdf">a 1974 issue of the Boston College Industrial and Commercial Law Review</a>, which examined the previous decade’s enforcement of the Equal Pay Act of 1963. </p>
<p>Today, women <a href="https://www.census.gov/library/publications/2018/demo/p60-263.html">make 80 cents for every dollar a man is paid</a>, according to the most recent data released by the U.S. Census Bureau.</p>
<p>Similarly, <a href="https://money.cnn.com/2016/09/06/news/women-pay-gap-ask/index.html">research</a> by the University of Wisconsin, the Cass Business School and the University of Warwick shows that men are 25% more likely to receive an increase in pay when they ask for it. </p>
<p>By making access to justice much harder for victims of workplace discrimination, the federal courts have created an additional barrier for women seeking equal pay. And my research has outlined the <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3269469">ongoing nature of this pay discrimination</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/296057/original/file-20191008-128668-19o3nve.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/296057/original/file-20191008-128668-19o3nve.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/296057/original/file-20191008-128668-19o3nve.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/296057/original/file-20191008-128668-19o3nve.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/296057/original/file-20191008-128668-19o3nve.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/296057/original/file-20191008-128668-19o3nve.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/296057/original/file-20191008-128668-19o3nve.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/296057/original/file-20191008-128668-19o3nve.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Today, women make 80 cents for every dollar a man is paid.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/download/success?u=http%3A%2F%2Fdownload.shutterstock.com%2Fgatekeeper%2FW3siZSI6MTU3MDU3ODIzNiwiYyI6Il9waG90b19zZXNzaW9uX2lkIiwiZGMiOiJpZGxfMTAxMjcyODI0NyIsImsiOiJwaG90by8xMDEyNzI4MjQ3L2h1Z2UuanBnIiwibSI6MSwiZCI6InNodXR0ZXJzdG9jay1tZWRpYSJ9LCIyT1VuaFZETXd3QWk1cCtnOHNZUlpIZURsck0iXQ%2Fshutterstock_1012728247.jpg&pi=33421636&m=1012728247&src=6tA7-zS7MTeetkU6C4RD5w-1-8">Shutterstock</a></span>
</figcaption>
</figure>
<h2>2. Hiring practices</h2>
<p>Even getting a job that is likely to pay them less is harder for women. </p>
<p>For example, <a href="https://journals.sagepub.com/doi/full/10.1177/0361684314543265">as a study published in the Psychology of Women Quarterly showed,</a> men tend to be perceived more favorably by employers — even when men and women who are trained actors respond to interview questions in the same way. </p>
<p>In perhaps <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3269469">the most famous study in this area</a>, performed by researchers Claudia Goldin and Cecilia Rouse, an orchestra used screens to hide the gender of those auditioning for a position. Women were 50% more likely to advance in the process than they had been when evaluators could see their gender. </p>
<p>Other research has shown that women struggle to get jobs that <a href="https://review.chicagobooth.edu/magazine/summer-2014/why-women-find-it-harder-to-get-math-based-jobs">require high levels of math skills</a>. In those experiments, researchers from the University of Chicago, Columbia University and Northwestern University found that “male and female employers were twice as likely to hire a man than a woman when the only factor they observed was physical appearance.”</p>
<p>These stereotypes persist even in academic settings. </p>
<p>A study by Columbia University researchers <a href="http://ndlawreview.org/wp-content/uploads/2019/02/3-Seiner.pdf">concluded that</a> “prospective doctoral student emails with minority- or female-sounding names received fewer responses from faculty than those with male-sounding names.” </p>
<p>Given the subjective nature of the hiring process, these claims are difficult to prove. </p>
<p>In my research, I trace how <a href="http://ndlawreview.org/wp-content/uploads/2019/02/3-Seiner.pdf">this kind of discrimination persists</a>, and how the subjective nature of the hiring process has caused some of these problems.</p>
<h2>3. Career advancement</h2>
<p>Women also struggle to get promoted after they’re hired.</p>
<p>Even when just as qualified as men, <a href="https://review.chicagobooth.edu/strategy/2016/article/women-are-equally-qualified-rarely-hired">women are 28% less likely to be hired for the job of a corporate CEO</a>.</p>
<p>Childbirth may be a factor in the lack of advancement. </p>
<p><a href="https://money.cnn.com/2016/08/23/news/economy/gender-pay-gap-mothers/index.html">In one study</a> performed by the Institute for Fiscal Studies, researchers found that “Twelve years after giving birth for the first time, women are [still] making 33% less per hour than men.”</p>
<p>Pinning down the exact reason for this is difficult. It may be related to the disproportionate amount of time women spend raising a child compared to men, as well as the <a href="https://www.nytimes.com/2018/02/05/upshot/even-in-family-friendly-scandinavia-mothers-are-paid-less.html">unfounded negative perceptions some employers may have of working mothers</a>.</p>
<p>Yet establishing discrimination claims in the context of the glass ceiling is as difficult as doing so in the hiring process, as these effects often occur over the course of a long period of time. </p>
<p>And as employment discrimination claims are now <a href="https://www.cambridge.org/core/books/supreme-courts-new-workplace/83109F79F885301B81C127B3B693667A">even more difficult to litigate</a>, finding sufficient evidence to bring these cases is harder.</p>
<h2>One prominent – but not unusual – case</h2>
<p>As the U.S. women’s national soccer team competed in the final World Cup match against the Netherlands this summer, <a href="https://www.nytimes.com/2019/07/07/sports/soccer/world-cup-final-uswnt.html">the crowd cheered</a>, “Equal pay! Equal pay!” in the stadium. </p>
<p>This overwhelming support for the players was in response to <a href="https://int.nyt.com/data/documenthelper/653-us-womens-soccer-complaint/f9367608e2eaf10873f4/optimized/full.pdf#page=1">a lawsuit more than two dozen members of the team filed in March</a>, arguing that they are unfairly paid less than the men’s team. </p>
<p>In challenging the pay practices of the U.S. Soccer Federation, <a href="https://qz.com/work/1654504/us-womens-soccer-team-spotlights-pay-inequality-at-the-world-cup/">the women became the latest example</a> of just how pervasive sex discrimination is in the workplace. These teammates were able to draw attention to their cause. </p>
<p>But many other cases of sex discrimination in the workplace languish or are prevented from getting their day in court.</p><img src="https://counter.theconversation.com/content/120561/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joseph A. Seiner does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Supreme Court has taken up several cases of sex discrimination against LGBT workers who were fired from their jobs. But the majority of other cases of sex discrimination rarely make it to court.Joseph A. Seiner, Oliver Ellsworth Professor of Federal Practice & Professor of Law, University of South CarolinaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1239062019-10-03T11:32:25Z2019-10-03T11:32:25ZThis year at the Supreme Court: Gay rights, gun rights and Native rights<figure><img src="https://images.theconversation.com/files/295106/original/file-20191001-173369-1312ex7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Supreme Court begins its newest session on the first Monday in October.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Supreme-Court-Excluding-Black-Jurors/41ba41a9ea8c495abb7e66f16ec322db/27/0">AP/J. Scott Applewhite</a></span></figcaption></figure><p>The Supreme Court begins its annual session on Oct. 7 and will take up a series of cases likely to have political reverberations in the 2020 elections.</p>
<p>Major cases this year address the immigration program for young people (“Dreamers”) known as <a href="https://www.scotusblog.com/2019/09/symposium-the-daca-cases-may-be-the-next-big-test-for-the-roberts-court/">DACA</a>, the <a href="https://www.scotusblog.com/case-files/cases/moda-health-plan-inc-v-united-states/">Affordable Care Act</a> (again), and <a href="https://www.scotusblog.com/case-files/cases/espinoza-v-montana-department-of-revenue/">public money for religious schools</a>. </p>
<p>Justices will also consider cases that involve several aspects of <a href="https://www.scotusblog.com/2019/09/overview-of-the-courts-criminal-docket-for-ot-19-sizeable-and-significant/">defendants’ rights</a>: whether criminal convictions require a <a href="https://www.scotusblog.com/case-files/cases/ramos-v-louisiana/">unanimous jury</a>, <a href="https://www.scotusblog.com/case-files/cases/mathena-v-malvo/">minors can be given a life sentence</a> and <a href="https://www.scotusblog.com/case-files/cases/kahler-v-kansas/">a state can abolish</a> the <a href="https://www.psychologytoday.com/us/blog/inconvenient-facts/201909/the-insanity-defense-the-supreme-court">insanity defense</a>.</p>
<p>Some of the most important rulings will address the recognition of rights by the conservative court: gay rights, gun rights and Native rights.</p>
<p>These cases focus on perhaps the deepest divide on the court: Should the justices base their rulings on the contemporary meaning of words in our laws (or in the Constitution itself) as the public understanding of those concepts changes over time? </p>
<p>Or should they insist that our laws can only be changed from their original meaning by the country’s democratic representatives, who are directly accountable to the people?</p>
<h2>Gay rights</h2>
<p>The justices will consider three cases on LGBT employment rights.</p>
<p>Gerald Bostock <a href="https://www.scotusblog.com/case-files/cases/bostock-v-clayton-county-georgia/">was fired</a> by Clayton County, Georgia, because he is gay. Donald Zarda was <a href="https://www.scotusblog.com/case-files/cases/altitude-express-inc-v-zarda/">fired from his job</a> as a tandem sky-dive instructor for being gay (before his <a href="https://www.nbcnews.com/feature/nbc-out/donald-zarda-man-center-major-gay-rights-case-never-got-n852846">death in a BASE-jumping accident</a>). Aimee Stephens transitioned from male to female identity and <a href="https://www.scotusblog.com/case-files/cases/r-g-g-r-harris-funeral-homes-inc-v-equal-opportunity-employment-commission/">was fired</a> from her job as a funeral director.</p>
<p>These cases turn on one word’s meaning: the word “sex” in <a href="https://www.eeoc.gov/laws/statutes/titlevii.cfm">Title VII</a> of the Civil Rights Act of 1964. </p>
<p>Does “sex” mean what legislators thought it meant when the law was passed, barring discrimination against women? Or should it be interpreted more broadly now to mean discrimination against any aspect of sexuality? </p>
<h2>Gun rights</h2>
<p>It has been almost a decade since the court recognized a fundamental right for individual citizens to bear arms. That case was <a href="https://www.scotusblog.com/case-files/cases/mcdonald-v-city-of-chicago/">MacDonald v. Chicago</a>, from the city with the <a href="https://www.thetrace.org/2017/01/chicago-murder-rate-fatal-shootings/">highest total number of gun deaths in the nation</a>. </p>
<p>Since that time, the looming question has been what sort of restrictions would be considered constitutional.</p>
<p><a href="https://www.scotusblog.com/case-files/cases/new-york-state-rifle-pistol-association-inc-v-city-of-new-york-new-york/">New York State Rifle & Pistol Association v. New York City</a> puts this question to the test. Licensed gun owners were prevented from transporting firearms outside of their homes, even to a second home or to a shooting competition outside the city. The court must decide if this is a reasonable regulation that leaves the essential right to bear arms intact.</p>
<p>In the midst of growing concern over mass shootings, the ruling may have ramifications for future attempts at gun regulations.</p>
<p>To raise the political stakes even further, five U.S. senators in their now infamous “<a href="https://theconversation.com/democrats-turn-a-venerable-legal-tool-into-a-declaration-of-war-122175">enemy-of-the-Court</a>” brief threaten that if the court does not dismiss the case, the Senate will have to <a href="https://www.washingtonpost.com/politics/courts_law/warning-or-threat-democrats-ignite-controversy-with-supreme-court-brief-in-gun-case/2019/08/16/2ec96ef0-c039-11e9-9b73-fd3c65ef8f9c_story.html">consider adding more justices to the court in an attempt to shift its partisan balance, known as “packing the Court.”</a></p>
<h2>Native rights</h2>
<p>The least-known but potentially most important case of the year is not about widely-discussed gay rights or gun rights, but about Native rights. </p>
<p><a href="https://www.scotusblog.com/case-files/cases/sharp-v-murphy/">Sharp v. Murphy</a> began as a dispute over jurisdiction in a murder prosecution. But it has become a potentially influential case about who represents the rightful government of Eastern Oklahoma.</p>
<p>The historic reservations of the Cherokee, Chickasaw, Choctaw, Creek and Seminole Nations comprise <a href="https://newrepublic.com/article/147472/grisly-murder-case-turn-half-oklahoma-back-tribal-lands">40% of Oklahoma land</a>. These tribes were forcibly removed from the eastern U.S. to the Oklahoma Territory in the 1830s, some making the journey along the infamous <a href="https://www.history.com/topics/native-american-history/trail-of-tears">Trail of Tears</a>.</p>
<p>Since then, parts of their reservation land have been seized by the state government or <a href="https://www.okhistory.org/publications/enc/entry.php?entry=AL011">sold to private citizens</a>, so they are no longer part of the reservation. This includes the city of Tulsa.</p>
<p>The argument in the case is that <a href="https://www.washingtonpost.com/outlook/2018/11/28/half-land-oklahoma-could-be-returned-native-americans-it-should-be/">according to the original treaties</a> the petitioners are asking the court to uphold, <a href="https://crooked.com/podcast-series/this-land/">those lands</a> are rightfully still under the <a href="https://upfront.scholastic.com/issues/2018-19/012819/who-owns-oklahoma.html#1280L">government of the tribes</a>. What exactly this means in terms of ownership and governance is unclear.</p>
<p>This may at first appear to be a small case about a piece of the American West. But if the Native rights claim is recognized by the court, it may also apply in later cases to a surprisingly large proportion of the United States that was once “<a href="http://tribaljurisdiction.tripod.com/id7.html">Indian country</a>” under official treaties. That is why <a href="https://www.supremecourt.gov/DocketPDF/17/17-1107/55899/20180730151022618_2018.07.30%20-%20Carpenter%20-%20States%20Amicus%20Brief%20FINAL.pdf">10 states filed a friend-of-the-court brief</a> arguing against the Native rights claim.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/295130/original/file-20191001-173393-1qj8jza.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/295130/original/file-20191001-173393-1qj8jza.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/295130/original/file-20191001-173393-1qj8jza.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=353&fit=crop&dpr=1 600w, https://images.theconversation.com/files/295130/original/file-20191001-173393-1qj8jza.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=353&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/295130/original/file-20191001-173393-1qj8jza.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=353&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/295130/original/file-20191001-173393-1qj8jza.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=443&fit=crop&dpr=1 754w, https://images.theconversation.com/files/295130/original/file-20191001-173393-1qj8jza.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=443&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/295130/original/file-20191001-173393-1qj8jza.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=443&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A map submitted as an exhibit in the Supreme Court case about the boundaries of tribal reservations in Oklahoma.</span>
<span class="attribution"><a class="source" href="https://www.supremecourt.gov/DocketPDF/17/17-1107/55211/20180723232609947_17-1107%20J.A.%20Volume%202.pdf">Supreme Court</a></span>
</figcaption>
</figure>
<h2>Bigger implications</h2>
<p>The Native rights claims at issue are not individual rights of the type the U.S. Constitution generally contemplates. They are rights held by an ethnic group. The question of who belongs to the group – and hence <a href="https://www.npr.org/sections/codeswitch/2018/02/09/583987261/so-what-exactly-is-blood-quantum">has access to the group right</a> – is a divisive one because any answer includes some members while excluding others who claim the same identity. </p>
<p>It also is reminiscent of another proposed group right that is being debated in American politics: reparations. This summer the <a href="https://www.nytimes.com/2019/06/19/us/politics/slavery-reparations-hearing.html">U.S. Congress held contentious hearings</a> to discuss possible payments as reparations for slavery.</p>
<p>But payments to whom? Both Native Americans and African Americans share a distinct problem yet to be solved: how to determine who is a member of the group.</p>
<p>So in the case of reparations: Would they be paid only to direct descendants of slaves? To all African American descendants no matter when their progenitors arrived in the U.S.? To all people who have any black ancestors regardless of their current status or wealth? </p>
<p>Many Native tribes use what’s called the “<a href="https://www.pascuayaqui-nsn.gov/index.php/blood-quantum-calculator">blood quantum</a>” <a href="https://www.bia.gov/bia/ois/tgs/genealogy">approach</a>, which forces individuals to document their lineage and proportional ancestry to prove membership. But <a href="https://www.washingtonpost.com/national/which-americans-should-get-reparations/2019/09/18/271cf744-cab1-11e9-a4f3-c081a126de70_story.html">scholars in this area</a> argue that this approach is fraught with complications in many contexts. </p>
<h2>Election 2020</h2>
<p>Democratic presidential hopefuls have already grappled with questions around tribal membership and the country’s history of racism. <a href="https://www.washingtonpost.com/politics/elizabeth-warren-apologizes-for-calling-herself-native-american/2019/02/05/1627df76-2962-11e9-984d-9b8fba003e81_story.html">Sen. Elizabeth Warren</a> has dealt with a damaging controversy over her claims to Native American ancestry. Former <a href="https://www.washingtonpost.com/politics/bidens-tough-talk-on-1970s-school-desegregation-plan-could-get-new-scrutiny-in-todays-democratic-party/2019/03/07/9115583e-3eb2-11e9-a0d3-1210e58a94cf_story.html">Vice President Joe Biden</a> has come under fire for his earlier opposition to reparations.</p>
<p>In terms of both legal and political influence, Sharp v. Murphy is a case with potentially major ramifications. And with the combined focus on politically divisive issues like gay rights, gun rights and Native rights, this year’s docket is likely to have an unusually strong presence in the 2020 campaigns.</p>
<p>[ <em>Like what you’ve read? Want more?</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=likethis">Sign up for The Conversation’s daily newsletter</a>. ]</p><img src="https://counter.theconversation.com/content/123906/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Morgan Marietta does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The upcoming Supreme Court session will address notable cases about the rights of different groups. The cases go to the heart of how U.S. laws protect both individual and group rights.Morgan Marietta, Associate Professor of Political Science, UMass LowellLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1091282019-01-29T11:46:01Z2019-01-29T11:46:01ZWhy women still earn a lot less than men<figure><img src="https://images.theconversation.com/files/255915/original/file-20190128-42594-1fww6zi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Women earn less than men in most occupations, including soccer. </span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Gender-Pay-Gap/9a24d93c03e3434a9890915aa632745b/27/0">AP Photo/Jessica Hill</a></span></figcaption></figure><p>A decade ago, on Jan. 29, 2009, newly inaugurated President Barack Obama signed his first bill into law: the <a href="https://www.eeoc.gov/eeoc/publications/brochure-equal_pay_and_ledbetter_act.cfm">Lilly Ledbetter Fair Pay Act of 2009</a>. </p>
<p>It was the latest legislative effort to close the persistently stubborn gap between how much women and men earn. At the time, <a href="https://www.pay-equity.org/info-time.html">women made just 77 cents</a> of every dollar men earned – a level that hadn’t improved all that much since the 1990s, according to Census data. </p>
<p>While existing laws already prohibited gender-based wage discrimination, the Ledbetter Act gave workers more time to sue employers over the issue. And the hope was that it would make a big difference. </p>
<p>So did it? </p>
<p><a href="https://cjgl.cdrs.columbia.edu/article/en-gendering-economic-inequality/">My research</a> explores the legal hurdles that have prevented women from achieving pay equity with men. Now, 10 years after the act was passed, more work still needs to be done. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/255917/original/file-20190128-108348-1vhrix7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/255917/original/file-20190128-108348-1vhrix7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=442&fit=crop&dpr=1 600w, https://images.theconversation.com/files/255917/original/file-20190128-108348-1vhrix7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=442&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/255917/original/file-20190128-108348-1vhrix7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=442&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/255917/original/file-20190128-108348-1vhrix7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=555&fit=crop&dpr=1 754w, https://images.theconversation.com/files/255917/original/file-20190128-108348-1vhrix7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=555&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/255917/original/file-20190128-108348-1vhrix7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=555&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Obama hands out pens after signing the Lilly Ledbetter Fair Pay Act.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Obama-Equal-Pay/72e5bc86c220491b8120e49e51e34a6c/44/0">AP Photo/Ron Edmonds</a></span>
</figcaption>
</figure>
<h2>Ledbetter’s complaint</h2>
<p>The Ledbetter Act overturned a <a href="https://www.oyez.org/cases/2006/05-1074">Supreme Court case</a> that ruled against Lilly Ledbetter, who worked as an area manager at Goodyear Tire and Rubber for more than 19 years. Over time, her pay slipped until she was earning 15 percent to 40 percent less than her male counterparts.</p>
<p>When an <a href="https://www.self.com/story/lilly-ledbetter-equal-pay-interview">anonymous note tipped her</a> off about the extent of the disparity, Ledbetter filed a pay discrimination complaint under <a href="https://www.eeoc.gov/laws/statutes/titlevii.cfm">Title VII of the Civil Rights Act of 1964</a>, a statute prohibiting employment discrimination on the basis of sex, race, color, national origin and religion. A jury found in her favor and awarded more than US$3.5 million in damages.</p>
<p>The case was appealed all the way to the Supreme Court, which in 2007 <a href="https://www.nytimes.com/2007/05/29/washington/30scotuscnd.html">ruled 5-4</a> that employees must file a complaint within 180 days after their employer makes a pay decision. The fact that the discrimination was embedded in each paycheck and that Ledbetter didn’t know of the disparity for many years did not matter. Time had run out on her claim. </p>
<p>In a <a href="https://supreme.justia.com/cases/federal/us/550/618/#tab-opinion-1962369">vehement dissent</a> read from the bench, Justice Ruth Bader Ginsburg noted that the ruling denied workplace realities. She pointed out that since employees often lack information about pay disparities, which can accumulate slowly over time, they shouldn’t be given such a narrow window in which to file a complaint. </p>
<p>Ultimately, the 111th Congress and President Obama agreed with Justice Ginsburg and nullified the decision. The <a href="https://www.eeoc.gov/eeoc/publications/brochure-equal_pay_and_ledbetter_act.cfm">Ledbetter Act</a> makes clear that the statute of limitations for filing a wage discrimination claim resets with each discriminatory paycheck.</p>
<h2>A disappointing impact</h2>
<p>The law’s impact, however, has been disappointing. </p>
<p>The rate of new wage discrimination cases <a href="https://awl-ojs-tamu.tdl.org/awl/index.php/awl/article/view/11">hasn’t budged</a>, primarily because employees still <a href="http://jlsp.law.columbia.edu/wp-content/uploads/sites/8/2017/03/46-Lyons.pdf">lack information</a> about their co-workers’ pay. Salary discussions <a href="https://www.washingtonpost.com/news/on-leadership/wp/2015/05/05/why-is-it-still-so-taboo-to-talk-about-what-we-make/?utm_term=.56906df6b12d">are taboo</a> in most workplaces, and some employers, like Ledbetter’s, <a href="https://supreme.justia.com/cases/federal/us/550/618/#tab-opinion-1962369">forbid it</a>. </p>
<p>Put simply, a woman can’t file a complaint if she doesn’t know she’s being shortchanged. </p>
<p>Title VII wage claims are hard to prove for other reasons too. Title VII generally requires proof that employers acted with discriminatory intent. However, much discrimination in today’s workplace is not intentional but fueled by <a href="http://theconversation.com/to-achieve-gender-equality-we-must-first-tackle-our-unconscious-biases-92848">unconscious gender stereotypes</a>. </p>
<p>For instance, studies show that <a href="https://georgetownlawjournal.org/articles/220/shifting-sands-of-employment">workers receive better performance evaluations</a> when they conform to gender stereotypes, such as dominance for men and passivity for women. In <a href="http://dx.doi.org/doi:10.2189/asqu.2010.55.4.543">one study</a>, participants were asked to award merit-based bonuses to fictional employees with identical personnel files. Men got higher bonuses than women.</p>
<p>The bottom line: Women today <a href="https://www.census.gov/library/publications/2017/demo/p60-259.html">earn about 80 cents</a> for every dollar men make earn, up just a few cents since 2009. </p>
<p>And for women of color, the <a href="https://www.aauw.org/research/the-simple-truth-about-the-gender-pay-gap/">gap is even starker</a>. Latinas earn 52 cents to the dollar of white men, while African American women earn just 61 cents. Within racial groups, a <a href="https://www.aauw.org/app/uploads/2020/12/SimpleTruth_2.1.pdf">pay gap between men and women persists</a>, although it is narrower. </p>
<p><iframe id="h4yVt" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/h4yVt/2/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<h2>Narrow interpretations</h2>
<p>Of course, employees who believe they are being discriminated against based on gender can also turn to the <a href="https://www.eeoc.gov/laws/statutes/epa.cfm">Equal Pay Act</a>. This act, signed into law in 1963 when women earned only 60 cents for every dollar men earned, does not require a showing of employer intent to discriminate. </p>
<p>The act was the first to <a href="https://www.eeoc.gov/laws/statutes/epa.cfm">prohibit employers</a> from paying men more than women who perform equal work. </p>
<p>The pay gap has since narrowed by about 20 cents, but not because of anti-discrimination laws. The <a href="http://www.pewresearch.org/fact-tank/2018/04/09/gender-pay-gap-facts/">main drivers</a> have been women’s increased educational attainment and entry into the workforce. </p>
<p>The Equal Pay Act hasn’t been effective because <a href="https://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=3789&context=mlr">courts read the law narrowly</a>. They generally require that women plaintiffs identify a man with an identical job and resume for comparison. Given that men and women are tracked into different occupations, this can often be impossible.</p>
<p>Moreover, both Title VII and the Equal Pay Act allow employers to defend pay differentials on the basis of “any factor other than sex.” For example, <a href="https://www.nwlc.org/sites/default/files/pdfs/FactorOtherThanSex.pdf">courts have permitted</a> a limitless array of employer excuses for paying women less that are themselves rooted in gender bias, such as women’s weaker salary bargaining skill, lesser management potential or lower prior salary history.</p>
<p>These statutory interpretations may sound technical, but they matter. <a href="https://www.aauw.org/resource/the-simple-truth-about-the-gender-pay-gap/">They help explain why</a> the gap appears stuck at 80 cents and why <a href="https://www.weforum.org/agenda/2019/01/fairer-tech-industry-for-women-gillian-tans/">some estimate</a> it’ll be <a href="https://iwpr.org/new-census-data-shows-that-the-gender-wage-gap-is-not-closing/">at least until 2059</a> until pay equity in the United States is reached. </p>
<h2>Why it persists</h2>
<p>Another reason the gap is so stubborn is that men and women are steered into <a href="https://digitalcommons.ilr.cornell.edu/key_workplace/1587/">different occupations</a>, and <a href="https://www.washingtonpost.com/graphics/2017/business/women-pay-gap/?utm_term=.39c84976f2ff">male-dominated occupations pay more</a> for comparable work.</p>
<p>Even within a traditionally male field such as computer programming, women are paid less. And, as women move into a field, the <a href="https://www.nytimes.com/2016/03/20/upshot/as-women-take-over-a-male-dominated-field-the-pay-drops.html">entire occupation’s wages sink</a>. </p>
<p>Importantly, economists have found that <a href="https://www.nber.org/papers/w21913">discrimination feeds</a> as much as 38 percent of the gender gap. </p>
<p>Skeptics of the gender gap argue that it results from <a href="https://www.forbes.com/sites/karinagness/2016/04/12/dont-buy-into-the-gender-pay-gap-myth/#646a68e62596">women’s choices to work fewer hours</a> and stay home to raise children. </p>
<p>It’s true, women bear a <a href="https://www.nytimes.com/2017/05/13/upshot/the-gender-pay-gap-is-largely-because-of-motherhood.html">larger responsibility for child rearing</a> and thus may cut back their hours or take time off from the workplace – especially because the United States is the <a href="https://www.washingtonpost.com/news/wonk/wp/2018/02/05/the-worlds-richest-countries-guarantee-mothers-more-than-a-year-of-paid-maternity-leave-the-u-s-guarantees-them-nothing/?utm_term=.a869fcb0e722">only developed country without paid maternity leave</a> and child care is <a href="https://cdn.americanprogress.org/wp-content/uploads/2016/06/17091517/ChildCareCalculator-methodology.pdf">expensive</a>. </p>
<p>But while mothers face a “<a href="http://gap.hks.harvard.edu/getting-job-there-motherhood-penalty">motherhood penalty</a>” in opportunities and pay, fathers reap a “<a href="https://www.nytimes.com/2014/09/07/upshot/a-child-helps-your-career-if-youre-a-man.html">fatherhood bonus</a>.” </p>
<p>And so-called “choices” cannot explain why female <a href="https://www.aauw.org/research/graduating-to-a-pay-gap/">recent college graduates</a> are paid 82 percent of their male counterparts or why the gap widens at the top. Professional women with advanced degrees who work full-time face a <a href="https://www.aauw.org/aauw_check/pdf_download/show_pdf.php?file=The_Simple_Truth">gender gap of 74 percent</a>.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/255920/original/file-20190128-39344-sc7l4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/255920/original/file-20190128-39344-sc7l4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=320&fit=crop&dpr=1 600w, https://images.theconversation.com/files/255920/original/file-20190128-39344-sc7l4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=320&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/255920/original/file-20190128-39344-sc7l4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=320&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/255920/original/file-20190128-39344-sc7l4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=402&fit=crop&dpr=1 754w, https://images.theconversation.com/files/255920/original/file-20190128-39344-sc7l4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=402&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/255920/original/file-20190128-39344-sc7l4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=402&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The American Association of University Women meets with John F. Kennedy as he signs the Equal Pay Act into law.</span>
<span class="attribution"><a class="source" href="https://en.wikipedia.org/wiki/Equal_Pay_Act_of_1963#/media/File:American_Association_of_University_Women_members_with_President_John_F._Kennedy_as_he_signs_the_Equal_Pay_Act_into_law.jpg">Abbie Rowe/JFK Presidential Library and Museum</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<h2>Closing the gender gap</h2>
<p>Closing the gender pay gap is not rocket science – even though recently graduated female rocket scientists <a href="https://www.nsf.gov/statistics/2018/nsf18304/data/tab48.pdf">earn 89 cents on the dollar</a> to their male peers. </p>
<p>Steps that would help include prohibiting employers from using salary history in setting wages, banning employer retaliation against employees who share wage information, providing greater transparency in pay, and revising Title VII and the Equal Pay Act to better address workplace realities.</p>
<p>The proposed <a href="https://www.refinery29.com/en-us/2017/05/153829/what-is-the-paycheck-fairness-act-gender-wage-gap">Paycheck Fairness Act</a> – introduced repeatedly in Congress since 1997 but never passed – would codify many of these remedies at the federal level. And the <a href="https://www.nbcnews.com/politics/white-house/trump-killed-obama-s-equal-pay-rule-what-it-means-n797941">Trump administration suspended</a> an Obama-era requirement that employers report extensive pay data. </p>
<p>While federal efforts stall, several states, including California, Oregon, Massachusetts, Maryland and New Jersey, <a href="http://www.ncsl.org/research/labor-and-employment/equal-pay-laws.aspx">have passed their own laws</a> to close the gap. </p>
<p>The economic gains from closing the gender pay gap are huge. Doing so <a href="https://iwpr.org/publications/impact-equal-pay-poverty-economy/">would add about $513 billion</a> to the economy because of the extra income generated, <a href="https://iwpr.org/wp-content/uploads/2017/04/C455.pdf">reduce poverty</a> and do a lot to support American families since mothers are the <a href="https://iwpr.org/wp-content/uploads/wpallimport/files/iwpr-export/publications/Q054.pdf">sole or primary breadwinners</a> in about half of them.</p>
<p>Passing the Lilly Ledbetter Act was a start, and now we owe it to American workers to enact laws that close the gap once and for all.</p><img src="https://counter.theconversation.com/content/109128/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michele Gilman is affiliated with the ACLU of Maryland and the Women's Law Center of Maryland.</span></em></p>A decade ago, President Obama signed the Lilly Ledbetter Fair Pay Act, the latest legislative effort to close the persistent gap between how much women and men earn. Here’s why it hasn’t made much of a difference.Michele Gilman, Venable Professor of Law, University of BaltimoreLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/974362018-06-05T10:45:24Z2018-06-05T10:45:24ZOnly 1 in 4 women who have been sexually harassed tell their employers. Here’s why they’re afraid<figure><img src="https://images.theconversation.com/files/221641/original/file-20180604-175400-1s3uvak.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Studies suggest few women formally complain about sexual harassment in the workplace. </span> <span class="attribution"><span class="source">andriano.cz/Shutterstock.com</span></span></figcaption></figure><p>On May 30, a <a href="https://www.nytimes.com/2018/05/30/nyregion/weinstein-indicted-rape.html">grand jury indicted</a> Harvey Weinstein on charges he raped one woman and forced another to perform oral sex on him. And new allegations and lawsuits against the movie producer <a href="http://www.post-gazette.com/news/nation/2018/06/03/Harvey-Weinstein-and-his-lawyer-are-sued-by-three-women/stories/201806030192">continue to pile up</a>.</p>
<p>Since the earliest reports of his abuse came out in October, <a href="http://www.bbc.com/news/world-us-canada-44257202">scores of women</a> in Hollywood have taken to social media and shared their own stories of sexual assault and harassment by Weinstein. And thanks to the <a href="https://metoomvmt.org">#MeToo movement</a>, women in a range of professions <a href="https://www.cbsnews.com/news/metoo-more-than-12-million-facebook-posts-comments-reactions-24-hours/">have also found their voices heard</a>, helping topple dozens of other once-powerful men in entertainment, media, sports, business, <a href="http://www.chicagotribune.com/lifestyles/ct-me-too-timeline-20171208-htmlstory.html">politics</a> and the <a href="https://www.nytimes.com/2017/12/18/us/alex-kozinski-retires.html">judiciary</a>.</p>
<p>But a question #MeToo has been asking since the beginning is how will this affect the lives of women far from the high-powered worlds of Hollywood and Washington. Is this making it any easier for a low or mid-wage worker in middle America to rid her workplace of a sexual harasser? </p>
<p>One important way of doing this is by making an official complaint to the employer. But while women will often complain to family or even on social media, most don’t tell their companies of the misconduct. In fact, barely 1 in 4 ever do. </p>
<p>How come?</p>
<p>Based on experience litigating sexual harassment cases as well as <a href="https://scholar.google.com/citations?user=ZCyGIBYAAAAJ&hl=en">my research</a>, I have determined there are three <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1004120">legal barriers</a> that stand in the way of workers filing complaints – a critical step to rooting out harassment and protecting employees. </p>
<h2>Few formally complain</h2>
<p>About 30 percent of U.S. workers who experience sexual harassment informally talk about it with someone at the company, such as a manager or union representative, while far fewer lodge formal complaints, according to a <a href="https://www.eeoc.gov/eeoc/task_force/harassment/">2016 Equal Employment Opportunity Commission report</a>. In addition, 75 percent of those who do formally complain say they face retaliation. </p>
<p>This is one reason for the success of #MeToo. It’s providing the kind of effective sexual harassment complaint forum that employees do not believe they have in their workplace. </p>
<p>Besides a fear of reprisal, the EEOC report cites several other reasons why employees usually don’t come forward, such as concern that they won’t be believed or the company training manual didn’t explain how to properly identify or address sexual harassment. </p>
<p>This is a big problem because if employees who have been sexually harassed don’t file formal complaints with their companies – without suffering retaliation – it is nearly impossible for employers to take action against the harasser or protect the worker. Furthermore, it becomes hard to hold an employer legally responsible if it fails to do either.</p>
<p>So while it’s positive that more women are sharing their own stories on social media and elsewhere, it can’t replace the formal employee complaint process. </p>
<h2>Three barriers</h2>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/221643/original/file-20180604-175407-1u72gat.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/221643/original/file-20180604-175407-1u72gat.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/221643/original/file-20180604-175407-1u72gat.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=740&fit=crop&dpr=1 600w, https://images.theconversation.com/files/221643/original/file-20180604-175407-1u72gat.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=740&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/221643/original/file-20180604-175407-1u72gat.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=740&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/221643/original/file-20180604-175407-1u72gat.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=929&fit=crop&dpr=1 754w, https://images.theconversation.com/files/221643/original/file-20180604-175407-1u72gat.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=929&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/221643/original/file-20180604-175407-1u72gat.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=929&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The #MeToo movement has given women a forum for talking about sexual harassment.</span>
<span class="attribution"><span class="source">Rainmaker Photo/MediaPunch/IPX</span></span>
</figcaption>
</figure>
<p>Courts have erected three legal hurdles that discourage employees from filing complaints about sexual harassment. </p>
<p>One barrier is that courts have too narrowly defined sexual harassment when it involves a hostile work environment under <a href="https://codes.findlaw.com/us/title-42-the-public-health-and-welfare/42-usc-sect-2000e-2.html">Title VII of the Civil Rights Act of 1964</a>. It’s only deemed illegal when it involves unwelcome sexual conduct sufficiently “severe or pervasive” to alter the employee’s employment conditions.</p>
<p>Employees often don’t complain because they fear they won’t be believed that the harassment was sufficiently “severe or pervasive” enough to be legally actionable.</p>
<p>And who can blame them. <a href="https://caselaw.findlaw.com/us-8th-circuit/1068739.html">One court</a> found that a manager rubbing the shoulders, back and hand of an employee, accusing her of not wanting to be “one of my girls” while physically grabbing her, calling her “baby doll” and telling her she should be in bed with him were not sufficiently “severe or pervasive.”</p>
<p>These actions can be harmful and place women as subordinate in the workplace and, unregulated, lead to even more harmful actions. As such, I believe <a href="http://scholars.law.unlv.edu/nlj/vol14/iss3/2/">courts need to stop finding</a> such misconduct as “ordinary” or “de minimus” – a legal term meaning too trivial or minor to merit consideration.</p>
<p>Another hurdle is that employers have been largely shielded from liability when an employee complains of a hostile work environment that fosters sexual harassment. That’s because in 1998 the <a href="https://caselaw.findlaw.com/us-supreme-court/524/775.html">U.S. Supreme Court</a> gave employers a <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1004120">powerful defense</a> in such cases. </p>
<p>Specifically, if a company “exercised reasonable care to prevent and promptly correct any sexually harassing behavior” and the employee “unreasonably failed to take advantage of any preventive or corrective opportunities,” the employer would not be liable even though the worker was, in fact, sexually harassed.</p>
<p>Under this defense, courts have found that if an employer has an anti-sexual harassment policy, and the employee doesn’t complain, the employer generally won’t be found liable. This sounds reasonable, right? </p>
<p>Unfortunately, some employer <a href="https://www.eeoc.gov/eeoc/task_force/harassment/">policies</a> meet the bare legal requirements while doing little to eradicate sexual harassment or encourage complaints by workers. And without <a href="https://www.eeoc.gov/eeoc/task_force/harassment/">effective training</a> about sexual harassment and how to complain about it, employers’ policies stating “zero tolerance” for sexual harassment are meaningless. </p>
<p>Finally, I believe the laws punishing <a href="https://codes.findlaw.com/us/title-42-the-public-health-and-welfare/42-usc-sect-2000e-3.html">retaliation</a> are not strong enough. </p>
<p>Taking sexual harassment seriously means employers should not fire, demote or ostracize a worker who complains about sexual harassment as <a href="https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm#_ftnref65">they often do</a>. And while the law on the books purportedly protects complainants, courts have told workers that the protection is only for those who reasonably believe they were illegally sexually harassed. </p>
<p>This puts women back in the gray area of determining what is “severe or pervasive.” As I noted above, a manager rubbed an employee’s body, called her “baby doll” and expressed a desire to have sex with her. If that’s not deemed to be sexual harassment, how can employees complain with confidence that they will be protected? </p>
<h2>It’s time to toughen laws</h2>
<p>What can be done about this? </p>
<p>The good news is that Congress is already considering changes to sexual harassment law.</p>
<p>For example, Sens. Kirsten Gillibrand and Lindsey Graham <a href="https://www.nytimes.com/2017/12/19/technology/microsoft-sexual-harassment-arbitration.html">have introduced</a> a bill to permit sexually harassed workers to litigate their cases in open court rather than be bound by private arbitration. The laudatory bill would prevent employers from keeping harassment or harassers secret from other workers. </p>
<p>But I believe lawmakers should go further by amending Title VII to expand and clarify what sexual harassment really is beyond “severe or pervasive,” strengthen worker protections against retaliation and require employers to create more effective policies and training. </p>
<p>The EEOC and other researchers have identified <a href="https://www.nytimes.com/2017/12/11/upshot/sexual-harassment-workplace-prevention-effective.html">innovative methods</a> to address sexual harassment, such as a reward system for increased complaints, promoting more women, bystander intervention and civility training. Congress should pay attention and encourage these methods while also toughening existing law. </p>
<p>Inspired by #MeToo, Congress could help eradicate sexual harassment.</p><img src="https://counter.theconversation.com/content/97436/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Margaret E. Johnson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Courts have created three legal barriers that have made it much harder for workers to complain to their employers about sexual harassment.Margaret E. Johnson, Professor of Law and Co-Director, Center on Applied Feminism, University of BaltimoreLicensed as Creative Commons – attribution, no derivatives.