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This chapter explores both the power and the limitations of neutrality arguments in the context of sex discrimination law. It explains why courts have never equated sex equality with formal sex blindness and demonstrates why recent expansions in the coverage of sex discrimination law seem unlikely to reflect a new or heightened commitment by courts to formal neutrality.

This chapter explores the focus on status, as opposed to conduct, in American antidiscrimination law. It argues that an expanding conception of gender as status is driving the current protection of gender nonconformists in contemporary sex discrimination jurisprudence. Moreover, the chapter contends that such protection, while important for individuals and groups, poses significant, and as yet largely unrecognized, dangers to women and men generally from increasingly entrenched, encompassing, and stereotypical gender categories.

This chapter explores the extent to which courts’ expanding protection for gender nonconformists in the workplace reflects, as judicial rhetoric often suggests, a judicial commitment to freedom of gender expression more generally. The chapter concludes that courts are not, in fact, committed to protecting freedom of gender expression in the workplace and, indeed, that such unfettered freedom is both theoretically incoherent as a form of sex discrimination protection and practically unworkable.

This chapter focuses on the rise of feminism in the 1960s and the downfall of single-sex protective laws. Protection's downfall rested not on the Equal Employment Opportunities Commission (EEOC), but rather on the courts—on women employees who sued for equal rights in federal courts under Title VII and the lawyers who represented them; on pressure from feminist organizations, notably the National Organization for Women (NOW), that supported the plaintiffs; on a series of court decisions that upset protective laws; and on a mounting consensus among judges in favor of equal rights. Also important was feminist resurgence, which swayed conviction; shifts in public opinion culminated in the passage in Congress of an ERA in 1972. Single-sex protective laws were thus the first casualties of the new feminism. Once central to the women's movement, they became obstacles on the path to equal rights.

This chapter charts the remarkable course and expansion of Title VII’s prohibition on sex discrimination. It follows the path of this exclusively judge-made expansion of law from the Supreme Court’s seminal pronouncement against sex stereotyping in Price Waterhouse v. Hopkins to courts’ reliance on Price Waterhouse to prohibit discrimination against men perceived as inappropriately feminine and against transsexuals. The chapter also explores the limits of the current expansion and highlights courts’ struggle to explain why the prohibition on sex stereotyping does not also lead to protection for workers from sex-specific grooming codes.

This chapter describes the contributions of Julius Chambers and his partners, most particularly Robert Belton, to the LDF's national litigation campaign to enforce Title VII of the Civil Rights Act of 1964, which new law outlawed racial discrimination in the workplace effective July 1965. In October 1965, Chambers filed the nation's first-ever Title VII suit, and soon after filed three additional cases which, when ultimately decided years later, substantially ended overt racial discrimination in American workplaces. These critical victories included Supreme Court triumphs in Griggs v. Duke Power (1971) and Albermarle Paper Co. v. Moody (1975), and the Fourth Circuit's Robinson v. Lorillard Corp. (1971). Griggs, recognized as the era's landmark employment ruling, established the "disparate impact" standard for adjudicating employers' use of "intelligence" tests and other pre-employment screening mechanisms. Together, Griggs, Moody, and Robinson did much to define the federal courts' interpretations of Title VII in a fashion that both opened workplaces to black job seekers and offered some compensatory remedy to those who had suffered under racially discriminatory workplace schemes. By these efforts, Chambers, his partners, and the LDF would leave the American workplace forever changed.

This chapter examines the Title VII exemptions from discrimination that are granted to religious organizations. The Civil Rights Act of 1964 exempts religious organizations from much of Title VII's prohibition against employment discrimination on the basis of religion. Schools operated by religious organizations were granted their own exemption. Thus Title VII authorizes religious organizations and schools to use religious preferences—preferences that would otherwise be discriminatory—in the employment process. This chapter considers a number of court cases that highlight the conflict between the interest of government to eradicate religious discrimination in the workplace and the right of the church to manage its own affairs without governmental interference. It also explores a host of issues such as whether the Title VII exemptions allow a school that teaches a certain religious faith to discriminate against an employee of another faith solely because her conduct does not conform to the mores of the faith taught by the school.

This chapter examines the ways in which antisubordination concerns augment those about the need for neutrality in contemporary antidiscrimination jurisprudence. It explains how antisubordination concerns play out in sex discrimination cases and shows that such concerns motivate protections for women from double binds and sexualized workplace demands, but do not seem to motivate or explain new protections for gender nonconformists or transsexuals.

This chapter examines the provisions of Title VII of the Civil Rights Act of 1964 that provide workers with basic protections against acts of religious discrimination. Title VII prohibits religious discrimination based on race, sex, or national origin. It obligates an employer to eliminate all religious discriminatory animus from employment decisions involving the hiring, promotion, layoff, transfer, discipline, job assignment, compensation, discharge, and other working conditions of its employees. This chapter first considers the employer's obligation to its workers regarding religious discrimination before explaining how a worker alleging religious discrimination may establish a Title VII claim. It then considers a number of relevant court cases, including the ones involving Wallace Weiss, Paul Rosen, and Wamiq Sattar. It also discusses religious discrimination claims based on a “hostile work environment”.

This chapter explains that the book combines masculinities research with feminist legal theory, critical race theory, and intersectionality and multidimensionality theories to enhance understanding of multidimensional masculinities theory and its relevance to workplace law. It observes that the book applies multidimensional masculinities theory to employment discrimination law of Title VII, and posits two essential concepts: 1) employment discrimination law should provide broad remedies to those experiencing discrimination based on protected characteristics; and 2) judges’ and juries’ reliance on common sense to evaluate behavior and decisions in the workplace is problematic because it allows implicit biases to distort decision makers’ perceptions, and may lead to inaccurate decision making. The chapter also argues that even in the absence of judicial use of masculinities research, employers should become familiar with masculinities research and work to eliminate masculine structures and performances from their workplaces.

Chapter 7 evaluates the efficacy of modern antidiscrimination law. It explains how Title VII of the 1964 Civil Rights Act never contemplated juvenile workers. State fair employment practices statutes (FEPS) that often mirror Title VII also fail to address working minors. Under almost all of these statutes, a target’s consent to sex insulates the employer from liability. Because federal and state laws do not account for teen behavior, they prompt odd results in civil courts when jurists conflate adolescent developmental capacity with legal capacity and actual “consent” with legal consent. Antidiscrimination laws, originally implemented to foster equality, now must redress the intersectional biases, power imbalances, and corrupting manipulations of adults who target teenagers. This chapter examines public policy and the application of workplace antidiscrimination law. In particular, Chapter 7 examines the decision in one teenage male’s case to trace how and why the law fails to protect American adolescents adequately.

This chapter discusses the growing apprehension of possible tensions between the First Amendment and Title VII's prohibition of sexual harassment. The issue was the subject of a panel discussion at the 1998 annual meeting of the American Association of Law Schools. Eugene Volokh, a noted scholar in the area, argued that Title VII's ban on sexual harassment imposed repressive legal regulation upon expression that would otherwise plainly merit constitutional protection. Catharine MacKinnon, who was also on the panel, responded to Volokh that discriminatory acts, even if perpetrated through words and pictures, had not heretofore been deemed protected by the First Amendment. She argued that words and pictures which caused the harm of discrimination ought to be regulated by the law, whether the harm occurred inside or outside the workplace. In contrast, Volokh contended that indecent and pornographic speech which merited First Amendment protection outside the workplace should not lose that protection inside it.

Chapter 4 examines how plaintiff Celio Diaz successfully used Title VII of the 1964 Civil Rights Act to reverse the airlines’ female-only hiring practices. Diaz’s legacy affirms that queer Americans were deeply invested in the civil rights movement of the 1960s, even if they were often unwelcome. The chapter traces the entanglements of male flight attendants with civil rights law from the dawn of Title VII to the final decision in Diaz v. Pan Am. In this light, I treat the Diaz case as an important precursor to future queer equality victories, as it limited social conservatives’ use of homophobia to block gender-based civil rights and prevent the inclusion of gays and lesbians in mainstream society.

This chapter examines the general principles that underlie an employer's duty to reasonably accommodate the religious beliefs and practices of its employees. Title VII originally did not provide for accommodation, but in the Equal Employment Opportunity Commission's (EEOC) first promulgated guidelines, employers were required to accommodate the “reasonable religious needs” of their employees “where such accommodation can be made without serious inconvenience to the conduct of [their] business.” The EEOC later revised its guidelines to provide that accommodation is required whenever it “can be made without undue hardship on the conduct of the employer's business.” In 1972, Congress added a provision for accommodation to Title VII itself that reflected the EEOC guidelines. This chapter considers how “reasonable accommodation” and “undue hardship” were addressed by the Supreme Court in the 1977 case of Trans World Airlines, Inc. (TWA) v. Hardison. It also discusses the the EEOC's revised guidelines concerning reasonable accommodation, undue hardship, and de minimis cost.

This chapter examines how the law protects employees from acts of employer retaliation when they are engaged in exercising the rights granted them by Title VII. Employers have a tendency to react negatively to charges of employment discrimination—whether religious, race, sex, national origin, age, or disability. Charges alleging retaliation in violation of Title VII precepts, filed annually with the Equal Employment Opportunity Commission, steadily increased between 1997 and 2009. Title VII makes it unlawful for an employer to retaliate against a worker who charges it with a discriminatory policy or practice or who participates in a legal or administrative proceeding relating to the company's employment policies or practices. This chapter provides an overview of Title VII proscriptions against retaliation as well as the major components of retaliation. It also considers court cases that center on issues that normally arise in religious discrimination cases when workers also charge their employers with retaliatory conduct.

This chapter discusses the limits of Title VII, in particular, where it “draws the line” between impermissible workplace sexual harassment and permissible, even if squalid, misconduct. The statute does not clearly tell the Equal Employment Opportunity Commission (EEOC) or the courts where to draw the line, owing in part to the ambiguity of the word “sex,” in part to the lack of a clear policy underlying the prohibition, and in part to the importance of context in drawing such lines. The different meanings and interpretations of sex can entail more than one underlying policy of Title VII, and the application of any one definition or any one policy is influenced by the interpreter's factual and normative understandings. Given these multiplicities, the statutory analysis is mobile, uncertain, and therefore manipulable.

This chapter reflects on issues arising from the practice of religion in the workplace and how to resolve them. Employers and employees will confront complex issues that typically occur in the struggle to protect the rights of those who wish to exercise their religious beliefs while also securing the rights of those who elect not to participate in workplace religious activities. Title VII and the Equal Employment Opportunity Commission (EEOC) have been the primary avenues for resolving religious disputes in the workplace. This chapter considers whether Title VII and the EEOC offer the best ways of resolving religious disputes by focusing on the case of Home Depot, which failed to accommodate the Sabbath observance of one of its workers, Bradley Baker. It argues that dealing with religious matters in the workplace requires common sense, good business practices, and a continuing attitude of respect for all parties involved. It also contends that litigation is not the ideal way for an employer or an employee to cope with offensive or hostile work environment problems.

This chapter explores both the power and the limitations of neutrality arguments in the context of sex discrimination law. It explains why courts have never equated sex equality with formal sex blindness and demonstrates why recent expansions in the coverage of sex discrimination law seem unlikely to reflect a new or heightened commitment by courts to formal neutrality.