To send content items to your account,
please confirm that you agree to abide by our usage policies.
If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account.
Find out more about sending content to .
To send content items to your Kindle, first ensure firstname.lastname@example.org
is added to your Approved Personal Document E-mail List under your Personal Document Settings
on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part
of your Kindle email address below.
Find out more about sending to your Kindle.
Note you can select to send to either the @free.kindle.com or @kindle.com variations.
‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi.
‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.
Chapter 1 demonstrates that employment discrimination law is not neutral or objective, favoring employers’ interests over those of employees as victims. It introduces fifteen US federal cases, rewritten using feminist perspectives and techniques, as well as only information available at the time of the original opinions. Commentaries accompany each opinion, explaining differences from the original and differences the rewritten opinion would have made to employment discrimination law. The chapter summarizes these cases and argues that the opinions, as rewritten: better narrate victims’ stories; improve the law around proving discrimination; diminish appearance regulation and encourage diversity in workplaces; eliminate the “double bind”; recognize LGBTQ+ rights in the workplace; prevent sex- and gender-based harassment; offer insight into intersectional approaches; and recognize the implicit bias and stereotypes that cause discrimination. This chapter also briefly examines the issues in employment discrimination law that this book does not discuss in depth, such as age and disability discrimination, predispute arbitration clauses, and discrimination by religious employers.
Chapter 7’s four rewritten cases deal with proof of systemic disparate treatment and impact discrimination. The rewritten Sears opinion rejects expert testimony that blamed women’s lack of interest in commission-based sales for the dearth of women employed in those jobs, characterizes this testimony as sex stereotyping, and holds that courts may not rebut strong statistical showing by plaintiffs in pattern or practice cases with sex stereotypes. Rewritten AFSCME exposes implicit bias in the market forces causing a pay gap between men and women, and narrates the real-life stories of the women whose pay was substantially lower in jobs of equal value to those of male colleagues. Rewritten Ricci holds that white plaintiffs who challenge an employer’s failure to use a test with a disparate impact on black and Latino employees must show that the employer lacked an actual and reasonable belief that it would be subject to liability for disparate impact if it used the test. Rewritten Wal-Mart certifies a large class of female employees, and holds that a showing of intent is not necessary when the statistics demonstrate discriminatory outcomes and the employer fails to rectify the problem.
Chapter 6 concludes that discrimination based on sexual orientation, gender identity, or gender expression is sex discrimination under Title VII. In Etsitty v. Utah Transit Authority, the Tenth Circuit held that a bus company did not violate Title VII when it fired a transgender driver for using women’s restrooms along her route. The court concluded that discrimination based on transgender status does not violate Title VII’s prohibition of discrimination “because of sex,” and that the plaintiff was fired because of bathroom use, not discrimination. The rewritten opinion reverses course: the employer’s behavior violated both Title VII and the Equal Protection Clause. Hively v. Ivy Tech Community College held that discrimination based on sexual orientation is illegal sex discrimination. The rewritten opinion arrives at the same conclusion, but offers a more humanistic lens through which to view the legal question posed. The rewritten opinion relies on several legal theories to support its conclusion, including but-for causation, sex stereotyping, sex-plus, associational (or relationship) discrimination, and a unique use of the motivating factor provision in Title VII.
Chapter 8 rewrites Clark County School District v. Breeden, which held that the plaintiff’s retaliation claim under Title VII failed because no reasonable person could believe that a single incident of harassment violated Title VII. The rewritten opinion, exposing the bias many women suffer in the workplace as a result of micro-aggressions and using the perspective of a reasonable person in the plaintiff’s shoes, holds that complaining about even a single incident of harassment is sufficient to constitute a reasonable belief that the plaintiff is experiencing harassment. The rewritten opinion also broadens the causation element in retaliation cases in two ways. First, it refuses to set a bright-line rule for the passage of time between the protected activity and the adverse employment action. Second, it allows mixed-motive causation rather than but-for causation, which would make retaliation claims easier to win and would have eliminated the Nassar case, where the Court held that plaintiffs had to prove that retaliation was the but-for cause of the adverse employment action.
In Chapter 5, Meritor Savings Bank, FSB v. Vinson and Oncale v. Sundowner Services deal, respectively, with the proof standards for sexual harassment and the question of whether and when Title VII forbids same-sex harassment. The rewritten Meritor dramatically alters the standard for employer liability, holding employers strictly liable for sexual harassment by supervisors, with no affirmative defense. Rewritten Oncale concludes that same-sex harassment (and hence harassment based on sexual orientation and gender identity) are illegal sex discrimination that occur “because of sex.” By making employers strictly liable, the rewritten Meritor would have effectively precluded hundreds of subsequent lower court cases and two Supreme Court cases. While the original Oncale openly refused to relate the egregious harms that the plaintiff had allegedly suffered, the rewritten opinion employs feminist storytelling techniques to demonstrate the harms suffered by the male plaintiff at the hands of his male coworkers. It explains that harassment by men of other men often occurs because of societal pressures on men to prove their masculinity and to police the boundaries of sex and sexuality.
Chapter 3 rewrites two cases that deal with pregnancy discrimination: International Union, UAW v. Johnson Controls, and Young v. United Parcel Service, Inc. The original Johnson Controls case struck down a broad fetal protection policy forbidding women of childbearing age from working in jobs with lead exposure, but the Court failed to acknowledge the hardships of the individual women excluded, ignored evidence that men’s offspring also suffer harm from excess lead exposure, and failed to suggest cleaning up workplaces with toxic substances, rather than excluding employees from valuable jobs. The rewritten opinion cures these omissions and disavows the stereotypes of a policy assuming that all women are potentially mothers. The feminist judgment in Young holds that an employer providing accommodations for employees with physical restrictions similar to those of pregnancy must provide the same accommodations to a pregnant employee. It highlights the history of discrimination against pregnant women – a significant cause of women’s subordination in the workplace, with many women forced to quit as a consequence of employers’ shortcomings.
Chapter 4 examines three cases highlighting intersectional approaches to appearance discrimination. The rewritten Jespersen v. Harrah’s Operating Co. exposes the harm caused when employers have gender-specific grooming policies. It rejects the unequal burdens test and concludes that any sex-specific grooming policy violates Title VII unless the policy is a bona fide occupational qualification (BFOQ). The rewritten opinion of EEOC v. Catastrophe Management Solutions holds that refusing to hire black women who wear their hair in locs is race discrimination under Title VII. It explores the history of discrimination against black women because of their hair and eliminates the immutability requirement, confirming that discrimination against race-related cultural practices is race discrimination. Finally, the rewritten opinion in Webb v. City of Philadelphia reverses the lower court’s grant of summary judgment to a City that fired a Muslim female police officer because she wore a religious headscarf. The rewritten opinion focuses on the intersectional harm based on sex and religion, and concludes that the City offered no evidence of harm at all, much less evidence of undue burden.
Chapter 2 demonstrates how the US Supreme Court could have used the feminist technique of storytelling by rewriting Desert Palace v. Costa from the perspective of the plaintiff, who received a jury verdict in her favor in the district court. The feminist judgment corrects the Supreme Court’s willingness to allow the defendant to write the plaintiff’s story by detailing the egregious facts in the case that shed light on the gendered treatment she suffered – treatment that included repeated severely hostile behaviors among her coworkers and differential treatment by her supervisors. The rewritten opinion gives the reader a significantly different view of the case from that offered by the original opinion. The rewritten opinion demonstrates that the feminist method of storytelling illuminates the ways in which the facts occurred in the real world, and in doing so creates a counterbalance to the supposedly “neutral” and “objective” view that the Court originally presented.
How would feminist perspectives and analytical methods change the interpretation of employment discrimination law? Would the conscious use of feminist perspectives make a difference? This volume shows the difference feminist analysis can make to the interpretation of employment discrimination statutes. This book brings together a group of scholars and lawyers to rewrite fifteen employment discrimination decisions in which a feminist analysis would have changed the outcome or the courts' reasoning. It demonstrates that use of feminist perspectives and methodologies, if adopted by the courts, would have made a significant difference in employment discrimination law, leading to a fairer and more egalitarian workplace, and a more prosperous society.
Email your librarian or administrator to recommend adding this to your organisation's collection.