Early women’s rights advocates relied on formal citizenship status as a basis for demanding the substantive rights that full citizens enjoy—a broad spectrum of political, personal, and civil rights from suffrage to child custody to property ownership.  Out of the Seneca Falls convention in 1848 came the Declaration of Sentiments, a wish list that would serve as the blueprint for a century of women’s rights advocacy.  The civil and political rights emphasized by those early advocates were essential components of equal citizenship, a substantive concept popularized in the 1950s by British social theorist T.H. Marshall.  But Marshall also identified an important third dimension—social citizenship—which, in the United States, involves access to paid work and economic security.

Pregnancy, with physical effects that often, if only temporarily, impede a woman’s working capacity, is increasingly an obstacle to women’s equal social citizenship.  Conflicts between pregnancy and work escalated in number and degree as women expanded their labor force participation in many respects, including working more and longer while pregnant and holding hazardous and physically strenuous (but often well-paying) jobs traditionally reserved for men.

The Pregnancy Discrimination Act of 1978 (PDA) was part of a broad social movement designed to guarantee equal employment opportunities for women, but was specifically designed to dismantle a system in which states and employers freely, though inconsistently, excluded pregnant women from the workplace or restricted the conditions under which they could work based on false assumptions about their capacity.   Unquestionably, the PDA successfully opened workplace doors for pregnant women, invalidating these laws and policies and giving women a weapon against employment decisions motivated by harmful pregnancy bias.  But women’s equal participation in the workforce requires more than just open doors.

The plight of pregnant workers today rests not primarily in false assumptions about their incapacity but in the failure of current law to account for the physical, medical, and social realities of pregnancy. Pregnancy discrimination law provides absolute protection for women only if they retain full work capacity during the period of pregnancy and childbirth.  In cases of partial incapacity, it provides only a comparative right to accommodations that can be limited in nature and difficult to enforce.

My Article argues that equal citizenship requires not only legal protection from unjustified exclusion from the workforce, but also protection for a pregnant woman’s right to work despite the potential temporary physical limitations of pregnancy.  This protection, in turn, means that employers must be required to provide reasonable workplace accommodations to counter the physical effects of pregnancy.

I.
The Realities Faced by Pregnant Working Women

Perhaps the most important fact about pregnant working women today is the dramatic increase in their numbers.  A general influx of women into the workforce beginning in the 1950s (so substantial that they are now poised to outnumber male workers) set the stage for the eventual increase in labor force participation by pregnant women and mothers.  This, combined with a change in attitudes about the proper role of women, fostered greater workforce participation by pregnant women and mothers.  Today, a majority of pregnant women work outside the home, and the vast majority of working women will become pregnant at some point during their working lives.  And women who do work while pregnant stay longer and return sooner than women from earlier eras.

Despite their numbers, however, pregnant women continue to face bias in the workplace. Pregnancy discrimination claims have surged in the past decade, and major companies have found themselves on the receiving end of high-profile lawsuits.  Recent cases show the persistence of stereotyped decision making about pregnant workers, a finding supported by social science evidence.  However, pregnant women may be harmed more by the law’s commitment to pregnancy-blindness than by these residual instances of bias.

There is no inherent conflict between pregnancy and paid work. The workplace has long been plagued by false assumptions about the pregnant woman’s ability to work, but with little attention to relevant scientific data or the advice of individual doctors.  The first science-based guidelines on pregnancy and work, formulated in the 1970s and 1980s, concluded that a woman with an uncomplicated pregnancy can normally work until she gives birth and safely resume work several weeks later.  Since those initial guidelines were published, researchers have undertaken to study further the concrete effects of work on maternal and fetal health.  Despite advances in scientific research, there is still much more to be learned about the effects of work on pregnancy.  We know enough, however, to be concerned about a legal framework that fails to account for the physical effects of pregnancy.

Conflicts between pregnancy and work run both ways—pregnancy can interfere with job performance and job performance can interfere with healthy pregnancy.  These conflicts stem from the inevitable physical changes that accompany a woman’s pregnancy.  Many pregnant women will have difficulty, at various points during pregnancy, performing tasks like heavy lifting, prolonged standing, or rapid movement or complying with inflexible policies about start time, bathroom breaks, or eating on the job.  At the same time, women may encounter hazardous conditions at work even when their own capacity is not impaired.  Pregnant women face three types of potential danger at work: hazardous environmental conditions (contagions, chemicals, etc.), contraindicated physical movements (heavy lifting, for example), and adverse working conditions (night shift work, for example).

II.
Women’s Equal Citizenship

Pregnancy discrimination law, like most contemporary women’s rights issues, has developed under the framework of equality.  The equality model has been enormously helpful in breaking down barriers to the workplace, among other institutions.  But “equality” is hard to define and thus hard to measure, and disagreements over its proper definition have led to significant shortcomings in legal protection for pregnant workers.

This Article thus turns to full or equal “citizenship” as a standard by which to evaluate pregnancy discrimination law.  “Citizenship,” in the words of T.H. Marshall, “is a status bestowed on those who are full members of a community.  All who possess the status are equal with respect to the rights and duties with which the status is endowed.”¹ A “second-class citizen” is someone who is deprived of some essential component of citizenship, despite having an equal formal status.  “Citizenship,” though a contested concept, provides a substantive framework to measure women’s progress towards equality generally, as well as to critique current law’s treatment of pregnant women at work.

The citizenship framework has been criticized for its exclusionary effects, as well as for its focus on rights without an attendant focus on obligations.  This Article acknowledges those criticisms, but defends “equal citizenship” as a useful tool with a long and venerable history in the women’s rights movement.  The exclusionary effects can be addressed both through form—by replacing “citizenship” with terms like “standing” or “belonging,” as many scholars have done—and substance—by committing to the equal “citizenship” of all residents regardless of formal citizenship status.

Despite concerns about its exclusionary effects, the concept of equal citizenship continues to resonate with voters, advocates, legislatures, and judges.  Justice Ruth Bader Ginsburg invoked it in her opinion in United States v. Virginia,² which held that VMI’s all-male admissions policy was unconstitutional: “neither federal nor state government acts compatibly with equal protection when a law or official policy denies to women, simply because they are women, full citizenship stature—equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities.”³ It is this conception of equal citizenship that fuels this Article’s evaluation of current pregnancy discrimination law.

Work is an important component of equal citizenship, and the central feature of so-called “social citizenship.”  Work facilitates political participation, but also has tangible benefits for the individual, including, importantly, the potential for economic security. Women’s quest for social citizenship began in earnest in the 1960s, when advocates targeted a wide range of exclusionary policies and practices that hampered women’s employment opportunities.  Key legislative successes like the Equal Pay Act, Title VII, and Title IX, and significant litigation victories establishing a broad scope for these laws, were dovetailed by the Supreme Court’s embrace of a constitutional right of sex equality.  These developments were fueled by a stark change in social attitudes about women’s proper place and gave rise to a dramatic opening of workplace doors to women.

Despite the intense (and often successful) efforts feminists have deployed to increase women’s access to the workplace, it would be misleading to suggest that there is no disagreement among them about the importance of paid work or its centrality to social citizenship.  While many academics and popular press authors have urged women to embrace paid work as a pathway to independence, others have cautioned that the tendency to valorize work narrowly reflects the perspective of white or upper/middle class women and that the emphasis on work neglects the disproportionate amount of family and care work performed by women.

Regardless of whether one thinks we should push for equal valuation of unpaid work, equal access to meaningful paid work remains an essential, minimum component of equal citizenship.  Yet pregnancy presents a challenge: it often renders women temporarily less capable of performing their jobs, but not necessarily interested in converting their efforts to unpaid labor during or after pregnancy, even if society equally valued that work.

III.
Pregnancy Discrimination Law: From Exclusion to Access

Legal protection against pregnancy discrimination at work was a 1970s invention that brought about a stark turnabout in the treatment of pregnant working women.  An era of exclusion gave way to an era of access, as a legal regime that once permitted employers to bar pregnant women from the workplace with impunity was replaced with one that mandated pregnancy-blindness.

Traditionally women worked at the whim of employers, many of whom excluded pregnant or fertile women.  In 1908, the Supreme Court gave its imprimatur to exclusionary policies designed to protect women’s reproductive function in Muller v. Oregon,⁴ an opinion that led to decades of state protectionist legislation and exclusionary employer policies.  Even after Title VII was adopted, and heightened scrutiny for sex-based classifications was established, the Supreme Court twice gave its approval to laws and policies that discriminated against pregnant women.⁵

Federal pregnancy discrimination law comes from three sources.  First, despite ruling against an equality-based right for pregnant workers, the Supreme Court granted a limited due process right against presumptions of incapacity due to pregnancy.  Second, Congress adopted the PDA in 1978, which, in a first clause, adds pregnancy to the definition of prohibited sex discrimination and, in a second clause, requires that employers treat employees with pregnancy-based disability the same as those “not so affected, but similar in their ability or inability to work.”  Finally, Congress adopted the Family and Medical Leave Act of 1993 (FMLA), which grants a gender-neutral right to limited unpaid leave for illness or family care, which can be used, as needed, for disabilities associated with pregnancy and childbirth.

Feminists split over the proper interpretation of the second clause of the PDA.  The “equal treatment” feminists urged formal equality—pregnant women should receive only what other temporarily disabled workers receive—in order to promote better conditions for all workers and to avoid promoting harmful gender stereotypes.   An opposing coalition, in contrast, urged a substantive equality model, advocating for accommodation of pregnancy and childbirth when necessary to ensure equal outcomes for men and women in workplaces, whether other forms of temporary disability were accommodated or not.  The latter view won out, as the Supreme Court interpreted the second clause, in California Federal Savings & Loan Ass’n v. Guerra,⁶ as a floor, rather than a ceiling, on the benefits that could be made available to pregnant workers.

This ruling, in effect, leaves pregnant workers at the whim of their employers in many cases.  If they provide leave, accommodations, or benefits to temporarily disabled workers generally, they must also provide them to pregnant workers.  Employers can favor the needs of pregnant workers over those of other temporarily disabled workers.  But, if employers are stingy across the board, pregnant workers have little to support a demand for better treatment regardless of necessity.  A “no leave” policy, for example, could be upheld, subject only to the minimal protections of disparate impact law, even if it effectively means that all pregnant employees lose their jobs when it comes time to give birth.

Through these various legal components, pregnant workers have a right to an individualized assessment of their capacity (as opposed to the traditional stereotyped assessments that presumed them incapable by the mere fact of pregnancy).  They also have a right to work if fully capable and their “capacity” cannot be defined by potential risk to fetal health.  This is, in effect, a right of pregnancy blindness—employers must look past the pregnancy and treat them solely based on what they can or cannot do.  When fully incapacitated by pregnancy or childbirth, employees may have the right to leave—a comparative right to leave under the PDA and an absolute right, if eligible, under the FMLA.

IV.
Workplace Accommodations and the Failure of Social Citizenship

Together, these constitutional and statutory developments spelled the end of a number of traditional policies, practices, and stereotypes that had kept pregnant women from entering the workforce or continuing in their jobs during or after pregnancy.  The pregnancy discrimination framework, however, is as notable for its gaps as its coverage.  When only partially incapacitated by pregnancy, a worker’s rights are much more tenuous, and the legal regime often produces unsatisfactory results.  The Americans with Disabilities Act (ADA) generally does not apply to disability arising from normal pregnancy or childbirth.  Likewise, the Due Process Clause, while it has been read to prohibit pregnancy-based stereotyping, does not support any right to workplace accommodations for pregnant workers.  The PDA does not provide pregnant employees with the absolute right to reasonable or necessary accommodations.  An employer cannot deny accommodations because of pregnancy, but nor must it make even minor accommodations, even if the consequence is that the pregnant woman must leave her job.

The pregnant woman’s right to workplace accommodations is comparative, based on the treatment of other temporarily disabled workers.  This right, however, has proven quite limited in practice.  The search for a comparator can be elusive.  Recent cases challenging “light-duty” policies reveal another limit on the comparative right of accommodation.  Many employers reserve light-duty assignments (for example, desk duty for a police officer) for employees injured on the job.  All but one court has upheld such policies, even though this ensures that pregnant workers are always excluded.

In theory, disparate impact law should compensate for some of the shortcomings of the PDA’s comparative right of accommodation by invalidating some of the harsh employment policies that make it difficult for women to work through pregnancy.  But, again, in practice, it has not proven helpful.  Although courts acknowledge the existence of disparate impact liability, many refuse to apply it in its true form to pregnancy cases.  They reject its use to the extent it might result in a pregnant worker being exempted from a general workplace policy or gaining access to an accommodation not otherwise available.  Even when courts are willing to consider disparate impact claims in true form, plaintiffs in pregnancy cases almost always lose because they lack sufficient statistical evidence or are unable to identify an employment “practice” that produced the impact.

The limits on the comparative right of accommodation and disparate impact protection mean, in effect, that pregnant women in many cases do not have the right to continue working if pregnancy has even minimally impaired their capacity.  For those without available leave, the failure to provide reasonable accommodations is tantamount to termination.  Even for those with leave, pregnancy can bring dire economic consequences (especially if the leave is unpaid) and lost opportunities for advancement.  The lack of accommodation means that women will continue to lose ground in the occupations in which they need to gain it most—those traditionally dominated by men.  Studies show that women are less likely to continue working through pregnancy when they hold jobs that require physical exertion.  Moreover, because pregnancy typically comes early in women’s careers, the repercussions of lost training, wages, seniority, or opportunities for advancement can be felt for decades. Pregnancy simply exacerbates the tendency of predesigned and inflexible workplaces and jobs to exclude women as they seek to integrate across the occupational spectrum.

These scenarios bring us back to the initial question posed—whether the pregnancy discrimination framework precludes women from attaining equal social citizenship.  This Article argues that accommodation is the link between pregnant working women and equal social citizenship.  The failure of current law to acknowledge a pregnant woman’s right to work despite temporary, partial impairments or risks systematically undermines the ability of women to attain workplace equality.  It shortcuts the careers of individual women, exacerbates the glass ceiling many women already face, and, perhaps even worse, reinforces a long history of occupational segregation.  This, in turn, is a failure of equal social citizenship because it renders women less able than men to capitalize on their innate talents and capacities because of a unique biological function.  It breathes continued life into a pattern, noted by Justice Ginsburg in her recent dissent in AT&T v. Hulteen, that “[c]ertain attitudes about pregnancy and childbirth, throughout human history, have sustained pervasive, often law-sanctioned, restrictions on a woman’s place among paid workers and active citizens.” ⁷

Accommodation mandates come with risks—resentment, cost, and a deterrent to hiring women, to name just a few.   However, we can learn from mandates in other contexts.  The ADA also provides a natural model for providing workplace accommodations, although judicial interpretations have undermined its intended effects.   Some states have taken a more targeted approach, imposing narrow, but important, pregnancy accommodation requirements on employers.  These mandates demonstrate that we can craft an accommodation right that serves the needs of pregnant workers while minimizing adverse consequences.

Conclusion

The story of pregnant women and work in the United States is an unfinished one.  The current pregnancy discrimination framework has been tremendously important in opening up the American workplace to women, most of whom will both work and become pregnant at some point.  But the same emphasis on individual capacity that was crucial to dismantling the long-held stereotypes about the limitations and incapacities of pregnant women now serves as a stumbling block to future progress towards workplace equality.  The lack of a basic right to reasonable accommodation of pregnancy-related disability overlooks the real physical effects of pregnancy and childbirth on women and their employment opportunities.  Doors have been opened, but not enough has been done to ensure pregnant women can make full use of their innate talents and capacities once inside.  A genuine commitment to equal social citizenship can be carried out only by a legal framework that accounts for both the capacity and the potential incapacity of pregnant women.

Acknowledgments:

Copyright © 2010 Georgetown University Law Center.

Joanna L. Grossman is Professor and John DeWitt Gregory Research Scholar at Hofstra University School of Law.

But if citizens and noncitizens may be treated differently, how differently may they be treated? Most scholars answer this normative question on the basis of doctrine or political theory. Doctrinal accounts attempt to derive noncitizens’ rights from constitutional and legal traditions. Political theories derive noncitizens’ rights from various theoretical conceptions of democracy and citizenship.

Largely overlooked, however, are equally important descriptive questions: Why do governments, such as the U.S. government, grant any rights to noncitizens at all? Why have the rights of noncitizens improved over the years? And why do they still fall short of the rights enjoyed by citizens? If we assume that a state’s policy toward noncitizens reflects that state’s own interests, what policies would we predict states to have, and how do we explain variations across states and across time?

 
I.
The Structure of Migrants’ Rights

Migrants’ rights vary along two dimensions. First, they differ in their scope. In the United States, migrants are classified in many different ways, and each class enjoys a different bundle of rights. People who enter the country illegally have certain basic rights—to life, to property, to minimal process—but little more. People who enter legally have more generous rights, but their rights are still more limited than those of citizens. For example, tourists and the spouses of certain migrants have the basic rights to life, property, and criminal and civil process, but they do not have the right to work for pay or to remain in the country beyond the period of their visas. Migrants with work visas have the right to work in certain positions but often no right to change jobs.

Lawful permanent residents have the right to work as well as the other rights described above, but they do not enjoy the right to vote. And whereas citizens cannot be “removed” (exiled), lawful permanent residents and other migrants can be removed (deported) for committing certain crimes, posing a security threat, and so forth. Lawful permanent residents are granted an additional important right: the right to become citizens after they have resided in this country for five years, passed a citizenship exam, and satisfied certain other conditions. Some migrants, therefore, but not others, are granted the right to acquire full citizenship rights through naturalization.

Migrants’ rights also vary along a second dimension: their “strength,” or, more precisely, the difficulty or ease with which the government can change them. At one extreme, rights can be administrative: The executive branch has the sole discretion to determine the rights of migrants and can change them at any time. Rights can also be statutory: Congress determines and changes them. At the other extreme, rights can be constitutional, in which case they may be changed only by amendment or through judicial interpretation of the Constitution. Migrants enjoy all three types of rights. For example, the Constitution sets some basic minima for process rights, which statutes and administrative regulations have elaborated on and extended.

Our full-length Article investigates variations in both the content and strength of migrant rights. It also analyzes one type of right, the right to vote, that cuts across these two categories. Voting rights (as well as other rights of political participation) are important citizenship rights. The holder of voting rights has the power to affect political outcomes by influencing the selection of public officials. In one sense, voting rights are an aspect of the scope of a migrant’s rights: Migrants who can vote have rights that other migrants lack. In another sense, voting rights also affect the strength of a migrant’s rights, including the strength of the voting right itself. Although in theory Congress could eliminate a migrant’s voting right by repealing the statute that created it, doing so would be more difficult than repealing other types of migrant rights because migrants would likely vote against politicians who appeared inclined to repeal their voting rights.

In the United States, migrants rarely gain voting rights upon arrival, and when they do, they are only at the municipal level and are limited. However, in the past, migrants were granted more substantial voting rights at the state level, as we will discuss. Even today, voting rights remain an important aspect of the incentive system used to lure migrants to the United States: Migrants are promised that if they qualify for citizenship and naturalize, they will have the right to vote. We can thus think of contingent, deferred voting rights as an aspect of the bundle of migrant rights.

 
II.
An Optimal Contract Framework for Migrants’ Rights

To explain the content and strength of migrant rights, we borrow the optimal contract framework developed by economists to analyze contractual behavior. Although migrants do not enter into actual contracts with the U.S. government, their relationship with the U.S. government is analogous to a contractual relationship—both sides gain from an implicit deal. The migrant enters the United States, invests in learning English and aspects of American culture, and obtains a return on this investment in the form of higher wages, a share of public goods, and other benefits. The U.S. government—which we use as a stand-in for native citizens—gains from its contracts with migrants in diverse ways: Increased tax revenues from immigrant workers help finance public goods, immigrant labor reduces average labor costs, and the immigrants contribute to cultural and social life.

In thinking about these issues, most people focus on the question of how the government should select among migrants. The world presents a large pool of potential immigrants, and states have to figure out how to separate those immigrants it considers desirable from those it does not. This debate tends to focus on the desirability of certain characteristics such as labor skills and familial relationships with American citizens. But there is another problem of equal importance: how the “migration contract” between the migrant and the U.S. government should be designed once a particular migrant is selected. The main problem for the government is that a migrant who is highly desirable at the time of migration might become undesirable at a later time—for example, if increased unemployment during a recession makes immigrant workers less helpful to the economy. All else equal, the government would like to retain the option to remove any migrant any time events change such that the benefits from the migrant’s presence no longer exceed the costs.

However, the problem with such flexibility is that a migrant will not enter a country, or will enter but decline to sink roots in that country, if she knows that she can be removed at any time. Countries often do best when their immigrants make what we will call “country-specific investments”—like learning the dominant language and developing social networks—but a typically risk-averse migrant will not make such investments if she can be easily removed. Moreover, migrants may worry that the government will wield its removal power opportunistically, trumping up security threats or exaggerating financial downturns in order to justify deportation.

Since governments want migrants to make country-specific investments, it is in their interest to guarantee a migrant’s right to remain even if bad events occur—at least up to a point. It will therefore sometimes be in a nation’s interest to tie its own hands so that it cannot use its deportation power opportunistically. The optimal migration contract balances the government’s interest in flexibility and the migrant’s interest in tying the government’s hands. It can do so in two ways: (1) by granting migrants more or less generous rights, and (2) by making it harder or easier for the government to change those rights.

 
III.
Different Rights for Different Migrants

Our approach helps expand the possibilities for legal design by showing why different packages of rights might be conferred on different groups of migrants. Much existing scholarship suggests that there is a relatively static, hierarchical relationship among various migrants’ rights. On these accounts, rights increase in lock-step with increasing “membership” in the Receiving State. Rights also tend to be arranged hierarchically, with rights like political participation almost always associated with higher levels of membership than rights like occupational freedom. Our account abandons this idea of a lexical relationship among various migrants’ rights.

We also abandon the assumption common in the literature that all migrants should be accorded the same rights. Migrants come with various goals: Some hope to come and work in the Receiving State for a short time, others hope to remain for a long time but expect eventually to return home, and others intend to remain in the Receiving State permanently. Each of these groups of migrants will value rights differently: For some, the right to remain for a guaranteed period of time will be far more important than occupational freedom, while others will have the opposite preferences. As a result, our approach makes it possible to see why we should expect variations among migration contracts—variations that are hard to evaluate within the literature’s existing frameworks.

Our full-length Article builds on the economic approach to immigration law that we developed in an earlier article.¹ In this approach, the relationship between the Receiving State and the migrant is treated as though it were a contractual relationship, which allows one to use ideas from the optimal contract literature in economics. As in all contractual relationships, the two parties have partially overlapping interests. States gain by allowing migrants to enter, and migrants gain by entering states. But each side of the transaction does better by retaining flexibility unavailable to the other. The contracting problem is to choose “terms”—that is, immigration laws—that maximize the joint benefit.

 
IV.
The Precommitment Problem and the Optimal Migrant Contract

A central theme of our full-length Article is that the optimal migration contract between migrant and government—that is, the package of rights that the migrant receives—is shaped by a central precommitment problem: Governments seek to attract migrants with desirable skills and characteristics, but governments also want to maintain flexibility so that the migrants can be expelled or otherwise regulated if circumstances change. However, if governments maintain flexibility, migrants will be reluctant to enter and invest in their relationship with the Receiving State. The optimal migration contract depends on (and hence changes with) a host of exogenous variables. Rights will be weaker, for example, when governments expect that the risk of future adverse events is high. They will be stronger when governments gain a net benefit as migrants make country-specific investments.

Our full-length Article provides a more comprehensive treatment of these exogenous variables and the ways in which they affect the optimal contract between the migrant and the Receiving State. With an understanding of the relationship between these variables, one can explain some of the variation in the rights granted to migrants.

Acknowledgments:

Copyright © 2010 New York University Law Review.

Adam B. Cox is a Professor of Law at the University of Chicago Law School.
Eric A. Posner is the Kirkland and Ellis Professor of Law at the University of Chicago Law School

This Legal Workshop Editorial is based on the following Law Review Article: Adam B. Cox & Eric A. Posner, The Rights of Migrants: An Optimal Contract Framework, 84 N.Y.U. L. REV. 1403 (2009).

Protecting Them from Themselves reveals and analyzes the mutual benefits argument to make three points. First, judges, legislators, and commentators defending contemporary laws and policies frequently claim that restricting rights and opportunities protects women and people of color. The claims appear across a range of contexts, but their common structure has remained hidden from view and critical scrutiny. Second, modern mutual benefits discourse has deep historical roots in widely repudiated forms of discrimination, including slavery, racial segregation, and women’s legalized inequality. Third, the historical deployment of mutual benefits arguments to defend pernicious discrimination creates reason for caution in considering contemporary mutual benefits claims that are now accepted quickly with little evidence, investigation, or debate. Mutual benefits discourse historically operated to rationalize and reinforce discriminatory practices that the nation has since disavowed. Modern mutual benefits arguments must be evaluated carefully or they risk shielding subordination once again.

 
Modern Mutual Benefits Arguments for Limiting Women’s Rights

Protecting Them from Themselves begins by examining contemporary mutual benefits discourse. I first explore how arguments contending that restrictions on women’s legal rights promote women’s welfare have flourished in the modern era, building on the assumption that women’s true interests and ultimate obligations center on marriage and family life. At least twenty-four states, for instance, retain some form of a marital rape exemption. These states criminalize fewer offenses if committed within marriage, punish more leniently the marital rape they do recognize, and/or impose additional procedural barriers to marital rape prosecutions. Legislators, courts, and commentators have explained since the last quarter of the twentieth century that granting wives an unhindered right to pursue marital rape charges would allow women to shatter their marital harmony, destroy their marital privacy, and make marital reconciliation much more difficult. This argument maintains that both husbands and wives are better off if the law limits the criminality of marital rape, although the benefits to men and women differ. Marital rape exemptions protect husbands from prosecution and wives from damage to their marital relationship assertedly more harmful to them than the marital rape itself.

Similar arguments that limiting women’s rights serves women’s best interests have increasingly come to shape antiabortion legislation and the Supreme Court’s abortion jurisprudence. Roe v. Wade (1973)¹ stressed the need to mediate between competing rights and interests: a woman’s right to have an abortion versus a state’s interest in protecting women’s health and the potential life of the fetus. Since Roe, however, the antiabortion movement has recognized in increasingly explicit terms that many Americans are unwilling to criminalize abortion if doing so will harm women. The movement and its government allies have turned more and more to the language of aligned interests rather than competing rights, insisting that both women seeking abortions and people opposed to abortion are better off if the law restricts or prohibits abortion. This argument contends that antiabortion laws protect women from the psychological harm that abortion would inflict upon them and the regret they would and should experience after abortion. The argument visibly influenced the Court’s plurality opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992),² which upheld mandatory waiting periods before abortion and “informed consent” laws designed to persuade women not to have abortions. The Court explicitly endorsed the assumption of regret in Gonzales v. Carhart (2007)³ with little discussion or explanation. Carhart upheld the federal prohibition of an abortion procedure—even where that procedure is the safest method of abortion—on the premise that some women will, and perhaps all women should, come to regret having abortions.

 
Mutual Benefits Arguments Against Affirmative Action

Protecting Them from Themselves next considers modern mutual benefits discourse in the racial context. Arguments that whites and people of color have aligned interests in defeating civil rights initiatives have become increasingly prominent in recent years. For example, the Supreme Court’s initial decisions restricting race-based government affirmative action programs and early academic criticism emphasized the conflicting interests of whites and people of color, and the burdens that affirmative action imposed on whites. But the Court and academic critics abruptly switched focus within just a few years and a few opinions. More recent opposition to affirmative action has stressed that affirmative action policies must be severely restricted in scope and duration because otherwise these policies will harm people of color. This account contends that legal decisionmakers need not choose between competing sides because the people participating in affirmative action programs and the people opposed to those programs have shared interests. People of every race and with every view on affirmative action all purportedly benefit in their own way if affirmative action is first limited and then eliminated.

 
A Legal History of Mutual Benefits Arguments for Sexual and Racial Inequality

Protecting Them from Themselves proceeds to uncover the genealogy of mutual benefits claims, analyzing historical manifestations of mutual benefits discourse. The mutual benefits argument is not a recent innovation devised to respond to the demands of the contemporary civil rights era. It is a long-established claim that defenders of unequal status relations have repeatedly deployed, relying on the argument’s familiarity to bolster its plausibility. The contention that more rights would harm the rights holders appeared prominently in defenses of slavery, racial segregation, married women’s subordination to their husbands at common law, and legislation restricting women’s rights to negotiate about market work. Mutual benefits arguments for sex and race inequality especially proliferated in eras, like our own, when reform movements were vigorously working to improve the status of women and people of color. The reform efforts presumably undermined claims that the law should favor men over women, or whites over people of color. Historical mutual benefits arguments were nominally committed to helping women and people of color. But they consistently and explicitly assumed that women and people of color were unusually poor decisionmakers unable to assess their own interests, that women’s true concerns were confined to domesticity, and that people of color were better off the less they challenged and disturbed white people and white-dominated institutions. Connections between the defenses of slavery, segregation, and women’s legal inequality have rarely been noticed. Highlighting them uncovers important precursors to modern civil rights discourse.

 
Evaluating Mutual Benefits Arguments

The extensive use of mutual benefits claims to support now-rejected forms of discrimination should affect how we assess modern mutual benefits arguments. The fact that historical versions of the mutual benefits claim are no longer convincing does not necessarily mean that current or future expressions of the claim cannot be appropriate. Mutual benefits arguments may sometimes be reasonable and cogent. But the role that mutual benefits arguments played in defending pernicious forms of inequality creates grounds for caution in considering contemporary assertions that women and people of color are better off with limited rights and opportunities. Courts, legislators, and commentators may be predisposed to endorse these assertions quickly with little support, deliberation, or debate because the assertions resonate with a long history of mutual benefits arguments and invoke shared cultural memories of prior mutual benefits claims. The antecedent life of mutual benefits discourse can give modern mutual benefits arguments an inordinate power to persuade that makes explanation and elaboration seem unnecessary. Yet mutual benefits arguments were historically employed to support practices that are now repudiated, and they drew on ways of thinking about women and people of color that are now suspect. Whatever one’s views on the merits of legal paternalism as a general matter, there is reason to be cautious about contentions that all parties benefit when the law denies rights and opportunities to women and people of color.

Protecting Them from Themselves concludes by seeking to stimulate greater conversation about mutual benefits claims that are often accepted too easily. I use the reasons why historical mutual benefits arguments are unconvincing to formulate four practical criteria that judges, legislators, and commentators should apply in evaluating contemporary mutual benefits discourse. These criteria ask whether advocates asserting that rights and opportunities will injure women or people of color are consistent in their arguments, whether they present evidence of harm, whether they rely on narrow assumptions about how women or people of color should behave, and whether they engage with counterarguments and opposing viewpoints. I employ these criteria to assess several modern mutual benefits arguments.

Contemporary claims that women or people of color benefit from limited rights and opportunities have many of the same weaknesses as their historical precursors. First, judges, legislators, and commentators have been very selective in contending that people seeking rights and opportunities can be safely ignored because they fundamentally misunderstand their own interests. The law does not usually assume that people are radically mistaken about how to improve their lives and need to be protected from themselves. But claims that women or people of color will be worse off with more rights and choices are common. Second, the evidence that rights and opportunities harm women or people of color is sometimes questionably reliable, and sometimes simply nonexistent. Third, mutual benefits claims frequently depend on and enforce rigid, historically embedded assumptions about how women and people of color should think, act, and live. Modern mutual benefits arguments, like their historical predecessors, typically take for granted that women should orient their lives toward domesticity instead of male-dominated spheres such as the market. Similarly, contemporary mutual benefits arguments track historical patterns in presuming that people of color are better off the more they accommodate and the less they demand from white society. Finally, modern arguments about mutual benefits to women and men, or to people of color and whites, often avoid acknowledging any possible costs associated with restricting the rights and opportunities open to women and people of color.

History richly documents how mutual benefits claims have long served to rationalize and perpetuate legal hierarchies based on sex and race. This history also suggests criteria that legal authorities and advocates should employ in evaluating modern manifestations of mutual benefits discourse that are now accepted too readily. Applying these criteria can help assess arguments that risk reinforcing some of the nation’s most entrenched and intransigent forms of status inequality.

Acknowledgments:

Copyright © 2010 New York University Law Review.

Jill Elaine Hasday is the Julius E. Davis Professor of Law at University of Minnesota Law School.

This Legal Workshop Editorial is based on the following Article: Jill Elaine Hasday, Protecting Them from Themselves: The Persistence of Mutual Benefits Arguments for Sex and Race Inequality, 84 N.Y.U. L. REV. 1464 (2009).

At first glance, the ADA’s reasonable accommodations provision seems quite clear: an employer engages in discrimination if it fails to “mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity. . . .”¹ Upon closer examination, however, one discovers that the reasonable accommodation mandate is rather elusive. 

The ADA does not explicitly define the term “reasonable accommodation”; instead, it provides a series of examples of acceptable accommodations.  According to the ADA, reasonable accommodations include job restructuring, part-time or modified work schedules, and reassignment to vacant positions.  Today most employers satisfy these requirements by providing auxiliary aids and services or modifying policies, practices, and procedures to accommodate disabled employees.  However, some employers remain reluctant to reassign employees who become disabled to vacant positions, and the courts have not yet uniformly required employers to do so.

A recent example of the so-called “mandatory reassignment” controversy involves retail giant Wal-Mart.  Pam Huber worked for Wal-Mart as a dry grocery order filler and earned $13.00 per hour.  While working for Wal-Mart, Huber sustained a permanent injury to her right arm and hand, which prevented her from performing the essential functions of the order-filler job.  As a result of her disability, Huber asked Wal-Mart to reassign her to a router position as a reasonable accommodation under the ADA.  Rather than immediately reassigning Huber, Wal-Mart told her that she must apply and compete for the router position just like any other applicant.  Wal-Mart stated that its reassignment decision was consistent with its policy of hiring the most qualified applicant for any position. 

Wal-Mart found that Huber was qualified to perform the duties of the new job but ultimately awarded the position to a more qualified candidate.  Wal-Mart then placed Huber at a different facility in a janitorial position that paid $6.20 per hour.  Huber filed suit against Wal-Mart, alleging that the ADA compelled Wal-Mart to reassign her to the router position as a reasonable accommodation for her disability.  The district court held for Ms. Huber, but in Huber v. Wal-Mart Stores, Inc.,² the Eighth Circuit reversed, holding that the ADA does not require an employer to reassign a qualified disabled employee to another position when the employer can fill the vacant position with a more qualified employee. 

With the Huber decision, the Eighth Circuit joined a circuit split: must an employer reassign a disabled employee to a vacant position when the employee is not the most qualified applicant?  Thus far, the Tenth and D.C. Circuits have required reassignment as a reasonable accommodation, while the Seventh Circuit has not.  The U.S. Supreme Court initially granted certiorari in the Huber case, but ultimately dismissed the writ after the parties settled the dispute.  Thus, the circuit split continues.

The circuit split over mandatory reassignment revolves largely around two arguments.³ The circuits that support mandatory reassignment argue that Congress designed the ADA to compel employers to make reasonable accommodations for disabled employees, not simply to consider providing accommodations.  If reassignment is optional, the argument goes, the ADA’s reassignment provision lacks any bite.  The circuits that have rejected mandatory reassignment contend that the ADA is an antidiscrimination statute, not a mandatory preference statute.  For a court to force employers to reassign disabled employees to vacant positions, even as a last resort, would constitute illegally-mandated affirmative action. 

Unfortunately, no circuit court has explicitly acknowledged that there are different ways to understand the concept of “disability” and that each understanding provides a different answer to the mandatory reassignment question.  My Note attempts to move the legal discussion in this direction.

Disability scholars have recognized four primary models or theories to understand disability.  The “moral model” regards disability as the result of sin.  The “medical model” sees disability as a defect that must be cured.  The “rehabilitation model” is quite similar to the medical model, holding that society needs to rehabilitate disabled persons through training and therapy in order to eliminate their individual deficiencies.  Finally, the “socio-political model” situates the “problem” of disability externally, in stereotypical attitudes and an environment that fails to meet the needs of the disabled, rather than within disabled individuals themselves.  Today, the most prominent models include a hybrid medical-rehabilitative model and the socio-political model.

The medical model of disability proffers the medical profession as the rescuer of the disabled population.  The disabled population is sick, and society should excuse the sick population from normal societal obligations like attending school or working a job.  Like the medical model, the rehabilitation model locates the difficulties faced by a disabled person within the disabled individual—rehabilitation is needed to cure the individual’s defects.  The idea that disabled individuals need training and therapy gained acceptance when disabled veterans began to return from the World Wars and needed help readjusting to life at home.  One can see the modern influence of the rehabilitation model in the Vocational Rehabilitation system, which currently provides services to disabled individuals so that they may obtain and maintain gainful employment.

In contrast, the socio-political model regards disability as an ordinary aspect of life.  Some individuals have physical or mental impairments while others do not; individuals who have such impairments struggle at certain tasks, not because of personal defects, but because society has failed to design physical and social structures consistent with their capabilities. For many individuals with physical, mobility-related impairments, the primary barrier to full societal participation stems from architectural barriers—buildings without elevators, narrow paths that cannot accommodate mobility equipment, etc.; likewise, communicative barriers continue to restrain individuals with sensory impairments.  According to the socio-political model, such impairments would largely disappear in a world adapted to the needs of all its inhabitants.  Today’s “disability problem” is not that some individuals have personal “defects”; rather, the problem is that our present environment was only designed for the average able-bodied person.  Only the socio-political model recognizes these realities.

A socio-political understanding of disability should help inform how courts interpret the ADA’s reasonable accommodations provision.  The ADA was watershed legislation because it adopted (at least implicitly) many of the tenets of the socio-political model of disability.  For example, the ADA’s findings declare that the “disability problem” resides in the external environment, not within disabled individuals.  The ADA findings state that the primary obstacles to the disabled achieving full participation in society include the discrimination imposed by architectural, transportation, and communicative barriers.

Furthermore, the reasonable accommodations provision itself seems to embody a socio-political understanding of disability.  First, the provision demonstrates that Congress understood that people with disabilities cannot fully participate in society until public and private entities modify the physical environment.  The problem of disability is not located in the person who must use a wheelchair for mobility; instead, it is located in societal structures that exclude the disabled through narrow doorways and entrances without ramps.  Second, the ADA reasonable accommodations provision mandates reform; it properly recognizes that combating systematic exclusion requires society to restructure the environment.

If one agrees that we as a society should view disability through a socio-political lens, either because a socio-political model accurately describes the world around us or because the ADA is based on such a model, then one must also agree that mandatory reassignment is appropriate.  From a socio-political perspective, one sees that many workplace environments exhibit the same biases as other physical environments.  The problem is not that the employee in a wheelchair is unwilling to attend a corporate meeting; instead, the problem is that the meeting is held in a building without an elevator.  As a result, the solution is not to change the disabled employee; rather, the solution is to reshape the environment.  In the employment context, reshaping the environment means requiring employers to make reasonable accommodations—including, as a last resort, reassignment—that allow disabled individuals to compete alongside others in the workplace.

Only mandatory reassignment reshapes the employment environment.  Perhaps best illustrated with an analogy, a “wholly merit-based” reassignment policy like the one at Wal-Mart assumes that the disabled population may fairly compete in the “employment race” so long as all contestants are evenly lined up at the starting line.  The mandatory reassignment critics exclaim: “Do not let anyone have a head start!”  Yet such an understanding ignores the environmental obstacles faced by the disabled community.  For many disabled people, the racetrack is already littered with obstacles like physical inaccessibility, communicative barriers, stigma, and discriminatory attitudes, many of which might prove insurmountable.  To ensure a fair race, society must force employers to clear the track, and if employers cannot clear the track, they should reassign the disabled contestants to an equivalent, but clear, track.  Thus, only mandatory reassignment puts disabled employees on truly equal footing with non-disabled employees.

By initially granting certiorari, the Supreme Court has acknowledged the circuit split over mandatory reassignment.  Though the parties in Huber v. Wal-Mart settled, preventing immediate Supreme Court resolution, the Court will likely have another opportunity to determine whether an employer must reassign a disabled, qualified employee to a vacant, equivalent position.  By exacerbating legal and business uncertainties and creating inconsistent legal rights for disabled Americans, the circuit split has assuredly created an incentive for various parties to litigate this issue in the future.  Thus, the remaining question is: how will the Supreme Court—or a previously “silent” circuit court—resolve the issue in the future?

My Note argues that courts should use a socio-political model of disability to interpret the ADA, and a socio-political understanding of disability requires an employer to reassign a disabled employee to a vacant, equivalent position when no other accommodation is reasonable.  Voluntary reassignment policies like the one used by Wal-Mart, even under the mantra of “meritocracy,” disguise the environmental obstacles that preclude full and fair economic participation by the disabled population. The ADA was watershed in its recognition that only affirmative steps to eliminate discrimination will allow individuals with disabilities to experience meaningful societal participation.  Courts should follow the ADA’s lead and embrace a socio-political model of disability by requiring reassignment.

Acknowledgments:

Copyright © 2009 Cornell Law Review.

Nicholas A. Dorsey is a J.D. Candidate at Cornell University Law School.

This Editorial is based on the following full-length Article:   Nicholas A. Dorsey, Mandatory Reassignment under the ADA: The Circuit Split and Need for a Socio-Political Understanding of Disability, 94 CORNELL L. REV. 443 (2008). Click Here for the Full Version

Dawson brought a sex discrimination claim under Title VII of the Civil Rights Act,² alleging that she was both fired and harassed because of, among other things, her failure to conform to traditional gender stereotypes.  Ultimately, Dawson lost her lawsuit.  In rejecting her gender-stereotyping claim, the Second Circuit held that the alleged discriminatory comments were targeted not at Dawson’s gender-nonconformity but at her homosexuality.  And because sexual orientation is not a protected trait under Title VII, the court held that Dawson had not stated an actionable discrimination claim.

The lesson of Dawson’s case is that an employee’s sexual orientation can swallow up an otherwise actionable claim of sex discrimination.  Even though Dawson’s Title VII claims were based on her sex and her gender-nonconformity, the court concluded that Dawson was trying to “bootstrap” protection for sexual orientation into Title VII by framing discrimination targeted at her sexual orientation as a claim of discrimination based on her gender-nonconformity.³  This has become a common story for lesbian and gay employees.  Due to the absence of statutory protection for sexual orientation discrimination at the federal level,⁴ lesbian and gay plaintiffs frequently lose their sex discrimination and gender-stereotyping claims because of their sexual orientation, with courts relying on reasoning similar to that used by the Second Circuit in Dawson’s case.⁵

My Article offers a critique of these “bootstrapping” cases from a perspective that has been overlooked in employment discrimination law and scholarship.⁶  The focus of that critique is heterosexuality.  In contrast to homosexuality and, to a lesser extent, bisexuality—both of which have been the subject of extensive scholarly attention—heterosexuality is largely absent from scholarly discussions about sexuality.  The absence of heterosexuality from the scholarly literature is not surprising because in American culture heterosexuals are typically thought of as not having a sexual orientation.  Instead, heterosexuality is the normative baseline against which all other sexual orientations are tested.  As such, heterosexuality tends to be absent from discussions about sex and sexuality.  This is especially true of legal discourse about sex and sexuality—courts rarely even acknowledge the existence of heterosexuality, let alone consider its legal implications.

In the realm of employment discrimination law, courts rarely consider the way in which an employee’s discrimination claim implicates heterosexuality.  This is the heart of the critique of bootstrapping cases presented in this Article.  Because heterosexuality is invisible in our culture, courts often fail to recognize when an employee’s discrimination claim implicates her heterosexuality.  To amplify this claim, I offer a novel reading of the Supreme Court’s groundbreaking decision in Meritor Savings Bank v. Vinson,⁷ where the Court established that claims of hostile environment sexual harassment can constitute unlawful sex discrimination in violation of Title VII.  Specifically, my reading of Meritor demonstrates that Mechelle Vinson, the plaintiff in Meritor, was not discriminated against solely because of her sex, but because of both her sex and her sexual orientation.  The Court, however, did not regard Vinson’s sex discrimination claim as an attempt to bootstrap antidiscrimination protection for heterosexuality.  

My reading of Meritor suggests that there is a double standard at work in employment discrimination law.  For lesbian and gay employees, sexual orientation is a burden because courts are primed to reject otherwise actionable sex discrimination claims on the theory that such claims are an attempt to bootstrap protection for sexual orientation into Title VII.  We see this in Dawn Dawson’s case, where the court concluded that Dawson’s homosexuality effectively tainted her sex discrimination claim.

Whereas lesbians and gay men are on the burdened side of the double standard, heterosexuals are on the privileged side.  No court has ever ruled—nor, I suspect, will any court ever rule—that a heterosexual plaintiff’s sex discrimination claim is an attempt to bootstrap protection for heterosexuality.  Heterosexuality is obscured by what I call the “paradox of privilege.”  The thrust of the “paradox of privilege” is that heterosexuality is at once everywhere and nowhere.⁸  Heterosexuality is everywhere because it is normative.  In other words, heterosexuality is embedded in the fabric of our culture; it is everywhere we look and a part of nearly everything we do.  Perhaps the best example of the pervasiveness of heterosexuality is the phenomenon of “coming out” as lesbian or gay.  In American culture, we presume that all people are heterosexual until proven otherwise.  Thus when a gay person comes out as gay, he is marking himself as non-normative, that is, as someone who is different from the heterosexual norm.

The second prong of the paradox of privilege is that heterosexuality is nowhere.  By this I mean that heterosexuality’s normativity is so deeply embedded in our cultural fabric as to render it invisible.  To see an example of this in action, think of a same-sex couple’s wedding announcement in the newspaper.⁹  Looking at the couple’s picture, the first thing most people see is that they are a gay couple.  By posing together in a picture, the couple effectively puts their homosexuality on display.¹⁰  Now think of a similar announcement for a different-sex couple.  Looking at this couple’s picture, most people may see bride and groom, or husband and wife, or perhaps just a man and woman.  Though people see many things in this second picture, they simply do not see the couple’s heterosexuality.

The nowhere prong of the paradox of privilege can also be seen in the way we talk about sexual orientation.  Because heterosexuals are not thought of as having a sexual orientation, the term “sexual orientation” tends to be used as if it were a synonym for “homosexuality.”  For instance, ask yourself the following question: “What comes to mind when you think about ’sexual orientation?’”  I ask my students this question toward the beginning of my Law & Sexuality seminar.  Their answers are always the same: the first things they think of are same-sex marriage, the “Don’t Ask, Don’t Tell” Policy, and the AIDS epidemic.

Consider another example.  My first law teaching job was a fellowship at sponsored by the Williams Institute, an academic think tank at UCLA School of Law.  On its website, the Institute describes its work as follows: “The Williams Institute advances sexual orientation law and public policy through rigorous, independent research and scholarship, and disseminates it to judges, legislators, policymakers, media and the public.”¹¹  In terms of its actual work product, the Williams Institute does not study legal and policy issues relating to sexual orientation generally so much as it studies legal and policy issues relating to lesbians and gay men.  This is another good example of how sexual orientation is used as a synonym for homosexuality.  In short, society uses language that is reflective of our tendency not to think of heterosexuals as having a sexual orientation.

Because heterosexuality is obscured by the paradox of privilege, courts simply do not see it when an employee—like Mechelle Vinson—is discriminated against because of her heterosexuality.  As a result, no court will ever conclude that a heterosexual employee is raising a sex discrimination claim as a means to bootstrap protection for sexual orientation into Title VII.  Put simply, heterosexuals and homosexuals are not similarly situated under Title VII. 

The solution, then, is to re-orient employment discrimination law’s approach to sexual orientation.  My recommendation is that courts should neutralize sexual orientation.  When an employee brings a sex discrimination claim, the employee’s sexual orientation—whether heterosexual, homosexual, or otherwise—should neither benefit nor burden the employee.  Put another way, an employee’s sexual orientation should neither give rise to a cause of action nor prevent an employee from a sex discrimination based on some other protected trait, such as sex or gender-nonconformity.  Under such a re-oriented approach, an employee’s sexual orientation is irrelevant for purposes of employment discrimination law, no different than any other trait that is not protected under Title VII, such as eye color or whether the employee is a Chicago Cubs fan.

This is not to say that a court should ignore altogether an employee’s sexual orientation.  Courts should still acknowledge that the discrimination faced by the employee was based at least in part on the employee’s sexual orientation.  In terms of litigation strategy, the conventional wisdom for representing a lesbian or gay plaintiff in an employment discrimination case is that an attorney should not disclose her client’s homosexuality.  According to a practitioner’s guide to representing lesbian and gay clients in discrimination cases, “When bringing a gender stereotyping claim under Title VII, it is almost never a good idea to affirmatively plead or introduce evidence of a plaintiff’s [homosexuality.]  It does not help the case and can seriously damage it.”¹²

The advice that lesbian and gay employees should try to deemphasize their homosexuality is especially troubling to the extent that it encourages lesbian and gay employees to conceal rather than acknowledge their homosexuality in the workplace.¹³  A rich literature documents the benefits for lesbian and gay employees of disclosing their homosexuality to their employers and coworkers.¹⁴  Of course, employees who are open to their coworkers about their homosexuality expose themselves to the possibility of being discriminated against because of their sexual orientation.  Yet encouraging employees to “stay in the closet” in the workplace is not the solution to this dilemma.  Employment discrimination law should not have to encourage lesbian and gay employees to conceal their homosexuality in order to maintain their chances of articulating an actionable gender-stereotyping claim.  Along this axis, the bootstrapping cases offer a more satisfying approach to dealing with an employee’s sexual orientation.  The positive side of the court’s decision in Dawn Dawson’s case is that, at the very least, the court acknowledged Dawson’s homosexuality.  By contrast, the Court in Meritor never acknowledged that either Vinson or Taylor had a sexual orientation, as their heterosexuality was assumed.

As already noted, the primary reason why courts tend to treat heterosexuality and homosexuality differently is because heterosexuality is normative and therefore invisible, while homosexuality is stigmatized and therefore highly visible.  Thus one way out of the double standard is for courts to recognize that heterosexual employees have a sexual orientation and that they face discrimination on the basis of their heterosexuality.  By acknowledging the existence of heterosexuality and heterosexuality discrimination, courts must confront the differing standards that have been applied to employees based on their sexual orientation.  In this regard, the Article seeks to neutralize heterosexual privilege for the benefit of all employees who suffer discrimination based on their sex.

Acknowledgments:

Copyright © 2009 Northwestern University Law Review.

Zachary A. Kramer is Assistant Professor of Law, Penn State University Dickinson School of Law.

For helpful comments and discussions at various stages or helpful comments and discussions at various stages of this Article’s progress, I am grateful to Carlos Ball, Terri Beiner, Fred Bloom, Matt Bodie, Bridgette Carr, Tommy Crocker, John DiPippa, Jamie Evans, Dave Fagundes, Frances Fendler, Liz Glazer, Michael Green, Carissa Hessick, Rebecca Hollander-Blumoff, Rob Kar, Liz Kukura, Dan Markel, Doug NeJaime, Gowri Ramachandran, Adam Rosenzweig, Kerry Ryan, Ann Scarlett, Paul Secunda, Josh Silverstein, Jason Solomon, Michael Stein, Rob Steinbuch, Tom Sullivan, Steve Vladeck, Anders Walker, Elizabeth Weeks, Steve Willborn, and Ekow Yankah.

I am especially indebted to Noah Zatz for his helpful advice in the early and later stages of this Article, as well as to Joi Leonard for her invaluable research support.

I am also grateful for the comments I received when I presented earlier versions of this Article at the University of Mississippi School of Law faculty workshop, the Hofstra University School of Law Colloquium on Law & Sexuality, the UALR Philosophy and Liberal Studies Department’s Friday Philosophy Forum, the Southeastern Association of Law Schools Annual Conference, the Texas Junior Scholars Workshop at Texas Wesleyan School of Law, Prawfsfest! Junior Faculty Workshop Loyola Law School, the Junior Faculty Workshop at Washington University, and the 2008 Law & Society Conference.

This Editorial is based on the following full-length Article: Zachary A. Kramer, Heterosexuality and Title VII, 103 NW. U. L. REV. 205 (2009). Click Here for the Full Article

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