Because of Sex

Title VII of the Civil Rights Act of 1964, which bars discrimination in employment because of race, color, religion, national origin, or sex, is now a central topic in women’s labor history. Recent works by Nancy MacLean, Serena Mayeri, and Katherine Turk, among others, draw attention to this crucial piece of labor law. The history of Title VII is full of surprises. The amendment that added “sex” to Title VII in 1964, last minute and contested, was a leap into the unknown. No one could foresee its consequences. One result: the law has generated a cascade of complex litigation. Gillian Thomas, a lawyer at the American Civil Liberties Union Women’s Rights Project, turns to the impact of Title VII and to its ramifications for women at work.Because of Sex explores a sequence of Supreme Court cases that interpret Title VII and shape workplace rights, from Phillips v. Martin Marietta (1971), a case that assured a job to a mother of a preschooler, to Young v. United Parcel Service (2015), a contest over employer accommodation of physical limitation related to pregnancy. No case was typical, but each edged interpretation of the law forward. The decisions that Thomas presents enabled women to hold jobs while pregnant or while mothers of young children, to enter vocations from which women had been excluded, to enjoy equal retirement benefits, to labor in workplaces free of sexual harassment, and to be judged on the basis of individual qualifications not group identity. “Title VII requires that we focus on fairness to individuals rather than fairness to classes,” as Justice John Paul Stevens stated in a 1978 decision that barred sex discrimination in pension funds (78).What factors hold these cases together? Most involve workplaces or work situations that were traditionally all male, including the partnership roster at a big accounting firm: in Price Waterhouse v. Hopkins (1989), a senior manager, Ann Hopkins, sued to win the rank of partner. Other cases discussed concern workplaces where plaintiffs guarded prisoners, ran forklifts, or drove delivery trucks. Blue-collar employees or managers, women workers who challenged employment discrimination were determined and tenacious; each case lasted for years as it crawled up through the federal court system. Title VII enforcement is a story of mounting complexity and rising resistance, especially as corporate lawyers sought to defend discriminatory labor practices. Collectively, the cases reveal at once the persistence of the litigants, the precariousness of their lawsuits, the cumulative significance of their victories, and the elusive nature of workplace equality.Thomas tells much about the lawyers who pressed Title VII cases—often solo practitioners—and how they faced challenges. She shows, for instance, the importance of the amicus brief, a tactic that served to instruct judges in equality law. Pressure exerted by women’s rights advocates through amicus briefs grew over time and helped to steer decisions in Title VII cases. Thomas conveys, too, the effective way that Title VII lawyers used moot courts, or legal dress rehearsals, to prepare their arguments and help one another. She also explains the role of public interest groups, such as the Southern Poverty Law Center, that provided assistance to Title VII lawyers; the influence of out-of-court events, such as the sway of the 1991 Anita Hill–Clarence Thomas hearings on the development of sexual harassment law; and the interplay of court decisions with acts of Congress. In some instances, as in pregnancy law, court decisions led to passage of further legislation to bar sex discrimination, such as the Pregnancy Discrimination Act of 1978, a Title VII amendment that generates its own barrage of cases, and the Family and Medical Leave Act of 1991.Finally, we see how opponents of Title VII shaped the impact of the law by undermining it. Employers sought variously to circumvent the antidiscrimination measure, to curb its effects, to defy its intent, and to obstruct its enforcement. A first step might be to ignore the law’s requirements until complaints arose or until court decisions made action unavoidable. Companies might next create the illusion of compliance by issuing rules, running antidiscrimination training sessions, and then continuing as usual. Even when court decisions favored aggrieved workers, employers often retained some avenue to discriminate by sex; the private insurance industry, for instance, escaped the antidiscrimination rule that courts imposed on employer-provided pension plans. New trends in sexual harassment law make it more challenging to hold employers liable.Title VII interpretation is currently a work in progress. The original law, as Thomas explains, could not anticipate the problems that would arise; many questions about sex discrimination in employment remain unresolved. The last case discussed in this book, in which UPS driver Peggy Young challenged her employer and which eventually settled out of court, is one example. The Supreme Court stopped short of “handing a complete victory” to Young (227); a raft of competing opinions proved only that conflict reigns on how to interpret the Pregnancy Discrimination Act. Still, as Thomas contends, “the “legal and cultural change effected by Title VII has been nothing short of revolutionary” (229).Fast-paced, lucid, and informative, Because of Sex is an invaluable account of exceptional clarity. Gillian Thomas tackles legal tangles with style. She shapes a dramatic narrative, keeps the story in motion, explains convoluted arguments, and defines all terms that arise. Historians of labor and gender will be grateful for this outstanding book; so will their students. As the author intends, it is a testimony to the transformative power of law

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