From a press release detailing the campaign: “A collaborative effort between the Issues4Life Foundation and The Radiance Foundation, this campaign details the culture of abandonment that abortion has created by revealing the statistics of FATHERLESSNESS, single-parent poverty, and the deterioration of two-parent married households.”
“When a man has sex with a woman he is consenting to being a FATHER,” said Walter Hoye II, president of Issues4Life, in the release. ”We want to emphasize the biblical requirement and vital need for men to be involved as PROVIDERS and PROTECTORS when ‘LIFE’ happens.”
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But I can’t help but wonder if what is supposed to be a call to fathers not to abandon their children isn’t really just a push to get men to force their partners to stay pregnant and not have an abortion, especially with the group’s spokesman saying that men have been “‘forced’ out of their traditional roles by ‘liberal feminism.’”
Because of Sex: One Law, Ten Cases, and Fifty Years That Changed American Women’s Lives at Work, written by Gillian Thomas, senior staff attorney with the American Civil Liberties Union Women’s Rights Project, goes beyond cases that helped shape workplace anti-discrimination policies. Rather, it focuses on ten key women whose own lives changed the law.
In 1966, Ida Phillips, a single mother working as a waitress, sat down at her kitchen table and wrote a letter to then-President Lyndon B. Johnson. She told him her story: Despite her qualifications, Phillips had been told by a Martin Marietta employee not to apply for an assembly-line position at one of the construction-material company’smanufacturing plant. The job would have paid more than double what she was making as a waitress. It included a pension plan and insurance, benefits unavailable in most female-dominated industries at the time (and which since have only marginally improved.) The reason Phillips was turned away? She was a woman with a preschool child.
That letter, Phillips’ subsequent lawsuit, and her Supreme Court win would help spark a civil rights revolution in the workplace—one with consequences that reverberate today.
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex, and national origin. And it was Phillips’ case, and the nine others profiled in the book, that would ultimately shape that law into one that, decades later, is an important tool in advancing gender and sex equality. As Thomas explained to Rewire in an interview, Title VII it is not just a foundational piece of civil rights legislation important for its historical effect on workplace equality. In the face of anti-transgender bathroom bills and statewide “religious liberties” legislation sweeping the country, it is a crucial tool for pushing equality forward.
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Thomas’ book is organized along three key themes in employment discrimination law: pregnancy-related workplace policies, gender stereotypes in the workplace, and sexual harassment. Those themes act as an inroad toward thinking more broadly about how, in Thomas’ words, we achieve “substantive equality” in the workplace. They illustrate how early fights over promotions and workplace policies that kept women out of certain jobs due to concerns of harming their potential fertility foreshadowed the legal showdowns over contraception coverage in employee health-care plans in cases like Burwell v. Hobby Lobby andZubik v. Burwell.
“The subject matter areas that I saw [as a researcher and employment discrimination litigator] were, number one, women’s capacity for pregnancy, and then their subsequent roles as mothers, which, historically, has played a huge role in their second-class status legally,” Thomas told Rewire. “Women of color have always been seen as workers, irrespective of whether they had children, so that’s not an entirely universal stereotype. But I think it’s pretty safe to say that generally pregnancy and motherhood have proven to be enormous conflicts in terms of what equality looks like when you have these distinct differences” in how race and gender are perceived.
Take, for instance, the case of Peggy Young and the question whether an employer can refuse to make on-the-job accommodations for pregnant employees when it does so for nonpregnant employees. Young, another one of the women featured in Thomas’ book, was a United Parcel Service (UPS) “air driver” who became pregnant. When Young told her employer she was pregnant, UPS told her they couldn’t accommodate the light-lifting recommendation made by Young’s medical providers. Instead, UPS told Young, she would have to take unpaid medical leave for the remainder of her pregnancy.
In March 2015, the U.S. Supreme Court ruled against UPS, vacating the Fourth Circuit Court of Appeals ruling that had supported UPS’ policy. The decision produced a new test for assessing pregnancy discrimination claims and sent Young’s case back to the lower courts for another look. Not long after the Roberts Court’s decision, UPS and Young settled the lawsuit, bringing an end to Young’s case.
The decision was a qualified win for advocates. The Roberts Court had accepted Young’s argument that UPS had no legitimate business reason for failing to accommodate her particular request, but the decision went short of ruling businesses must accommodate any pregnancy request.
But Because of Sex doesn’t stop at unpacking overt discrimination like the kind detailed in Young’s 2015 case or Phillips’ one in 1966. The book also takes a look at what the law has described as more “benevolent” kinds of discrimination. These include employment policies designed to “protect” women from endangering possible future pregnancies, such as prohibiting women employees from working jobs where they may be exposed to hazardous chemicals.
“It really all boils down to two issues that we are talking about in all these things,” Thomas explained, when discussing workplace policies that, employers have argued, were put in place to protect their female employees from potentially endangering a pregnancy. “One is [employers] ignoring hazards that apply to men and making women into baby-making machines. And number two is [employers] treating health effects or health hazards on the job as reasons for diminishing women’s opportunities, instead of arming women with information and assuming that they will make the right choice for themselves.”
This disconnect is most apparent in the case of United Automobile Workersv. Johnson Controls, Inc., another case Thomas highlights in her book. In 1982, the car battery manufacturer Johnson Controls sent a memorandum to all its employees that said “[w]omen who are pregnant or who are capable of bearing children will not be placed into jobs involving lead exposure or which would expose them to lead through the exercise of job bidding, bumping, transfer or promotion rights.”
The policy amounted to a demotion for many female employees and a closed door for others.
Title VII actually permits employers, in a limited context, to have employment policies that discriminate on their face, such as policies that permit churches to only hire members of the same faith. Johnson Controls argued its policy of keeping women out of certain positions due to employer concerns of health risks to future pregnancies fit within Title VII’s narrow window for permitting explicit discrimination.
The Supreme Court would eventually rule in 1991 that Johnson Controls’ policy violated Title VII because it forced female employees to have to choose “between having a child and having a job,” thereby rejecting the argument made by Johnson Control’s that a woman’s fertility—or infertility—can in most situations be considered a bona fide occupational qualification.
As Thomas noted in her book, “It was no coincidence that fetal protection politics were most prevalent in well-paid, unionized industries from which women historically had been excluded. Indeed they had been excluded precisely because they had been deemed physically unsuited for the dirty, sometimes strenuous work.”
But “in female-dominated fields, though, fetal protection policies made no business sense; they effectively would gut the workforce. That reality apparently trumped any hypothetical harm to employees’ future pregnancies,” Thomas wrote.
In other words, these policies didn’t exist in female-dominated fields.
Johnson Controls may have helped grant women the agency to determine how and when they earned a paycheck with regard to policies targeting their potential fertility, but it hardly ended the debate around when and how employers attempt to diminish women’s opportunities related to their roles as potential mothers. This has played out in the hundreds of lawsuits over the contraception benefit, for example.
In other words, if Johnson Controls had settled the question of whether a woman’s fertility was an appropriate grounds for discrimination, we would not have Hobby Lobby.
Because of Sex draws another connection between the historical fight over Title VII and the contemporary one: How do employers adjust workplace policies around shifting gender norms, and when is it discriminatory if they don’t? The law asks, “What are women supposed to want to do?” said Thomas in her interview with Rewire. “What work are they able to do? What work do they want to do? [Given] assumptions and stereotypes that are about their abilities, their preferences, their interests and how [they are] conforming to [those] in terms of stereotypes about what femininity is—what [are] women … supposed to look and act like?”
Gender nonconforming behavior, and the manner in which employees experience discrimination as a result of that behavior, is a key component over the debate around transgender rights. But it would take a “shrill” woman and the birth of the notion of “workplace harassment” to get us and the law there first.
By every measure, Ann Hopkins should have been made a partner in the global accounting firm Price Waterhouse. She was smart. Ambitious. Worked hard and constantly outperformed her peers. But it was those very attributes that her male partners deemed “too aggressive” or as evidence that she needed “charm school,” and ultimately used to deny her a partnership that by every objective measure she had earned.
The Supreme Court would ultimately disagree. In 1989, it ruled Hopkins should have been made a partner and that the comments relating to her demeanor amounted to improper gender stereotyping, a violation of Title VII’s sex discrimination provisions.
If Hopkins was initially shut out of workplace advancement due to her defiance of feminine stereotypes, so too are women subjected to on-the-job harassment, as Thomas draws out in Because of Sex. “Sexual harassment didn’t even have a name in 1974, but was such a prevalent force driving women out of the work force, driving them into different jobs [and] subjugating them just generally in terms of the identity as sexual objects on the job,” Thomas further explained in her interview.
1974 was the year Mechelle Vinson first hired a lawyer to represent her in a case against her boss, who was chronically sexually abusing her on the job. But at the time, courts largely wrote off those kinds of complaints as a kind of chasing-around-the-office, and not sexual harassment, or in Vinson’s case, on-the-job rape. As described by Thomas in her book, “throughout the 1970s, many courts responded to complaints about abusive bosses with a collective shrug that conveyed, ‘You can’t blame a guy for trying.'”
“Sexual harassment was such a prevalent force driving women out of the workforce, driving them into different jobs, and subjugating them just generally in terms of the identity as sexual objects on the job,” Thomas told Rewire.
That “you can’t blame a guy for trying” attitude hasn’t completely gone away as far as the federal courts are concerned. After all, in 2013 the Roberts Court in Vance v. Ball Statemade it even harder for employees to bring workplace harassment suits, and employees still face losing jobs for “being too cute” or having their sexuality be a perceived threat to their employer’s ability to remain professional in the workplace.
Which is why, in the fight over transgender bathroom access in 2016, Title VII should be a powerful force in defeating these latest attempts to stymie social progress. The idea that “you can’t blame a guy for trying” has morphed into “how the hell can we police gender roles if we don’t know where you pee.” That’s thanks almost entirely to the manner in which the law has wrestled with gender stereotypes under Title VII, Thomas explained.
In 2012, the Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing workplace anti-discrimination laws, issued the landmark decision Macy v. Holder, which held that employment discrimination based on transgender status was a form of unlawful sex discrimination under Title VII. Then in 2015, it issued a ruling stating that denying employees access to restrooms consistent with their gender identity is also a violation of Title VII. Meanwhile several federal courts of appeals have ruled that Title VII protects against gender identity discrimination.
But the Roberts Court has yet to weigh in.
“I think sexual orientation in a way is the sort of a final frontier” in Title VII litigation, said Thomas. “The court seems really fixated on this idea of analogizing very precisely from Hopkins. In other words, if you look or act in a way that doesn’t conform to gender stereotypes then, OK, [the courts] can understand that’s sex discrimination,” said Thomas. “But if your identity is not conforming to stereotypes in that you, you know, are romantically attracted to someone of your sex, that is harder for [the courts] to get, even though it’s obviously the most obvious manifestation of stereotype.”
This is, in many ways, a fight that started in the workplace—one that eventually got the backing of the Obama administration before becoming a flashpoint of conservative election-cycle politics. Thomas’ book doesn’t close on a prediction of what the next big Title VII fight will be per se, but it is impossible to finish it and not see the narrative threads of the historical fight for workplace equality woven throughout the the contemporary one. Sex. Gender. How the law understands and navigates the two. All this is what makes Thomas’ Because of Sex the closest thing to an assigned reading I can make.
Sen. Bernie Sanders (I-VT) seemingly signaled he is not yet ready to concede the nomination to Hillary Clinton, and he promised to help push for reforms within the party while working to keep presumptive Republican nominee Donald Trump from winning the White House.
Sen. Bernie Sanders (I-VT) isn’t bowing out of the race for the Democratic nomination after the close of the presidential primaries, and Hillary Clinton took to the Huffington Post to talk about campus sexual assault and whether women should have to sign up for the draft.
“The Political Revolution Must Continue”: Sanders Vows in Thursday Night Address to Push for Party Reform
Sanders addressed supporters Thursday night after the 2016 presidential primary season ended earlier this week. He seemingly signaled he is not yet ready to concede the nomination to Hillary Clinton, and he promised to help push for reforms within the party while working to keep presumptive Republican nominee Donald Trump from winning the White House.
“Election days come and go. But political and social revolutions that attempt to transform our society never end. They continue every day, every week, and every month in the fight to create a nation and world of social and economic justice,” Sanders said during the address, which was live-streamed online. “Real change never takes place from the top on down or in the living rooms of wealthy campaign contributors. It always occurs from the bottom on up, when tens of millions of people say loudly and clearly ‘enough is enough’ and they become engaged in the fight for justice. That’s what the political revolution we helped start is all about. That’s why the political revolution must continue.”
“The major political task that we face in the next five months is to make certain that Donald Trump is defeated and defeated badly,” Sanders continued, vowing to soon begin his role in ensuring the Republican doesn’t make it to the White House.
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“But defeating Donald Trump cannot be our only goal,” he added. “We must continue our grassroots efforts to create the America that we know we can become.”
Expressing his hope that he could continue to work with Clinton’s campaign, Sanders promised to ensure that supporters’ “voices are heard and that the Democratic Party passes the most progressive platform in its history and that Democrats actually fight for that agenda.”
That agenda included raising the minimum wage to $15 an hour, ending the gender pay gap, defending reproductive rights, and protecting marriage equality in the United States, among other things.
Sanders’ speech came just after campaign manager Jeff Weaver said the campaign is “not currently lobbying superdelegates” and doesn’t “anticipate that will start anytime soon” during an interview on Bloomberg Politics’ With All Due Respect Thursday. The next day, Weaver told the hosts of MSNBC’s Morning Joe that Sanders is still “an active candidate for president.”
Clinton Weighs in on Stanford Sexual Assault Case, Women Joining the Draft
Hillary Clinton took a stand on two notable issues during an interview with the Huffington Post this week, telling the publication that she supported a measure in the Senate torequire women to sign up for the draft and her thoughts about the Stanford sexual assault case.
“I do support that,” Clinton told the publication Wednesday when asked about the Senate’s approval of the National Defense Authorization Act, a military policy bill that would require women to sign up for the military draft once they turn 18, earlier in the week.
“I am on record as supporting the all-volunteer military, which I think at this time does serve our country well,” said Clinton. “And I am very committed to supporting and really lifting up the men and women in uniform and their families.”
As the New York Timesreported, under the bill, “Failure to register could result in the loss of various forms of federal aid, including Pell grants, a penalty that men already face. Because the policy would not apply to women who turned 18 before 2018, it would not affect current aid arrangements.”
Though the U.S. Supreme Court previously ruled that women weren’t required to register for the draft as they were not allowed to serve in combat, the Times continued, “since Defense Secretary Ashton B. Carter said in December that the Pentagon would open all combat jobs to women, military officials have told Congress that women should also sign up for the draft.”
The draft registry has not been used by the United States since 1973, but requiring women to sign up for it has nevertheless been an issue on the campaign trail this election season. Sen. Ted Cruz (R-TX) called requiring women to register for the draft “nuts” in February prior to dropping out of the race for the White House, while other then-Republican presidential candidates Sen. Marco Rubio (FL), New Jersey Gov. Chris Christie, and former governor of Florida Jeb Bush all signaled they would support it.
During her interview with Huffington Post, Clinton also voiced her support for the survivor at the center of the controversial Stanford sexual assault case, saying she was “was struck by” the “heartbreaking power” of the letter the survivor wrote detailing her experiences.
“It took great courage and I think she has done an important service for others,” Clinton said. “What I’ve heard about this case is deeply concerning. It is clear campus sexual assault continues to be a serious problem. And I’ve said before and I will continue to say it is not enough to condemn it. We must find ways to end it.”
The presumptive Democratic nominee had previously released a platform for addressing the national crisis of campus sexual assault, which promises to “provide comprehensive support to survivors;” “ensure fair process for all in campus disciplinary proceedings and the criminal justice system;” and “increase sexual violence prevention education programs that cover issues like consent and bystander intervention, not only in college, but also in secondary school.”
What Else We’re Reading
Trump’s “endgame” could be launching a “mini-media conglomerate,” Vanity Fair reports.
“He was always very open about describing women by their breast size,” a crew member for Trump’s reality show The Apprenticetold Slate of the presumptive Republican nominee. “Any time I see people in the Trump organization say how nice he is, I want to throw up. He’s been a nasty person to women for a long time.”
In the wake of the mass shooting in Orlando at an LGBTQ club, the Southern Poverty Law Center’s deputy legal director of the LGBT Rights Project, David Dinielli, noted that “candidates on the campaign trail-and even the presumptive nominee of the Republican Party-elevate radical anti-LGBT leaders.”
Fact-checkers at the Washington Post took on both Clinton and Trump’s speeches on national security after the massacre in Orlando over the weekend.
“Regardless of your politics, it’s a seminal moment for women,” said Oprah, who offered her endorsement to Clinton on Wednesday, when speaking about the presumptive Democratic nominee. “What this says is, there is no ceiling, that ceiling just went boom! It says anything is possible when you can be leader of the free world.”
CNN’s Jim Sciutto, Tal Yellin, and Ryan Browne offer a look into the implications of Trump’s proposed plan to “suspend immigration from areas of the world when there is a proven history of terrorism against the United States, Europe or our allies.”
Republicans may have fewer women in the House next year after the election season wraps up.
Texas has already spent $3.5 million fighting multiple lawsuits over the state’s restrictive voter ID law, in what an attorney helping plaintiffs in one of the suits deemed a “shameful waste of taxpayer money.”
Ohio Gov. John Kasich (R) moved to make voting in the state easier for some this week, signing legislation that will allow residents with driver’s licenses and state IDs to register to vote online. What’s the catch? According to ThinkProgress, “the option will not be available until early next year, after the presidential election, despite the Republican Secretary of State’s insistence that the Ohio could implement the policy immediately.”