Please note that some of the links referenced in this work are no longer active.
Introduction
1. Todd Purdum, An Idea Whose Time Has Come: Two Presidents, Two Parties, and the Battle for the Civil Rights Act of 1964 (New York: Henry Holt & Co., 2014), 195.
2. Caroline Bird, Born Female (New York: Pocket Books, 1968), 5.
3. Ibid., 4. See also Gail Collins, When Everything Changed (New York: Little, Brown & Co., 2009), 76.
4. Bird, Born Female, 4.
5. Clay Risen, “The Accidental Feminist,” Slate, February 7, 2014, http://www.slate.com/articles/news_and_politics/jurisprudence/2014/02/the_50th_anniversary_of_title_vii_of_the_civil_rights_act_and_the_southern.html.
6. Quoted in Sheryl James, “Civil Rights, Women’s Rights,” Law Quadrangle (Fall 2014), http://quadrangle.law.umich.edu/features/civil-rights-womens-rights/.
7. Ibid.
8. Ibid.
9. Bird, Born Female, 5.
10. Louis Menand, “The Sex Amendment,” The New Yorker, July 21, 2014, http://www.newyorker.com/magazine/2014/07/21/sex-amendment.
11. Clay Risen, The Bill of the Century: The Epic Battle for the Civil Rights Act (New York: Bloomsbury Press, 2014), 160; Purdum, An Idea Whose Time Has Come, 196–197; Collins, When Everything Changed, 76–77, 78–79; Risen, The Accidental Feminist.
12. Risen, The Bill of the Century, 161; Menand, “The Sex Amendment.”
13. Because it was a “teller vote” and not a roll call vote, a precise accounting of who voted for and against wasn’t possible. But Martha Griffiths was one of the “tellers” and reported on the breakdown of the yeas and nays. See Jo Freeman, “How ‘Sex’ Got into Title VII: Persistent Opportunism as a Maker of Public Policy,” Women, Law and Public Policy, 2004, http://www.jofreeman.com/lawandpolicy/titlevii.htm.
14. Risen, The Bill of the Century, 160; Purdum, An Idea Whose Time Has Come, 198.
15. 42 U.S.C. § 2000e-2(a).
16. See, e.g., Cary Franklin, “Inventing the ‘Traditional Concept’ of Sex Discrimination,” Harvard Law Review 125 (April 2012): 1307; Freeman, “How ‘Sex’ Got into Title VII”; Carl M. Brauer, “Women Activists, Southern Conservatives, and the Prohibition of Sex Discrimination in Title VII of the 1964 Civil Rights Act,” Journal of Southern History 49, Issue 1 (February 1983): 37; Michael Evan Gold, “A Tale of Two Amendments: The Reasons Congress Added Sex to Title VII and Their Implication for Comparable Worth,” Duquesne Law Review 19 (1981): 453.
17. U.S. Department of Labor, Women’s Bureau, 1965 Handbook on Women Workers, Bulletin 290 (Washington, DC: 1965), 2, https://fraser.stlouisfed.org/docs/publications/women/b0290_dolwb_1965.pdf.
18. Pauli Murray and Mary O. Eastwood, “Jane Crow and the Law: Sex Discrimination and Title VII,” George Washington Law Review 34 (1965): 232.
19. U.S. Department of Labor, Women’s Bureau, “Latest Annual Data,” 2013, http://www.dol.gov/wb/stats/recentfacts.htm.
20. Catalyst, “Women Leaving and Re-entering the Workforce,” March 28, 2013, http://www.catalyst.org/knowledge/women-leaving-and-re-entering-workforce#footnoteref1_pks1j3w.
21. Stephanie Coontz, A Strange Stirring: The Feminine Mystique and American Women at the Dawn of the 1960s (New York: Basic Books, 2011), 14. Today nearly a quarter of federal judges are women. Dina Refki, Abigya Eshete, and Selena Hajiani, “Women in Federal and State-Level Judgeships,” A Report by the Center for Women in Government and Civil Society/Rockefeller College of Public Affairs and Policy at University of Albany (2012), http://www.albany.edu/womeningov/publications/summer2012_judgeships.pdf.
22. Menand, “The Sex Amendment”; Risen, “The Accidental Feminist.”
23. Hugh Davis Graham, The Civil Rights Era: Origins and Development of National Policy 1960–1972 (New York: Oxford University Press, 1990), 223.
24. John Herbers, “For Instance, Can She Pitch for Mets?” The New York Times, August 20, 1965.
25. Ibid.
26. “Shaping Employment Discrimination Law,” U.S. Equal Employment Opportunity Commission, EEOC History: 35th Anniversary: 1965–2000, http://www.eeoc.gov/eeoc/history/35th/1965-71/shaping.html.
27. Caroline Frederickson, Under the Bus: How Working Women Are Being Run Over (New York: Free Press, 2015), 40.
28. See, e.g., Shelley J. Correll, Stephen Benard, and In Paik, “Getting a Job: Is There a Motherhood Penalty?,” American Journal of Sociology 112, No. 5 (March 2007).
29. American Association of University Women, The Simple Truth About the Gender Wage Gap, Fall 2015 edition, 11 (Fig. 4), http://www.aauw.org/files/2015/09/The-Simple-Truth-Fall-2015.pdf.
30. Catalyst, “Statistical Overview of Women in the Workplace: Women at the Top,” Mar. 3, 2014, http://www.catalyst.org/knowledge/statistical-overview-women-workplace.
31. Kathleen Peratis, “Severe and Pervasive,” in Amy Richards and Cynthia Greenberg, eds., I Still Believe Anita Hill (New York: The Feminist Press, 2011), 157.
One
Unless otherwise indicated, direct quotes, biographical and historical details, and mental impressions come from the following sources: Interview with Reese Marshall in Jacksonville, Florida on April 21, 2015; interview with Ida Phillips’s children—Peggy Brandt, Vera Tharp, and Al McAlister—in Jacksonville, Florida on April 21, 2015; interview with Bill Robinson in Washington, DC, on April 6, 2015.
1. September 6, 1966, letter from Ida Phillips to President Lyndon Johnson, “It Happened Here: Phillips v. Martin Marietta” (2010) (on display at George C. Young United States Courthouse, Orlando, FL).
2. Richard Burnett, “Missiles Spark Half-Century of High-Tech,” The Orlando Sentinel, September 24, 2006, http://articles.orlandosentinel.com/2006-09-24/news/MARTIN24_1_1_martin-central-florida-orlando.
3. Ibid.
4. September 6, 1966 letter from Phillips to Johnson, “It Happened Here.”
5. Serena Mayeri, Reasoning from Race: Feminism, Law, and the Civil Rights Revolution (Cambridge, MA: Harvard University Press, 2011), 51.
6. Judith Michaelson, “The Justices Saw It Her Way,” The New York Post, January 30, 1971.
7. Quoted in ibid.
8. September 6, 1966, letter from Phillips to Johnson, “It Happened Here.”
9. Quoted in Michaelson, “The Justices Saw It Her Way.”
10. Ibid.
11. Appendix at 9a-10a, Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (No. 73).
12. Michaelson, “The Justices Saw It Her Way.”
13. Appendix at 11a-12a, Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (No. 73).
14. Quoted in Michaelson, “The Justices Saw It Her Way.”
15. Ibid.
16. Ibid.
17. 347 U.S. 483 (1954).
18. Gail Collins, When Everything Changed: The Amazing Journey of American Women from 1960 to the Present (New York: Little, Brown & Co., 2009), 86.
19. Phillips v. Martin Marietta Corp., No. 67-290-ORL-Civil, 1968 U.S. Dist. LEXIS 8595 (M.D. Fla. July 9, 1968).
20. Ibid. at *2.
21. Allison Herren Lee, William W. Shakely, and J. Robert Brown Jr., “Judge Warren L. Jones and the Supreme Court of Dixie,” Louisiana Law Review 59 (1998): 209 & n.4.
22. 29 C.F.R. § 1604.1(a)(1)(i) (1965).
23. Ibid. § 1604.1(a)(1)(ii).
24. Ibid. § 1604.3(a).
25. Phillips v. Martin Marietta Corp., 411 F.2d 1, 4 (5th Cir. 1969).
26. Ibid.
27. Appendix, Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (No. 73).
28. Phillips v. Martin Marietta Corp., 416 F.2d 1257 (5th Cir. 1969). One of the judges in the majority, G. Harold Carswell, may have come to regret his decision. Feminists bitterly contested his later—unsuccessful—nomination to the Supreme Court because of his vote against Ida Phillips. Testifying against him before the Senate Judiciary Committee, NOW founder Betty Friedan dubbed him “unusually blind in the matter of sex prejudice.” Betty Friedan, It Changed My Life (New York: Random House, 1976), 170.
29. Phillips, 416 F.2d at 1259 (Brown, J., dissenting).
30. Ibid. at 1260.
31. Ibid.
32. 372 U.S. 335 (1963).
33. Anthony Lewis, Gideon’s Trumpet (New York: Random House, 1964), 25.
34. Timothy S. Bishop, Jeffrey W. Sarles, and Stephen J. Kane, “Tips on Petitioning for Certiorari in the U.S. Supreme Court,” The Circuit Rider, June 2007, https://www.mayerbrown.com/files/Publication/34891e80-a15d-4b25-84a2-d3c8573d23da/Presentation/PublicationAttachment/5f64270f-6be0-4cec-8cc8-10e6bed6988b/ART_CIRCUITRIDER_JUN07.PDF, 28.
35. Ibid.
36. Petition for Certiorari at 7–8, Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (No. 73).
37. Phillips, 1968 U.S. Dist. LEXIS 8595 at *2.
38. Petition for Certiorari at 6, Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (No. 73).
39. Ibid. at 7.
40. Ibid. at 11.
41. Ibid. at 10–11.
42. Ibid. at 10.
43. Michaelson, “The Justices Saw It Her Way.”
44. Quoted in ibid.
45. Quoted in Elizabeth Heddericg, “Florida Woman’s Discrimination Case May Open Up Jobs,” The St. Petersburg Times, May 4, 1970.
46. Brief of the American Civil Liberties Union, Amicus Curiae at 14, Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (No. 73).
47. Ibid.
48. Ibid.
49. See, e.g., Bart Landry, Black Working Wives: Pioneers of the American Family Revolution (Oakland: University of California Press, 2002).
50. Brief Amicus Curiae for National Organization for Women at 8–9, Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (No. 73).
51. Ibid. at 9.
52. Brief of the American Civil Liberties Union, Amicus Curiae at 8, Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (No. 73).
53. Collins, When Everything Changed, 20.
54. American Airlines advertisement, DC Magazine, Vol. 1, Issue 1, June 12, 1965, 2.
55. Amicus Curiae Brief of Air Line Stewards and Stewardesses Association in Support of Petitioner at 3–4, Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (No. 73).
56. Timothy R. Johnson, Paul J. Wahlbeck, and James F. Spriggs, “The Influence of Oral Arguments on the U.S. Supreme Court,” American Political Science Review 100 , No. 1 (February 2006), 99, 101 (internal citations omitted) (emphasis in original), http://home.gwu.edu/~wahlbeck/articles/Johnson-Wahlbeck-Spriggs%202006%20APSR.pdf.
57. 401 U.S. 424 (1971).
58. Michaelson, “The Justices Saw It Her Way.”
59. Quoted in ibid.
60. Oral Argument at 15; 7:16; 8:15; 9:24; 10:27; 10:50; 9:40, Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (No. 37), available at http://www.oyez.org/cases/1970-1979/1970/1970_73.
61. Ibid. at 11:30.
62. Ibid. at 11:40.
63. Ibid. at 21:25; 25:38; 26:14.
64. Ibid. at 5:26; 5:50.
65. Ibid. at 23:41.
66. Ibid. at 34:18; 34:35.
67. Ibid. at 46:22.
68. Ibid. at 49:44; 48:06; 48:52; 49:30.
69. Ibid. at 74:50; 75:25; 75:39; 75:46.
70. Quoted in Mayeri, Reasoning from Race, 53.
71. Oral Argument at 76:42, Phillips v. Martin Marietta Corp., 400 U.S. 542 (No. 37), available at http://www.oyez.org/cases/1970-1979/1970/1970_73.
72. August 11, 2015, email message from Reese Marshall to author.
73. Phillips v. Martin Marietta Corp., 400 U.S. 542, 497–498 (1971) (per curiam).
74. Ibid. at 544.
75. Ibid. at 498.
76. Ibid. at 545 (Marshall, J., concurring).
77. Ibid. at 545–546.
78. Bob Woodward and Scott Armstrong, The Brethren (New York: Simon & Schuster, 1979), 123.
79. Ibid.
80. Quoted in Mayeri, Reasoning from Race, 53–54.
81. Michaelson, “The Justices Saw It Her Way.”
82. Quoted in ibid.
83. United Press International, “Woman Rightist Plans Spending,” The St. Petersburg Times, July 30, 1971.
84. Quoted in ibid.
85. Quoted in Michaelson, “The Justices Saw It Her Way.”
86. Ibid.
Two
Unless otherwise indicated, direct quotes, biographical and historical details, and mental impressions come from the following sources: Interview with John Carroll in Birmingham, Alabama on August 8, 2014; interview with Pamela Horowitz in Washington, DC, on September 29, 2014; interview with Joe Levin in Montgomery, Alabama, on August 7, 2014; interview with Brenda Mieth in Amissville, Virginia, on September 26, 2014 and by phone with the author on November 26, 2014; and interview with Kim Rawlinson in Montgomery, Alabama, on August 6, 2014, and by phone with the author on October 21, 2014.
1. Associated Press, “E .C. Dothard, State Trooper, 58,” December 17, 1989, http://www.nytimes.com/1989/12/17/obituaries/e-c-dothard-state-trooper-58.html. According to a colleague, Dothard was “still barking out orders while on the ground after being shot.” Ibid.
2. Dothan Area Convention & Visitors Bureau website, dothanalcvb.com.
3. Bureau of Labor Statistics, “Labor Force Statistics from the Current Population Survey: A Databook,” Bulletin 2096 (September 1982): 657.
4. Carl Nink, “Women Professionals in Corrections: A Growing Asset,” MTC Institute (August 2008), available at https://www.mtctrains.com/sites/default/files/WomenProfessionalsInCorrections-Aug08.pdf, 3.
5. “Unhired Women Sue Alabama on Minimum Sizes for Officers,” The New York Times, December 10, 1975, http://timesmachine.nytimes.com/timesmachine/1975/12/10/80101361.html?pageNumber=50.
6. Jerome J. Suich, “Height Standards in Police Employment and the Question of Sex Discrimination: The Availability of Two Defenses for a Neutral Employment Policy Found Discriminatory Under Title VII,” Southern California Law Review 47 (1974): 586–587.
7. Ibid. at 585, 587 n.9.
8. Jo Freeman, “The Revolution for Women in Law and Public Policy,” in Jo Freeman, ed., Women: A Feminist Perspective, 5th ed. (Mountain View, CA: Mayfield, 1995), 356–404.
9. See, e.g., Bart Landry, Black Working Wives (Oakland: University of California Press, 2002).
10. Bradwell v. State, 83 U.S. 130, 141–142 (1872).
11. Muller v. Oregon, 208 U.S. 412, 421 (1907).
12. Goesaert v. Cleary, 335 U.S. 464 (1948).
13. Ibid. at 466. While the law’s official rationale was that women needed a male authority figure’s protection from lascivious, alcohol-fueled bar patrons, some scholars say the less chivalrous reality was that the male-dominated bartenders’ union had lobbied hard for the law in order to keep those lucrative jobs for themselves. Amy Holtman French, “Mixing It Up: Michigan Barmaids Fight for Civil Rights,” Michigan Historical Review 40, No. 1 (Spring 2009): 27–48.
14. See, e.g., Nink, Women Professionals in Corrections; James B. Jacobs, “The Sexual Integration of the Prison’s Guard Force: A Few Comments on ‘Dothard v. Rawlinson,’” Toledo Law Review 10 (Winter 1979): 389; Suich, “Height Standards in Police Employment and the Question of Sex Discrimination.”
15. Equal Employment Opportunity Act of 1972, Public Law 92-261 (86 Stat. 103).
16. Jordan v. Wright, 417 F. Supp. 42 (M.D. Ala. 1976).
17. 401 U.S. 424 (1971).
18. Ibid. at 428.
19. Ibid. at 432.
20. Ibid. at 431.
21. Ibid. at 431, 432.
22. Ibid. at 431–432.
23. Ibid. at 430.
24. Officers for Justice v. Civil Service Comm’n, 395 F. Supp. 378 (N.D. Cal. 1975). The court also found the five-foot-six-inch height minimum to have an illegal disparate impact against Latinos and Asian Americans. Both are groups in which both men and women tend to be shorter than white or black men.
25. Ibid.
26. The remainder of the state’s correctional facilities were work camps or work-release centers, plus the state’s one juvenile detention center and one women’s prison.
27. James v. Wallace, 406 F. Supp. 318 (M.D. Ala. 1976).
28. McCray v. Sullivan, 399 F. Supp. 271 (S.D. Ala. 1975).
29. Newman v. Alabama, 349 F. Supp. 278 (M.D. Ala. 1972).
30. James, 406 F. Supp. at 323–324.
31. Ibid. at 324.
32. Ibid. at 325. Judge Johnson further observed, “Guards rarely enter the cell blocks and dormitories, especially at night when their presence is most needed. The extremely high inmate-to-staff ratio makes personal interaction between the two virtually impossible because staff members must spend all their time attempting to maintain control or to protect themselves.” But the guards also were to blame for these heightened tensions, said the court; they were virtually all white—whereas the inmates were mostly African American—and a “number of witnesses testified that staff members address black inmates with racial slurs, further straining already tense relations.” Indeed, among the comprehensive remedies imposed by Judge Johnson were mandates that the Board of Corrections not only hire enough guards and adequately train them but also ensure that the guards better reflect the “racial and cultural” makeup of the inmate population. James, 406 F. Supp. at 325, 335.
To say that Alabama resisted implementing these directives is an understatement. Governor Wallace scoffed that the court wanted to create a “hotel atmosphere” in the state’s prisons. “U.S. Relinquishes Alabama Prisons,” The New York Times, January 15, 1989, http://www.nytimes.com/1989/01/15/us/us-relinquishes-alabama-prisons.html. Three years later, the court found the state to be in contempt of its orders and placed the prison system in receivership. Newman v. Alabama, 466 F. Supp. 628 (M.D. Ala. 1979). It wasn’t until 1989 that the state finally was released from the court’s oversight. “U.S. Relinquishes Alabama Prisons.”
In early 2014, however, a Justice Department investigation found constitutional violations at Alabama’s women’s prison stemming from pervasive sexual abuse and harassment of inmates by prison guards. Eric Tucker, “Justice Department Reports on Abuse of Female Inmates, Questions Alabama’s Work,” The Washington Post, October 5, 2014, http://www.washingtonpost.com/politics/justice-department-reports-on-abuse-of-female-inmates-questions-alabamas-work/2014/10/05/c260adde-4caa-11e4-8c24-487e92bc997b_story.html. Federal intervention also recently was sought to address overcrowding and rampant abuse throughout the rest of the system. Kala Kachmar, “Justice Department Asked to Investigate State Prisons,” Montgomery Advertiser, November 11, 2014, http://www.montgomeryadvertiser.com/story/news/local/alabama/2014/11/11/justice-department-asked-investigate-state-prisons/18891299/.
33. Phillips v. Martin Marietta, 400 U.S. 542, 545 (1971) (Marshall, J., concurring).
34. Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969).
35. Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d 228 (5th Cir. 1969).
36. Diaz v. Pan American World Airways, Inc., 442 F.2d 385 (5th Cir. 1971).
37. Rosenfeld v. Southern Pacific Co., 444 F.2d 1219 (9th Cir. 1971).
38. Mieth v. Dothard, 418 F. Supp. 1169, 1173 (M.D. Ala. 1976).
39. Ibid. at 1182.
40. Brief in Opposition by Respondent at 53, Dothard v. Rawlinson, 433 U.S. 321 (1977) (No. 76-422).
41. Brief of Petitioners at 6, Dothard v. Rawlinson, 433 U.S. 321 (1977) (No. 76-422).
42. Ibid., 7.
43. Dothard v. Rawlinson, 433 U.S. 321, 335 n.22 (1977).
44. Brief of Petitioners at 11, Dothard v. Rawlinson, 433 U.S. 321 (1977) (No. 76-422).
45. Brief in Opposition by Respondent at 53-54, Dothard v. Rawlinson, 433 U.S. 321 (1977) (No. 76-422).
46. See, e.g., Jacobs, “The Sexual Integration of the Prison’s Guard Force.”
47. Peter B. Bloch and Deborah Anderson, “Policewomen on Patrol: Final Report” (Washington, DC: Police Foundation, May 1974), http://files.eric.ed.gov/fulltext/ED102369.pdf.
48. Ibid. at 2.
49. Ibid. at 61.
50. Ibid. at 3. Notably, although both men and women had to meet a minimum height of five foot seven, the report noted that “the taller an officer was, the more likely he or she was to be rated poorly on performance.” Ibid. at 60.
51. Thomas W. White and Peter B. Bloch, “Police Officer Height and Selected Aspects of Performance” (Washington, DC: Police Foundation, International Association of Chiefs of Police, and Urban Institute, October 1975), http://www.policefoundation.org/wp-content/uploads/2015/08/206509288-White-T-W-Bloch-P-B-Police-Officer-Height-And-Selected-Aspects-Of-Performance.pdf.
52. Ibid.
53. Mieth, 418 F. Supp. at 1184.
54. Less reticent was Governor George Wallace, with whom Mieth and her husband had stumbled into an unlikely social acquaintance. A few days after the lawsuit was filed, she was startled to answer the phone and find the governor on the line. He was livid. “Dammit, you’ve sued me! Why would you do that?” It took a few moments for Mieth to digest that a lawsuit against the Alabama Department of Public Safety was, however indirectly, a lawsuit against Wallace. Red-faced at her naivete, she apologized—and then reiterated her desire for a state trooper job. Wallace simply told her that he understood that she was doing what she needed to do, and the conversation ended there.
55. Quoted in Clare Cushman, ed., Supreme Court Decisions and Women’s Rights: Milestones to Equality (Washington, DC: CQ Press, 2001), 26.
56. 347 U.S. 483 (1954).
57. It was Judge Brown who, seven years earlier, had bitterly dissented from the Fifth Circuit’s refusal to reconsider its dismissal of Ida Phillips’s sex discrimination case against Martin Marietta.
58. Armstrong v. Board of Education, 323 F.2d 333, 353 n.1 (5th Cir. 1963). See also Jack Bass, “The ‘Fifth Circuit Four’: How Four Federal Judges Brought the Rule of Reason to the South,” The Nation, May 3, 2004, https://www.thenation.com/article/fifth-circuit-four.
59. 142 F. Supp. 707 (M.D. Ala. 1956), aff’d, 352 U.S. 950 (1956).
60. Quoted in Robert D. McFadden, “Frank M. Johnson Jr., Judge Whose Rulings Helped Desegregate the South, Dies at 80,” The New York Times, July 24, 1999, http://www.nytimes.com/1999/07/24/us/frank-m-johnson-jr-judge-whose-rulings-helped-desegregate-the-south-dies-at-80.html
61. Quoted in ibid.
62. Mieth, 418 F. Supp. at 1182.
63. Ibid. at 1181.
64. Ibid. at 1179.
65. Ibid. at 1183.
66. Ibid. at 1180.
67. Serena Mayeri, Reasoning from Race (Cambridge, MA: Harvard University Press, 2011), 132.
68. Mayeri details the bumpy aftermath of Mieth v. Dothard for women hoping to become Alabama state troopers. Nearly two years later, no women had been hired. John Carroll and the Southern Poverty Law Center petitioned the court to suspend the veterans’ preferences, but the motion was denied. Ibid., 132–133.
69. “Patrolling Alabama’s Highways,” Ebony, December 1979, 55.
70. 411 U.S. 677 (1973).
71. Ibid. at 684.
72. Reed v. Reed, 404 U.S. 71 (1971).
73. See, e.g., Sisters in Law: How Sandra Day O’Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World (New York: HarperCollins, 2015), 71-73; Fred Strebeigh, Equal: Women Reshape American Law (New York: W. W. Norton, 2009), 50-52. Letters between the lawyers of the ACLU WRP and the SPLC make clear that the former believed Levin had “reneged” on a promise to give Ginsburg and her staff control of the case. See, e.g., Hirshman, Sisters in Law, 71; Strebeigh, Equal, 51. Levin concedes that he had a change of heart as to who would handle the briefing, but as to the oral argument, his memory is that Ginsburg’s taking the lead had only been raised as a possibility, not expressly agreed. In any event, Levin felt that relative peace was achieved in time for the argument, noting that he and Ginsburg, along with her late husband, Martin, had dinner in Washington the night before the argument.
74. Brief Amicus Curiae of American Civil Liberties Union, Dothard v. Rawlinson, 433 U.S. 321 (1977) (No. 76-422).
75. Linda Greenhouse, Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey (New York: Henry Holt & Co., 2005), 106.
76. Ibid.
77. Joan Biskupic, “Enforcing the Sartorial Code,” The Washington Post, December 6, 1999, http://www.washingtonpost.com/wp-srv/WPcap/1999-12/06/008r-120699-idx.html.
78. Ibid.
79. Oral Argument at 2:56, Dothard v. Rawlinson, 433 U.S. 321 (1977) (No. 76-422), available at http://www.oyez.org/cases/1970-1979/1976/1976_76_422.
80. Ibid. at 17:31; 18:48; 18:57; 20:53.
81. Ibid. at 33:21; 33:28.
82. Ibid. at 35:24, 35:39; 35:50; 38:14.
83. Ibid. at 45:18; 50:23; 49:03.
84. Dothard v. Rawlinson, 433 U.S. 321, 331 (1977).
85. Ibid. at 330.
86. Ibid. at 332.
87. Ibid. at 335–36.
88. Ibid. at 341 (Marshall, J., concurring in part and dissenting in part).
89. Ibid. at 342.
90. Ibid. at 345.
91. Ibid. at 346.
92. Dothard, 433 U.S. at 335.
93. February 6, 2015, e-mail from Bob Horton, Alabama Department of Corrections, Public Information Officer, to author.
Three
Unless otherwise indicated, direct quotes, biographical and historical details, and mental impressions come from the following sources: Phone interview with Robert Dohrmann on July 24, 2014; interview with Bob Dohrmann in Los Angeles on February 13, 2015.
1. Kenneth A. Kochanek, M.A., Elizabeth Arias, Ph.D., & Robert N. Anderson, Ph.D., “How Did Cause of Death Contribute to Racial Differences in Life Expectancy in the United States in 2010?,” NCHS Issue Brief, No. 125, July 2013, Centers for Disease Control and Prevention, http://www.cdc.gov/nchs/data/databriefs/db125.htm. Race-based mortality tables were long used by the life insurance industry but abandoned by the late 1960s due to a combination of forces, including “[p]ressure from civil rights organizations, a transformation in scientific and societal views about race after World War II, post-war marketplace changes, the development of standardized race-merged tables by professional actuarial organizations, private party litigation, and late twentieth century investigations by state insurance departments.” Mary L. Heen, “Nondiscrimination in Insurance: The Next Chapter,” Georgia Law Review 49 (Fall 2014): 12.
2. Appendix at 45, Manhart v. City of Los Angeles Dep’t of Water & Power, 435 U.S. 702 (1977) (No. 76-8610).
3. “In Memory,” DWP Retirees Newsletter, Vol. 14, No. 5, Nov./Dec. 1995, case files of Schwartz, Steinsapir, Dohrmann & Sommers.
4. Dec. 17, 1968 letter from Alice Muller to Board of Administration, Water and Power Employees Retirement Plan, case files of Schwartz, Steinsapir, Dohrmann & Sommers: “In Memory,” DWP Retirees Newsletter.
5. Appendix at 45, Manhart v. City of Los Angeles Dep’t of Water & Power, 435 U.S. 702 (1977) (No. 76-8610).
6. May 3, 1973 letter from Alice Muller to Ruth Blanco, case files of Schwartz, Steinsapir, Dohrmann & Sommers.
7. Appendix at 44, Manhart v. City of Los Angeles Dep’t of Water & Power, 435 U.S. 702 (1977) (No. 76-8610).
8. Ibid.
9. Undated note from Alice Muller, case files of Schwartz, Steinsapir, Dohrmann & Sommers.
10. Appendix at 17, Manhart v. City of Los Angeles Dep’t of Water & Power, 435 U.S. 702 (1977) (No. 76-8610).
11. November 30, 1972, letter from Margaret D. Davis to Secretary to the Retirement Board, DWP Board of Commissioners, case files of Schwartz, Steinsapir, Dohrmann & Sommers.
12. November 30, 1972, letter from Carol J. Rastall to Allan F. Larson, Secretary of the Retirement Board, DWP Board of Commissioners, case files of Schwartz, Steinsapir, Dohrmann & Sommers.
13. Appendix at 1314, Manhart v. City of Los Angeles Dep’t. of Water & Power, 435 U.S. 702 (1977) (No. 76-8610).
14. Hugh Davis Graham, The Civil Rights Era: Origins and Development of National Policy (New York: Oxford University Press, 1990), 229.
15. See, e.g., Caroline Bird, Born Female: The High Cost of Keeping Women Down (New York: Pocket Books, 1969), 64–65. The same assumption—that all men were primary breadwinners and all women did not work outside the home and were dependent on their husbands—was reflected in Social Security rules that paid lower survivorship benefits to men than to women; indeed, widowers were subject to onerous eligibility standards, whereas widows received benefits automatically. These requirements was invalidated in the 1970s by the Supreme Court, in a pair of cases litigated by then Columbia Law School professor and now Supreme Court Justice Ruth Bader Ginsburg. Califano v. Goldfarb, 430 U.S. 199 (1977); Weinberger v. Wiesenfeld, 420 U.S. 636 (1975).
16. 29 C.F.R. § 1604.9(f) (1972).
17. Robert Reinhold, “Opening New Freeway, Los Angeles Ends Era,” The New York Times, October 14, 1993, http://www.nytimes.com/1993/10/14/us/opening-new-freeway-los-angeles-ends-era.html?pagewanted=print.
18. Ibid.
19. Editorial, “Sex-Segregated Actuarial Tables Discriminate,” The Las Vegas Sun, June 16, 1974.
20. EEOC Decision No. 74-118 at 3–4 (1974).
21. Manhart v. City of Los Angeles Dep’t of Water & Power, 387 F. Supp. 980, 982 (C.D. Cal. 1975).
22. 110 Congressional Record 13663–64 (June 12, 1964), quoted in Defendant’s Memorandum in Opposition to Motion for Preliminary Injunction, Manhart v. City of Los Angeles Dep’t of Water & Power, 387 F. Supp. 980 (C.D. Cal. 1975).
23. Manhart, 387 F. Supp. at 980, 983.
24. Ibid. at 983–984.
25. Ibid. at 984.
26. Ibid.
27. Flyer dated June 23, 1975, case files of Schwartz, Steinsapir, Dohrmann & Sommers.
28. Manhart v. City of Los Angeles Dep’t of Water & Power, 553 F.2d 581, 590–591 (9th Cir. 1976).
29. Ibid. at 588.
30. Ibid. at 592.
31. Quoted in Robert Rawitch, “Appeals Court Backs Women on Pensions,” The Los Angeles Times, December 1, 1976.
32. 429 U.S. 125 (1976).
33. “DWP to Fight Ruling on Employe Pensions,” The Los Angeles Times, December 9, 1976.
34. Brief Amici Curiae of American Civil Liberties Union and American Association of University Professors, City of Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1977) (No. 76-1810).
35. Brief for the United States and the Equal Employment Opportunity Commission as Amici Curiae, City of Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1977) (No. 76-1810).
36. Brief for the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) and American Federation of Labor and Congress of Industrial Organizations as Amici Curiae, City of Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1977) (No. 76-1810).
37. Brief for the Association for Women in Mathematics and the Women’s Equity Action League as Amici Curiae at 7-8, City of Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1977) (No. 76-1810).
38. Ibid., 9.
39. Brief Amici Curiae of American Civil Liberties Union and American Association of University Professors at 7-8, City of Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1977) (No. 76-1810).
40. Brief of American Nurses’ Association, as Amicus Curiae, in Support of Respondents, City of Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1977) (No. 76-1810).
41. Brief of Teachers Insurance and Annuity Association of America and College Retirement Equities Fund, as Amici Curiae, in Support of Petitioners, City of Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1977) (No. 76-1810).
42. Brief Amicus Curiae of American Council of Life Insurance on Behalf of Petitioners at 3, City of Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1977) (No. 76-1810) (emphasis in original).
43. Brief of the State of Oregon as Amicus Curiae, in Support of Defendants-Petitioners; Brief of the City of New York as Amicus Curiae; and Brief for the New York State Teachers’ Retirement System as Amicus Curiae, City of Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1977) (No. 76-1810).
44. Oral Argument at 7:10; 11:35; 1:57; 18:48, City of Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1977) (No. 76-1810), available at http://www.oyez.org/cases/1970-1979/1977/1977_76_1810.
45. Ibid. at 5:05; 7:13; 9:38; 2:10.
46. Ibid. at 27:49; 42:54: 43:00; 37:54.
47. Ibid. at 35:30; 36:35; 37:10; 37:20; 37:25.
48. Ibid. at 41:40.
49. Ibid. at 61:46.
50. City of Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702, 711 (1977).
51. Ibid. at 709.
52. Ibid. at 711.
53. Ibid. at 714.
54. Ibid. at 717-718.
55. Ibid. at 726, 728 (Burger, C. J., dissenting).
56. Mary L. Heen, “Sex Discrimination in Pensions and Retirement Annuity Plans after Arizona Governing Committee v. Norris: Recognizing and Remedying Employer Non-Compliance,” Women’s Rights Law Reporter 8 (Summer 1985): 156, n.5, http://scholarship.richmond.edu/cgi/viewcontent.cgi?article=1260&context=law-faculty-publications.
57. 463 U.S. 1073 (1983).
58. Ibid. at 1081.
59. Mary L. Heen, “Nondiscrimination in Insurance: The Next Chapter,” Georgia Law Review: 49 (Fall 2014): 49, http://scholarship.richmond.edu/cgi/viewcontent.cgi?article=2049&context=law-faculty-publications.
60. Ibid., 50, 54.
Four
Unless otherwise indicated, direct quotes, biographical and historical details, and mental impressions come from the following sources: Interview with Patricia Barry in Los Angeles, California, on February 16, 2015; phone interview with Judith Ludwic on June 23, 2015; phone interview with John Marshall Meisburg on June 23, 2015.
1. Quoted in Fred Strebeigh, Equal: Women Reshape American Law (New York: W. W. Norton & Co., 2009), 213.
2. Ibid., 213.
3. Mary Battiata, “Mechelle Vinson’s Long Road to Court,” The Washington Post, August 12, 1986, http://www.washingtonpost.com/archive/lifestyle/1986/08/12/mechelle-vinsons-long-road-to-court/b5fa7c5b-c0cf-412b-b40f-a3811e042884/.
4. Quoted in ibid.
5. Ibid.
6. Quoted in Kathy Hacker, “A Bank-Sex Case Becomes Cause Celebre,” The Philadelphia Inquirer, June 1, 1986, http://articles.philly.com/1986-06-01/living/26042804_1_teller-case-caps.
7. Quoted in Battiata, “Mechelle Vinson’s Long Road to Court.”
8. Joint Appendix at 14, Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986) (No. 84-1979).
9. Vinson v. Taylor, No. 78-1793, 1980 U.S. Dist. LEXIS 10676 *3-*4 (D.D.C. Feb. 26, 1980); Hacker, “A Bank-Sex Case Becomes Cause Celebre.”
10. Vinson, 1980 U.S. Dist. LEXIS 10676 at *4. In the court opinions in Mechelle Vinson’s case, a distinction is drawn between the dozen or so occasions when Taylor “raped” Vinson and the rest of the occasions when they had intercourse that Vinson did not want but submitted to out of fear. Given Vinson’s asserted lack of consent to any sex with Taylor, this is a distinction without a difference, and all intercourse will be described here as rape.
11. Quoted in Mary Battiata, “Mechelle Vinson’s Tangled Trials,” The Washington Post, August 11, 1986, http://www.washingtonpost.com/archive/lifestyle/1986/08/11/mechelle-vinsons-tangled-trials/40688848-d73c-4856-8a41-cff3e74277ba/.
12. Hacker, “A Bank-Sex Case Becomes Cause Celebre.”
13. Philip Hager, “Supreme Court to Rule on Sexual Harassment at Work,” The Los Angeles Times, June 8, 1986, http://articles.latimes.com/1986-06-08/news/mn-9645_1_supreme-court-ruling.
14. Quoted in Battiata, “Mechelle Vinson’s Tangled Trials.”
15. Strebeigh, Equal, 218-225.
16. Ibid., 225, 223.
17. Quoted in Enid Nemy, “Women Begin to Speak Out Against Sexual Harassment at Work,” The New York Times, August 19, 1975.
18. Ibid. See also Strebeigh, Equal, 232–233; Carrie N. Baker, “He Said, She Said: Popular Representations of Sexual Harassment and Second-Wave Feminism,” in Sherrie A. Inness, ed., Disco Divas: Women and Popular Culture in the 1970s (Philadelphia: University. of Pennsylvania Press, 2003), 42–43.
19. Rhoda Koenig, “An Ardent Plea for Sexual Harassment,” Harper’s, February 1, 1976, 90.
20. Mary Bralove, “A Cold Shoulder: Career Women Decry Sexual Harassment by Bosses and Clients,” The Wall Street Journal, January 29, 1976.
21. Baker, “He Said, She Said,” 43.
22. Ibid., 49.
23. Augustus B. Cochran III, Sexual Harassment and the Law: The Mechelle Vinson Story (Lawrence: University of Kansas Press, 2004), 47.
24. Baker, “He Said, She Said,” 49.
25. Barnes v. Train, No. 1828-73, 1974 U.S. Dist. LEXIS 7212 at *3 (D.D.C. Aug. 9, 1974), rev’d sub nom, Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977).
26. Corne v. Bausch & Lomb, Inc., 390 F. Supp. 161, 163 (D. Ariz. 1975), rev’d, 562 F.2d 55 (1977).
27. Miller v. Bank of America, 418 F. Supp. 233, 236 (N.D. Cal. 1976), rev’d, 600 F.2d 211 (9th Cir. 1979).
28. Tomkins v. Public Service Electric & Gas Co., 422 F. Supp. 553, 556 (D.N.J. 1976), rev’d, 568 F.2d 1044 (3d Cir. 1977).
29. Fred Strebeigh provides a thorough account of how the activism of Lin Farley, Susan Meyer, and Karen Sauvigne on behalf of Carmita Wood dovetailed with the genesis of MacKinnon’s book, which she began as an independent research project while a student at Yale Law School. Strebeigh, Equal, 225–234.
30. Catharine MacKinnon, Sexual Harassment of Working Women (New Haven, CT: Yale University Press, 1979), 89–90.
31. Ibid., 60, 63–74, 75–77.
32. Williams v. Saxbe, 413 F. Supp. 654, 658 (D.D.C. 1976), rev’d in part, vacated in part sub nom, Williams v. Bell, 587 F.2d 1240 (D.C. Cir. 1978).
33. See, e.g., Garber v. Saxon Bus. Prods., Inc., 552 F.2d 1032 (4th Cir. 1977); Heelan v. Johns-Manville Corp., 451 F. Supp. 1382 (D. Colo. 1978); Munford v. James T. Barnes & Co., 441 F. Supp. 459 (E.D. Mich. 1977).
34. In reversing Barnes, one of the three judges on the D.C. Circuit panel agreed that Paulette Barnes had been illegally harassed, but disagreed with the majority’s ruling that an employer was absolutely liable for its supervisors’ harassment. That judge was George MacKinnon—Catharine MacKinnon’s father.
35. As MacKinnon described the phenomenon in Sexual Harassment of Working Women at page 33: “To date, all of the legally successful suits for sexual harassment have alleged some form of the trilogy of unwanted advances, rejection, retaliation.”
36. Ibid., 32–40.
37. Ibid., 40, 44.
38. Battiata, “Mechelle Vinson’s Tangled Trials.”
39. Quoted in ibid.
40. Transcript of Trial, January 22, 1980 at 33, 34, Vinson v. Taylor, No. 78-1793, 1980 U.S. Dist. LEXIS 10676 (D.D.C. Feb. 26, 1980).
41. Strebeigh, Equal, 211–212.
42. Opposition of Plaintiff to Defendant’s Motion to Dismiss, Declaration of Christine Malone, Vinson v. Taylor, No. 78-1793, 1980 U.S. Dist. LEXIS 10676 (D.D.C. Feb. 26, 1980).
43. Plaintiff’s Motion to File First Amended Complaint and to Add Parties, Declaration of Mary Levarity, Vinson v. Taylor, No. 78-1793, 1980 U.S. Dist. LEXIS 10676 (D.D.C. Feb. 26, 1980).
44. Joint Appendix at 14-15, Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986) (No. 84-1979).
45. Quoted in Hacker, “A Bank-Sex Case Becomes Cause Celebre.”
46. Title VII includes this “pattern or practice” language, which is generally used to bring class action discrimination claims involving large numbers of employees. Relying on it was Barry’s effort to ground her “condition of work,” a/k/a hostile environment claim, not yet recognized in any federal court, in the text of the statute.
47. Transcript of Trial, January 23, 1980 at 16, 22, Vinson v. Taylor, No. 78-1793, 1980 U.S. Dist. LEXIS 10676 (D.D.C. Feb. 26, 1980).
48. 347 U.S. 483 (1954).
49. Adam Bernstein, “U.S. District Court Judge John Garrett Penn, 75,” The Washington Post, September 12, 2007. http://www.washingtonpost.com/wp-dyn/content/article/2007/09/11/AR2007091102335.html.
50. Strebeigh, Equal, 263–264.
51. Ibid.; Cochran, Sexual Harassment and the Law, 70–71.
52. Strebeigh, Equal, 264.
53. Cochran, Sexual Harassment and the Law, 70–71.
54. Answers of Plaintiff to Interrogatories Propounded by Defendant at 23, Vinson v. Taylor, No. 78-1793, 1980 U.S. Dist. LEXIS 10676 (D.D.C. Feb. 26, 1980).
55. Battiata, “Mechelle Vinson’s Tangled Trials.”
56. Transcript of Trial, January 22, 1980 at 82, Vinson v. Taylor, No. 78-1793, 1980 U.S. Dist. LEXIS 10676 (D.D.C. Feb. 26, 1980).
57. Transcript of Trial, January 31, 1980 at 8, Vinson v. Taylor, No. 78-1793, 1980 U.S. Dist. LEXIS 10676 (D.D.C. Feb. 26, 1980).
58. Cochran, Sexual Harassment and the Law, 71.
59. Transcript of Trial, January 31, 1980 at 14, Vinson v. Taylor, No. 78-1793, 1980 U.S. Dist. LEXIS 10676 (D.D.C. Feb. 26, 1980).
60. Jane H. Aiken, “Protecting Plaintiffs’ Sexual Pasts,” Emory Law Journal 51 (2002): 561–563.
61. Vinson, 1980 U.S. Dist. LEXIS 10676 at *23.
62. Ibid. at *20.
63. Strebeigh, Equal, 268–269.
64. 29 C.F.R. § 1604.11(c) (1980) (rescinded Oct. 29, 1999).
65. Ibid. § 1604.11(a) (1980) (emphasis added).
66. 641 F.2d 934 (D.C. Cir. 1981).
67. Ibid. at 945.
68. Philip Smith, “Court Eases Rule on Sex Harassment,” The Washington Post, January 26, 1985, http://www.washingtonpost.com/archive/local/1985/01/26/court-eases-rule-on-harassment/6c4eaf93-a091-4b46-bcc1-88f360effa8c/.
69. Eric Pace, “Spottswood W. Robinson 3d, Civil Rights Lawyer, Dies at 82,” The New York Times, October 13, 1988, http://www.nytimes.com/1998/10/13/us/spottswood-w-robinson-3d-civil-rights-lawyer-dies-at-82.html.
70. Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977). Fred Strebeigh makes a strong case that Judge Robinson received an early version of MacKinnon’s Sexual Harassment of Working Women (when it was still just a research paper) at the time the D.C. Circuit was deciding Barnes. MacKinnon’s father, Judge George MacKinnon, was on the panel with Robinson, and MacKinnon happened to be visiting her father’s chambers doing research when an unidentified woman, believed to be one of Robinson’s clerks, borrowed the paper. See Strebeigh, Equal, 241–245, 250–258.
71. Marjorie Hunter, “Judge J. Skelly Wright, Segregation Foe, Dies at 77,” The New York Times, August 8, 1988, http://www.nytimes.com/1988/08/08/obituaries/judge-j-skelly-wright-segregation-foe-dies-at-77.html.
72. Ibid.
73. Ruth Bader Ginsburg, “Four Louisiana Giants in the Law,” Judge Robert A. Ainsworth Jr. Memorial Lecture, February 4, 2002, Loyola University New Orleans School of Law, http://www.supremecourtus.gov/publicinfo/speeches/sp_02-04-02.html.
74. Strebeigh, Equal, 269.
75. Hacker, “A Bank-Sex Case Becomes Cause Celebre.”
76. Strebeigh, Equal, 269.
77. Vinson v. Taylor, 753 F.2d 141, 145 (D.C. Cir. 1985) (emphasis in original).
78. Ibid. at 146.
79. Ibid.
80. Ibid. at 146 & n.36.
81. Ibid. at 150.
82. Ronald J. Ostrow, “Law Center Opposes Nomination: Bork Termed a Peril to the Rights of Women,” The Los Angeles Times, August 19, 1987, http://articles.latimes.com/1987-08-19/news/mn-826_1_judge-robert-h-bork.
83. M. L. Nestel, “Conservative Scold Ken Starr Got a Billionaire Pedophile Off,” The Daily Beast, January 30, 2015, http://www.thedailybeast.com/articles/2015/01/30/conservative-scold-ken-starr-got-a-billionaire-pedophile-off.html.
84. Vinson v. Taylor, 760 F.2d 1330, 1331 (D.C. Cir. 1985) (per curiam) (Bork, J., dissenting).
85. Ibid.
86. Ibid.
87. Hacker, “A Bank-Sex Case Becomes Cause Celebre.”
88. Georgia Dullea, “Sexual Harassment at Work: A Sensitive and Confusing Issue,” The New York Times, October 24, 1980, http://timesmachine.nytimes.com/timesmachine/1980/10/24/111303733.html?pageNumber=20.
89. 9 to 5 (Twentieth Century Fox, 1980).
90. Rebecca Traister, “If You Want to See What Revolutionary Workplace Policies Really Look Like, Watch ‘9 to 5,’” The New Republic, May 13, 2015, http://www.newrepublic.com/article/121785/enduring-relevance-9-5.
91. Hacker, “A Bank-Sex Case Becomes Cause Celebre.”
92. Battiata, “Mechelle Vinson’s Tangled Trials.”
93. As Fred Strebeigh details, Thomas had helped write a memo to the Reagan transition team advocating against vigorous enforcement of the Guidelines. “[T]he elimination of personal slights and sexual advances which contribute to an ‘intimidating, hostile or offensive working environment’ is a goal impossible to reach,” he wrote. “Expenditure of the EEOC’s limited resources in pursuit of this goal is unwise.” Strebeigh, Equal, 283.
94. Ibid., 282–284.
95. Ibid., 283.
96. Barry told Fred Strebeigh, however, that her poor showing was an example of “self-sabotag[e]” motivated by insecurity. Quoted in Strebeigh, Equal, 290.
97. Interview with Carin Clauss, Madison, Wisconsin, August 26, 2014.
98. Lehman v. Nakshian, 453 U.S. 156 (1981).
99. Oral Argument at :33, Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986) (84-1979), available at http://www.oyez.org/cases/1980-1989/1985/1985_84_1979.
100. Ibid., 13:18; 13:52; 14:25; 21:30.
101. Ibid., 7:10; 8:10; 9:37; 9:47.
102. Ibid., 26:40.
103. Ibid., 28:20, 35:52.
104. Ibid., 36:12; 37:48; 47:33.
105. Ibid., 56:00.
106. Strebeigh, Equal, 299.
107. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986).
108. Ibid. at 67.
109. Ibid.
110. Ibid.
111. Ibid. at 68.
112. Ibid. at 69. Although this part of the decision was dispiriting to women’s advocates, its impact was somewhat blunted by later changes to the Federal Rules of Evidence. In 1994, the rules applying to civil cases were changed to import the so-called rape shield law from criminal cases. Under Rule 412 of the Federal Rules of Evidence, the dress and behavior of the victim of an alleged sexual offense is irrelevant, except as toward the alleged offender himself. Under such a standard, much of the disputed evidence about Mechelle Vinson would likely have been excluded. Notably, Justice Rehnquist wrote to Congress to object to the rape shield rule’s extension to civil cases precisely because it would conflict with the “welcomeness” defense left available to defendants under Vinson (“[S]ome Justices expressed concern that the proposed amendment [to extend Rule 412 to civil cases] might encroach on the rights of some defendants”). See Aiken, “Protecting Plaintiffs’ Sexual Pasts,” at 573 (and citations contained therein).
113. Meritor, 477 U.S. at 72. Justice Marshall, in an opinion joined by Justices Brennan, Blackmun, and Stevens, filed a concurrence that disagreed with the Court’s ruling on employer liability. The Court of Appeals’ strict liability standard, which imported the EEOC Guidelines, was correct, Marshall wrote. The EEOC’s (and solicitor general’s) brief backing away from those Guidelines, said Marshall, was “untenable.” 477 U.S. at 76 (“A supervisor’s responsibilities do not begin and end with the power to hire, fire, and discipline employees, or with the power to recommend such actions. Rather, a supervisor is charged with the day-to-day supervision of the work environment and with ensuring a safe, productive workplace. There is no reason why abuse of the latter authority should have different consequences than abuse of the former.”).
114. Meritor, 477 U.S. at 72–73.
115. Battiata, “Mechelle Vinson’s Tangled Trials.”
116. Quoted in ibid.
117. Ibid.
118. Ibid.
119. Ibid.
120. Judith Resnik, “Old and New Depictions of Justice: Reflections, Circa 2011, on Hill-Thomas,” in Amy Richards and Cynthia Greenberg, eds., I Still Believe Anita Hill (New York: The Feminist Press, 2013), 53.
121. Catharine MacKinnon, “Voice, Heart, Ground,” in Richards and Greenberg, I Still Believe Anita Hill, 72 (citations omitted).
122. United States v. Taylor, 867 F. 2d 700 (D.C. Cir. 1989).
123. Tanya Kateri Hernandez, “‘What Not to Wear’—Race and Unwelcomeness in Sexual Harassment Law: The Story of Meritor Savings Bank v. Vinson,” in Elizabeth M. Schneider and Stephanie M. Wildman, eds., Women and the Law: Stories (New York: Thomson Reuters/Foundation Press, 2011), 293.
124. Quoted in Sheila Weller, “These Women Changed Your Life,” Glamour, September 2005, 268.
Five
Unless otherwise indicated, direct quotes, biographical and historical details, and mental impressions come from the following sources: Interview with Carin Clauss, Madison, Wisconsin, August 25, 2014; interview with Lillian Garland, Dale City, Virginia, April 8, 2015; interview with Patricia Shiu, Washington, DC, April 9, 2015; and phone interview with Linda Krieger, June 1, 2015.
1. Quoted in Tamar Lewin, “Maternity Leave: Is It Leave, Indeed?” The New York Times, July 22, 1984, http://www.nytimes.com/1984/07/22/business/maternity-leave-is-it-leave-indeed.html?pagewanted=all.
2. Ibid.
3. Montgomery Brower, “A Working Mother’s Fight for Job Security Goes to the Last Round,” People, February 10, 1986.
4. Quoted in Carol Kleiman, “Court Victory in War on Sex Bias Was Not Without Serious Casualties,” The Chicago Tribune, June 22, 1987.
5. Brower, “A Working Mother’s Fight.”
6. Kleiman, “Court Victory in War on Sex Bias.”
7. Amy Wilentz, “Garland’s Bouquet,” Time, January 26, 1987.
8. Kleiman, “Court Victory in War on Sex Bias.”
9. 42 U.S.C. § 2000e(k).
10. Henry Weinstein, “Controversial Federal Judge Steps Down from L.A. Post,” The Los Angeles Times, January 7, 1994, http://articles.latimes.com/1994-01-07/news/mn-9326_1_chief-judge.
11. Carol J. Williams, “Critics Want to Bench Judge Manuel L. Real,” The Los Angeles Times, August 16, 2009, http://articles.latimes.com/2009/aug/16/local/me-judge-real16.
12. Weinstein, “Controversial Federal Judge Steps Down.”
13. Ibid.
14. Ibid.
15. Terry Carter, “Real Trouble,” ABA Journal, September 1, 2008, http://www.abajournal.com/magazine/article/real_trouble.
16. Bill Farr, “Contempt Charges Against Flynt Dismissed,” The Los Angeles Times, March 29, 1985, http://articles.latimes.com/1985-03-29/local/me-20456_1_larry-flynt.
17. United States v. Flynt, 756 F.2d 1352 (9th Cir. 1985).
18. The People vs. Larry Flynt (Columbia Pictures, 1996).
19. The preemption doctrine stems from the Constitution’s Supremacy Clause, which provides that the “Constitution and the laws of the United States . . . shall be the supreme law of the land . . . anything in the constitutions or laws of any State to the contrary notwithstanding.” U.S. Constitution, Article VI.
20. California Federal Sav. & Loan Ass’n v. Guerra, No. 83-4927R, 1984 U.S. Dist. LEXIS 18387 at *2 (C.D. Cal., Mar. 21, 1984).
21. Ibid.
22. Jack Jones, “Court Overturns Maternity Leave Job Protection,” The Los Angeles Times, March 20, 1984.
23. Lewin, “Maternity Leave: Is It Leave, Indeed?”
24. Linda J. Krieger and Patricia N. Cooney, “The Miller-Wohl Controversy: Equal Treatment, Positive Action and the Meaning of Women’s Equality,” Golden Gate University Law Review 13 (1983): 515.
25. Patricia A. Shiu and Stephanie M. Wildman, “Pregnancy Discrimination and Social Change: Evolving Consciousness About a Worker’s Right to Job-Protected, Paid Leave,” Yale Journal of Law & Feminism 21 (2009): 134.
26. Mont. Code Ann. §§ 39-7-201 (pre-1983 amendment).
27. Wendy W. Williams, “Equality’s Riddle: Pregnancy and the Equal Treatment/Special Treatment Debate,” N.Y.U. Review of Law and Social Change 13 (1984–85): 325.
28. Ibid., 327.
29. 60 Minutes: Maternity Leave (CBS television broadcast, December 2, 1984).
30. Krieger and Cooney, “The Miller-Wohl Controversy,” 518–519 (internal citations omitted).
31. Ibid., 519 (internal citation omitted).
32. See Fred Strebeigh, Equal: Women Reshape American Law (New York: W. W. Norton & Co., 2009).
33. Krieger and Cooney, “The Miller-Wohl Controversy,” 520 (internal citation omitted).
34. Ibid., 519.
35. Katharine T. Bartlett, “Pregnancy and the Constitution: The Uniqueness Trap,” California Law Review 62 (1974): 1532.
36. Muller v. Oregon, 208 U.S. 412 (1907).
37. Quoted in Gail Collins, When Everything Changed (New York: Little, Brown & Co. 2009), 70.
38. Ibid.
39. At the time, Carin Clauss was a young lawyer at the Labor Department. (She later was appointed its Solicitor.) She recalled the dismay registered by Peterson, by then the Department’s Special Assistant for Consumer Affairs, when Smith proposed adding “sex” to Title VII:
Esther Peterson burst into my office. “Carin, you have to do something. Congress is about to pass a law that will undo all of our protective legislation!” [She] had been at [former Secretary of Labor] Francis Perkins’ side when the Triangle Shirtwaist fire [happened, killing 145 young female sweatshop workers], and they had worked so hard. . . .”They’re gonna repeal all these laws, you gotta do something!”
40. Williams, “Equality’s Riddle,” 325.
41. See, e.g., Rosenfeld v. Southern Pacific Co., 444 F.2d 1219, 1223 (9th Cir. 1971); Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969); Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d 228 (5th Cir. 1969).
42. See, e.g., Deborah A. Widiss, “Gilbert Redux: The Interaction of the Pregnancy Discrimination Act and the Amended Americans with Disabilities Act,” University of California Davis Law Review 46 (2013): 979–980 (and citations contained therein).
43. See General Elec. Co. v. Gilbert, 429 U.S. 125, 142 (1976) (internal citation omitted).
44. Ibid. at 143 (internal citation omitted).
45. Strebeigh, Equal, 116.
46. Ibid., 116–118.
47. 29 C.F.R. § 1604.10(a)–(b) (1973). Moreover, if a pregnant woman needed time off and she had exhausted any available leave under whatever policy the employer had in place for such absences, the employer had to allow the additional leave if refusing it would have a “disparate impact” on pregnant women—that is, if it would result in pregnant women’s being disproportionately fired as compared to other employees who needed temporary leaves. Ibid. § 1604.10(c).
48. Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974).
49. Turner v. Department of Employment Security, 423 U.S. 44 (1975).
50. Nashville Gas Co. v. Satty, 434 U.S. 136 (1977).
51. Deborah L. Brake and Joanna L. Grossman, “Unprotected Sex: The Pregnancy Discrimination Act at 35,” Duke Journal of Gender Law & Policy 21 (2013): 73.
52. Geduldig v. Aiello, 417 U.S. 484 (1974).
53. 429 U.S. 125 (1976).
54. Widiss, “Gilbert Redux,” 993.
55. Deborah Dinner, “The Costs of Reproduction: History and the Legal Construction of Sex Equality,” Harvard Civil Rights-Civil Liberties Law Review 46 (2011): 469–470.
56. 42 U.S.C. § 2000e(k).
57. Ibid.
58. Coleman v. Court of Appeals, 132 S. Ct. 1327, 1342 (2012) (Ginsburg, J., dissenting).
59. Troupe v. May Dep’t Stores Co., 20 F.3d 734, 738 (7th Cir. 1994).
60. Shiu and Wildman, “Pregnancy Discrimination and Social Change,” 129 (internal citation omitted).
61. Miller-Wohl Co. v. Commissioner of Labor and Industry, 692 P.2d 1243 (Mont. 1984), vacated by 479 U.S. 1050 (1987), remanded to 744 P.2d 871 (Mont. 1987).
62. 387 F. Supp. 980 (C.D. Cal. 1975).
63. Bruce Weber, “Warren J. Ferguson, 87, Federal Judge, Is Dead,” The New York Times, July 12, 2008, http://www.nytimes.com/2008/07/12/washington/12ferguson.html.
64. Just the Beginning—A Pipeline Organization, “Earl B. Gilliam,” http://www.jtb.org/index.php?src=directory&view=biographies&srctype=detail&refno=66.
65. California Federal Sav. & Loan Ass’n v. Guerra, 758 F.2d 390, 393 (9th Cir. 1985).
66. Ibid. at 396.
67. Mark Guerra was the director of California’s Department of Fair Employment and Housing at the time Cal Fed filed its lawsuit, making him the named representative of the state.
68. Stephanie M. Wildman, “Pregnant and Working: The Story of California Federal Savings & Loan Association v. Guerra,” in Elizabeth M. Schneider and Stephen M. Wildman, eds., Women and the Law: Stories (New York: Thomson Reuters/Foundation Press, 2011), 267.
69. Coleman, 132 S. Ct. at 1341 (Ginsburg, J., dissenting).
70. Margaret Wolf Freivogel, “Woman Wins Her Fight for Job Rights,” St. Louis Post-Dispatch, December 13, 1987.
71. 133 S. Ct. 2562 (2013).
72. Kenji Yoshino, Speak Now: Marriage Equality on Trial—The Story of Hollingsworth v. Perry (New York: Crown Publishers, 2015), 23.
73. Oral Argument at 3:27-6:07; 22:35, 23:18-24:30, California Federal Sav. & Loan Ass’n v. Guerra, 479 U.S. 272 (1987) (85-494), available at http://www.oyez.org/cases/1980-1989/1986/1986_85_494#argument.
74. Ibid. at 8:20, 8:42-9:29; 9:55-10:17.
75. Ibid. at 28:53-29:15; 34:13-34:27; 34:45-34:56.
76. Ibid. at 37:20-38:09.
77. Ibid. at 40:33-41:02.
78. Ibid. at 50:34-50:48.
79. Patt Morrison, “Job Litigant Asked God to Guide Justices,” The Los Angeles Times, January 14, 1987, http://articles.latimes.com/1987-01-14/news/mn-3375_1_custody.
80. California Federal Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 285 (1987).
81. Ibid. at 289.
82. Ibid. at 290 (emphasis in original) (citation omitted).
83. Quoted in Al Kamen, “Court Upholds Pregnancy Leave Laws,” The Washington Post, January 14, 1987, http://www.washingtonpost.com/archive/politics/1987/01/14/court-upholds-pregnancy-leave-laws/89065d62-c58a-4517-bcd2-9f9eac4fda43/.
84. Quoted in Wilentz, “Garland’s Bouquet.”
85. Quoted in Kamen, “Court Upholds Pregnancy Leave Laws.”
86. Quoted in ibid.
87. Steven K. Wisensale, “Two Steps Forward, One Step Back: The Family and Medical Leave Act as Retrenchment Policy,” Review of Policy Research 20, No. 1 (March 2003): 135.
88. “Clinton Signs His First Legislation,” The New York Times, February 6, 1993, http://www.nytimes.com/1993/02/06/us/clinton-signs-his-first-legislation.html; Felicity Barringer, “Family-Leave Bill: Peace of Mind Issue,” The New York Times, February 4, 1993, http://www.nytimes.com/1993/02/04/garden/family-leave-bill-peace-of-mind-issue.html.
89. Bill Clinton, “Remarks at the Signing of the Family and Medical Leave Act” (February 5, 1993), The Miller Center, University of Virginia, http://millercenter.org/president/clinton/speeches/speech-4562.
90. Family and Medical Leave Act of 1993, Pub. L. No. 103-03, 107 Stat. 6 (codified as amended at 29 U.S.C. §§ 2601-2654 (2006)).
91. Lauren Sandler, “Taking Care of Our Own,” The New Republic, May 18, 2015, http://www.newrepublic.com/article/121822/paid-leave-goes-progressive-pipe-dream-political-reality.
92. Clinton, “Remarks.”
93. Barringer, “Family-Leave Bill.”
94. Wilentz, “Garland’s Bouquet.”
Six
Unless otherwise indicated, direct quotes, biographical and historical details, and mental impressions come from the following sources: Iinterview with Ann Hopkins, Washington, DC, September 30, 2014; interview with Doug Huron, November 7, 2014; May 5, 2015 e-mail from Doug Huron to author; phone interview with Susan Fiske, Ph.D., April 15, 2015.
1. Quoted in Tamar Lewin, “Winner of Sex Bias Suit Set to Enter Next Arena,” The New York Times, May 19, 1990, http://www.nytimes.com/1990/05/19/us/winner-of-sex-bias-suit-set-to-enter-next-arena.html.
2. Ann Branigar Hopkins, So Ordered: Making Partner the Hard Way (Amherst: University of Massachusetts Press, 1996), 9.
3. Quoted in Dorothy Storck, “Beating Men at Their Own Game: Ann Hopkins Is Not a Feminist. But She Shook Up the Old Boys in the Boardroom When She Decided to Fight for Her Rights,” The Philadelphia Inquirer, May 22, 1990, http://articles.philly.com/1990-05-22/news/25885434_1_ann-hopkins-discrimination-suit-courts.
4. Hopkins, So Ordered, 4.
5. Makers: Women in Business (PBS television broadcast, October 28, 2014), www.makers.com/documentary/womeninbusiness.
6. Hopkins, So Ordered, 25.
7. August 18, 2015, email message from Ann Hopkins to author.
8. Hopkins v. Price Waterhouse, 825 F.2d 458, 462 (D.C. Cir. 1987).
9. Hopkins, So Ordered, 216.
10. Today, due to mergers and bankruptcies, the group is known as the “Big Four.” See, e.g., Paul Danos, “Back to the Big Eight Again,” Forbes.com, Apr. 12, 2007, http://www.forbes.com/2007/04/12/danos-accounting-bigeight-oped-cx_pd_0413danos.html.
11. Eric N. Berg, “The Big Eight: Still a Male Bastion,” The New York Times, July 12, 1988, http://www.nytimes.com/1988/07/12/business/the-big-eight-still-a-male-bastion.html.
12. Hopkins, So Ordered, 137.
13. Ibid., 140.
14. Ibid.
15. Hopkins v. Price Waterhouse, 618 F. Supp. 1109, 1113, 1116-1117 (D.D.C. 1985).
16. Ibid. at 1116.
17. Ann Branigar Hopkins, “Price Waterhouse v. Hopkins: A Personal Account of a Sexual Discrimination Plaintiff,” Hofstra Labor & Employment Law Journal 22 (Spring 2005): 361.
18. Hopkins, So Ordered, 138, 147.
19. Hopkins, 618 F. Supp. at 113.
20. Hopkins, 825 F. 2d at 462.
21. Hopkins, So Ordered, 152.
22. Makers: Women in Business.
23. Hopkins, So Ordered, 153.
24. Ibid., 138.
25. Ibid., 153–154.
26. Hopkins, “A Personal Account of a Sexual Discrimination Plaintiff,” 368.
27. Hopkins, So Ordered, 156.
28. Ibid., 163.
29. Hopkins, 618 F. Supp. at 1117.
30. Ibid.
31. Timothy S. Robinson, “Sparks May Fly as Lawyers Pick Best, Worst Federal Judges,” The Washington Post, May 30, 1980, http://www.washingtonpost.com/archive/business/1980/06/30/sparks-may-fly-as-lawyers-pick-best-worst-us-federal-judges/cd265f9a-06ab-4805-a1af-3fccd452acd4/.
32. Quoted in Bruce Lambert, “Judge Gerhard Gesell Dies at 82; Oversaw Big Cases,” The New York Times, February 21, 1993, http://www.nytimes.com/1993/02/21/us/judge-gerhard-gesell-dies-at-82-oversaw-big-cases.html?pagewanted=1.
33. “Gerhard A. Gesell; Iran-Contra Judge,” The Los Angeles Times, February 21, 1993, http://articles.latimes.com/1993-02-21/news/mn-752_1_arnold-gesell.
34. The clinic’s name later was changed to the Yale Child Study Center. http://medicine.yale.edu/childstudy/about/history.aspx. Additionally, a New Haven, Connecticut, nonprofit devoted to the study and promotion of healthy child development, the Gesell Institute of Child Development, is named for Dr. Gesell. See http://www.gesellinstitute.org.
35. Bart Barnes, “James Heller Dies,” The Washington Post, November 28, 2001, http://www.washingtonpost.com/archive/local/2001/11/28/james-heller-dies/416ee2f3-4efc-4c77-9cd8-66843c2324fc/.
36. Quoted in Hopkins, So Ordered, 211.
37. Ibid., 212.
38. Hopkins, “A Personal Account of a Sexual Discrimination Plaintiff,” 366.
39. Hopkins, So Ordered, 197.
40. Ibid., 221.
41. Ibid., 225.
42. Joint Appendix at 14, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (No. 87-1167).
43. Ibid. at 20–33.
44. Ibid. at 58–59.
45. Hopkins, 618 F. Supp. at 1120.
46. Ibid. at 1118–1120.
47. Ibid. at 1114.
48. Ibid. at 1120.
49. Ibid. at 1121.
50. Hopkins, 825 F.2d at 466, 472.
51. Ibid. at 473.
52. Quoted in Lewin, “Winner of Sex Bias Suit Set to Enter Next Arena.”
53. Hopkins, 825 F.2d at 477, 478 (Williams, J., dissenting).
54. Petitioner’s Brief at 73, Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) (No. 87-1167).
55. Brief for Amicus Curiae American Psychological Association in Support of Respondent at 37, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (No. 87-1167).
56. Quoted in Brief of Amici Curiae NOW Legal Defense and Education Fund, et al., in Support of Respondent at 16, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (No. 87-1167).
57. Hopkins, “A Personal Account of a Sexual Discrimination Plaintiff,” 369.
58. Oral Argument at 1:35-2:50; 15:44-17:14, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (No. 87-1167), available at http://www.oyez.org/cases/1980-1989/1988/1988_87_1167.
59. Ibid. at 9:15.
60. Ibid. at 19:00–19:30.
61. Ibid. at 27:30–32:03.
62. Ibid. at 32:06–32:24.
63. Ibid. at 29:47–30:23.
64. Ibid. at 43:37.
65. Hopkins, So Ordered, 293, 294, 296.
66. Price Waterhouse v. Hopkins, 490 U.S. 228, 251, 256 (1989). What the six couldn’t agree on, though, was how much evidence of bias the plaintiff needed to show in order to shift the burden to the defendant to prove it would have made the same decision anyway. When Congress amended Title VII in 1991, it clarified this standard—and minimized the burden of proof on the plaintiff.
67. Hopkins, So Ordered, 310.
68. Ibid., 350.
69. Lewin, “Winner of Sex Bias Suit Set to Enter Next Arena.”
70. Hopkins v. Price Waterhouse, 737 F. Supp. 1202, 1210-11 (D.D.C. 1990).
71. Quoted in Tamar Lewin, “Partnership in Firm Awarded to Victim of Sex Bias,” The New York Times, May 16, 1990, http://www.nytimes.com/1990/05/16/us/partnership-in-firm-awarded-to-victim-of-sex-bias.html.
72. Hopkins, So Ordered, 377.
73. Ibid., 381.
74. Makers: Women in Business.
75. Hopkins, “A Personal Account of a Sexual Discrimination Plaintiff,” 412.
76. “The 100 Best Companies for Working Mothers,” Working Mother, October 2002, 108.
77. Quoted in Reed Abelson, “If Wall Street Is a Dead End, Do Women Stay to Fight or Go Quietly?” The New York Times, August 3, 1999, http://www.nytimes.com/1999/08/03/business/if-wall-street-is-a-dead-end-do-women-stay-to-fight-or-go-quietly.html.
Seven
Unless otherwise indicated, direct quotes and biographical and historical details come from the following sources: interview with Joan Bertin, January 8, 2015, New York, New York; interview with Carin Clauss, Madison, Wisconsin, August 25 and 26, 2014; interview with Miriam Horwitz, Milwaukee, Wisconsin, August 25, 2014; interview with Marley Weiss, October 3, 2014, Bethesda, Maryland; interview with Patricia Shiu, April 9, 2015; phone interview with Judith Nason, July 15, 2015.
1. Joint Appendix at 106, International Union, UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991) (No. 89-1215).
2. Ibid. at 88.
3. Quoted in Eileen McNamara, “Factory and Fertility Suit Raises Issues of Bias, Fetal Rights,” The Boston Globe, October 17, 1989.
4. Peter T. Kilborn, “Employers Left with Many Decisions,” The New York Times, March 21, 1991.
5. Quoted in McNamara, “Factory and Fertility Suit Raises Issues of Bias.”
6. Quoted in Florence Estes, “Supreme Friends: Battery Workers Pulled Together to Pursue the Right to Their Jobs,” The Chicago Tribune, April 28, 1991, http://articles.chicagotribune.com/1991-04-28/features/9102070557_1_johnson-controls-fetal-protection-policy-supreme-court.
7. David L. Kirp, “Fetal Hazards, Gender Justice, and the Justices: The Limits of Equality,” William & Mary Law Review 34 (Fall 1992): 105.
8. Tamar Lewin, “Battery Manufacturer Loses a Bias Case,” The New York Times, March 3, 1990.
9. 29 C.F.R. § 1910.1025 (1978). The Preamble to the Lead Standard appears at 43 Fed. Reg. 52952 (1978) and the Attachments appear at 43 Fed. Reg. 54353 (1978).
10. 29 C.F.R. § 1910.1025, Appendix A, Section II.B.2.
11. Ibid.
12. 43 Fed. Reg. at 52959–60, 52966.
13. 43 Fed. Reg. 52966.
14. 29 C.F.R. § 1910.1025(d)–(j).
15. Carin Ann Clauss, Marsha Berzon, and Joan Bertin, “Litigating Reproductive and Developmental Health in the Aftermath of UAW Versus Johnson Controls,” Environmental Health Perspectives Supplements 101, Suppl. 2 (1993): 207.
16. Ibid., 207.
17. Mary E. Becker, “From Muller v. Oregon to Fetal Vulnerability Policies,” University of Chicago Law Review 53 (1986): 1226; Gail Bronson, “Chemical Companies Move to Protect Women from Substances That May Harm Fetuses,” The Wall Street Journal, November 7, 1977.
18. Becker, “From Muller v. Oregon to Fetal Vulnerability Policies.”
19. Ibid.
20. Gail Bronson, “Bitter Reaction: Issue of Fetal Damage Stirs Women at Chemical Plants,” The Wall Street Journal, February 9, 1979.
21. Deborah Stone, “Fetal Risks, Women’s Rights: Showdown at Johnson Controls,” The American Prospect (Fall 1990), http://prospect.org/article/fetal-risks-womens-rights-showdown-johnson-controls.
22. National Governors Association Center for Best Practices, Issue Brief, “Healthy Babies: Efforts to Improve Birth Outcomes and Reduce High Risk Births,” June 28, 2004, http://www.nursefamilypartnership.org/assets/PDF/Journals-and-Reports/NGAHealthyBabiesBrief; Associated Press, “Poverty and Infant Mortality,” February 21, 1982, http://www.nytimes.com/1982/02/21/style/poverty-and-infant-mortality.html.
23. Bronson, “Bitter Reaction.”
24. Kirp, “Fetal Hazards, Gender Justice, and the Justices”; Becker, “From Muller v. Oregon to Fetal Vulnerability Policies.”
25. Centers for Disease Control and Prevention, “Reproductive Health and the Workplace,” http://www.cdc.gov/niosh/topics/repro/solvents.html.
26. Jim Morris, “A Toxic Legacy,” Slate, July 2, 2015., http://www.slate.com/articles/business/moneybox/2015/07/toxic_substances_in_electronics_manufacturing_the_u_s_does_tragically_little.html.
27. National Institute for Occupational Safety and Health, “The Effects of Workplace Hazards on Female Reproductive Health,” Publication No. 99-104 (February 1999), 4; Kirp, “Fetal Hazards, Gender Justice, and the Justices.”
28. Susan Faludi, Backlash: The Undeclared War on American Women (New York: Crown Publishers, 1991), 438; Kirp, “Fetal Hazards, Gender Justice, and the Justices,” 116.
29. See, e.g., Becker, “From Muller v. Oregon to Fetal Vulnerability Policies”; Carolyn Marshall, “An Excuse for a Workplace Hazard,” The Nation, April 25, 1987, 532.
30. Quoted in McNamara, “Factory and Fertility Suit Raises Issues of Bias.”
31. Ibid.
32. Ibid.
33. Bronson, “Bitter Reaction.”
34. Faludi, Backlash, 439.
35. Jane E. Brody, “Sperm Found Especially Vulnerable to Environment,” The New York Times, March 10, 1981, http://www.nytimes.com/1981/03/10/science/sperm-found-especially-vulnerable-to-environment.html.
36. Brody, “Sperm Found Especially Vulnerable to Environment”; Becker, “From Muller v. Oregon to Fetal Vulnerability Policies,” 1237.
37. Joint Appendix at 84, International Union, UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991) (89-1215).
38. See, e.g., Duren v Missouri, 439 U.S. 357 (1979); Califano v. Goldfarb, 430 U.S. 199 (1977); Weinberger v. Wiesenfeld, 420 U.S. 636 (1975); Kahn v. Shevin, 416 U.S. 351 (1974); Frontiero v. Richardson, 411 U.S. 677 (1973).
39. Joint Appendix at 75-88, International Union, UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991) (No. 89-1215).
40. Ellen Goodman, “The Easy Way Out,” The Baltimore Sun, October 16, 1990.
41. 410 U.S. 113 (1973).
42. Faludi, Backlash, 441.
43. Bill Richards, “Women Say They Had to Be Sterilized to Hold Jobs,” The Washington Post, January 1, 1979, http://www.washingtonpost.com/archive/politics/1979/01/01/women-say-they-had-to-be-sterilized-to-hold-jobs/74f7104e-8449-48d2-9592-c52d496dfffc/.
44. Faludi, Backlash, 448.
45. Bronson, “Bitter Reaction”; Faludi, Backlash, 447.
46. Oil, Chem. & Atomic Workers Int’l Union v. American Cyanamid Co., 741 F.2d 444, 447, 450 (D.C. Cir. 1984).
47. Ibid.
48. Christman v. American Cyanamid Co., 92 F.R.D. 441 (N.D. W. Va. 1981).
49. See, e.g., Jim Morris, “How Politics Gutted Workplace Safety,” Slate, July 7, 2015, http://www.slate.com/articles/business/moneybox/2015/07/osha_safety_standards_how_politics_have_undermined_the_agency_s_ability.html; Clauss, Berzon, and Bertin, “Litigating Reproductive and Developmental Health,” 206 (“[T]he Department of Labor, after 1980, refused to take an active role in opposing fetal protection policies”).
50. Julianna Gonen, Litigation as Lobbying: Reproductive Hazards and Interest Aggregation (Columbus: Ohio State Press, 2003), 38.
51. International Union, UAW v. Johnson Controls, Inc., 680 F. Supp. 309, 310 (E.D. Wisc. 1988).
52. Wolfgang Saxon, “Robert W. Warren, Wisconsin Federal Judge,” The New York Times, August 22, 1998, http://www.nytimes.com/1998/08/22/us/robert-w-warren-72-wisconsin-federal-judge.html.
53. U.S. Equal Employment Opportunity Commission, “Policy Statement on Reproductive & Fetal Hazards Under Title VII,” Fair Employment Practice Manual (BNA) 401: 6013, 6015 n.11 (October 3, 1988).
54. Ibid. at 6015–16 (footnotes omitted).
55. Jan Uebelherr, “Courtroom Revealed the Passionate Side of Judge Coffey,” The Milwaukee Journal-Sentinel, November 13, 2012, http://www.jsonline.com/news/obituaries/courtroom-revealed-the-passionate-side-of-coffey-pl7k0ju-179121421.html.
56. Quoted in Kirp, “Fetal Hazards, Gender Justice, and the Justices,” 119.
57. International Union, UAW v. Johnson Controls, Inc., 886 F.2d 871, 896 (7th Cir. 1989) (en banc).
58. Ibid. at 898–899.
59. Ibid. at 871, 920 (7th Cir. 1989) (Easterbrook, J., dissenting).
60. Ibid. at 912.
61. Ibid. at 912–913.
62. U.S. Equal Employment Opportunity Commission, “Policy Guidance on United Auto Workers v. Johnson Controls, Inc.,” No. 915-1047, EEOC Compliance Manual (CCH) Vol. II § 624 (January 24, 1990).
63. Caroline Bettinger-Lopez and Susan Sturm, “International Union, U.A.W. v. Johnson Controls: The History of Litigation Alliances and Mobilization to Challenge Fetal Protection Policies,” Columbia Law School Public Law & Legal Theory Working Group, Paper No. 07-145 (2007), http://www2.law.columbia.edu/ssturm/pdfs/Johnson_Controls_4.22.07.pdf.
64. Brief Amici Curiae of Equal Rights Advocates, NOW Legal Defense and Education Fund, National Women’s Law Center, and Women’s Legal Defense Fund in Support of Petitioners, International Union, UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991) (No. 89-1215).
65. McNamara, “Factory and Fertility Suit Raises Issues of Bias.”
66. Oral Argument at 13:23-13:52, International Union, UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991) (No. 89-1215), available at http://www.oyez.org/cases/1990-1999/1990/1990_89_1215#argument.
67. Ibid. at 2:30–2:54; 1:02–1:20.
68. Ibid. at 6:30–6:57.
69. Ibid. at 10:00–10:50.
70. Before 2004, transcripts of oral arguments did not identify the questioner. Some voices—such as Justice O’Connor’s—are immediately recognizable from the audio recording of the argument. Others may be identified because the attorney addresses the justice by name in answering.
71. Ibid. at 16:29–19:40.
72. Ibid. at 24:03–25:20.
73. Ibid. at 28:00–29:54.
74. Ibid. at 31:13–31:53.
75. Ibid. at 38:10–39:15.
76. Ibid. at 44:04–46:46.
77. Ibid. at 51:19–51:54.
78. International Union, UAW v. Johnson Controls, Inc., 499 U.S. 187, 204 (1991).
79. Ibid. at 199.
80. Ibid. at 206.
81. Ibid. at 203.
82. Ibid. at 223 (Scalia, J., concurring).
83. Ibid. at 223 (Scalia, J., concurring).
84. Ibid. at 211.
Eight
Unless otherwise indicated, direct quotes and biographical and historical details come from the following sources: interview with Teresa (Harris) Wilson and Irwin Venick, Nashville, Tennessee, May 19, 2012.
1. Joint Appendix at 47, 50–52, Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) (No. 92-1168).
2. Ibid., 44–46.
3. Ibid., 52–53.
4. 477 U.S. 57 (1986).
5. Ibid. at 67.
6. 805 F.2d 611 (6th Cir. 1986).
7. Ibid. at 623–624.
8. Ibid. at 619–621.
9. Harris v. Forklift Sys., Inc., No. 3:89-0557, 1990 U.S. Dist. LEXIS 20115 at *5, *11 (M.D. Tenn. Nov. 28, 1990).
10. Ibid. at *18.
11. Quoted in Ellen Goodman, “Insensitive Man or Oversensitive Woman?” The Baltimore Sun, October 12, 1993, http://articles.baltimoresun.com/1993-10-12/news/1993285101_1_harassment-teresa-harris-charles-hardy.
12. Harris v. Forklift Sys., Inc., Nos. 91-5301, 5871, 5822, 1992 U.S. App. LEXIS 23779 (6th Cir. Sept. 17, 1992).
13. 401 U.S. 424 (1971).
14. Petition for Certiorari at 10-12, Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) (No. 92-1168).
15. Marcia D. Greenberger, “What Anita Hill Did for America,” CNN.com, October 22, 2010, http://www.cnn.com/2010/OPINION/10/21/greenberger.anita.hill/.
16. Brief for the United States and the Equal Employment Opportunity Commission as Amici Curiae at 20-22, Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) (No. 92-1168).
17. Brief for Amicus Curiae American Psychological Association in Support of Neither Party at 6-17, Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) (No. 92-1168).
18. Ibid., 18-20.
19. Oral Argument at 15:28–17:21, Harris v. Forklift Sys., Inc., 510 U.S. 17 (92-1168), available at http://www.oyez.org/cases/1990-1999/1993/1993_92_1168.
20. Ibid. at 18:16–19:04.
21. Ibid. at 30:06–30:40.
22. Ibid. at 30:49–35:52.
23. Ibid. at 39:02–41:39.
24. Ibid. at 46:10–46:33.
25. Ibid. at 46:42–51:25.
26. Harris v. Forklift Sys., Inc., 510 U.S. at 17, 22 (1993).
27. Ibid.
28. Ibid. at 25–26. (Ginsburg, J., concurring). See, e.g., Irin Carmon and Shana Knizhnik, Notorious RBG: The Life and Times of Ruth Bader Ginsburg (New York: Dey Street Books, 2015: Linda Hirshman, Sisters in Law: How Sandra Day O’Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World (New York: HarperCollins, 2015).
29. Harris, 510 U.S. at 22–23.
30. Ibid. at 23.
Nine
Unless otherwise indicated, direct quotes and biographical and historical details come from the following sources: interview with Sheila White, Memphis, Tennessee, August 5, 2014.
1. Shaila Dewan, “Forklift Driver’s Stand Leads to Broad Rule Protecting Workers Who Fear Retaliation,” The New York Times, June 24, 2006, http://www.nytimes.com/2006/06/24/us/24white.html.
2. Burlington Northern & Santa Fe Rwy. Co. v. White, 364 F.3d 769, 792 (6th Cir. 2004).
3. Quoted in Dewan, “Forklift Driver’s Stand Leads to Broad Rule.”
4. Transcript of Trial, August 31, 2000 at 292-293, White v. Burlington Northern & Santa Fe Rwy. Co., No. 99-2733, 2000 U.S. Dist. LEXIS 22799 (W.D. Tenn. Aug. 28, 2000).
5. Ibid. at 154.
6. March 5, 1998 note from D. Annice Golden, Ph.D., Exhibit 11, Marvin Brown Deposition, White v. Burlington Northern & Santa Fe Rwy. Co., No. 99-2733, 2000 U.S. Dist. LEXIS 22799 (W.D. Tenn. Aug. 28, 2000).
7. November 4, 1998 note from D. Annice Golden, Ph.D., Exhibit 14, Marvin Brown Deposition, White v. Burlington Northern & Santa Fe Rwy. Co., No. 99-2733, 2000 U.S. Dist. LEXIS 22799 (W.D. Tenn. Aug. 28, 2000).
8. Louis Graham, “Lawyer Examines McCalla’s Behavior; Sixth Circuit Looks into Judicial Conduct,” The Commercial Appeal, July 15, 2001.
9. United States v. Whitman, 209 F.3d 619, 624 (6th Cir. 2000).
10. Transcript of Trial, September 1, 2000 at 521, 537, White v. Burlington Northern & Santa Fe Rwy. Co., No. 99-2733, 2000 U.S. Dist. LEXIS 22799 (W.D. Tenn. Aug. 28, 2000).
11. Ibid. at 519.
12. Ibid., 479-480, 555-560.
13. 42 U.S.C. § 2000e-2(a)(1)–(2).
14. White v. Burlington Northern & Santa Fe Rwy. Co., No. 99-2733, 2000 U.S. Dist. LEXIS 22799 at *15 (W.D. Tenn. Aug. 28, 2000).
15. Transcript of Trial, September 1, 2000 at 697–698, White v. Burlington Northern & Santa Fe Rwy Co., No. 99-2733, 2000 U.S. Dist. LEXIS 22799 (W.D. Tenn. Aug. 28, 2000).
16. White v. Burlington Northern & Santa Fe Rwy. Co., No. 99-2733, 2000 U.S. Dist. LEXIS 22798 at *5, *6 (W.D. Tenn. Nov. 16, 2000).
17. White v. Burlington Northern & Santa Fe Rwy. Co., 310 F.3d 443, 451 (6th Cir. 2002).
18. Ibid. at 454.
19. Sheila White, Fighting the Giant: From the Railyards of Tennessee All the Way to the Supreme Court (Los Gatos, CA: Robertson Publishing, 2007), 54.
20. EEOC Compliance Manual § 8-II.D.3 (May 20, 1998).
21. Ibid.
22. Donald J. Donati, “Insights from an Advocate: Burlington Northern & Santa Fe Railway Co. v. White,” University of Memphis Law Review 41 (Summer, 2011), 713.
23. Edward Feisenthal, “Beach Dispute May Bring a Pivotal Harassment Ruling,” The Wall Street Journal, January 7, 1998, http://www.wsj.com/articles/SB884126032492704000.
24. Faragher v. City of Boca Raton, 864 F. Supp. 1552, 1557 (S.D. Fla. 1994).
25. Faragher v. City of Boca Raton, 524 U.S. 775, 780 (1998).
26. Ellerth v. Burlington Indus., 912 F. Supp. 1101, 1106–1109 (N.D. Ill. 1996).
27. Ellerth v. Burlington Indus., 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
28. U.S. Equal Employment Opportunity Commission, “Sexual Harassment Charges, EEOC and FEPAs Combined: FY 1997–FY 2014,” http://www.eeoc.gov/eeoc/statistics/enforcement/sexual_harassment.cfm.
29. U.S. Equal Employment Opportunity Commission, “EEOC Charge Statistics: FY 1997 through FY 2014,” http://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm.
30. Quoted in Bartholomew Sullivan, “Memphian Has Day at Supreme Court—Harassment Case May Be Precedent-Setting,” The Commercial Appeal, April 16, 2006.
31. Tony Mauro, “Appellate Lawyer of the Week: Eric Schnapper, University of Washington Law School,” The National Law Journal, October 27, 2010, http://www.law.washington.edu/News/Articles/Appellate_Lawyer_of_the_Week.pdf.
32. Donald A. Donati, Remarks, National Employment Lawyers Association, 2014 Annual Conference, “Blazing the Trail: Courage, Challenge, Change,” June 26, 2014, Boston, MA.
33. Ibid.
34. Oral Argument at :13-:49, Burlington Northern & Santa Fe Rwy. Co. v. White, 548 U.S. 53 (2006) (No. 05-259), available at http://www.oyez.org/cases/2000-2009/2005/2005_05_259.
35. Ibid. at 3:27–3:35.
36. Ibid. at 5:05–5:25.
37. Ibid. at 15:45–16:58.
38. Ibid.
39. Ibid. at 8:24–8:33.
40. Ibid. at 8:56–9:31.
41. Ibid. at 48:43.
42. Ibid. at 34:11.
43. Ibid. at 41:33.
44. Ibid. at 38:26–39:01.
45. Donald A. Donati, Remarks, National Employment Lawyers Association, 2014 Annual Conference.
46. Oral argument at 35:59–36:27, Burlington Northern & Santa Fe Rwy. Co. v. White, 548 U.S. 53 (2006) (No. 05-259), available at http://www.oyez.org/cases/2000-2009/2005/2005_05_259.
47. Ibid. at 56:20–57:35.
48. White, Fighting the Giant, 57.
49. Ibid.
50. Burlington Northern & Santa Fe Rwy. Co. v. White, 548 U.S. 53, 68 (2006).
51. White, Fighting the Giant, iv.
52. Ibid., 58.
Ten
Unless otherwise indicated, direct quotes, biographical and historical details, and mental impressions come from the following sources: Telephone interview with Sam Bagenstos on April 22, 2015; interview with Sharon Gustafson and Peggy Young in Arlington, Virginia, on April 10, 2015.
1. Rebecca Traister, “Labor Pains,” The New Republic, February 3, 2015, http://www.newrepublic.com/article/120939/maternity-leave-policies-america-hurt-working-moms.
2. Plaintiff’s Memorandum in Opposition to Defendant’s Motion for Summary Judgment at 22, Young v. United Parcel Service, Inc., No. DKC 08-2586, 2011 U.S. Dist. LEXIS 14266 (D. Md. February 14, 2011).
3. Ibid.
4. Ibid.
5. U.S. Department of Labor, Women’s Bureau, “Facts Over Time: Labor Force Participation Rates—Labor Force Participation Rates by Sex and Race or Hispanic Ethnicity, 1972-2012,” http://www.dol.gov/wb/stats/facts_over_time.htm.
6. Jeanette M. Cleveland, Margaret Stockdale, and Kevin Murphy, Women and Men in Organizations: Sex and Gender Issues at Work (New York: Psychology Press, 2000), 208.
7. Lynda Laughlin, “Maternity Leave and Employment Patterns of First Time Mothers: 1961-2008,” U.S. Census Bureau, Current Population Reports, P7-128 (October 2011) at 6-7 & Table 4, http://www.census.gov/prod/2011pubs/p70-128.pdf.
8. See, e.g., Joanna L. Grossman and Gillian L. Thomas, “Making Pregnancy Work: Overcoming the Pregnancy Discrimination Act’s Capacity-Based Model,” Yale Journal of Law & Feminism: 21 (2009): 19-22.
9. Lydia DiPillis, “Under Pressure, Wal-Mart Upgrades Its Policy for Helping Pregnant Workers,” The Washington Post, April 5, 2014, http://www.washingtonpost.com/blogs/wonkblog/wp/2014/04/05/under-pressure-walmart-upgrades-its-policy-for-helping-pregnant-workers/.
10. Bryce Covert, “Pregnant Worker at Pier 1 Put on Unpaid Leave Even Though She Wanted to Continue Working,” ThinkProgress, April 17, 2014, http://thinkprogress.org/economy/2014/04/17/3427898/pregnant-worker-pier-1/.
11. Leahy v. Gap, Inc., No. 07-2008, 2008 U.S Dist. LEXIS 58812 (E.D.N.Y. July 29, 2008).
12. Rachel L. Swarns, “Doctor Says No to Overtime; Pregnant Worker’s Boss Says No Job,” The New York Times, October 19, 2014, http://www.nytimes.com/2014/10/20/nyregion/doctors-letter-spells-end-of-job-for-pregnant-employee.html?smprod=nytcore-iphone&smid=nytcore-iphone-share; Brigid Schulte, “Pregnant Women Fight to Keep Jobs via ‘Reasonable Accommodations,’” The Washington Post, August 4, 2014, https://www.washingtonpost.com/national/health-science/pregnant-women-fight-to-keep-jobs-via-reasonable-accommodations/2014/08/04/9eb13654-1408-11e4-8936-26932bcfd6ed_story.html; Rachel L. Swarns, “Placed on Unpaid Leave, a Pregnant Worker Finds Hope in a New Law,” The New York Times, February 2, 2014, http://www.nytimes.com/2014/02/03/nyregion/suspended-for-being-pregnant-an-employee-finds-hope-in-a-new-law.html?ref=rachellswarns&_r=1.
13. National Partnership for Women & Families, “Listening to Mothers: The Experiences of Expecting and New Mothers in the Workplace,” January 2014, http://www.nationalpartnership.org/research-library/workplace-fairness/pregnancy-discrimination/listening-to-mothers-experiences-of-expecting-and-new-mothers.pdf, 3.
14. U.S. Equal Employment Opportunity Commission, “Charge Statistics: FY 1997 Through FY 2014,” http://www.eeoc.gov/eeoc/statistics/enforcement/pregnancy.cfm.
15. Brigid Schulte, “New Statistics: Pregnancy Discrimination Claims Hit Low-Wage Workers Hardest,” The Washington Post, August 5, 2014, http://www.washingtonpost.com/blogs/she-the-people/wp/2014/08/05/new-statistics-pregnancy-discrimination-claims-hit-low-wage-workers-hardest/.
16. 42 U.S.C. § 2000e(k).
17. Ibid.
18. Ensley-Gaines v. Runyon, 100 F.3d 1220 (6th Cir. 1996).
19. Peter Baker, “Once More, Bush Turns to His Inner Circle,” The Washington Post, October 4, 2005, http://www.washingtonpost.com/wp-dyn/content/article/2005/10/03/AR2005100301781.html; see also Elisabeth Bumiller, “Court in Transition: The President; An Interview By, Not With, the President,” The New York Times, July 21, 2005, http://query.nytimes.com/gst/fullpage.html?res=9800E5DC153CF932A15754C0A9639C8B63.
20. Clarence Thomas, My Grandfather’s Son: A Memoir (New York: Harper Collins, 2007).
21. Nomination of Judge Clarence Thomas to Be Associate Justice of the Supreme Court of the United States, Day 1, Before the Committee on the Judiciary, 102nd Cong. 38 (1991) (Testimony of Anita F. Hill, Professor of Law, University of Oklahoma, Norman, OK), http://www.loc.gov/law/find/nominations/thomas/hearing-pt4.pdf.
22. U.S. Equal Opportunity Employment Commission, “Written Testimony of Emily Martin, Vice President and General Counsel, National Women’s Law Center,” Meeting of the Commission, February 15, 2012, http://www.eeoc.gov/eeoc/meetings/2-15-12/martin.cfm.
23. U.S. Equal Opportunity Employment Commission, “Written Testimony of Judith L. Lichtman, Senior Advisor, National Partnership for Women and Families,” Meeting of the Commission, February 15, 2012, http://www.eeoc.gov/eeoc/meetings/2-15-12/lichtman.cfm.
24. U.S. Equal Opportunity Employment Commission, “Written Testimony of Sharon Terman, Senior Staff Attorney, Gender Equity and LGBT Rights Program, Legal Aid Society-Employment Law Center,” Meeting of the Commission, February 15, 2012, http://www.eeoc.gov/eeoc/meetings/2-15-12/terman.cfm.
25. U.S. Equal Opportunity Employment Commission, “Written Testimony of Maryann Parker, Associate General Counsel, Service Employees International Union,” Meeting of the Commission, February 15, 2012, http://www.eeoc.gov/eeoc/meetings/2-15-12/parker.cfm.
26. U.S. Equal Opportunity Employment Commission, “Written Testimony of Joan C. Williams, Professor of Law & Director, Center for WorkLife Law, UC-Hastings,” Meeting of the Commission, February 15, 2012, http://www.eeoc.gov/eeoc/meetings/2-15-12/williams.cfm.
27. National Women’s Law Center and A Better Balance, “It Shouldn’t Be a Heavy Lift: Fair Treatment for Pregnant Workers,” June 18, 2013, http://www.nwlc.org/sites/default/files/pdfs/pregnant_workers.pdf.
28. Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007).
29. Brief for the United States as Amicus Curiae, Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015) (No. 12-1226).
30. Ibid. at 32–34.
31. 134 S. Ct. 2751 (2014).
32. Sean Sullivan, “Justice Ruth Bader Ginsburg Says Male Justices Have a ‘Blind Spot’ on Women’s Issues,” The Washington Post, July 31, 2014, http://www.washingtonpost.com/blogs/post-politics/wp/2014/07/31/justice-ruth-bader-ginsburg-says-male-justices-have-a-blind-spot-on-womens-issues/.
33. Amicus Curiae Brief of the American Civil Liberties Union and A Better Balance, et al., in Support of Petitioner, Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015) (No. 12-1226).
34. Brief of Amicus Curiae Black Women’s Health Imperative, Joined by Other Black Women’s Health Organizations, in Support of Petitioner, Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015) (No. 12-1226).
35. Brief of Health Care Providers, National Partnership for Women & Families, and Other Organizations Concerned with Maternal and Infant Health as Amici Curiae in Support of Petitioner, Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015) (No. 12-1226).
36. Brief of Amicus Curiae National Education Association, et al. in Support of the Petitioner, Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015) (No. 12-1226).
37. Brief of U.S. Women’s Chamber of Commerce, et al. as Amici Curiae Supporting Petitioner, Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015) (No. 12-1226).
38. Brief of Members of Congress as Amici Curiae in Support of Petitioner, Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015) (No. 12-1226).
39. Brief of Bipartisan State and Local Legislators as Amici Curiae in Support of Petitioner, Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015) (No. 12-1226).
40. Brief of Amici Curiae 23 Pro-Life Organizations, et al. in Support of Petitioner Peggy Young, Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015) (No. 12-1226).
41. Naomi Schoenbaum, “When Liberals and Conservatives Agree on Women’s Rights,” Politico, March 31, 2015, http://www.politico.com/magazine/story/2015/03/supreme-court-pregnancy-discrimination-coalition-116559.html#.VUJ2ZaZN3zJ.
42. Brief for the United States as Amicus Curiae Supporting Petitioner, Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015) (No. 12-1226).
43. U.S. Equal Employment Opportunity Commission, Enforcement Guidance: Pregnancy Discrimination and Related Issues, July 14, 2014, superseded by Enforcement Guidance: Pregnancy Discrimination and Related Issues, June 25, 2015, http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm,
44. Brief for the United States as Amicus Curiae Supporting Petitioner, Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015) (No. 12-1226).
45. Oral Argument at :08–:32, Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015) (No. 12-1226), available at http://www.supremecourt.gov/oral_arguments/audio/2014/12-1226.
46. Ibid. at 49–1:02.
47. Ibid. at 3:01–5:35.
48. Ibid. at 6:57–8:45.
49. Ibid. at 5:38–5:43; 11:43–11:46; 12:00.
50. 429 U.S. 125 (1976).
51. Ibid. at 10:00–11:08.
52. Ibid. at 2:33–2:50.
53. Carl Hulse, “Blocked Bids to Fill Judgeships Stirs New Fight on Filibuster,” The New York Times, March 8, 2013, http://www.nytimes.com/2013/03/09/us/politics/filibuster-stirs-a-new-battle-on-us-judges.html.
54. Adam Liptak, “UPS Suit Hinges on an Ambiguous Pregnancy Law,” The New York Times, December 3, 2014, http://www.nytimes.com/2014/12/04/us/politics/in-ups-case-justices-tackle-ambiguity-in-pregnancy-law.html.
55. Ibid. at 27:54–28:05.
56. Ibid. at 28:10–28:29.
57. Ibid. at 30:30.
58. Ibid. at 54:46–55:39.
59. Ibid. at 57:57.
60. Ibid. at 1:10:20–1:02:44.
61. “Andrea Mitchell Reports: SCOTUS Hears Pregnancy Discrimination Case” (MSNBC television broadcast, December 3, 2014).
62. Young v. United Parcel Service, Inc., 135 S. Ct. 1338, 1354 (2015).
63. Ibid. at 1350.
64. Ibid.
65. Ibid. at 1361 (Scalia, J., dissenting).
66. Ibid. at 1364, 1365, 1366.
67. Ibid. at 1367 (Kennedy, J., dissenting).
68. Brief of Law Professors and Women’s and Civil Rights Organizations as Amici Curiae in Support of Petitioner, Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015) (No. 12-1226).
69. Ben James, “UPS Settles Pregnancy Bias Case That Went to High Court,” Law360, October 2, 2015, http://www.law360.com/employment/articles/709843?nl_pk=89241183-ba46-425a-818a-12d046b8fc9b&utm_source=newsletter&utm_medium=email&utm_campaign=employment.
Epilogue
1. See, e.g., Claire Cain Miller and Liz Alderman, “Why U.S. Women Are Leaving Jobs Behind,” The New York Times, December 12, 2014, http://www.nytimes.com/2014/12/14/upshot/us-employment-women-not-working.html.
2. See, e.g., Sylvia Ann Hewlett and Carolyn Buck Luce, “On-Ramps and Off-Ramps: Keeping Talented Women on the Road to Success,” Harvard Business Review, March 2005, https://hbr.org/2005/03/off-ramps-and-on-ramps-keeping-talented-women-on-the-road-to-success; Paulette Light, “Why 43 Percent of Women with Children Leave Their Jobs, and How to Get Them Back, The Atlantic, April 19, 2013, http://www.theatlantic.com/sexes/archive/2013/04/why-43-of-women-with-children-leave-their-jobs-and-how-to-get-them-back/275134/.
3. See, e.g., Claire Cain Miller, “The Motherhood Penalty v. The Fatherhood Bonus: A Child Helps Your Career, If You’re a Man,” The New York Times, September 6, 2014, http://www.nytimes.com/2014/09/07/upshot/a-child-helps-your-career-if-youre-a-man.html.
4. “News in Brief,” The Onion, July 30, 2015, http://www.theonion.com/article/company-flat-out-asks-female-candidate-how-much-mi-50963.
5. U.S. Department of Labor, Women’s Bureau, “Latest Annual Data—Mothers’ Participation in the Labor Force,” 2013 annual averages, http://www.dol.gov/wb/stats/recentfacts.htm.
6. Wendy Wang, Kim Parker, and Paul Taylor, “Breadwinner Moms: Mothers Are the Sole or Primary Provider in Four-in-Ten Households with Children; Public Conflicted About Growing Trend,” Pew Research Center, May 29, 2013, http://www.pewsocialtrends.org/files/2013/05/Breadwinner_moms_final.pdf, 1.
7. See, e.g., Sharon Lerner, “The Real War on Families: Why the U.S. Needs Paid Leave Now,” In These Times, Aug. 18, 2015, http://inthesetimes.com/article/18151/the-real-war-on-families; Rachel Gillette, “‘I Didn’t Feel Appreciated’: Inside the ‘Backwards’ Reality of Taking Unpaid Maternity Leave in America,” Business Insider, June 20, 2015, http://www.businessinsider.com/the-reality-of-unpaid-maternity-leave-in-america-2015-6; Rebecca Traister, “Labor Pains,” The New Republic, February 3, 2015, http://www.newrepublic.com/article/120939/maternity-leave-policies-america-hurt-working-moms.
8. Jonathan Cohn, “The Hell of American Day Care,” The New Republic, April 16, 2013, http://www.newrepublic.com/article/112892/hell-american-day-care.
9. Anne Marie Slaughter, “A Toxic Work World,” The New York Times, Sept. 18, 2015, http://www.nytimes.com/2015/09/20/opinion/sunday/a-toxic-work-world.html.
10. Caroline Frederickson, Under the Bus: How Working Women Are Being Run Over (New York: The New Press, 2015), 117-120, 174.
11. Joan C. Williams, “Beyond the Maternal Wall,” Harvard Women’s Law Journal 77 (2003), http://www.law.harvard.edu/students/orgs/jlg/vol26/williams.pdf.
12. Joan C. Williams, “The Maternal Wall,” Harvard Business Review, October 2004, https://hbr.org/2004/10/the-maternal-wall.
13. U.S. Equal Employment Opportunity Commission, “Enforcement Guidance: Unlawful Discrimination of Workers with Caregiving Responsibilities,” May 23, 2007, http://www.eeoc.gov/policy/docs/caregiving.html.
14. Joan C. Williams & Stephanie Bornstein, “Caregivers in the Courtroom: The Growing Trend of Family Responsibilities Discrimination,” University of San Francisco Law Review 41 (2006): 71.
15. Scott Coltrane, Elizabeth C. Miller, Tracy DeHaan, and Lauren Stewart, “Fathers and the Flexibility Stigma,” Journal of Social Issues 69, Vol. 2 (June 2013): 279.
16. Quoted in Becky Beaupre Gillespie and Hollee Schwartz Temple, “A Lawsuit Claims ‘Macho’ Culture Led to Associate Dad’s Firing,” ABA Journal, March 1, 2011, http://www.abajournal.com/magazine/article/not_mans_work_a_lawsuit_claims_macho_culture_led_to_associate_dads_firing/.
17. Noam Scheiber, “Attitudes Shift on Paid Leave: Dads Sue, Too,” The New York Times, Sept. 15, 2015, http://www.nytimes.com/2015/09/16/business/attitudes-shift-on-paid-leave-dads-sue-too.html?_r=0. See also Joshua Levs, All In: How Our Work-First Culture Fails Dads, Families, and Businesses—and How We Can Fix It Together (New York: HarperCollins, 2015).
18. Gillespie and Temple, “A Lawsuit Claims ‘Macho’ Culture Led to Associate Dad’s Firing.”
19. “Radio Host Mike Francesa Stands by Daniel Murphy Paternity Leave Comments After Heavy Criticism,” cbsnews.com, April 4, 2014, http://www.cbsnews.com/news/sports-talk-radio-host-mike-francesa-stands-by-dan-murphy-paternity-leave-comments-after-heavy-criticism/.
20. Jennifer Ludden, “More Dads Want Paternity Leave. Getting It Is a Different Matter,” NPR, August 13, 2014, http://www.npr.org/2014/08/13/333730249/more-dads-want-paternity-leave-getting-it-is-a-different-matter.
21. U.S. Equal Employment Opportunity Commission, “Pregnancy Discrimination Charges, EEOC & FEPAs Combined: FY1997-FY2011,” http://www.eeoc.gov/eeoc/statistics/enforcement/pregnancy.cfm.
22. Bryce Covert, “Nonprofit Ordered to Pay $75,000 Over ‘No Pregnancy in Workplace’ Policy,” ThinkProgress, May 29, 2015, http://thinkprogress.org/economy/2015/05/29/3663986/no-pregnancy-policy/.
23. Bryce Covert, “Company to Pay Record-Breaking Damages for Telling Pregnant Woman She Couldn’t Do Her Job Anymore,” ThinkProgress, July 23, 2015, http://thinkprogress.org/economy/2015/07/23/3683910/autozone-pregnancy-case/.
24. Brigid Schulte, “New Statistics: Pregnancy Discrimination Claims Hit Low-Wage Workers the Hardest,” The Washington Post, Aug. 5, 2014, http://www.washingtonpost.com/blogs/she-the-people/wp/2014/08/05/new-statistics-pregnancy-discrimination-claims-hit-low-wage-workers-hardest/.
25. Lynda Laughlin, “Maternity Leave and Employment Patterns of First Time Mothers: 1961-2008,” U.S. Census Bureau, Current Population Reports, P7-128 (October 2011) at 11-12 & Table 7, http://www.census.gov/prod/2011pubs/p70-128.pdf.
26. Stephanie Bornstein, “Poor, Pregnant, and Fired: Caregiver Discrimination Against Low-Wage Workers,” Center for WorkLife Law, University of California-Hastings School of Law, 2011, http://worklifelaw.org/pubs/PoorPregnantAndFired.pdf.
27. Kristie Ackert and Oren Yaniv, New York Daily News, March 14, 2015, http://www.nydailynews.com/sports/baseball/mets/mets-settle-sex-discrimination-suit-filed-ex-team-exec-article-1.2148501.
28. See, e.g., Bornstein, “Poor, Pregnant, and Fired.”
29. U.S. Department of Justice, U.S. Attorney’s Office, Eastern District, Press Release, “United States Settles Pregnancy Discrimination Action Against Triborough Bridge and Tunnel Authority,” November 10, 2015, http://www.justice.gov/usao-edny/pr/united-states-settles-pregnancy-discrimination-action-against-triborough-bridge-and.
30. July 15, 2015 Pregnant Workers Fairness Act Coalition Letter to Members of Congress, http://www.nationalpartnership.org/research-library/workplace-fairness/pregnancy-discrimination/pregnant-workers-fairness-act-coalition-letter.pdf.
31. National Partnership for Women and Families, “Reasonable Accommodations for Pregnant Workers: State and Local Laws,” July 2015, http://www.nationalpartnership.org/research-library/workplace-fairness/pregnancy-discrimination/reasonable-accommodations-for-pregnant-workers-state-laws.pdf. See, e.g., Amanda Marcotte, “Breast-Feeding Mom Loses Case Because Men Can Lactate Too,” Slate, Feb. 4, 2015, http://www.slate.com/blogs/xx_factor/2015/02/04/angela_ames_sex_discrimination_case_breast_feeding_mom_loses_because_men.html.
32. See, e.g., Theresa K. Vescio, “Sugar-Coated Sexism,” Harvard Business School, Research Symposium, Gender & Work: Challenging Conventional Wisdom, 2013, http://www.hbs.edu/faculty/conferences/2013-w50-research-symposium/Documents/vescio.pdf.
33. Sheryl Sandberg, Lean In: Women, Work, and the Will to Lead (New York: Knopf, 2013).
34. See, e.g., Cheryl Alter, “Here’s What Anne-Marie Slaughter Has to Say About Sheryl Sandberg,” Time, September 26, 2015, http://time.com/4050404/anne-marie-slaughter-unfinished-business-sheryl-sandberg/; Susan Faludi, “Facebook Feminism,” The Baffler, No. 23 (2013), http://thebaffler.com/salvos/facebook-feminism-like-it-or-not.
35. See, e.g., Frederickson, Under the Bus, 4-7.
36. Annie Lowrey, “Ellen Pao and the Sexism You Can’t Quite Prove,” New York Magazine, March 30, 2015, http://nymag.com/daily/intelligencer/2015/03/ellen-pao-and-the-sexism-you-cant-quite-prove.html.
37. Maria Konnikova, “Lean Out: The Dangers for Women Who Negotiate,” The New Yorker, June 10, 2014, http://www.newyorker.com/science/maria-konnikova/lean-out-the-dangers-for-women-who-negotiate.
38. See, e.g., Vauhini Vara, “The Ellen Pao Trial: What Do We Mean by ‘Discrimination’?,” The New Yorker, March 14, 2015, http://www.newyorker.com/business/currency/the-ellen-pao-trial-what-do-we-mean-by-discrimination.
39. See, e.g., Rex Huppke, “The Roots of Workplace Gender Bias,” The Chicago Tribune, July 27, 2014, http://www.chicagotribune.com/business/careers/ct-biz-0707-work-advice-huppke-20140707-column.html.
40. Farhad Manjoo, “Ellen Pao Disrupts How Silicon Valley Does Business,” The New York Times, March 27, 2015, http://mobile.nytimes.com/2015/03/28/technology/ellen-pao-disrupts-how-silicon-valley-does-business.html?referrer=&_r=0; Kathleen Davis, “The One Word Men Never See in Their Performance Reviews,” Fast Company, August 27, 2014, http://www.fastcompany.com/3034895/strong-female-lead/the-one-word-men-never-see-in-their-performance-reviews; Jessica Bennett, “Why We Need to Stop Calling Powerful Women ‘Bitches,’” Cosmopolitan, March 8, 2014, http://www.cosmopolitan.com/career/advice/a5890/powerful-women-names/.
41. Hannah Seligson, “Page by Page, Men Are Stepping Into the ‘Lean In’ Circle,” The New York Times, November 1, 2013, http://www.nytimes.com/2013/11/03/fashion/Page-by-Page-Men-Are-Stepping-Into-sheryl-sandbergs-lean-in-circle.html.
42. Prowel v. Wise Bus. Forms, No. 2:06-cv-259, 2007 WL 2702664 at *5, *8 (W.D. Pa. Sept. 13, 2007).
43. No. 07-3997, 2009 U.S. App. LEXIS 19350 at *19 (3d Cir. Aug. 28, 2009).
44. Macy v. Holder, EEOC Appeal No. 0120120821 (Apr. 20, 2012).
45. See Baldwin v. Foxx, EEOC Doc. 0120133080, 2015 WL 4397641 at *5 (EEOC July 15, 2015); U.S. Equal Employment Opportunity Commission, Press Release,” EEOC Sues Detroit Funeral Home Chain for Sex Discrimination Against Transgender Employee,” September 25, 2014, http://www.eeoc.gov/eeoc/newsroom/release/9-25-14d.cfm; Jeff Guo, “America Might Have Accidentally Banned Transgender Discrimination in 1964,” The Washington Post, November 11, 2015, https://www.washingtonpost.com/news/wonk/wp/2015/11/11/america-might-have-accidentally-banned-transgender-discrimination-in-1964/.
46. Quoted in Erik Eckholm, “Next Fight for Gay Rights: Bias in Jobs and Housing,” The New York Times, June 27, 2015, http://www.nytimes.com/2015/06/28/us/gay-rights-leaders-push-for-federal-civil-rights-protections.html.
47. Joanna L. Grossman, “Hit the Gym, Borgata Babes,” Verdict, September 29, 2015, https://verdict.justia.com/2015/09/29/hit-the-gym-borgatababes.
48. Darlene Jespersen, “Case Is About Civil Rights and Sex Bias,” Reno Gazette-Journal, February 5, 2004, 11A.
49. Jespersen v. Harrah’s Operating Co., Inc., 444 F.3d 1104 (9th Cir. 2006) (en banc).
50. Martin DeAngelis and Maxwell Reil, “Appeals Judges Uphold Borgata Weight Rules,” Press of Atlantic City, September 18, 2015, http://www.pressofatlanticcity.com/business/appeals-judges-uphold-borgata-weight-rules-in-babes-suit/article_0d11ed7a-5d4e-11e5-9716-6ffff54a2988.html.
51. Kathleen Berry, Femininity in Flight: A History of Flight Attendants (Durham: Duke University Press, 2007), 137.
52. Ashleigh Shelby Rosette and Tracy Dumas, “The Hair Dilemma: Conform to Mainstream Expectations or Emphasize Racial Identity,” Duke Journal of Gender Law & Policy 14 (2007), http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1119&context=djglp.
53. Jespersen, 444 F.3d at 1107.
54. Angela Onwuachi-Willig, “Another Hair Piece: Exploring New Strands of Analysis Under Title VII,” The Georgetown Law Journal 98 (2010): 1085.
55. Rosette and Dumas, 408-09.
56. Rogers v. American Airlines, 527 F. Supp. 229 (D.C.N.Y. 1981).
57. Ibid. at 233.
58. Helen Cooper, “Army’s Ban on Some Popular Hairstyles Raises Ire of Black Female Soldiers,” The New York Times, April 20, 2014, http://www.nytimes.com/2014/04/21/us/politics/armys-ban-on-some-popular-hairstyles-raises-ire-of-black-female-soldiers.html.
59. Maya Rhodan, “U.S. Military Rolls Back Restrictions on Black Hairstyles,” Time, August 13, 2014, http://time.com/3107647/military-black-hairstyles/.
60. Johnson v. Transportation Agency, 480 U.S. 616, 640 (1987).
61. Sally Kohn, “Affirmative Action Has Helped White Women More Than Anyone,” Time, June 17, 2013, http://ideas.time.com/2013/06/17/affirmative-action-has-helped-white-women-more-than-anyone/.
62. Ibid.
63. See, e.g., “Justice Department Files Lawsuit Against Corpus Christi, Texas Police Department for Sex Discrimination,” Press Release, U.S. Dep’t of Justice, Office of Public Affairs, July 3, 2012, http://www.justice.gov/opa/pr/justice-department-files-lawsuit-against-corpus-christi-texas-police-department-sex (challenging physical ability test for entry-level police officers, later settled); E.E.O.C. v. Dial Corp., 469 F.3d 735 (8th Cir. 2006) (invalidating strength test at meatpacking plant); United States v. City of Erie, 411 F. Supp. 2d 524 (W.D. Pa. 2005) (striking physical ability test for police applicants); Berkman v. City of New York, 536 F. Supp. 177 (E.D.N.Y. 1982) (invalidating physical ability test for firefighter candidates).
64. Yiyang Wu, “Scaling the Wall and Running the Mile: The Role of Physical Selection Procedures in the Disparate Impact Narrative,” University of Pennsylvania Law Review 160 (2012): 1212-13, n.82.
65. Denise M. Hulett, Marc Bendick, Jr., Sheila Y. Thomas and Fran Moccio, “A National Report Card on Women in Firefighting,” at 1, April 2008, https://i-women.org/wp-content/uploads/2014/07/35827WSP.pdf.
66. Ibid.
67. Bureau of Labor Statistics, Household Data, Annual Averages, Table 11, “Employed Persons by Detailed Occupation, Sex, Race, and Hispanic or Latino Ethnicity,” 2014, http://www.bls.gov/cps/cpsaat11.pdf, 4.
68. See, e.g., Vicki Schultz, “Telling Stories About Women and Work: Judicial Interpretations of Sex Segregation in the Workplace in Title VII Cases Raising the Lack of Interest Argument,” Harvard Law Review 103, No. 8 (June 1990); Gregory Pratt, “Country Club Hills Lawsuit Alleges Porn in Fire Station, Sexual Harassment,” The Chicago Tribune, Aug. 20, 2015, http://www.chicagotribune.com/suburbs/daily-southtown/news/ct-sta-country-club-firefighters-suit-st-0820-20150819-story.html; “Female Firefighter Files Sex Discrimination Lawsuit,” Florida Times-Union, Aug. 22, 2014, http://www.firerescue1.com/fire-department-management/articles/1968958-Female-firefighter-files-sex-discrimination-lawsuit/.
69. Hulett, Bendick, Jr., Thomas and Moccio, “A National Report Card on Women in Firefighting,” April 2008 at 3.
70. 824 F. Supp. 847 (D. Minn. 1993).
71. Clara Bingham and Laura Leedy Gansler, Class Action: The Landmark Case That Changed Sexual Harassment Law (New York: Doubleday, 2002).
72. North Country (Warner Brothers, 2005).
73. Suzanne Goldenberg, “‘It Was Like They’d Never Seen a Woman Before,’” The Guardian, Feb. 3, 2006, http://www.theguardian.com/film/2006/feb/03/gender.world.
74. Ibid.
75. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 77 (1998).
76. 523 U.S. 75, 77 (1998).
77. “The Glass Floor: Sexual Harassment in the Restaurant Industry,” Restaurant Opportunities Center United, Oct. 7, 2014, http://rocunited.org/new-report-the-glass-floor-sexual-harassment-in-the-restaurant-industry/.
78. Ibid.
79. Saru Jayaraman, “It’s Not a Tip Credit, It’s a Tip Penalty,” The Stranger, Apr. 9, 2014, http://www.thestranger.com/seattle/its-not-a-tip-credit-its-a-tip-penalty/Content?oid=19234278.
80. Jillian Berman, “80 Percent of Female Restaurant Workers Say They’ve Been Harassed by Customers,” The Huffington Post, Oct. 8, 2014, http://www.huffingtonpost.com/2014/10/08/sexual-harassment-restaurants_n_5948096.html.
81. “The Glass Floor.”
82. Human Rights Watch, “Cultivating Fear: The Vulnerability of Immigrant Farmworkers in the U.S. to Sexual Violence and Sexual Harassment,” May 5, 2012, https://www.hrw.org/report/2012/05/15/cultivating-fear/vulnerability-immigrant-farmworkers-us-sexual-violence-and-sexual.
83. Ibid.
84. Ibid.
85. Southern Poverty Law Center, “Injustice On Our Plates: Immigrant Women in the U.S. Food Industry,” November 2010, https://www.splcenter.org/news/2010/11/23/injustice-our-plates.
86. William R. Tamayo, “The Role of the EEOC in Protecting the Civil Rights of Farmworkers,” University of California-Davis Law Review 33 (Summer 2000): 1075.
87. Liz Jones, “Farm Worker Harassment Draws Increased Scrutiny,” KUOW, May 12, 2013, http://kuow.org/post/farm-worker-harassment-draws-increased-scrutiny; Frontline, “Rape in the Fields,” PBS Broadcast (June 25, 2013), http://www.pbs.org/wgbh/pages/frontline/social-issues/rape-in-the-fields/transcript-46/; Sasha Khokha, “Down on the Farm, Sexual Harassment Claims Finally Surface,” The California Report, July 24, 2006, http://audio.californiareport.org/archive/R607240850/a.
88. U.S. Equal Employment Opportunity Commission, “Selected List of of Pending and Resolved Cases Involving Farmworkers from 1999 to the Present,” June 2015, http://www.eeoc.gov/eeoc/litigation/selected/farmworkers_august_2014.cfm.
89. Esther Yu-Hsi Lee, “5 Female Farmworkers Will Be Awarded $17 Million After Facing Rape and Harassment,” ThinkProgress, September 11, 2015, http://thinkprogress.org/immigration/2015/09/11/3700839/female-farmworkers-17-million-verdict/.
90. Ibid.
91. Equal Rights Advocates, “Moving Women Forward: On the 50th Anniversary of Title VII of the Civil Rights Act, A Three-Part Series, Part One: Sexual Harassment Still Exacting a Heavy Toll,” Oct. 9, 2014, 8-9, http://www.equalrights.org/wp-content/uploads/2014/11/ERA-Moving-Women-Forward-Report-Part-One-Sexual-Harassment-Oct-2014.pdf.
92. See, e.g., Joanna Grossman, “The U.S. Court of Appeals for the Eleventh Circuit Undercuts Sexual Harassment Victims’ Rights: How the Decision Underlines Problems with the Supreme Court’s Approach to Hostile Environment Harassment,” FindLaw, Apr. 3, 2007, http://writ.news.findlaw.com/grossman/20070403.html.
93. 133 S. Ct. 2434 (2013)
94. Ibid. at 2455 (Ginsburg, J., dissenting).
95. Ibid. at 2456 (Ginsburg, J., dissenting).
96. Ibid. at 2466 (Ginsburg, J., dissenting).
97. Bryce Covert, “Exclusive: 43 Harassment Cases That Were Thrown Out Because of One Supreme Court Decision,” Think Progress, Nov. 24, 2014, http://thinkprogress.org/economy/2014/11/24/3596287/vance-sexual-harassment/.
98. Crawford v. Metropolitan Gov’t of Nashville and Davidson County, Tenn., 129 S. Ct. 846 (2009).
99. Thompson v. North American Stainless, LP, 131 S. Ct. 863 (2011).
100. See, e.g., Linda Hirshman, Sisters in Law: How Sandra Day O’Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World (HarperCollins, 2015), 284-85.
101. 133 S. Ct. 2517, 2546 (2013) (Ginsburg, J., dissenting).
102. Ibid.
103. Bryce Covert, “The Lifelong Effects of the Gender Wage Gap,” ThinkProgress, Sept. 3, 2015, http://thinkprogress.org/economy/2015/09/03/3698300/gender-retirement-gap/.
104. 127 S. Ct. 2162 (2007).