Book Review: ‘Because of Sex’

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Carlson is one of those women of the future. She will stand on the shoulders of Sheila White (Burlington Northern & Santa Fe Railway Company v. White, 2006). White endured sexual harassment and was even more abused for filing complaints within the company and then with the EEOC, a federal agency. She was assigned difficult, dangerous and unpleasant tasks in retaliation and ultimately suspended without pay. The Supreme Court unanimously held that her employer had indeed retaliated against her for complaining in public about his sexual and personal harassment. The Court recognized that retaliation can take many forms, not simply firing and demoting.

The landmark cases Thomas chronicles in Because of Sex were rooted in unfair or unequal treatment of women in hiring, working conditions, and benefits. They relied on Thomas’s “one law,” Title VII of the 1964 Civil Rights Act, which outlawed employment discrimination based on race, color, national origin, religion or sex . The act also made it unlawful to retaliate against someone who complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. But the law as written had no particulars, no description of what “discrimination because of sex” actually meant. There was no “sexual harassment” in 1964: the term was coined 10 years later. It fell to individuals to identify through the courts the unfair practices that embodied different standards for men and women.

The women whose stories Thomas lovingly narrates were penalized by their employers for being pregnant or potentially pregnant, having young children, being too smart or too attractive, complaining about discrimination, living longer than men, or wanting a “man’s job.” Though sexual harassment is a perennial problem for women, pregnancy and motherhood are especially problematic: women will always become pregnant,  and employers will try to find ways to use that as an excuse for discrimination.

Thomas unpacks the “equality dilemma”: the conviction of traditional feminists that women need special protections that men do not (because of pregnancy, for example) and the belief that other feminists hold that protective laws are ultimately harmful to women.

The 19th century saw reforms in labor laws that protected women by limiting, for example, the number of hours they could be expected to work in one day. But by the 1970s, these protective laws were beginning to be seen as paternalistic, defining women as a group that needs special treatment. The underlying assumption was that they aren’t able to take care of themselves. Women were denied employment in positions traditionally occupied by men. Pregnant women were treated unfairly: they were not allowed to work when they felt they were able, and they were penalized when they took time off for morning sickness.

Ruth Bader Ginsburg has fought relentlessly all her life against laws written to “protect” women. She argues that if women are to be treated equally, they can’t be given special treatment and that protective laws actually do more harm than good. Not allowing women to work overtime, for example, deprives them of needed extra income and may keep them from getting a promotion and a raise. The traditionalists argue that only women get pregnant, and therefore do need special laws. The pro-equality faction responds: When men are temporarily disabled, they are entitled to time off and relief from strenuous tasks. If pregnancy were to be conceived of as a temporary disability, women could receive equal, but not special, treatment.

Because of Sex is an important book. Gillian Thomas is an engaging and skillful writer, a consummate storyteller. She was moved by the plight of women who were subjected to inferior and unequal treatment on the job because of their sex. Meeting these women and feeling their pain, Thomas told me, inspired her to write Because of Sex. Thomas shows how women’s rights have evolved as women challenged the policies and attitudes that exploited them and held them back in the workplace. Her sympathetic, lively narratives animate potentially tedious trial histories. The book is solid; it is meticulously researched. It is clearly the product of much labor inspired by love.  

Millennials who read about the changes in the status of women and the pioneers who worked to bring them about will gain a better understanding of the sympathy older women feel for Hillary Clinton. It’s good to be reminded of how we got where we are and how far we still have to go.

Sexual harassment and unequal pay remain, along with discrimination because of pregnancy and motherhood, the biggest hurdles for women to overcome on the way to equality. It is still necessary to sue employers to redress the wrongs. That is easier for women like Gretchen Carson than it is for a waitress or a file clerk who can afford neither the time nor the money it takes to wage a court battle.

Legislation doesn’t magically solve the problem either, because as Thomas told me, “The law changes, but people don’t.” Cultural change is much more effective, but it moves at a glacial pace.

What’s next, now that women have the law on their side? The next frontier for Title VII, Thomas believes, will be tackling discrimination against the LGBT community.

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