Feminism and Discrimination Law From Sex-Plus to Family Responsibilities Discrimination

The Intersectionality of Feminism and Justice at Work | Part II

The History and Law of
Labor, Discrimination, and Immigration
Through a Feminist Lens

This is part II of my final paper for my 2012-2013 Justice at Work course, split into 3 parts for my blog. (Part I).

The Phillips v. Martin Marietta Corp. case of 1971 was the first sex-discrimination case under Title VII to reach the Supreme Court. In the same time frame, the legal theory of sex-plus discrimination arose as employers tried to defend their discriminatory activities as legal under Title VII of the Civil Rights Act of 1964 and the courts struggled to define how to determine what qualified as discrimination.

need-not-applyIn brief, the Martin Marietta Corporation had a policy preventing the hiring of mothers with pre-school aged children. Martin Marietta assumed such women would be more likely to take time off to care for sick children, which Martin Marietta felt meant they were unreliable employees. Ida Phillips applied for a job at the company and was denied because of her maternal status.

Phillips filed suit in the United States District Court for the Middle District of Florida, claiming Martin Marietta’s hiring policy was discriminatory and in violation of Title VII of the 1964 Civil Rights Act. In a move that is much more surprising to today’s eyes, the District Court agreed with the Martin Marietta Corporation and granted summary judgment in their favor.

The District Court — and later, the Fifth Circuit Court of Appeals — held that Martin had not discriminated against Phillips because they had been open and honest about not accepting job applications from women with pre-school aged children; because Martin employed men with pre-school aged children, thereby proving they were not discriminating against parents; and because approximately 75 to 80 percent of the applicants hired for the position in question were female, thereby proving that Martin was not discriminating against Phillips on the basis of her gender.

Phillips appealed, and in May 1969, the Fifth Circuit Court of Appeals affirmed the District Court opinion and denied a rehearing. At this point, the Equal Employment Opportunity Commission (E.E.O.C.) filed an amicus brief on behalf of Phillips, and the Supreme Court granted certiorari. Chief Judge John Brown of the Supreme Court found in favor of Phillips and overturned the previous decision. The final ruling of the Supreme Court was that employers may not refuse to hire women with pre-school aged children, unless the same standards are applied to men.

Although Judge Brown overturned the decision, the view of the court seemed, at best, slightly baffled by the question. Their decision was both remarkably short in wording and extremely brief in the time the court took to determine it. Furthermore, in addition to overturning the lower court’s findings, the Supreme Court sent the case back to the lower court for trial. This action suggested to some observers the possibility that sex-plus discrimination could be defended under the Bona fide Occupational Qualifications Exemption of Title VII, which reads:

“[I]t shall not be an unlawful employment practice for an employer to hire and employ employees, for an employment agency to classify, or refer for employment any individual, for a labor organization to classify its membership or to classify or refer for employment any individual, or for an employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining programs to admit or employ any individual in any such program, on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise…” The Civil Rights Act (1964)

Unique Clothes Sketch Models2Generally speaking, a Bona fide occupational qualification exemption will only apply in those situations where it is reasonably necessary to the normal operation of the particular business. For instance, a private Catholic school can reasonably require that the dean or teaching staff be Catholic, but they cannot require the cleaning staff or groundskeepers to be Catholic. (Guite, 2001). Additionally, an advertiser of female clothing can lawfully advertise for and hire only female models, while a business that sells sexual gratification to a specific demographic can lawfully hire employees who appeal to said demographic. For example, a strip club targeted at gay males can lawfully advertise for and hire only male strippers.

Austrian_Airlines_male_flight_attendantAlthough such an exemption may seem easy enough to claim, in practice it is difficult to defend, as Northwest Airlines discovered in 1967. In this case, it was determined that customer preference for female flight attendants did not fulfill the requirements of the Bona fide Occupational Exemption clause of Title VII, since gender has no effect on the actual performance of flight attendant duties. (Evenson v. Northwest Airlines Inc.)

In the case of Phillips v. Marietta, the company could not excuse their requirement that female employees could not have young children as a Bona fide Occupational Exemption, because such a qualifier was not applied to the male employees. Since the company clearly had no issue with female employees per se, given their high rate of employment, the question the court and observers were left to wrestle with was the definition of the discrimination Phillips experienced.

It was not sexual discrimination, as she was not subjected to sexual harassment or remarks. It was not necessarily gender discrimination, as 75 to 80 percent of the employees Marietta did hire were women. It was not that Phillips was a parent, as Marietta could prove they employed numerous men who had young children and families.

Instead, it was a curious combination of both her gender and her status as a parent — as a childless female or a male with a pre-school aged child, Phillips’ employment application would have been considered. It was only the combination of her sex plus parenthood that led to her being discriminated against.

This is the essence of the sex-plus legal theory of discrimination: When gender alone does not precipitate the discrimination, but the gender plus another factor. As Reva B. Seigel phrases it in A Short History of Sexual Harassment, the, “courts characterized the challenged practices as “sex plus” policies, policies that discriminated on the basis of “sex” “plus” some other putatively neutral criterion (hair length, type of dress, mannerisms, orientation, or “willingness to furnish sexual consideration.”

Siegel goes on to clarify that the purpose of the sex-plus legal theory was to, “protect the traditional ways of doing business from disruption by the antidiscrimination statute.” This seems to have backfired somewhat, and the statutes and legal theories that have arisen to combat sex-plus discrimination have continued to evolve and overcome new barriers.

prego-21In the 1960s and 1970s, however, the battle against sex-plus discrimination was still being framed. Cases such as Geduldig v. Aiello and General Electric Co. v. Gilbert, dealt with employers who chose to deny their female employees health coverage during pregnancy, arguing that pregnancy was more expensive than the sorts of health issues normally covered by disability healthcare. In both cases, the court upheld such exclusionary disability plans, claiming they did not violate Title VII. As a result of this sex-plus discrimination, the Pregnancy Discrimination Act was added in 1978 to Title VII. This Act specifically addresses employment discrimination against pregnant women, women who might be perceived as being likely to become pregnant, or recently pregnant women.

Working-DadOver time, the sex-plus legal theory of discrimination segued to Family Responsibilities Discrimination (FRD). Through the 1970’s and 1980’s several sociological shifts were occurring: Males were taking on a larger and more equitable share of family responsibilities; the healthcare needs of the baby boomer generation became a demand for working adults; and the expected hours an employee should work steadily increased.

Taken separately, these trends may seem unrelated, but taken together they spell an increased demand on the time of employees from both employers and family. If an employee opts to prioritize their family responsibilities, they may face repercussions ranging from lack of promotion opportunities to reduced hours (and wages) to being outright fired for a lack of commitment to their job. As the Employee Relations Law Journal puts it:

“Many legal scholars believe Phillips was the beginning of FRD litigation. After Phillips, the number of cases increased modestly throughout the 1970s and 1980s. The 1990s, however, brought a much more rapid rate of increase, rising particularly steeply between 1998 and 2004. There were 481 cases in the decade 1996-2005, compared to 97 cases in the previous decade, an increase of nearly 400 percent. This rate stands in contrast to more general employment and discrimination case rates, which decreased 23 percent between 2000 and 2005.” (VonBergen, 2008)

Consider the case of Knussman v. State of Maryland in 1996. Knussman was a Maryland State Trooper when his pregnant wife was put on bed rest. Shortly before their child’s birth, Knussman learned of a new Maryland statute that allowed paid sick leave for state employees to care for a newborn. Knussman inquired about taking the leave as a primary caregiver, which would allow him 30 days of paid leave rather than the 10 days allotted to a “secondary caregiver.” Knussman was told that because he could not breastfeed, he did not qualify as a primary caregiver, and he was denied the 30-day leave.

project-breastfeeding-dad-537x402Knussman took his allotted leave, but when the end of his 10 day paid leave approached, he again inquired after the extended leave. This time he was told that God had created women to have babies, and unless he could have a baby, there was no way he could be a primary caregiver. He was further informed that unless his wife was either dead or in a coma, he would never be a primary caregiver, and subsequently ordered to return to work. In response, Knussman filed suit, and the case went to trial, where the jury found in favor of Knussman to the tune of $375,000.

gr-discrimination-cases-300What is particularly interesting about lawsuits involving family responsibilities discrimination is their apparent appeal to jurors. Traditional employment discrimination cases involving gender, race, disability and religion have a success rate of about 20 percent. In contrast, FRD cases win more than 50 percent of the time, and the average award is about $100,000 (Pinkham, 2008).

It appears that jurors find it easier to relate to and sympathize with plaintiffs — regardless of the race or gender of the plaintiff — who were just trying to successfully navigate the common and shared experience of work/ family conflict. Female employees continue to battle gender discrimination expressed in a spectrum of behaviors, but discrimination against an employee for their familial responsibilities regardless of their gender is an area that nearly everyone seems to be able to relate to in some form.

discrimination1Looking to the future, it will be interesting to see how the sex-plus theory proposed during the first wake of gender discrimination lawsuits after the passage of Title VII continue to evolve as more Americans struggle to juggle the responsibilities of work and family.

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