Zarda, Just Work, and the Limits of Antidiscrimination Law

Today, the Supreme Court will hear oral argument on the question of whether Title VII’s prohibition on sex discrimination includes sexual orientation and gender identity discrimination. LPE Blog is hosting contributions from scholars that detail the history of sex discrimination protections and address how law should redress gender hierarchies and disparities in economic power. Find all the posts in the series here.

Deborah Dinner –

The stakes in Altitude Express Inc. v. Zarda, pending before the Supreme Court, are unquestionably high. The question in the case is whether the prohibition on discrimination “because of … sex” under Title VII of the Civil Rights Act of 1964 includes discrimination because of sexual orientation and gender identity. A ruling in favor of the plaintiffs would enhance the employment security of the more than an estimated eleven million adults in the United States who identify as gay, lesbian, bisexual, or transgender. It would also bolster the ability of unions and worker organizations to strengthen the power of workers by preventing employers from using gender and sexuality to divide the workforce in ways that inhibit collective organization.

As progressives push for antidiscrimination protections for LGBTQ individuals, they would do well to look for ways to connect this fight to workers’ collective struggles regarding work hours, conditions, and pay. The history of Title VII and sex-based employment laws offers lessons about the crucial importance of pursuing antidiscrimination law together with protective labor regulations. In an article titled Beyond “Best Practices”: Employment Discrimination Law in the Neoliberal Era and in a forthcoming book, I show how sex discrimination law and retrenchment in labor regulation intertwined in the late twentieth century. This history reminds us that antidiscrimination law does not itself guarantee substantive justice in the employment relationship; reveals the ways in which employers may use antidiscrimination as a deregulatory tool; and offers a vision for economic justice that synthesizes individual freedom with collective protections for workers.

The story begins in the late 1960s, when the enactment of Title VII threw into question the ongoing legality of sex-based state labor laws dating to the Progressive Era. These laws regulating the hours and conditions of women’s work posed a double-edged sword. They blocked women from higher-paying jobs and from overtime work, yet they also functioned as an important source of labor protection. The conflict was, seemingly, one between individual freedom in exploitative workplaces or maternalist protection that entrenched gender segregation and inequality in the labor market.

Labor feminists—activists who used unions as a primary vehicle to realize sex equality—fought for a transformative solution: the extension of maternalist labor laws to men. The struggle held out the hope of fusing two strands within American liberalism: a commitment to labor protection forged in the progressive and New Deal eras with a newer, civil rights era commitment to antidiscrimination. The fight for the expansion of protective labor legislation—not the fight to strike down sex-based protective laws—promised the most egalitarian transformation of the American workplace.

Employers and business trade associations, however, defeated labor feminists’ most ambitious efforts to realize universal state protective labor laws. In Detroit, Michigan, women workers and union leaders on both side of the maternalist standards debate joined forces to campaign for legislation that would prevent employers from retaliating against workers who rejected overtime work. The Big Three auto companies—Ford, General Motors, and Chrysler—readily embraced the end of maternalist regulation, which would liberate managers to require longer hours for all workers. Yet employers opposed sex equality when it meant augmenting protections for all workers, arguing that voluntary overtime would interfere with production schedules. Across the country, in California, members of the Union Women’s Alliance to Gain Equality (W.A.G.E) fought to persuade a state administrative agency to extend maternalist labor laws to men. Large employers and business groups such as Lockheed Aircraft Corporation, Pacific Telephone and Telegraph Company, and the American Institute of Shipping argued that the idea of labor protection was tethered to maternalism and should fall by the wayside along with anachronistic gender stereotypes. In both states, labor feminists’ most ambitious efforts succumbed to powerful opposition from business groups.

Meanwhile, litigation under Title VII deregulated the workplace. Working women brought legal challenges that opened up higher-paying jobs to women, at a time when the male-breadwinner ideal was crumbling as both a social norm and economic reality. In the absence of legislative and administrative action to augment sex-neutral protective laws, however, such litigation also removed the floor from female employees who lacked union protection or who worked in service and retail sectors deemed intra-state commerce and thus beyond coverage under the Federal Labor Standards Act (FLSA). In some parts of the country, the lawsuits also removed an informal source of protection for male workers, too, because employers often customarily applied sex-based labor regulations across the workforce. At the same time, employers litigated in their own interests. In Homemakers, Inc. of Los Angeles v. Division of Industrial Welfare, for example, a division of Upjohn Pharmaceutical Company argued that the California law requiring overtime pay for female employees violated Title VII. As the district court observed, however, Homemaker, Inc. employed an overwhelmingly female workforce and was motivated by a desire to pay its own employees less. In sex discrimination litigation, working women’s interest in greater employment opportunity converged with employers’ interest in enhancing managerial control over workplace practices.

This history helps explain how the evolution of sex discrimination law was imbricated with the neoliberal deregulation of work hours and conditions. First, both trends shared an emphasis on individual freedom. Sex discrimination theory, and the antistereotyping principle in particular, demands that employers treat workers as individuals rather than as members of a class and that employers tolerate forms of gender expression in the workplace. Yet business groups also used this focus on individual freedom to justify legal trends that undermined collective worker security. Second, workers, courts, and legal scholars all viewed employment discrimination law as imposing a mandate of market rationality on employers. Yet elevating efficiency as the measuring stick for a just workplace also made it more difficult to argue for labor regulation that would constrain managerial flexibility. Third, interpretive struggles respecting Title VII refocused progressive energies on the courts, best suited to enforce negative rights (whether against public or private entities), and away from legislative campaigns for affirmative labor regulation and welfare entitlements. This history instructs us about the imperative to pursue gender freedom and worker protection, together, as well as the difficulty of doing so. 

Does this history speak specifically to the struggle for recognition of LGBTQ rights in the workplace? LGBTQ workers’ fight against discrimination resonates with cisgender working women’s historic fight against gender stereotypes. In other ways, today’s struggle differs significantly from that of labor feminists in the late 1960s and early 1970s. Most notably, there exists no paternalistic (or maternalistic) form of labor protection for gays, lesbians, and transgender people in the workplace. Although twenty-one states today provide antidiscrimination protections for sexual orientation and gender identity, no state or federal law has ever protected LGBTQ people in the conditions of their work because of their sexual identities. Therefore, the risk working women and their advocates faced—that of relinquishing the claim to protection in the bid for freedom—is not present for LGBTQ workers, today.

Yet we would do well to remember that employers have used sex equality rhetoric and sex discrimination law in the past to win power over workers. Corporations, CEOs, Chambers of Commerce, and business organizations have all submitted amici curiae on behalf of the plaintiffs in Zarda and its companion cases. A decision holding that Title VII’s prohibition on discrimination extends to LGBTQ employees, they argue, would enable employers to recruit and retain a wider pool of talent. They also emphasize that such a ruling would not impose significant costs on companies. Businesses should be applauded for being on the correct side of this struggle. Still, it is worth noting that business groups are more likely to support struggles for individual freedom than they are worker organizing for better hours, higher pay, and more expansive benefits. The history of sex discrimination law sounds a warning about the potential for business to coopt struggles for equality.

History cannot provide a blueprint for connecting contemporary struggles for LGBTQ equality to collective workers’ rights, but it highlights the importance of doing so.  If LGBTQ people gain the right to access job opportunity on the same basis as straight and cisgender people, that will achieve a major victory. But it will stop short of realizing just work. To start, Title VII does not protect the approximately twenty percent of American workers considered “independent contractors.” As a consequence of the shift away from an industrial and toward a gig economy as well as changing legal definitions of an “employee,” increasing proportions of workers today fall outside of the protections of the federal Fair Labor Standards Act. Forced arbitration hinders employees’ ability to vindicate their rights. Wages in even full-time employment have stagnated, and conditions of work have declined. We need to advocate LGBTQ people’s equal employment opportunity as well as all workers’ humane conditions of labor and access to the courts.  

The Brief of Service Employees International Union, International Brotherhood of Teamsters, and Jobs with Justice as Amici Curiae offers insight into how worker organizing might fuse individual rights to nondiscrimination with collective rights to just employment. It argues that LGBT discrimination “creates a climate of fear an unsafe working conditions” that jeopardizes the “goal of advancing the ability of working people . . . to organize and collectively bargain.” Conversely, the job security of LGBTQ workers will prevent employers from using discrimination to undercut collective workers’ struggles. It remains our task as legal scholars to think about how we might support efforts to connect movements for gender freedom, nondiscrimination rights, and economic justice in the labor market.  If the Supreme Court rules in favor of the plaintiffs in Zarda, the decision might well serve as an opening wedge.

Deborah Dinner is an Associate Professor of Law at Emory University.