Has litigation under Title VII of the Civil Rights Act of 1964 reached the limit of its utility in advancing workplace equality? After four decades of forward progress on antidiscrimination law in the courts, Supreme Court decisions in the last decade have signaled a retrenchment, disapproving of key theories scholars and advocates had pursued to address workplace discrimination in its modern, more subtle and structural forms. Yet sex and race inequality at work endure, particularly in pay and at the top of organizations.
Notably, while the Roberts Court majority appears skeptical that discrimination persists and resistant to recognizing the role of employers in continued inequality, one subset of discrimination cases has enjoyed relative success in the courts: sex discrimination cases relying on the legal theory of sex stereotyping. In particular, plaintiffs alleging that they were discriminated against at work based on the operation of sex stereotypes related to family caregiving responsibilities or transgender status have pushed federal appellate and district courts toward a contemporary understanding of the operation of bias. Despite this unusual success during an otherwise bleak period in antidiscrimination law, advances in caregiver and transgender discrimination lawsuits remain on the margins, siloed in their own category of litigation.
This Article argues that theoretical and doctrinal advances in sex stereotyping cases have broad application, with the potential to reinvigorate employment discrimination litigation under Title VII as a whole. The Article suggests that precedent from pioneering sex discrimination cases can and should be applied to cases alleging discrimination on other bases, including race and national origin. It proposes a more coherent, unified approach to antidiscrimination law that capitalizes on recent courts’ recognition of the operation of sex stereotypes at work. In an era in which the advancement of equality has stalled in both the workplace and the Supreme Court, a unified approach to Title VII litigation framed around stereotype theory offers an important path forward for antidiscrimination law.
Stephanie Bornstein, Unifying Antidiscrimination Law Through Stereotype Theory, 20 Lewis & Clark L. Rev. 919 (2016), available at http://scholarship.law.ufl.edu/facultypub/757/