By Erika Birch 

With small kids at home we don’t watch a lot of television. But my husband finally convinced me to sign up for Netflix streaming, which led to our addiction to the T.V. series Mad Men. For those of you who have not seen an episode, it depicts a New York City advertising agency in the 1960s and is reflects the social mores of that era. I had a really hard time sitting through the first couple of episodes as the male chauvinism was rampant and the sexism explicit. However, by the third or fourth episode, I found myself intrigued enough by the story line and the characters to continue watching.  However, it got me thinking, was the workplace really like that back then? It turns out, sadly, in many cases it was. As someone who practices in the area of employment law, I often represent women in gender discrimination and sexual harassment claims. So Iwant to pose a question: Are things really that different today?

The History of Title VII & Protection for Women in the Workplace

In June of 1963, President Kennedy called for a bill to give all Americans equal access to public places and voting rights -- a clear response to the protests against racial segregation and discrimination in our country at that time.  The House Judiciary Committee strengthened the bill by adding protections against racial discrimination in the workplace. It wasn’t until after Kennedy’s assassination that the bill actually had a glimmer of a chance of passage. With President Johnson in the White House pushing for passage of a civil rights bill and public opinion building in favor, the bill passed the House in early 1964 and was sent to the Senate.  After some political and procedural finagling, the bill came before the full Senate in March.  There was strong opposition from some senators (like Strom Thurmond), which lead to a 57-day filibuster that resulted in a substitute bill.

Notably, the original bill did not protect women from discrimination in the workplace.  The prohibition against sex discrimination was added as a last-minute amendment on the floor of the House and quickly passed without discussion. Historians have debated over whether including protections for women was a well intentioned amendment or an attempt to kill the bill (as there were many men in Congress who did not favor women’s rights even though they were in favor of prohibiting race discrimination). In fact, the Congressional Record reflects that the amendment was greeted by laughter.[i]  Nonetheless, the bill passed through both houses and was signed into law by President Johnson on July 2, 1964. Title VII of the Civil Rights Act of 1964 is still in effect today and has been strengthened by amendments, most notably in 1991.  

50 Years Later . . .

So here we are nearly 50 years later. There has been a tremendous amount of case law in the area of sex discrimination in employment. The highlights:

• ØThe first Supreme Court sex discrimination case under Title VII held that sex-plus discrimination was illegal in 1971. In that case the employer had a hiring policy refusing to hire women with preschool-aged children (because they would be less reliable), but hired men with preschool-aged children and women without children in preschool.[ii]
• ØIn 1986 the U.S. Supreme Court held that sex harassment was a form of illegal sex discrimination. The case involved a bank employee that was pressured into having a sexual relationship with her boss.[iii]
• ØThree years later the high court also found that sex stereotyping was prohibited under Title VII. Price Waterhouse had refused to promote a woman and indicated that she could have improved her chances of making partner if she would “walk more femininely, talk more femininely, dress more femininely, have her hair styled, and wear jewelry.”[iv]
• ØA couple of years later, the Supreme Court held that even well-intentioned protections of women in the workplace constituted a form of illegal discrimination. The employer had a policy barring the participation of women with childbearing capacity in occupations that could be detrimental to their reproductive capacities.[v]
• ØIn 1998, the Supreme Court held that same-sex harassment, to the extent it is based on sex, is also actionable. The case involved a male employee who was sexually harassed and assaulted (even threatened with rape) by his male coworkers.[vi]
• ØAlso in 1998, the high court ruled that employers could be vicariously liable for sexual harassment by their supervisors.[vii]
• ØWhile Congress has unsuccessfully attempted to prohibit discrimination on the basis of sexual orientation and gender identity nearly every year since 1994, just this year the EEOC ruled that Title VII prohibits discrimination on the basis of gender identity, and several circuits have held the same.[viii]

In My Own Practice

I have practiced employment law in Colorado, Utah, and Idaho over the last 12 years and I always seem to have a steady stream of sex discrimination cases, including sexual harassment issues and the more traditional gender discrimination claims.  For example, I recently had a case in Idaho that involved an older professional woman whose younger, married boss grabbed her buttocks in a packed room during a business meeting. The more egregious harassment cases have been women raped by coworkers or supervisors with a pattern of such behavior (yes, we’ve had these cases too). But in many cases the discrimination is more subtle, covert, and perhaps even sub- or un-conscious. For example, we represent a woman who worked for the federal government and was passed over for a promotion to a job that she had already been unofficially performing successfully for years. While the agency admitted she had superior technical abilities, they selected a male candidate, claiming he had better “leadership” qualities. The agency could point to nothing concrete or objective in support of this and it seemed clear to us (for a variety of additional reasons) that this was a gender preference. But the judge thought otherwise on summary judgment, and the case is now on appeal.  Likewise, we recently represented the former Director of the Idaho Transportation Department, Pamela Lowe, the first and only woman to hold that rank in Idaho. In Ms. Lowe’s case, the allegations included direct discriminatory comments (“no little girl will be able to run this department”), as well as allegations of more subtle forms of discrimination (being judged more harshly or treated less favorably than her male counterparts). Ms. Lowe also had an equal pay claim based on the fact that her male successor was paid $22,000 more per year than she had been. This pay disparity along gender lines is reflected throughout our state, which ranks 43^rd in the nation for our gender pay gap (Idaho women make 74% as much as men).[ix] The same is true in Idaho’s top executive positions: the Idaho Statesman reported in March of this year that the median salary for the 11 women in Governor Otter’s cabinet is $85,445 compared to the $103,002 median salary for the 33 Cabinet-level men.[x] 

In my practice, I often see sex discrimination manifest in the form of holding women to higher performance standards than their male counterparts, discounting them for being too aggressive or too emotional, assuming they won’t take their career seriously because they have family obligations, or failing to provide the networking/social opportunities that can be so critical to upward mobility in one’s career because they don’t golf, fish, or play ball.  Proving gender discrimination in these cases is difficult-- and sometimes impossible -- yet it is real and has lasting impacts. Without being able to hold companies accountable for this type of discrimination, it persists unabated. Thus, while I seldom encounter the kind of sexism that was so prevalent and obvious as is portrayed in Mad Men (although shockingly, it does still occur on occasion), it is this engrained, subtle discrimination that we can only combat by first recognizing and admitting that it still exists despite 50 years of prohibition.

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