Harvard Law Review: Volume 125, Number 6 - April 2012

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Pregnancy and the Traditional Understanding of Sex Discrimination. Courts have therefore argued that this prohibition must be restricted to the traditional concept of sex discrimination.

A conversation with Justice Stephen Breyer

Traditionally, courts suggest, discrimination because of sex referred only to practices that divided men and women into two perfectly sex-differentiated groups. Although Title VII doctrine has evolved over time, this traditional concept of sex discrimination continues to exert a powerful regulative influence over the law. It excludes certain claims — such as those by sexual minorities — from coverage and elevates the evidentiary burdens plaintiffs must satisfy in order to prove discrimination because of sex.

This Article argues that the traditional concept of sex discrimination is an invented tradition. It purports to reflect the historical record, but in fact reflects normative judgments about how deeply the law should intervene in the sex-based regulation of the workplace. Employers advanced the argument that Title VII applied only to practices that sorted men and women into two perfectly sex-differentiated groups in order to preserve the traditional gendered organization of the workplace and insulate particular employment practices from scrutiny.

In the s, courts adopted this interpretation but no longer cited the need to preserve conventional sex and family roles as a justification; instead, courts cited deference to the legislature and fidelity to tradition as justifications for interpreting the law narrowly.

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This tendency should prompt us to think critically about the assertion that deference to the legislature and fidelity to tradition require courts to adhere to a narrow conception of what it means to discriminate because of sex. In , in General Electric Co. In place of legislative history, the Court turned to tradition for guidance in interpreting the statute. Courts rejected some of the earliest sexual harassment claims on the ground that the harassment at issue targeted some but not all members of the relevant class and thus did not qualify as discrimination because of sex.

Courts hold that only by demonstrating that such comparators were not subject to the same adverse treatment can plaintiffs prove it was their biological sex that triggered the alleged discrimination. This Article argues that the traditional concept of sex discrimination, as articulated by courts, is an invented tradition.

The historian Eric Hobsbawm famously used that term to refer to social practices that purport to be old, or imply continuity with the past, but are actually quite recent in origin.

Harvard Law Review: Volume 125, Number 6 - April 2012

Courts claimed that their narrowly circumscribed definition of sex discrimination was deeply rooted in history, but in fact, it was quite new. It did not express a historical fact. Its authority derives primarily from the contention that it is deeply rooted in the American legal tradition. When courts focus on the formal characteristics of challenged employment practices, requiring plaintiffs to demonstrate that an employer has sorted employees precisely along biological sex lines before labeling its actions discriminatory, they purport to be deferring to a long-standing and shared consensus about what it means to discriminate because of sex.

They suggest that this understanding has all the weight of history behind it. The traditional concept of sex discrimination was therefore developed without any actual inquiry into the meaning that had historically been ascribed to this practice. This Article seeks to recover that history.

Workers flooded the EEOC with sex discrimination claims and made arguments about the protections accorded them under the new law.


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Elena Kagan

More filters. Sort order. Jan 04, rated it it was ok Shelves: law. This edition of the HLR was fine. That's it: fine. It's an interesting proposition and Greene expounds upon it well. I came away agreeing with him. If I had to sum up the page article in one sentence: "If the decisions in those cases were so categorically WRONG, they would have never been decided in the way that they were. I don't have any real reason to disagree with his assessment that the reason 4th amendment case law is so incoherent is because it isn't meant to be consistent like just about every other theater of law.

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A solid proposition that is well-defended. Everything else in this issue is dumb, though. A multidisciplinary approach, including historical research, analysis of architecture, and the stories of immigrant detainees, exposed the micro experiences of detention as constituent of the macro processes that shape United States immigration policy.

Private corporations design and build detention centers as highly institutionalized environments with little oversight and in the architectural style of civilian prisons. This not only increases our capacity to detain men, women, and children in prison-like conditions despite the fact that they have not necessarily committed a crime, it also predisposes migrants to punitive environments and experiences for years to come. Rendering deten-. Accessed on October 10, Previous page Next page.