When a Rather Sexist “Joke” Backfires in Spectacular Fashion

The Civil Rights Act of 1964 protects people from discrimination in employment, public accommodations, public facilities, federally-assisted programs, and other areas. In most of these, it prohibits discrimination on the basis of race, color, national origin, and religion.

Title VII of the Civil Rights Act, which deals with employment discrimination, adds sex as a protected category. Over the years, Title VII’s prohibition on sex discrimination has been expanded to include sexual harassment and pregnancy discrimination. One has to wonder, though—how did sex end up in Title VII as a protected category, if it’s not anywhere else in the law? Join me for a historical odyssey into the realm of unintended—but awesome—consequences.

President Lyndon B. Johnson was adamant about getting the Civil Rights Act passed. It would prove to be one of the signature achievements of his time in office, and the major event that sparked the reshuffling of party positions*.
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The “Lactating Male” Case Isn’t Quite So Simple as That

You’ve probably heard about the Supreme Court’s decision to deny certiorari in Ames v. Nationwide Mutual Insurance Company, in which a lower court had denied a woman’s pregnancy discrimination claim for alleged failure to provide reasonable accommodations for lactation, followed by constructive termination. The aspect of the case that has been making its way around the web is the trial court’s statement that the case was not an example of sex discrimination, because (to paraphrase), men can lactate, too. While I find fault with the decisions of the trial court, the Eighth Circuit Court of Appeals, and the Supreme Court in this case, the “men can lactate too” statement is not a particularly critical part of the analysis—although it is an attention-grabbing one.

milk typography by johnnyhuynen [CC BY-ND 3.0 (http://creativecommons.org/licenses/by-nd/3.0/)], via DeviantArt

I actually started this post all full of piss and vinegar over a crappy legal decision based on a ridiculous premise, but as I read more about it I realized that the real legal basis for the trial and appellate courts’ decisions, and probably the Supreme Court’s rejection of the case, is not as ridiculous as the “male lactation” bit. The case has far more to do with what employees must do to trigger and employer’s legal responsibility to provide “reasonable accommodations” for pregnant employees, or employees who have recently given birth. Continue reading