Where’s That Smoking Gun?
It’s more challenging than ever to prove sex discrimination

Betty Dukes, right, and fellow Wal-Mart plaintiffs in 2003. Photo: Noah Berger/AP

by Pamela Haag

Title VII of the Civil Rights Act turns 40 this year, and it’s a bittersweet birthday.

On the one hand, we can celebrate four decades of federal attention to sex discrimination in the workplace. But on the other, it’s getting harder to actually enforce the law, because the standards for what constitutes sufficient evidence are becoming increasingly stringent.

A little history: The landmark addition of a sex discrimination provision to the 1964 Civil Rights Act was achieved by the strangest of political bedfellows — conservative, segregationist Southern legislators and a small vanguard of feminist legislators.

The first group loathed the Civil Rights Act and hoped to derail it by introducing the then-preposterous idea of sex discrimination. The second group seized the Act as a Trojan horse to smuggle meaningful employment protections into federal law.

When Title VII took effect, the Equal Employment Opportunity Commission (EEOC), which initiates and investigates complaints, saw the sex discrimination provision as one “conceived out of wedlock,” and thus focused its efforts on race discrimination. But the commission was shocked to find that almost one-third of the hundreds of complaints it received in its first year came from women.

Female Wal-Mart employees, who recently won the right to file a class-action sex discrimination lawsuit, did hear throwback comments about a woman’s place in the home. But more typically, bosses are now skillful at encrypting discrimination in litigation-proof form.

Instead of being told she belongs at home, a woman might hear that she’s not “collegial” enough, or that she lacks “interpersonal skills” — both examples from discrimination cases in the late 1990s. Lack of collegiality might be code for “uppity woman,” but even an uppity woman will have trouble proving it.

Since professionals are evaluated by subjective standards, employers can find asylum from discrimination charges in vague but legal job criteria: “future promise,” “leadership” or “creativity.”

Thus, a smoking gun may be hard to find at a time when it’s more crucial than ever in an individual “disparate treatment” case. A 1993 Supreme Court decision holds that even if a plaintiff proves her employer lied about a hiring decision, she must also show that the lie hides a discriminatory intent, which is extremely difficult to prove.

Since the mid-1980s, courts also have been more inclined to dismiss discrimination cases on summary judgment, which means that the plaintiff does not get her day in court because the judge believes her case is doomed to fail.

The use of summary judgment to clear the dockets of discrimination cases — almost unheard of during Title VII’s first two decades — indicates that courts are requiring a heavier burden of proof. The matter of intent likely will become more challenging as Title VII heads into middle age.

Today, women may experience unintended forms of discrimination that fall through the cracks of Title VII but nonetheless have tangible, negative repercussions on their careers. The work-family bind, including maternity leave, is but one example. No matter how high the bar or costly the battle, women will undoubtedly continue to use Title VII to right workplace wrongs and to update the meanings of sex discrimination in the 21st century.

As lawyer Eleanor Swift commented on her own lawsuit in the late 1980s, “You tell yourself, ‘No job is worth all this.’ No, it isn’t. Your ultimate goal is to vindicate your stand against discrimination. And that may be worth the struggle.”

Pamela Haag, Ph.D., is the author of a book on sex discrimination and Title VII to be published by the University of Pennsylvania Press in 2005.

Related
Read the text of Title VII of the Civil Rights Act.
Ms.'s daily blog, ms.musings, has been tracking the case against Wal-Mart.