Men and Women at Work
How should the law treat women and men in the workplace? This question's importance is accelerating as the balance of the Supreme Court tips strongly conservative, more conservative jurists are nominated to the federal bench, and the Republican Party maintains control of the federal political branches (at least for now). If the right is consolidating power in the judicial and political spheres, how should it think about the legal regime that governs treatment of men and women at work?
Employment law in America has particularly high stakes because, unlike in many other developed countries, we route many of our health and welfare benefits through employers, rather than through the state. Given our emphasis on individuals' and families' supporting themselves through ties to the paid workforce, employment law properly provides critical safeguards to American workers. Indeed, much of America's dynamism and economic success is drawn from its distinctive emphasis on work, including access to workplace benefits. That means it's critical to get this issue right.
Workplace law vis-à-vis the sexes has gone adrift in several ways; basic sex-discrimination law ought to be restored to further extend the principles of justice. The first is how current law institutionalizes the battle of the sexes, pitting women against men as two rival classes. The 1991 amendments to the Civil Rights Act allow judges to presume unlawful sex discrimination based on statistical evidence as to the relative proportion of men and women in a given enterprise. But this ignores the fact that men and women, on average, have different preferences when it comes to remunerative work.
At the same time, many pregnant women and mothers lack vital protections in the workplace that enable them to carry out their twin duties of paid employment and child rearing. Just as the law carves out special workplace protections for veterans, it should also concern itself with the treatment of working parents — who, like veterans, contribute to the common good in unique ways.
Finally, policymakers have long neglected the plight of middle- and working-class women, focusing instead on complaints concerning intra-elite competition between highly educated women and men. As a result, many of the advancements women have gained at work have accrued primarily to elite and wealthy women, while lower-class women continue to face a disproportionate amount of sex-based discrimination and harassment.
It's long past time for policymakers and judges to redirect civil-rights law away from the battle of the sexes that progressive activists have encouraged. Instead, these laws should protect each man or woman's opportunity to participate in remunerative work in a manner that enables him or her to contribute as a unique individual and as the original laws intended.
ZERO-SUM DISCRIMINATION LAWS
In its earliest incarnations, sex-discrimination law did not view women and men as members of classes in opposition to one another. It simply sought to make space for qualified women to be considered for jobs free from unjustified prejudice and harassment.
Much of the motivation for the earliest women's rights advocates in the 19th century stemmed from the plight of working-class women. To give just one example, in the early 19th century, many factories in Lowell, Massachusetts, decided to recruit primarily young female workers. Women could be paid less and were easier to control than male workers, who were prone to (successfully) striking to demand higher wages and better working conditions. The jobs were attractive to these women because of economic dislocations and stresses facing Northeastern farm families at the time. Yet women employed in factories worked 12- to 14-hour days and faced dangerous conditions, with many eventually dying from an ailment called "brown lung." These female workers organized labor strikes twice in the 1830s but were unsuccessful — in no small part because they couldn't vote and politically powerful labor unions did not see it in their interest to assist them.
While campaigning for the right to vote later in the century, many reformers worked to address this kind of workplace maltreatment. Their efforts coalesced into a century-long pull and tug between strict-equality feminists (and their corporate allies) and labor advocates. These debates — political, legal, and constitutional — ultimately resulted in New Deal reforms and eventually the passage of the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964.
The text of Title VII and early case law initially focused on opening doors to women. This included those who, as mothers, had greater responsibilities for the care of young children and, as women, were too often subject to unwelcome sexual advances at work.
Such was true of the first sex-discrimination lawsuit filed under Title VII. The case concerned Ida Phillips, a mother of seven children. Finding herself in need of a way to feed her children and safeguard their health, Ms. Phillips — a waitress — sought a better-paying job at a local manufacturing plant. She was turned down on the grounds that the company did not accept "job applications from women with pre-school-age children." The company, however, did hire men with preschool-age kids.
In a per curiam opinion in 1971, the Supreme Court in Phillips v. Martin Marietta Corporation found that, in the absence of actual evidence of "conflicting family obligations, if demonstrably more relevant to job performance for a woman than for a man" — the defendant company could not have such a policy under Title VII. This decision made good sense: Even as all parties readily granted that mothers more than fathers are the primary caregivers for their young children, the Court recognized that a mother's responsibilities to her children often include providing for them financially.
Indeed, to this day, nothing in Title VII case law itself prevents an employer from judging that an employee's work is suffering, perhaps due to her responsibilities elsewhere, and letting her go for poor work performance — so long as a poorly performing man would be treated the same. The key anti-discrimination principle is that employers ought not judge women (or men) as incapable of a particular job ahead of time, unless there is an actual, non-arbitrary, job-related reason — a bona fide occupational qualification — for this judgment.
Sorting employees by performance is legitimate; sorting them purely on the basis of sex is (usually) not. That is to say, even if statistical surveys tell us that most women — or most men — have general characteristics that would seem to make them unlikely fits in a particular industry (e.g., offshore oil drilling or infant care, respectively), Title VII says that the question the employer ought to be asking is whether this woman or this man is right for this job.
A second critical Supreme Court case — this one defining sexual harassment under Title VII — was Meritor Savings Bank v. Vinson, decided in 1986. The plaintiff was Mechelle Vinson, a young black woman who had worked at a bank. Shortly after she was hired, at age 19, her manager demanded that she have sex with him in order to keep her job. Ms. Vinson said her manager "fondled her in front of other employees, followed her into the women's restroom when she went there alone, exposed himself to her, and even forcibly raped her on several occasions." After she was eventually fired, she sued.
In a unanimous decision, with Chief Justice William Rehnquist writing the opinion, the Supreme Court held that "a claim of 'hostile environment' sex discrimination is actionable under Title VII." The Court found that women could sue not only when they had been unfairly discriminated against in the workplace because they were women, but also when they had been sexually harassed. Previously, it had been unclear whether Title VII extended to psychological or emotional harms caused by sex discrimination, including sexual harassment. In Meritor, the Court stated that harm need not only be economic: Congress, the Court wrote, intended to "strike at the entire spectrum of disparate treatment of men and women" in the workforce.
Phillips and Meritor did not place women and men in direct opposition. Rather, they sought to shape the workplace such that both sexes had the opportunity to earn a gainful living to support themselves and their families free from odious behavior like sexual harassment.
Even in the 1970s, shortly after the passage of the 1964 Civil Rights Act that included Title VII, more than 7 million American families were headed by a woman, and in half of those families, the woman worked in the labor force. As the Bureau of Labor Statistics pointed out in 1978, these female-headed households were disproportionately likely to have "children under age 18 and to have very low incomes." Even then, the image of the breadwinner husband married to the homemaker wife was a privileged one, as the economic needs of poor and working-class households required mothers' remunerative work. What was novel in the 19th and 20th centuries, and what civil-rights laws were initially and justly responsive to, was that working-class women now had to chase paid work in the industrializing workplace, far from their homes and the children in their care.
Other early sex-discrimination cases, though arguably necessary at the time, paved the way for women and men to be viewed in zero-sum terms. Disparate-impact analysis in particular required courts to consider whether a facially neutral employment practice was illegal because it had a disproportionately negative effect on women. In Dothard v. Rawlinson, decided in 1977, the Supreme Court found that a height and weight requirement for prison guards was enough "to establish a prima facie case of discrimination" because "a plaintiff need only show that the facially neutral standards in question select applicants for hire in a significantly discriminatory pattern." Though the employer could overcome this hurdle by showing the requirement was a job-related business necessity (through a doctrine known as the "business-necessity defense"), to this day, doing so is notoriously difficult and often involves a costly battle of experts.
Shifting this burden to the defendant signaled to risk-averse businesses that they might have to consider the overall proportion of women and men in their firms to protect themselves from lawsuits or the threat of being sued. The disparate-impact test — which pressured firms to consider their proportion of women to men rather than to assess an individual's job qualifications — was later codified in the Civil Rights Act of 1991. As one law firm points out, the test was a boon for plaintiffs and their lawyers: "Unsurprisingly, the broad scope and large scale of potential liability for disparate impact claims makes it exceedingly difficult to achieve summary judgment, pushing many defendants to settle the claims."
The 1991 amendments to Title VII also allowed recovery for emotional distress and punitive damages if the plaintiff could show intentional discrimination, thus raising the stakes for these kinds of lawsuits. Additionally, the goals of civil-rights activists and policymakers in this area began to shift radically and, in time, worked to turn civil-rights advocacy on its head. Traveling a good distance from Title VII's original purpose of opening the workplace to duly qualified women, identitarian progressives increasingly sought to use civil-rights methods and rhetoric to achieve gender parity. Rather than equality of opportunities, these activists wanted equality of results.
In 2021, to take a recent prominent example, the Biden administration released a "National Strategy on Gender Equity and Equality." The document sought a "roadmap for a whole-of-government effort to advance gender equity and equality," including closing "gender gaps in STEM fields" and improving "gender parity in representation and leadership." While the document is somewhat short on tangible goals, it indicates that many leaders in the United States want women to achieve strict market equality with men.
For the math to work out, men and women must be understood in a zero-sum relationship, with women's achievements coming at the expense of men. The just goal of opening doors for individual women to have the equal opportunity to work without discrimination or abuse — once attained in Title VII and its early case law — has been traded for its inverse.
Meanwhile, corporate policies increasingly encourage sex-based hiring at work, which translates into qualified men being passed over for jobs and promotions. Not only does this fly in the face of the anti-discrimination principle, but evidence is mounting that these workplace injustices are contributing to resentment growing between young men and women today.
ENDING THE BATTLE OF THE SEXES
As outlined above, the 1991 Title VII amendments codified into statute a fork in the road for sex-discrimination law. Today, they allow judges to presume unlawful discrimination based on statistical evidence as to the relative proportion of men and women in a firm. The prima facie question has become not whether any individual worker or applicant is qualified, but whether the overall balance of male versus female workers is roughly equal.
The disparate-impact theory of sex discrimination gives employers reason to be concerned about costly lawsuits whenever ratios swing too far against women. It thus pits women against men as two rival sex classes competing for positions and promotions.
These perverse incentives make the disparate-impact test ripe for reform. Ideally, Congress would lead the charge. In April 2025, the Trump administration released an executive order attempting to dial back the disparate-impact test insofar as it had the power to do so. But because the test is enshrined in statute and case law, the order has limited reach.
The law should have no quarrel with a world in which nursing or early education remain mostly women's professions, while construction or technology remain professions men prefer. Title VII's rightful goal is merely to ensure that the more unusual male nurse or female technologist can obtain and excel at his or her chosen profession, and that neither will find workplaces hostile to them. Policymakers should therefore do away with the disparate-impact test, at least as it is currently enshrined in law. All claims of sex discrimination should require a showing of intent to discriminate. Statistical findings of disparate impact on this or that group could still be marshaled as evidence of intent, but naked statistics alone ought not be a sufficient threshold test.
To the extent the disparate-impact test is retained, businesses and workplaces should be afforded significantly more latitude to show a business purpose for policies that have a disparate impact on the sexes. Eliminating the disparate-impact test or strengthening the business-necessity defense would not foreclose class-action suits and other forms of collective relief, though it would admittedly make such suits more challenging. The reward, however, would be that the gains of women as a class would no longer come at the expense of men (or vice versa). It would mean that women and men are free to choose jobs and career paths based on temperament, physical strength, individual talents, and the like, rather than having those choices restricted or dictated. And it would reassert the rightful intent behind anti-discrimination law at its origins.
Many diversity, equity, and inclusion programs have similar problems when it comes to institutionalizing the battle of the sexes. Initiatives that simply try to support working women — including mentoring programs, special programming on integrating motherhood and a career, and so forth — need not be controversial, so long as other initiatives offer mentorship to men and fathers. Aggressive DEI measures, however, should be suspect, as should literal quota systems where they are not already illegal. For example, to the extent that mentoring women is transformed into efforts that aim to achieve gender parity, they should be rejected. As the chair of the Equal Employment Opportunity Commission (EEOC), Andrea Lucas, remarked on a panel in 2024: "People sometimes think that race or sex can be part of the equation for an employment decision if race or sex is not the sole factor, the exclusive factor, or the deciding factor. That is dead wrong. If race or sex was all or part of an employer's motivation, that violates federal employment law."
The disparate-impact test, some kinds of DEI efforts, and explicit quotas have increased hostility between the sexes. Rather than encourage men and women to cooperate and respect the other sex, they promote division and resentment. The relationship between the sexes in the workplace would be significantly improved without them.
EQUAL, NOT THE SAME
Decades of women's advancement in the workplace have upended the historical assumption that women could not succeed in certain male-dominated professions. But any realist account of sex-discrimination law must also acknowledge that the persons who must be treated equally under the law are sexually dimorphic individuals; they are clearly not the same. Of particular relevance is that the female sex has unique responsibilities, privileges, and burdens when it comes to pregnancy, childbirth, and early child rearing.
Fathers, of course, are equally responsible for their children. But fathers' duties to their children differ from mothers' duties. Unlike mothers, fathers do not carry developing children in their wombs, do not give birth, and do not nurse infants once they are born. Nor are they always as adept at nurturing young children the way mothers often are (though fathers are usually quite capable with their own children, or can quickly learn).
Many pregnant, nursing, and caregiving mothers, however, face significant barriers to working that other employees do not. It means little to tell a mother who works to support her family that she is free to nurse her child if her employer doesn't provide her with a place to privately and safely pump in the office (or, if possible, allow her to work from home). Telling a pregnant woman she can continue working until she gives birth means little if she is denied health accommodations that enable her to do so safely. Policymakers should enable mothers in the workforce to prioritize caring for their young children in the home without risking economic or professional ruin.
Though much of employment law was (correctly) written to compel employers to treat workers equally, there are special pockets that treat differently workers who have additional, important responsibilities in serving the common good. The Uniformed Services Employment and Reemployment Rights Act (USERRA), which aims to protect the civilian jobs of deployed servicemembers, offers one example that has primarily protected men, at least historically. That law requires employers to reemploy servicemembers who return to their civilian jobs after being deployed. It also prohibits employers from discriminating against servicemembers when hiring.
Our law should recognize that, just as servicemembers require special employment protections to carry out their commitments to defending the nation, working mothers need similar protections to carry out their socially essential task of childbearing and child rearing. The recently passed Pregnant Workers Fairness Act is an encouraging development on this front — that law requires certain employers to grant accommodations to pregnant and nursing mothers. But more work needs to be done.
Two examples of fruitful areas for policymaking include offering remote-work options for pregnant women and mothers, where possible, and making it easier for mothers who have dropped out of the workforce to return to work, if desired. Policymaking in this area does not necessarily require coercive laws. Decreasing regulations that pose barriers to remote work, helping employers create "best practices," and expressing support for "returnships" and the like could all have significantly positive effects.
Though safeguarding working mothers should take priority when it comes to workplace laws, we should also be quick to recognize the special and necessary role of fathers in raising and caring for children. Historically, men played a critical role in shaping their children in pre-industrial America, often taking on responsibility for their education and discipline. Our sex-discrimination law should help ensure that today's fathers are able to do the same. This is not, contra progressives, because mothers and fathers are interchangeable. It is because children benefit from the different kinds of care mothers and fathers give.
The right, therefore, should advance its own interpretation of Nevada v. Hibbs and related EEOC guidance, which indicate that parental leave must be gender neutral beyond special considerations for women's physical recovery from childbirth. Ideally, employers should be given the maximum flexibility possible in designing parental leave, including giving mothers longer leaves than fathers (if mutually desired by employers and workers). Employers should also be empowered to allow mothers and fathers to take their justly offered parental leave at different junctures in the child's life — a creative policy solution put forth by both center-left scholar Richard Reeves and center-right scholar Tim Carney. One immediate improvement would be for employers to discuss with employees more openly their hopes, desires and intentions concerning work availability after a baby has arrived. Contrary to the prevailing assumptions, these conversations are perfectly legal — and humane — so long as employers do not limit them to their female employees.
It's not the state's role to scrutinize or determine the day-to-day manner in which mothers and fathers carry out their responsibilities to their children, even as states rightfully demand those responsibilities to be carried out. Being free to earn a living according to one's qualifications, irrespective of sex, enables them to do so. This is especially crucial in an unstable economy amid a large-scale technological revolution. We should applaud the creative ways in which both mothers and fathers today enter the paid workforce to support their children and one another. But parents need fewer impediments, and often more help, than they have right now.
SHIFT THE FOCUS
Many of the headline-grabbing sex-discrimination battles nowadays concern the gender breakdown of prestigious STEM jobs, academia, the C-suite, and other areas of concern for highly educated upper-class women. Whatever the merits of these battles, they ignore the pressing concerns of the middle- and working-class families — concerns that should interest those animated by regard for the common good of the nation as a whole.
Despite the existence of sex-discrimination law, many poor mothers face significant barriers to working. These mothers are far less likely than their wealthy counterparts to have access to maternity leave or paid time off to attend necessary medical appointments. On a similar note, poor mothers often have difficulty vindicating their rights because of their relative unfamiliarity with the law in this area, the complexities of the legal system, and their lack of resources to hire competent counsel. Addressing these problems will require relevant administrative agencies to renew their commitment to providing sufficient oversight and, when necessary, legal consequences to protect working-class moms.
Finally, sexual harassment in the workplace is a particularly acute problem for poor women. Female hotel workers and home health-care aides, to give just two examples, report stunningly high levels of such harassment. Scholars have shown that "employers utilize 'fewer preventative tools to combat sexual harassment among low-income workers,' safely assuming these workers are too fearful of losing their jobs or too intimidated by the legal system to actually file a lawsuit alleging violations of Title VII." Even if these women manage to file suit, scholars and lawyers in the field note that such cases are extremely difficult to win: Just 3% to 6% make it to trial.
The result is clear: Sexual harassment remains a serious problem in the workplace, and despite decades of effort, most cases go unreported, and most plaintiffs do not achieve relief through the courts. Those concerned with reforming sexual-harassment law should keep in mind that while they may be personally more familiar with overzealous complaints to human-resource departments about a holiday party gone amok, sexual harassment of low-income women remains a serious issue. Too often, employers use "sensitivity training" as a legal fig leaf, allowing them to get away with doing little about pervasive sexual harassment of poor women.
Social conservatives should be the first to support working-class women, especially those who are pregnant or have young children. The security of a mother's job may be the only financial lifeline she has. As fertility rates fall and societies grapple with pressing concerns about childcare, elder care, and smaller workforces, this is likely to be a critical issue over the next 25 years.
BACK TO FUNDAMENTALS
Conservatives should not hesitate to acknowledge that America is deeply indebted to her many working women, who have enriched our country economically, politically, intellectually, and more. In crucial ways, we have successfully fulfilled the vision of the earliest women's rights advocates in the United States, who argued that women needed political and legal rights to fulfill the duties they had been divinely tasked and gifted to carry out. As leading women's-rights advocate Lucy Stone said in 1856:
when God made the human soul and gave it certain capacities, He meant these capacities should be exercised. The wing of the bird indicates its right to fly; and the fin of the fish the right to swim. So in human beings, the existence of a power, presupposes the right to its use, subject to the law of benevolence....The capacity to speak indicates the right to do so, and the noblest, highest, and best thing that any one can accomplish, is what that person ought to do, and what God holds him or her accountable for doing.
In sum, we are a richer country, both literally and figuratively, because of the contribution of America's female lawyers, policymakers, educators, health-care providers, research scientists, military personnel, and more.
When policymakers were developing sex-discrimination laws in the 1970s, they felt the need to create robust and muscular enforcement systems to pry open doors that would have otherwise been shut in women's faces. That reasoning largely does not hold true anymore.
Today, the majority of college degrees are awarded to women. Many professions are now primarily female, including the fields of psychology and veterinary science. This is not to say that discrimination and sexual harassment against women do not exist. They do, especially in low-income fields. But the emphasis in 2026 should shift away from disadvantaging men so that women can succeed. It should shift away from the concerns of highly educated women in high-income fields. Instead, policymakers, lawyers, and jurists should turn to ensuring that each person — male or female, with or without children — has the chance to fulfill his or her vocation without being discriminated against, targeted, or harassed.
