This article first appeared in the KMB Employment blog, before being changed and published in Corporate Compliance Insights.
Over the past several months, the reality that sex discrimination in employment – in particular, sexual harassment and pregnancy discrimination – remains rampant has taken center stage in public discourse. This article discusses the cultural and legal implications of the sharp disconnect between a patchwork of long-standing laws prohibiting sex discrimination in employment and the continued, pervasive existence of sex discrimination against women in the workplace today.
Women’s advancement in the workplace is often obstructed by invisible barriers. “Maternal walls” – erected on assumptions that women will eventually become pregnant and either leave the workforce or become less productive after having children – regularly channel women into lower paying jobs during their childbearing years. And “glass ceilings” situated on top of these walls frequently inhibit women of all ages from advancing to the top echelons of their professions.
Maternal walls and glass ceilings are not new concepts; they have existed for years as metaphors to describe the invisible, yet very real, barriers to the advancement of women in the workplace. And metaphors like these have helped to facilitate conversations about the impediments women face in their professional life, along with ways to overcome them.
Yet despite these conversations and a patchwork of laws designed to eliminate sex discrimination in employment, women continue to fare worse than their male counterparts at work. They continue to be underrepresented in leadership positions across all industries. They continue to earn less than their male counterparts. They continue to face sexual harassment at alarming rates. And they continue to face various forms of pregnancy discrimination on a regular basis.
Over the past several months, the reality that sex discrimination in employment – in particular, sexual harassment – remains rampant has taken center stage in public discourse. The impetus for this conversation was the recent emergence of the Me Too movement, a campaign to eliminate sexual harassment against women both in and out of the workplace. The phrase “Me Too” dates back to a grassroots campaign started in 2006 by a social activist who coined the phrase to express solidarity with women who had been sexually abused as a first step to acknowledging and ending that abuse. When widespread allegations of sexual harassment by now disgraced movie producer Harvey Weinstein emerged in the fall of 2017, the phrase captured national headlines after thousands of women who had been sexually harassed or abused shared their experiences on social media platforms using the hashtag #MeToo. The public airing of the stories told by victims of sexual harassment and abuse vividly demonstrated to the country that sexual harassment against women, particularly in the workplace, is pervasive and affects women in all job sectors and industries.
The Rise of Pregnancy Discrimination
But sexual harassment against women is not the only form of sex discrimination that continues to pervade workplaces across America. As described in a recent New York Times article, pregnancy discrimination also continues to affect women at alarming rates. The article, “Pregnancy Discrimination Is Rampant Inside America’s Biggest Companies” – chronicles the experiences of women in a variety of different professions who faced various forms of pregnancy discrimination and posits that the experiences of these women are not the exception, but the rule in the United States.
American companies have spent years trying to become more welcoming to women. They have rolled out generous parental leave policies, designed cushy lactation rooms and plowed millions of dollars into programs aimed at retaining mothers. But these advances haven’t changed a simple fact: Whether women work at Walmart or on Wall Street, getting pregnant is often the moment they are knocked off the professional ladder.
Sexual harassment and pregnancy discrimination are different types of sex discrimination that require different legal and policy solutions. But they stem from the same root: stereotypical assumptions about women. In the context of sexual harassment, these stereotypical assumptions include beliefs that women are inferior sexual objects first, and professionals second. In the context of pregnancy discrimination, these stereotypical assumptions include beliefs that women will become less committed or productive at work during and after pregnancy.
Over half a century ago, Congress enacted Title VII of the Civil Rights Act of 1964 (Title VII) to eliminate discrimination, including sex discrimination, in employment. A little over a decade later, in 1978, Congress enacted the Pregnancy Discrimination Act (PDA), codified as part of Title VII, to make clear that discrimination on the basis of pregnancy is a form of sex discrimination prohibited under Title VII. Years later, Congress also enacted the Americans with Disabilities Act of 1990 and the Family Medical Leave Act of 1993, which provide some limited protections to pregnant employees related to leave and pregnancy-related disabilities, and states, cities and counties also enacted local anti-discrimination laws that provide similar (sometimes even greater) protections against sex discrimination in employment as Title VII and the PDA.
Despite these layers of legal protections for women in the workplace, however, recent events, notably the Me Too movement and the New York Times article on pregnancy discrimination, make clear that sex discrimination against women in the workplace – and the stereotypical assumptions that perpetuate this discrimination – lives on today. The sharp disconnect between a patchwork of long-standing laws prohibiting sex discrimination in employment on the one hand, and rampant sex discrimination against women in the workplace, on the other hand, raises questions about many things, including whether the current legal framework can ever truly eliminate discrimination against women.
While laws are necessary to eliminate sex discrimination in the workplace, laws are only as effective as the cultural norms that create and sustain them. The foundations of the modern workplace date back to a time when women’s primary workspace was in the home, not in paid workplaces. Although policies and laws have evolved over time intended to ensure that women have equal access and opportunity to work, recent revelations of pervasive harassment and discrimination show that many of the old cultural norms and assumptions about women in the workplace still remain intact and inhibit women in invisible, yet real ways.
A Critical Moment
Meaningful cultural change occurs as a result of the confluence of a number of factors: awareness of a problem; understanding of its roots; thoughtful plans to address it; broad support for change. It took over 80 years of concerted effort to change cultural norms for women in America to obtain the right to vote. The recent Me Too movement has created a critical moment in the push to change cultural norms around women’s role in the workplace because it frames the impediments to women’s professional advancement in raw, human terms, instead of as invisible barriers.
By publicly putting faces to experiences, the Me Too movement has required us to view the problem of sex discrimination in a different and more direct way and opened up a national dialogue about why this is still such a widespread problem today, more than 50 years after Congress enacted a statute to eliminate it. Similarly, the New York Times article tells the real, human stories of the devastating effects of discrimination against pregnant women, describing the direct actions of employers that create the invisible maternal wall blocking the employment opportunities of so many women who wish to work to provide for their families.
Continuing these conversations about women’s shared experiences in the workplace is important to understanding the impediments to women’s advancement at work in concrete terms, instead of as metaphorical invisible barriers. Humanizing the conversation in this manner could be the cultural change needed to replace imaginary walls and glass ceilings with a big open door.