Anthony Michael Kreis
88 Geo. Wash. L. Rev. 147
The #MeToo movement is a grassroots effort mobilized by survivors of sexual assault and harassment to end sexual violence and sex-based discrimination against women. Though in its infancy, the movement has catalyzed significant legal and cultural reform by revealing credible accusations of sexual misconduct and tarnishing the careers of prominent men. Men have reacted by doubling down on decades-old sex-based workplace inequities and practices to avoid female coworkers and hedge against allegations or the appearance of impropriety. If recent anecdotal evidence of men increasingly dodging women is indicative of a wider, long-term trend, the American workplace will become more sex-segregated.
At the same time, women are punished on the job for being too friendly or perceived as too attractive. Such mistreatment stems from men’s fears that they are unable to exercise self-control, that women are “overly sensitive,” or that women might make baseless accusations against them. Too often, courts have declined to recognize these invidious employment practices as unlawful sex discrimination because judges fail to see these behaviors as manifestations of systemic gender policing. Judges instead attribute these practices to isolated incidences of misbehavior. The hue and cry of this paradigm-shifting moment is ripe to reconsider the law’s prior understanding of sexual harassment and sex discrimination in the workplace.
This Article advances two primary arguments. First, employment practices that create different rules of workplace engagement, which are motivated by ambivalent sexism and exist primarily for the benefit of men, form defensive glass ceilings—a term first introduced by this Article. Second, because defensive glass ceilings are a structural barrier to women’s employment opportunities, the employer practices that create them are prohibited under existing employment antidiscrimination laws. In advancing this position, this Article offers the most detailed and extensive discussion published to date of using an often-overlooked provision of Title VII, § 703(a)(2), to make disparate treatment claims.
