Chapter 16 of 'Equal' -- the Barnes case

How would the "disadvantagement" approach affect the Ohio Supreme Court's ruling see (Laura's post below) about breast pumping?


16. Women and the Law

A group called Working Women United gathered for a speak-out on sexual harassment on May 4, 1975 in Ithaca, New York. A New York Times reporter, Enid Nemy, became interested in the topic after a New York City human rights commission hearing organized by Eleanor Holmes Norton. However, the Times ran her article in the family/style section.

As a law student, MacKinnon developed a theory of sexual harassment as sex discrimination. She compared racism to sexism. Why did courts allow sexism and repudiate racism? Why did judges not apply the same level of scrutiny to sex discrimination? She argued that the question should not be whether the discrimination against women was arbitrary, which would almost never be true because women and men were not similary situated, as in the pregnancy cases. Instead, she argued for a “disadvantagement approach,” based on whether a practice or rule disadvantaged one sex and not the other. Then the question would be, for example, if men are ever disadvantaged by the denial of pregnancy benefits. Obviously not, and thus the denial would be discriminatory.

MacKinnon had the opportunity to use a new tool called Lexis in her father's chambers. She was trying to find information when a young women appeared who worked for Judge Spottswood Robinson and asked MacKinnon about her research. MacKinnon gave her a copy of her paper—her only copy—and it was returned via her father.

In the meantime, Paulette Barnes, an administrative assistant for the director of equal employment opportunity for the Environmental Protection Agency, had been told by a District Court judge that when her job was eliminated she was discriminated against for refusing to have an affair with her supervisor but that was not sex discrimination because it was not an arbitrary barrier to continued employment based on sex.

A three-judge panel, including Judge MacKinnon and Judge Robinson (whose clerk had not mentioned Barnes), was assigned to the appeal in Barnes. Robinson was the first black judge on the D.C. District court and the first black judge in any federal appellate court, the D.C. Circuit. “So when Catharine MacKinnon handed over her draft, full of linkages of legal racism to legal sexism, to someone she understood worked with Judge Robinson, she was apparently sending it to the judicial chambers of one of the most brilliant advocates in the history of the American battle against race discrimination.”