Abstract: There is a coming crisis in sex discrimination law. When Title VII of the Civil Rights Act became law, most instances of sex discrimination involved overt discrimination that differentiated between men and woman, almost always to the detriment of female employees. Sex discrimination looks very different today. The victims of modern sex discrimination are particular men and women who face discrimination because they do not or cannot conform to the norms of the workplace. It is the male truck driver who wears women’s clothing; it is the bus driver who cannot find a bathroom to use while she is transitioning from male to female; it is the effeminate man who sticks out like a sore thumb in a rural Wisconsin factory; it is the new mother who needs extra breaks during the workday to pump milk for her newborn baby; it is the hairstylist who is fired from her salon because she is a butch lesbian; and it is the overweight telemarketer who is told she is not pretty enough for a face-to-face sales position.

This paper initiates a conversation about the future of sex discrimination. The toughest obstacle facing victims of modern sex discrimination is the need to anchor their discrimination claims to a narrative of group subordination—to show, in other words, that the discrimination they faced in the workplace harms their group as a whole. On a broader level, the paper argues that we need to recalibrate the vision of equality that undergirds sex discrimination law. The new sex discrimination demands a vision of equality that is rooted in difference rather than sameness, a vision of equality that understands that no two women (and no two men) are the same. The central task of sex discrimination law going forward should be to better recognize—and in turn protect—the distinctive ways in which employees express their maleness and femaleness. It is these differences, after all, that shape the way employees experience modern sex discrimination.

Bio: Zachary Kramer teaches Employment Law, Special Topics in Employment Discrimination Law and Property. His research focuses on antidiscrimination law, law and sexuality, and work/family issues. Before joining the College of Law faculty in 2010, Professor Kramer taught at Penn State (2008-10) and the University of Arkansas at Little Rock (2006-08). He began his teaching career as the inaugural Charles R. Williams Teaching Fellow at UCLA School of Law. A graduate of the University of Illinois College of Law, Kramer served as the editor-in-chief of the University of Illinois Law Review.