Volume 63, Issue 5, 1297-1344
This Article looks back to the early equal protection jurisprudence of the 1970s and Ruth Bader Ginsburg’s litigation strategy of using men as plaintiffs in sex discrimination cases to cast a renewed focus on antidiscrimination law as a means to redress the work-family conflicts of men. From the beginning of her litigation strategy as the head of the ACLU Women’s Rights Project, Ginsburg defined sex discrimination as the detrimental effects of gender stereotypes that constrained both men and women from living their lives as they wished—not solely the minority status of women. The same sex-based stereotypes that kept women out of the market sphere kept men out of the domestic sphere, and both were unlawful. Through a handful of key cases, Ginsburg challenged sex-based stereotypes that cast men as breadwinner and women as caregiver, succeeding in convincing the Supreme Court to establish a standard of heightened scrutiny for sex-based classifications.In the four decades since, women have made great strides in entering and advancing in the market sphere. Meanwhile, men’s advancement in the domestic sphere, while initially on the rise after the mid-1960s, has stalled since the late 1980s. Today, men have begun to prevail in lawsuits against their employers when they are penalized at work for participating in caregiving responsibilities at home. For the most part, however, their legal claims are not sex discrimination, but claims that courts can more easily recognize as actionable for men—such as violations of family and medical leave or benefits laws. Despite their lack of sex discrimination claims, however, such cases reveal the persistence of entrenched gender stereotypes about men’s and women’s proper roles when it comes to family caregiving. At the same time, Title VII case law now recognizes that penalties for gender nonconformity and stereotyping of mothers may be actionable sex discrimination. By combining these areas of jurisprudence, this Article argues that courts are failing to recognize actionable sex discrimination against men in the work-family context: Even without being covered by family and medical leave or benefits laws, men may prevail in lawsuits to redress penalties at work based on caregiving at home by alleging sex discrimination under a gender stereotyping theory. Following the reasoning first adopted by the Supreme Court in the equal protection cases litigated by Ginsburg in the 1970s, penalizing men at work for acting as caregivers instead of unencumbered breadwinners is sex discrimination under Title VII.