\\jciprod01\productn\G\GWN\88-1\GWN103.txt unknown Seq: 1 13-MAY-20 7:53 Defensive Glass Ceilings Anthony Michael Kreis* ABSTRACT The #MeToo movement is a grassroots effort mobilized by survivors of sexual assault and harassment to end sexual violence and sex-based discrimi- nation against women. Though in its infancy, the movement has catalyzed significant legal and cultural reform by revealing credible accusations of sex- ual misconduct and tarnishing the careers of prominent men. Men have re- acted by doubling down on decades-old sex-based workplace inequities and practices to avoid female coworkers and hedge against allegations or the ap- pearance of impropriety. If recent anecdotal evidence of men increasingly dodging women is indicative of a wider, long-term trend, the American work- place 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 prac- tices that create different rules of workplace engagement, which are motivated by ambivalent sexism and exist primarily for the benefit of men, form defen- sive glass ceilings—a term first introduced by this Article. Second, because defensive glass ceilings are a structural barrier to women’s employment op- portunities, the employer practices that create them are prohibited under ex- isting 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 dispa- rate treatment claims. * Visiting Assistant Professor of Law, Chicago-Kent College of Law, Institute for Law and the Workplace. Ph.D., University of Georgia School of Public and International Affairs; J.D., Washington and Lee University School of Law; B.A., University of North Carolina at Chapel Hill. I appreciate comments from and conversations with Kathy Baker, Felice Batlan, Peg Brinig, Matthew Bruckner, June Carbone, Ruth Colker, Katie Eyer, Martha Fineman, Joanna Grossman, Nancy Leong, Hal Krent, Corinna Lain, Marty Malin, Melissa Murray, Cesar ´ Rosado Marzan, ´ Christopher Schmidt, Vicki Schultz, Joe Seiner, Liz Sepper, Carolyn Shapiro, Sandra Sperino, Robin Fretwell Wilson, and Karen Woody, as well as workshop attendees at Chicago-Kent College of Law and The Ohio State University, all of which have greatly improved this piece. January 2020 Vol. 88 No. 1 147 \\jciprod01\productn\G\GWN\88-1\GWN103.txt unknown Seq: 2 13-MAY-20 7:53 148 THE GEORGE WASHINGTON LAW REVIEW [Vol. 88:147 TABLE OF CONTENTS INTRODUCTION ................................................. 148 R I. UNDERSTANDING DEFENSIVE GLASS CEILINGS ......... 154 R A. Identifying Discriminatory Employment Practices ... 154 R B. Structural Harms and Defensive Employment Practices ............................................ 154 R C. The Ideological Underpinnings of Defensive Glass Ceilings ............................................. 156 R II. DEFENSIVE WORKPLACE SEX QUARANTINES ........... 158 R A. Sex Quarantines as an Adverse Employment Action .............................................. 165 R B. The Pence Effect and Title VII’s Employment Opportunities Provision ............................. 170 R 1. Sex-Based Rules of Engagement and Sex Segregation ..................................... 172 R 2. Identifying the Adverse Effects of Sex Quarantines..................................... 177 R 3. Anticipating Employer Justifications ............ 181 R III. PROTECTED JOBSITE ASSOCIATIONS .................... 181 R A. The Error of Jealousy Fixation...................... 185 R B. Romantic Discrimination and Favoritism ............ 188 R C. Using Associational Theory to Protect Equal Opportunity ......................................... 192 R IV. BEAUTY BIAS IN THE WORKPLACE ..................... 196 R A. Sex-Plus Theory of Liability and Look Standards ... 199 R B. Defensive Attraction Justifications as Gendered Power Moves ....................................... 201 R CONCLUSION ................................................... 202 R INTRODUCTION Women should not pay for the sins of men on the job. This simple proposition should easily garner universal support. Despite years of progress through social movements and legal regimes like Title VII of the Civil Rights Act of 19641 and analogous state employment stat- 1 Pub. L. No. 88-352, 78 Stat. 241, 253–66 (codified as amended at 42 U.S.C. §§ 2000e to e-17 (2018)). Title VII of the 1964 Civil Rights Act is the primary federal law prohibiting discrim- ination in employment, including sex discrimination. \\jciprod01\productn\G\GWN\88-1\GWN103.txt unknown Seq: 3 13-MAY-20 7:53 2020] DEFENSIVE GLASS CEILINGS 149 utes,2 however, women are still taxed in the workplace for the unwill- ingness of men to behave.3 One grassroots movement that holds real promise to improve workplace equality is #MeToo. #MeToo, which is derived from a phrase created by activist Tarana Burke and was later popularized as a social media hashtag by actress Alyssa Milano in 2017,4 encouraged women to come forward and share their experiences of sexual harass- ment and sexual assault.5 Untold numbers of women shared how workplace sexual harassment affected their careers and personal lives.6 Consequently, women (and men) proffered credible allegations of abuse, assault, and harassment—some but not all occurring in the workplace—against many powerful individuals.7 2 E.g., ALA. CODE § 25-1-22(2) (LexisNexis 2016); ARIZ. REV. STAT. ANN. § 41- 1463(B)(2) (2018); DEL. CODE ANN. tit. 19, § 724(c)(2) (2019); D.C. CODE ANN. § 2- 1402.11(a)(1) (West 2019); FLA. STAT. ANN. § 760.10(1)(b) (West 2019); KAN. STAT. ANN. § 44- 1113(a) (2018); LA. STAT. ANN. § 23:332(A)(2) (2018); MD. CODE ANN., STATE GOV’T § 20- 606(a)(2) (LexisNexis 2019); MICH. COMP. LAW S ANN. § 37.1202(1)(c) (2019); MO. ANN. STAT. § 213.055.1(1)(b) (West 2019); NEB. REV. STAT. § 48-1004(2) (2019); NEV. REV. STAT. ANN. § 613.330(1)(b) (LexisNexis 2019); OKLA. STAT. ANN. tit. 25, § 1302(A)(2) (West 2008); S.C. CODE ANN. § 1-13-80(A)(2) (2018); TENN. CODE ANN. § 4-21-401(a)(2) (2019); TEX. LABOR CODE ANN. § 21.402(d) (2018). 3 A Pew Research poll reported that 42% of women believe that they have experienced some form of sex-based discrimination at work. Kim Parker & Cary Funk, Gender Discrimina- tion Comes in Many Forms for Today’s Working Women, PEW RES. CTR. (Dec. 14, 2017), www .pewresearch.org/fact-tank/2017/12/14/gender-discrimination-comes-in-many-forms-for-todays- working-women/ [http://perma.cc/SZA5-2N5L]. An NPR/PBS NewsHour/Marist Poll from late 2017 revealed that 22% of Americans, including 35% of women, have experienced sexual harass- ment in the workplace. More Than One in Three Women Report Sexual Harassment in the Work- place, MARIST (Nov. 22, 2017), www.maristpoll.marist.edu/1122-more-than-one-in-three-women- report-sexual-harassment-in-the-workplace/#sthash.3O1pFhQn.dpbs [https://perma.cc/A5NM- FTTL]. Similar numbers were registered by a Washington Post poll, which reported that one- third of women claimed to have received unwanted “sexual advances from a male coworker or a man who had influence over their job.” Caitlin Gibson & Emily Guskin, A Majority of Ameri- cans now Say that Sexual Harassment Is a ‘Serious Problem’, WASH. POST (Oct. 17, 2017), https:// www.washingtonpost.com/lifestyle/style/a-majority-of-americans-now-say-that-sexual-harass- ment-is-a-serious-problem/2017/10/16/707e6b74-b290-11e7-9e58-e6288544af98_story.html?utm_ term=.a6dc4fa366e7 [https://perma.cc/F637-BZ4J]. 4 Aisha Harris, She Founded Me Too. Now She Wants to Move Past the Trauma., N.Y. TIMES (Oct. 15, 2018), https://www.nytimes.com/2018/10/15/arts/tarana-burke-metoo-anniversary .html [https://perma.cc/PBC8-52MX]. 5 Karen Kaplan, After Alyssa Milano’s #MeToo Tweet, Google Searches About Sexual Assault Hit Record High, L.A. TIMES (Dec. 21, 2018, 11:50 AM), https://www.latimes.com/sci ence/sciencenow/la-sci-sn-metoo-google-searches-20181221-story.html [https://perma.cc/HQ9K- ZNDT]. 6 See Sophie Gilbert, The Movement of #MeToo,ATLANTIC (Oct. 16, 2017), https://www .theatlantic.com/entertainment/archive/2017/10/the-movement-of-metoo/542979/ [https://perma .cc/5T4L-N353]. 7 See id. \\jciprod01\productn\G\GWN\88-1\GWN103.txt unknown Seq: 4 13-MAY-20 7:53 150 THE GEORGE WASHINGTON LAW REVIEW [Vol. 88:147 The movement’s impact on every profession is extraordinary given its infancy. The careers of journalists, elected officials, film pro- ducers, sports figures, academics, clergy, doctors, consultants, judges, and lawyers—men and women—have been rocked by sexual miscon- duct allegations.8 While much of the movement’s impact has been ex- ogenous to law precisely because it is a reaction to the law’s shortcomings,9 some movement-inspired legal reform has occurred.10 These reforms include adopted or proposed state legislation to man- date sexual harassment training,11 prevent forced arbitration of sexual harassment claims,12 and ease the standards of what constitutes sexual harassment.13 At the federal level, Senate Democrats led by Senator Patty Murray authored a study calling for more federal action to com- bat workplace harassment.14 8 263 Celebrities, Politicians, CEOs, and Others Who Have Been Accused of Sexual Mis- conduct Since April 2017, VOX, https://www.vox.com/a/sexual-harassment-assault-allegations-list [https://perma.cc/X93F-85RZ]; Audrey Carlsen et al., #MeToo Brought Down 201 Powerful Men.