Privacy, Efficiency, and the Equality of Men and Women: A Revisionist View of Sex Discrimination in Employment

Abstract

The Supreme Court's decision in City of Los Angeles Department of Water and Power v. Manhart has engendered a considerable debate, much of which has appeared in the pages of this Journal. Defenders of the Manhart decision take its critics to task for failure to appreciate the place of that decision in the overall jurisprudence of employment discrimination. In this article, the authors challenge the underlying conception of the law of sex discrimination that is said to dictate the result in Manhart. Far from erecting a per se rule against all sex classifications, the Civil Rights Act of 1964 is shown to recognize both the relevance of prevalent social norms about sex differences and the legitimacy of certain interests of employers as limited justifications for the maintenance of sex‐conscious lines in some circumstances, a recognition that contrasts sharply with the statute's categorical prohibition on racial classifications. It follows from this discussion that Manhart's outcome was not ordained by the ethos of the laws against sex discrimination.