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Wednesday, May 20, 2026

Men and Women at Work - National Affairs

How should the law treat women and men in the workplace? This question's importance is accelerating as the balance of the Supreme Court tips strongly conservative, more conservative jurists are nominated to the federal bench, and the Republican Party maintains control of the federal political branches (at least for now). If the right is consolidating power in the judicial and political spheres, how should it think about the legal regime that governs treatment of men and women at work?

Employment law in America has particularly high stakes because, unlike in many other developed countries, we route many of our health and welfare benefits through employers, rather than through the state. Given our emphasis on individuals' and families' supporting themselves through ties to the paid workforce, employment law properly provides critical safeguards to American workers. Indeed, much of America's dynamism and economic success is drawn from its distinctive emphasis on work, including access to workplace benefits. That means it's critical to get this issue right.

Workplace law vis-à-vis the sexes has gone adrift in several ways; basic sex-discrimination law ought to be restored to further extend the principles of justice. The first is how current law institutionalizes the battle of the sexes, pitting women against men as two rival classes. The 1991 amendments to the Civil Rights Act allow judges to presume unlawful sex discrimination based on statistical evidence as to the relative...



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