Here are some selected articles, book chapters and reports (in chronological order)
- Medical Examinations and Inquiries Under the Americans with Disabilities Act: A View from the Inside, 64 Temple Law Review 521, The Americans with Disabilities Act Symposium (1991)
My work on the Americans with Disabilities of 1990 has been one of the defining aspects of my professional career. I still aspire to write a book on the making of the ADA. Until then, the first section of this article includes my brief summary of that effort. I also developed a chronology of events and meetings for purposes of that part of the article.
- Sexual Orientation, Morality, and the Law: Devlin Revisited, 57 University of Pittsburgh Law Rev 327 (1996)
On the scholarly front, my primary contribution in the area of LGBTQ writing has been highlighting how morality plays a role in shaping rights for LGBTQ people in our society. This piece was my first academic foray into this area.
- The Federal Gay Civil Rights Bill: From Bella to ENDA in Creating Change: Sexuality, Public Policy, and Civil Rights, ed. U. Vaid, J. D’Emilio & W. Turner (2000)
Most of my career has focused on being part of efforts to enact federal legislation and regulations. This book chapter traces the development of the federal gay civil rights bill, including the work undertaken to draft and support the Employment Non-Discrimination ACT (ENDA), which would have prohibited employment discrimination on the basis of initially just sexual orientation (the stage at which thise piece was written) and ultimately gender identity as well. Two decades after publication of this piece, that effort largely became moot because of the Supreme Court opinion in Bostock in June 2020. We had achieved our goal for LGBTQ people and then some.
- The Definition of Disability Under the Americans with Disabilities Act: What Happened, Why, and What Can We Do About It? 21 Berkeley Journal on Labor and Employment Law 91 (2000)
One of the most frustrating aspects of the implementation of the ADA was how the courts, including the Supreme Court, cut back on the definition of disability under the law. This piece describes how that cutback happened and suggested a way forward to restore the broad definition of disability. Congress ultimately adopted a version of this approach in the ADA Amendments Act of 2008.
- Gay People, Trans People, Women: Is It All About Gender?, 17 New York Law School Journal of Human Rights 623 (2000)
When I was part of the group drafting the Employment Non-Discrimination Act in 1993, there was no real discussion about including gender identity as a form of prohibited discrimination. Based on the caselaw, it seemed that such discrimination would already be prohibited under Title VII, plus there would be additional political obstacles if the bill included protection for transgender people. This article reflects my change in position. The piece explains how discrimination on the basis of sexual orientation and gender identity are both forms of sex discrimination, as other academic scholars had argued, and in light of that, both gender identity and sexual orientation should be included in ENDA. I drew on this analysis while working on the EEOC cases of Macy and Baldwin. Those cases, and the district and appellate courts that used the analysis from those cases to hold that discrimination on the basis of sexual orientation and gender identity were forms of sex discrimination, became part of the groundwork for the Supreme Court’s decision in Bostock establishing protection for LGBTQ people under sex discrimination law.
- Rectifying the Tilt: Equality Lessons from Religion, Disability, Sexual Orientation and Transgender, 54 Maine Law Rev. 159 (2003)
An abiding interest of mine has been thinking about forms of equality. The academic landscape is rich with articles on this subject. My contribution draws from my experiences in developing legislation to protect people with disabilities, LGBTQ people, and religious people. In particular, I focus on how the provision of reasonable accommodations can provide a modicum of equity for those who do not fit societal norms, but that we would do better as a society if we changed our background norms so that people would not need accommodations in the first place. At the end of the piece, I raise the issue of conflict between LGBTQ rights and religious rights, an area that I continued to explore in the following decades.
- The Art of Legislative Lawyering and the Six Circles Theory of Advocacy, 34 McGeorge Law Review 785 (2003)
During my 18 years as a law professor at Georgetown University Law Center, my primary work centered on running the Federal Legislation Clinic, which I founded in 1993. I coined the term “legislative lawyering” at the time to explain to my Georgetown colleagues how I planned to teach law to the students, as distinct from lobbying. A decade later, I had the chance to put down in writing what I had learned as an approach for achieving social change (the “six circles theory of advocacy”), as well as pedagogical approaches for teaching the art of legislative lawyering.
- Gay is Good: The Moral Case for Marriage Equality and More, 17 Yale Journal of Law and Feminism 139 (2005)
From the early 1990s until the Supreme Court decision in Obergefell in 2015, gay rights activists focused significant energy on the fight for marriage equality. Within the political and legal worlds, the argument for marriage equality deliberately skirted issues of morality. This article was a call to engage directly with the positive moral underpinnings of marriage, and to make the case that same-sex couples deserved to partake equally in that moral good.
- The Moral Values Project: Deploying Moral Discourse for LGBT Equality, with Michael Boucai, National Gay and Lesbian Task Force Foundation Monograph (2006)
After working on the federal level on behalf of LGBT rights and people with AIDS since 1988 (always carefully avoiding any mention of morality in my political work), and writing about LGBT rights and morality for about a decade in academic pieces in which I suggested that the political movement should explore the possibility of bringing moral discourse into our work, I shifted to an explicit call to take back the public discourse of morality in achieving LGBT rights. I started a website called The Moral Values Project (which I kept up for about a decade) and I wrote this piece with Michael Boucai (then an amazing research assistant, now an amazing law professor) making that strategic case.
- Moral Conflict and Liberty: Gay Rights and Religion, 72 Brooklyn L. Rev. 61 (2007)
This piece was my first in-depth exploration of LGBT rights and religious rights. I described each of these as forms of liberty that should be protected under the due process clause of the federal Constitution and I offered ideas on how to address the conflicts between the two that arise in today’s society. This piece is also where I had the opportunity to set out my Justice Blackmun story of “We love you anyway/we love you.”
- The ADA Amendments Act of 2008, with Kevin Barry and Emily Benfer, 13 Tex. J. C.L. & C.R. 187 (2008)
Working on the ADA Amendments Act of 2008 was incredibly gratifying. We had to wait for the political stars to align to work with Congress to restore the broad definition of disability under the ADA that the courts had cut back. Once the political stars aligned, we were able to negotiate with the business community and get the law enacted over the course of two years. This piece describes the substantive and political work that resulted in that law. One of the reasons I wanted to be an EEOC Commissioner was to ensure that the agency issued effective regulations to implement the law. I had the good fortune to work in collaboration with my Republican colleague, Victoria Lipnic, and in 2011, the EEOC issued bipartisan regulations that implemented the law as envisioned by Congress.
- Workplace Flexibility 2010: Reflections on Working with Corporations, 36 N.Y.U. Rev. L. & Soc. Change 147-169 (2012)
This piece provides a look into the political and strategic efforts to achieve consensus on public policies to advance workplace flexibility, a term defined as including everything from flexible work arrangements to paid time off. In 2003, I created an enterprise called Workplace Flexibility 2010, funded by the Alfred P. Sloan Foundation and made possible because of the vision of its program officer Kathleen Christensen. The effort brought together lawyers representing perspectives from employees and employers, as well as academic scholars, to imagine new public policies to advance workplace flexibility. The enterprise was staffed with a a strategist (Katie Corrigan). legislative lawyers (including Sharon Masling, Pierce Blue and students from the Georgetown Federal Legislation Clinic), a policy researcher (Jean McGuire), an outreach strategist (Patricia Kempthorne) and a communications director (Patti Giglio), thus putting into place the six circles of advocacy. Workplace Flexibility 2010 issued two major reports: a consensus report on a public policy framework for advancing Flexible Work Arrangements and a second (non-consensus) report on creating a new Family Security Insurance program that would provide paid sick and caregiving leave.
- Law, Policies in Practice and Social Norms: Coverage of Transgender Individuals under Sex Discrimination Law, 14 Wayne State Law Review 1 (2013)
When I became an EEOC Commissioner in April 2010, I had the opportunity to work on coverage of sexual orientation and gender identity under Title VII. From my perspective, the EEOC and the courts had cut a hole out of Title VII’s plain meaning to exclude coverage of LGBTQ people. The agency finally had a chance to rectify that wrong. The first case the EEOC decided was Macy in 2012. This article covers the history of adding sex to Title VII (exposing me to the amazing work of Pauli Murray) and traces the coverage of gender identity over the years, including the work that resulted in the Macy case. It also afforded me an opportunity to lay out how law, policies in practice and social norms operate synergistically to create social change, something I had been talking about in speeches for years.
- Keynote Address: Gender Equity in the 21st Century, Vol XVIII Richmond Journal of Law and the Public Interest, 417 (2015)
This piece covers some of the same history of the addition of sex to Title VII as the previous article, but in a more conversational style as it is an adaptation of a lecture. It also then applies that background to three area of gender equity: sexual harassment, accommodations for pregnant workers, and pay equity. At that point, the issue I had worked on most extensively at the EEOC was that of pregnancy accommodation, resulting in guidance issued in July 2014 in which the EEOC took the legal position that the Pregnancy Discrimination Act (PDA) required employers to provide accommodations to pregnant employees to the same extent provided to other employees. The EEOC took this position despite the fact that five appellate courts had ruled to the contrary in interpreting the PDA. One of the EEOC’s theories for such coverage was subsequently adopted by the Supreme Court in Young v. UPS, and in 2015, EEOC issued updated guidance to reflect the Young case.
- Feldblum & Lipnic, Report of the Select Task Force on the Study of Harassment in the Workplace (2016)
While I was at the EEOC, Commissioner Victoria Lipnic and I, together with our staff, convened a Select Task Force on the Study of Harassment in the Workplace. It consisted of lawyers representing both employee and employer perspectives, as well as academic scholars – modeled on what we had done at Workplace Flexibility 2010. Our goal was not to achieve consensus, but rather to break new ground in thinking of creative approaches for harassment prevention. The report was issued a year before the emergence of the #MeToo movement and was ready to be used as soon as that movement took off. When I joined the law firm of Morgan Lewis in 2011 together with Sharon Masling, we drew on our EEOC experience in helping to expand the firm’s robust anti-harassment and diversity, equity and inclusion practice.
- Religious Liberty and LGBTQI Rights: Finding the Right Balance, The Ruth Bader Ginsburg Lecture, Thomas Jefferson Law Review Vol. 41, No. 2 (2019)
I was nominated to serve a third term to the EEOC, but my confirmation was blocked by Senator Mike Lee based on his understanding of my views on LGBT rights and religion. This piece gave me the opportunity to develop my fullest explication of how to address the conflict that arises for some religious individuals and religious organizations in a society in which discrimination against LGBTQ people is legally prohibited and socially unacceptable in many spheres. I continue to write short pieces on this issue.
Here is the full list of articles, book chapters and monographs from which I have chosen the ones above.