This post, by Serena Mayeri, is the eighth in a series of posts in which legal historians reflect on Outside In: The Oral History of Guido Calabresi (Oxford University Press), by Norman I. Silber. Mayeri is Professor of Law and History at the Penn Carey School of Law.
Oral history is an especially appropriate genre to catalogue Guido Calabresi’s life, not least because it allows readers to see him as a whole person: a masterful storyteller unafraid to draw connections between his own life experiences and his career as a scholar, teacher, dean, and jurist. Outside In is a story of how an immigrant from fascist Italy, an outsider to the ethnic and religious milieu of World War II-era New Haven, became a consummate insider—Rhodes Scholar, Supreme Court clerk, towering academic figure, celebrated professor and dean of Yale Law School, and distinguished federal judge. It’s also the story of a person who brings his whole self to work and strives to make it possible for others in less secure positions to do so.
My first encounter with Judge Calabresi was a clerkship interview more than two decades ago, which began most disastrously when he asked me about a law school paper I had written on a recent Second Circuit abortion clinic protest case. I drew a blank and sat dumbstruck until Guido mercifully changed the subject. Certain I had blown it, I relaxed. We then had a wide-ranging conversation about everything from how someone who is opposed to capital punishment should handle death penalty cases to my family’s Iranian Jewish roots. At the time, I assumed that Guido was lobbing softball questions to put me at ease and avoid further embarrassment. In retrospect, perhaps he (also) was trying to get a sense of how my background and personal beliefs affected the way I thought about legal and moral questions.
Guido modeled how to be one’s whole self at work, in part through storytelling. Over long lunches he would regale us with tales of his family, academic life, colleagues, and cases. Of course, clerks are differently positioned from a life-tenured federal judge, but Guido tried to extend this ethos by conveying the message that so long as our work got done, we could keep whatever hours we wished, wear whatever we liked (outside the courtroom), take care of and be ourselves. (Emblematic of this attitude, Guido once returned earlier than expected from a post-oral argument conference to find my co-clerk and me napping on the floor of his New York chambers. We jumped up, mortified, but before we could say anything, he apologized to us for disturbing our rest! He also cheerfully tolerated, inter alia, our bad poetry and our pranks—such as an April 1 memorandum, ostensibly written by his eminent senior colleague Jon O. Newman, detailing a series of increasingly absurd and egregious errors Judge Newman supposedly had found in Guido’s opinions since we had started work.)
Advancing the ability to bring one’s whole self to the workplace—even, perhaps especially, as an outsider—is a hallmark of Judge Calabresi’s employment discrimination jurisprudence. Chapter 28 of Outside In describes Back v. Hastings-on-Hudson (2d. Cir. 2004), a seminal case about sex-stereotyping and family responsibilities discrimination. Elana Back, an elementary school psychologist, alleged that she was denied tenure soon after taking maternity leave because her employer thought her job incompatible with motherhood. Citing the then-recent Supreme Court decision in Nevada v. Hibbs (2003), as well as the leading Title VII sex-stereotyping case Price Waterhouse v. Hopkins (1989), Calabresi wrote for the court: “It takes no special training to discern stereotyping in the view that a woman cannot ‘be a good mother’ and have a job that requires long hours, or in the statement that a mother who received tenure ‘would not show the same level of commitment [she] had shown because [she] had little ones at home.’” Back extended sex-stereotyping analysis to the realm of caregiver discrimination, an early precedent that helped to launch a now-robust body of law.
The fact that the decisionmakers in Back were women and that the plaintiff could point to no similarly situated male comparators who were treated differently than she made the precedent especially powerful. Guido connects this aspect of Back, too, to his own experiences—with the propensity of outsiders who have become insiders to exclude others who have not. “There is a very strong feeling that I have,” Guido says, citing examples from Italy to South Africa to Israel to the United States, “that we are all in danger of being discriminators. We’re all capable of, in certain situations, behaving very bravely, and very well, and we’re all capable of behaving horribly.” (vol. II, p. 248).
Chapter 28 discusses another Calabresi opinion, Holcomb v. Iona College (2d Cir. 2006), and its influence on the development of sexual orientation jurisprudence. The plaintiff in Holcomb, a white male basketball coach, alleged that his marriage to a Black woman motivated his termination. Writing for the court, Calabresi reasoned that if Holcomb’s allegations were true, the employer’s decision violated Title VII’s prohibition on discrimination “because of . . . an individual’s race” since had Holcomb not been white, his marriage might not have led to his dismissal. Holcomb’s reasoning bolstered an analogous argument in sexual orientation discrimination cases: if Title VII proscribed discrimination against an individual based on his interracial relationship, then surely it also protected persons in same-sex relationships, since but-for the individual’s sex, association with a partner would not have caused the adverse employment action. As the authors note, the Second Circuit’s decision in Altitude Express v. Zarda, one of the appeals consolidated in Bostock v. Clayton County (2020) (holding that sexual orientation and gender identity discrimination violate Title VII), invoked the logic of Holcomb, as did the Seventh Circuit’s earlier opinion in Hively v. Ivy Tech (7th Cir. 2017).
Significantly, Zarda (which cited and discussed Back)—and many other pre-Bostock sexual orientation and gender identity discrimination cases—also relied on sex-stereotyping analysis. Back established that employers who act on the idea that motherhood makes a woman less competent or committed to work, or that a mother should stay home with her children, apply unlawful sex-based stereotypes. Subsequent decisions by the EEOC and lower federal courts reasoned similarly that employers violate the law when they require individuals to conform to sex-based stereotypes about how they should look or behave or identify, or with whom they should form intimate relationships.
These decisions protect individuals’ ability not only to land a job but to be themselves at work without penalty. They also provide a powerful rejoinder to Justice Alito’s dissent in Bostock, which rejects Holcomb’s reasoning because (in Alito’s view) unlike racial discrimination, “discrimination because of sexual orientation is not historically tied to a project that aims to subjugate either men or women.” But if the history of sex stereotypes teaches us anything, it’s that their imposition subordinates women and all other persons who don’t conform to expectations of how men and women ought to act and be.
Many Calabresi clerks have gone on to careers in academia, and some have focused centrally on questions such as those raised by Back and Holcomb. Amy Kapczynski, who clerked the year Back was decided and is now Guido’s Yale Law School colleague, recognized the case’s potential import immediately. Kapczynski went on to make her name as a pioneering scholar of law and political economy, with a focus on health justice and the politics of care; other Calabresi clerks also have done innovative and influential work in employment discrimination law. To mention just two whose work resonates with the themes discussed here: Kenji Yoshino’s theory of covering explained the pressure on women, people of color, queer and other marginalized workers to conceal their true selves at work. Katie Eyer played a key role in crafting the strategically savvy textualist arguments that won the day in Bostock; among many other contributions she also has written compellingly about the power of claiming disability, and one’s own experience of it, in and outside of the workplace.
Guido would be the first to recognize that, like the opportunity to be one’s whole self at work without negative consequences, the ability unabashedly to draw connections between life experience and judging is not available to all on an equal basis. One has only to think of his former Second Circuit colleague, now Justice Sonia Sotomayor, and the furor that erupted when she expressed hope that her experiences as a Latina and her empathy as a human being would lend a valuable perspective to the Court. As Kate Redburn, another pathbreaking equality law scholar, noted in an earlier post in this series, Outside In not only permits but encourages the reader to link Guido’s work as a judge with his life story. By celebrating these connections, the book too does a service to those who remain on the outside looking in.
-- Serena Mayeri
