Need-Based Employment

Abstract

Scholars equate employment with productivity. The history of employment in America, however, is based on economic need rather than just productivity. After the Great Depression, New Deal programs prioritized putting poor Americans back to work. Need-based employment also resonates with modern intuitions and laws—work-study, tax credits, government contracting, and donated leave (encouraged by the world’s richest as a way for low-wage employees to survive pandemics). Despite need-based employment’s intuitive appeal and persistence, it implicates a significant legal problem. Consider a notable incident from then-Professor Ruth Bader Ginsburg’s life. As a new professor, the eventual Justice’s Dean paid Ginsburg less than her male colleagues because she had a highly paid spouse. As federal courts confront similar controversies, scholars and jurists have repeated Ginsburg’s anecdote as a classic example of sex discrimination.

A presumption that women can subsist on a husband’s income, or that gay married men swim in money, is straightforward sex discrimination. But when employees in fact experience such support—whether due to patterns of heterosexuality, hypergamy, or other financial realities— we must confront a tension. Our need-based inclinations conflict with how needs assessments incorporating one’s relationships may disparately impact otherwise protected groups. Because white women and gay men are more likely than Black counterparts to benefit economically from their marriage to men, intersectionality reveals need-based employment’s potential and encourages clarification of “business necessity” and other statutory defenses. This Article provides a fuller vision and potential legal defense of need-based employment, challenges and all.