THE BLOG
07/28/2016 12:05 pm ET Updated Jul 29, 2017

If Hillary Clinton Faced This Kind Of Discrimination Applying For Any Other Job, It Would Be Illegal, Literally

Our nation passed a historic milestone when Hillary Clinton formally accepted the nomination of the Democratic Party for president.

Americans disagree about how much her gender has helped or hurt her so far in this campaign and we will continue to debate this very important topic through November and beyond.

But there is an easy way to test some of these disputes: By looking at how they would be treated in a legal case involving employment discrimination.

As a wrongful-termination lawyer I work every day with women who have faced gender discrimination on the job. A major part of my work involves looking closely at statements made about them by their employers to determine if there is enough evidence to establish sex discrimination.

I can confidently say that if Clinton walked into my office with a list of the statements that Donald Trump has made about her over the past year and if she were applying for any job--other than president--covered by anti-discrimination statutes, I'd take her case in a heartbeat.

Of course, there is no law against saying sexist things or having sexist thoughts in a political campaign, nor should there be. Voters can punish a sexist candidate at the ballot box. But if we are debating whether Clinton has faced pure sexism on the campaign trail, it's worth looking at the objective standards that lawyers, judges, and juries consider when hearing sex discrimination cases.

Title VII of the Civil Rights Act of 1964, Title VII for short, makes discrimination based on sex illegal. Under this law, a company with 15 or more employees cannot apply one standard of performance to men and a different one to women. There are some state laws that apply to smaller employers, for instance the District of Columbia Human Rights Act, which is modeled after Title VII.

If a manager of a company covered by the law were to say at a meeting that a female employee had taken a bathroom break and called it "disgusting," that would raise red flags with a judge. If an employer said a highly qualified female candidate applying for a promotion was unqualified and only playing "the woman card," that would cause a jury to look twice. If a boss said that a female employee who criticized him was just facing trouble at home with her husband, that would be Exhibit A in a case.

These kinds of comments in a civil case, both considered individually and taken as a whole, could establish that an employer was illegally making decisions based on sex.

Whether Clinton has been treated unfairly or has received improper scrutiny is something voters will have to decide for themselves in November. But the statements made about her by Trump and other political rivals would clearly be judged as sexist in most courtrooms that I've set foot in and that should give us pause.

Clinton's career over the past 40 years has followed the arc of the professional woman. A bright and, yes, ambitious graduate of Yale Law School, she followed Bill Clinton to Arkansas where she rocketed to the top her career, making partner at a prominent law firm. Yet, her career, partially by her own design, took a back seat to her husband's political career. It was during the humiliation of the Monica Lewinsky scandal and her husband's impeachment that Clinton made the decision to start her own political career by running and winning for a New York Senate seat.

Yet, despite Clinton's long tenure and clear qualifications to be president, she has been dogged by the problems faced by other women reaching the pinnacle of the political and corporate world.

And Clinton, like other female candidates, has faced the difficulty of threading the needle of being both tough and likeable.

As noted by Washington Post correspondent Dana Milbank, when Bernie Sanders spoke forcefully, he was perceived as passionate; when Clinton did the same, she was panned by commentators as being too loud. Commentator Joe Scarborough quipped "Has nobody told her that the microphone works?"

Another phenomenon documented by TIME magazine Washington correspondent Jay Newton-Small, who wrote the book. "Broad Influence: How Women Are Changing the Way America Works," is that

'"Campaigning While Female also deprives Clinton of the ability to make lofty promises. Sanders, for example, has a $15 trillion non-starter of a health-care plan. If Clinton floated such a plan, the media would mock it as patently absurd. But Sanders gets a pass."'

"Why the double standard? 'Men are the guys who want to go out and buy the motorcycle, and women are the purse-string holders,' Newton-Small said. 'It's a very traditional role we are putting women into by making them the one saying, no, we can't do all these really fun things. This is a very stereotypical box she gets put into, which then makes it very hard for her to be inspirational."'

This is not to blame Senator Sanders. Certainly he did not intend that Clinton be perceived in this way. He simply experienced an advantage that most men, even well-meaning ones, have in the way the public perceives women in politics and the workplace.

These are the very problems faced by working women in the U.S. Smart, driven women who find their career temporarily derailed often because of their sex.

Of course, not all of this discrimination is as bold and open as the statements that Trump and other political rivals have made against Clinton. A lot of times, it's a pervasive but subtle tendency to push women in different directions, to reward them at a lower rate and judge them by different metrics than men.

But without any doubt, this kind of bold and subtle discrimination is happening to Clinton on the campaign trail and many voters, consciously or not, have evaluated her by one standard while using another for male politicians.

Clinton's candidacy represents great promise, and peril, for working women around the nation as they struggle for equality. Hopefully she will continue to help break barriers for women in the workplace and how we treat women of any profession whether it's a presidential nominee or a CEO of a company.

Still, while women have broken down the door into corporate and political boardrooms, they don't yet have a comfortable seat at the table.

Sex discrimination in the workplace and political arena is a tough problem, and it's not always easy to agree where to draw the line. But the statements Trump has made? Those are easy calls.

Tom Spiggle is author of "You're Pregnant? You're Fired: Protecting Mothers, Fathers, and Other Caregivers in the Workplace." He is founder of the Spiggle Law Firm with offices based on the metro Washington, D.C. region and Nashville, Tenn., where he focuses on workplace law helping clients facing wrongful termination, with a specific focus on pregnancy discrimination or other family-care issues, such as caring for a sick child or elderly parent. To learn more, visit: www.yourepregnantyourefired.com