Gender

According to an often-told story, women were included in the Civil Rights Act of 1964 on a dare. Julia Lamber, professor of law and Dean for Women's Affairs at Indiana University Bloomington, explains that the addition of sex to this nondiscrimination statute was a political ploy that backfired.

The story goes that Representative Howard Smith, Chair of the House Rules Committe and Virginia democrat, amended the law on the floor of the House by adding sex to the protected categories of race, color, religion, and national origin. A notorious opponent of the Civil Rights Act, Smith proposed this amendment merely to illustrate to his colleagues the absurdity of any legislation that would attempt to eliminate discrimination on the basis of race. Emboldened by support from the Kennedy and Johnson administrations, a coalition of labor, civil rights, and women's groups lobbied for the legislation and subsequently won the day. Representative Smith's amendment certainly was not motivated by concerns about gender discrimination; nevertheless, he is responsible for a most significant piece of legislation in the area of women's rights. A feminist retelling of this event notes that several women in Congress were prepared to offer the "sex" amendment but shrewdly decided that the amendment would have a better chance of passage if introduced as a Southern tactic to defeat the civil rights bill.

As one of the legislative milestones in women's rights, Title VII of the Civil Rights Act of 1964 requires employers to extend equal rights to women in all areas of employment. In 1964 this meant treating women on the same terms as men, except in those very limited circumstances where sex is a "bona fide occupational qualification" reasonably necessary to the business. A year earlier Congress had passed the Equal Pay Act requiring employers to offer women and men equal pay for equal work that requires equal skill, effort, and responsibility. Yet without the necessary technical training or education, women cannot successfully compete in the labor market. Thus Congress also passed Title IX of the Education Amendments of 1972, which prohibits discrimination based on sex in any educational programs that receive federal funds. The 1991 Civil Rights Act furthers the agenda. It makes the workplace environment more hospitable for women in part by providing compensatory and punitive damages for victims of sexual harassment.

These statutes have had wide-ranging influences on feminist scholarship and pedagogy in a variety of disciplines. Lamber teaches and publishes in the areas of employment discrimination and family law. Consequently, Title VII and Title IX form the basis of much of her work. As the dean for women's affairs, she serves in similar yet more immediate advocacy roles for women's rights and concerns. While Lamber's work addresses the impact litigation and public policy have on the reality of women's lives, her colleague Susan Williams, professor of law at Indiana University Bloomington, explores the more theoretical underpinnings of feminist jurisprudence, particularly as they bear on First Amendment legal theory and the relationships among free speech, hate speech, and pornography. For a wider historical context within which to view the women's movement in its various phases, incarnations, and controversies, see the accompanying sidebar discussion with Judith Allen, professor of history and Director of the Women's Studies Program at Indiana University Bloomington.

In an Indiana Law Journal article that speculates about the future in employment discrimination law, Professor Lamber begins by looking back to her days as a member of IUB's School of Law class of 1972: "Overt discrimination, if not commonplace, was not unusual during my student days. I was one of nine women in my class, more than double the number of women students in the class ahead of ours. I still remember a time during my third year of law school when a male friend and I were walking to class. He turned to me and said, 'Don't you feel bad?' 'About what?' I responded. ‘Taking the place of a man in law school.'" Lamber says that many of her female colleagues report having had similar experiences.

The goal of the Civil Rights Act of 1964, and subsequent legislation, was to remove these kinds of artificial barriers that prevented women and minorities from entering careers that were previously closed to them. The result has been more women in fields such as law, medicine, science, and business. These laws, working together, were designed to end discrimination against women, offering them equal rights in the workplace, in schools, and in the public sphere in general. Unanswered by these statutes is what we mean by equality and how women will know when they achieve it. Equality feminists, difference feminists, dominance feminists, and postmodernist feminists each have different answers to these questions. Equality feminists, whom some people call liberal feminists, argue that the law should take an androgynous view of individuals--that we can level the playing field by making gender irrelevant. In this way, equality feminism echoed the argument of the civil rights movement of the 1950s, ‘60s, and ‘70s, which advocated that racial distinctions should also be irrelevant. Many widely acknowledged parallels exist between the fight for women's rights and the struggle against racial discrimination. Supreme Court Justice Ruth Bader Ginsberg, who was then working through the American Civil Liberties Union, developed a litigation strategy designed to illustrate how and why the courts should treat gender discrimination cases in the same way they do those involving race. Throughout the 1970s, Justice Ginsberg argued in a series of Supreme Court cases that gender discrimination should receive the same level of judicial scrutiny as racial discrimination does.

Professor Susan Williams, who clerked for Justice Ginsberg when Ginsberg was on the U.S. Court of Appeals, says that Justice Ginsberg believes the achievment of her declared goal remains an as-yet-unanswered question. "That litigation model was fairly successful in the courts because it drew on a philosophical background that judges were comfortable with--liberalism in the classical sense. It emphasized individualism. I think in her heart, Justice Ginsberg still believes that gender deserves this very strict standard of review. The [Supreme] Court has never said no, it just has never had to reach that question yet. I doubt that on this [Supreme] Court, she would ever get a majority to agree to it." Williams explains that if the Supreme Court were to agree that gender is as suspect a category of discrimination as race, almost no legal gender distinctions would survive.

A current of feminist thought that gained prominence in the late 1970s took issue with the equality/liberal feminist agenda. Difference feminists, or cultural feminists, argued that the equality feminists had gotten it all wrong. Important differences do exist between men and women, and the law should not ignore gender differences, nor should it devalue the female/feminine side of those differences. "In terms of Title VII, the equality goal," Lamber notes, "does not do much to address issues of special concern to women, such as pregnancy or childbearing leaves. It does little to change existing workplace norms that may be inhospitable to women. It does nothing to address the concerns of women who do not want to be pathbreakers, tokens, or one of the few in male-dominated jobs. It is clear that the notion of equality that prevailed in 1960s and 1970s is not sufficient to eliminate gender discrimination in the workplace, nor is it effective in addressing the reality of women's lives."

Controversies over pregnancy leave throw the arguments of the equality and difference feminists into clear relief. Equality feminists argued that pregnancy should be treated just like other disabilities in terms of leaves, disability benefits, and other employment consequences. If an employer has an inclusive disability program, those benefits include maternity leave. Difference feminists said, "That is to misunderstand pregnancy. Pregnancy is not a disability. Pregnancy is something that is unique to women--an experience with no analogue for men. Therefore, this attempt to find some male analogue is just wrong headed." Difference feminists think it is a mistake to take gender out of the law so that we all compete on this purportedly male model. Instead, they advocate changing the model so that it recognizes and values traditionally feminine characteristics and approaches. Thus they argue even if an employer does not have an inclusive disability plan, the employer must offer benefits based on pregnancy. Yet as Lamber observes, "we have an uncomfortable history of using a woman's childbearing capacity to justify separate treatment of women."

But how to value women's differences from men poses complex and many-faceted problems. No one would likely disagree with Lamber when she writes that "the relative rights of women and the fetuses they carry is one of the most divisive issues of our time." While Lamber also works in the areas of race and age discrimination, currently she is most interested in the ways family law intersects with employment discrimination law. For example, some of her recent scholarship deals with the impact of Title VII of the Civil Rights Act of 1964 on fetal protection policies. "Under these policies," Lamber writes, "employers exclude women from jobs that involve exposure to substances known to cause or suspected of causing harm to fetuses. Whether employers should restrain adults from engaging in acts potentially hazardous to their children is an ethical, medical, economic, and political question of great complexity. In the United States it is also, at least in part, a legal question." A recent Supreme Court case United Auto Workers v. Johnson Controls typified the debate.

Johnson Controls, a maker of batteries, adopted a fetal protection program in 1982 that prohibited all women, except those whose inability to bear children was medically documented, from working in high-lead exposure positions in its battery manufactory division. The employer justified its exclusion of women, but not men, because exposure to lead in the early stages of pregnancy created an increased risk of harm to the developing fetus. While the exposure to lead might damage both men's and women's reproductive organs, the employer saw the risk to a develping fetus as greater and more immediate. The women affected by the policy argued the exclusion was paternalistic and unjustified and asserted that the decisions of what risks to take and how to reduce or to cope with those risks were theirs to make, not the employers.' In the end, the United States Supreme Court agreed with the women, ruling that the policy violated the equal rights guarantee of Title VII. In doing so, however, the Supreme Court continued to think of pregnancy in gender-neutral terms, comparing the employer's treatment of men and women that was, given the nature of the policy, obviously unequal.

In another recent article, Lamber argues that we "need to think about gender separately from other forms of discrimination. It was important to see the similarities between race and gender discrimination, to interpret the Age Discrimination in Employment Act of 1967 in line with Title VII, and to model antidiscrimination provisions for the disabled on Title VII. Now it is crucial to recognize our differences." Difference feminism appeals to women who feel that equality feminism requires them to denounce valued aspects of themselves if they are to compete equally against men. Difference feminists oppose the supposedly androgynous model institutionalized in the law. They think that model is male, not androgynous.

A third phase in the evolution of feminist jurisprudence, and in feminist thought more generally, takes this conviction a few steps further and explores the phallocentric nature of our institutions. Dominance feminism, or radical feminism, reached its prominence in the mid-to late 1980s. Dominance feminists assert that the debate about whether women are fundamentally the same or fundamentally different from men is irrelevant. Instead, the dominance critique focuses on who has institutional power. Williams explains that in terms of feminist jurisprudence, dominance feminism interrogates how the law affects gender hierarchies. "‘When you look at a law,' the equality feminists would say, 'is it institutionalizing gender stereotypes rather than treating people equally?' Difference feminists would ask, 'Is it recognizing and adequately valuing women's differences from men?' Dominance feminists would ask, 'Does the law contribute to or not contribute to gender hierarchy?'"

The most important person in the dominance feminism movement, particularly as it relates to feminist jurisprudence, is Catharine MacKinnon, who is best known for her stance on pornography. "In many ways," Williams says, "that is unfair because MacKinnon pioneered the sexual harassment cause of action. She wrote a book called Sexual Harassment of Working Women. And she deserves not all, but a great deal, of the credit for the fact that our law now recognizes sexual harassment as a form of gender discrimination." In response to the difference school of feminist thought, MacKinnon asserts that many socially constructed gender differences are a result of women's institutionalized subjugation to and by men.

Williams's work intersects with MacKinnon's in terms of their mutual concerns over the costs of free speech. In a recent article, "Feminist Jurisprudence and Free Speech Theory," published in the Tulane Law Review (1994), Williams advances a feminist critique of the truth theory that serves as a foundation for First Amendment legal theory. The truth theory posits that only through free speech and the ensuing clash of competing ideas will human beings arrive at the truth. "It is the effort to reconcile new ideas with old assumptions that leads the listener to a clearer and more accurate perception of the truth," Williams writes. Under this rubric, she examines the value and costs of regulating hate speech and of pornography: Free speech is not free, and the controversy over these regulations is a painful reminder of that fact. There is strong and disturbing evidence that the prevalence of pornography in our society takes its toll not only on the self-esteem and sense of safety of almost all women but also on the bodies and even the lives of some women. And yet the pornography debate sometimes proceeds as if the advocates of free speech cannot see the very real costs of this speech, and the advocates of regulation cannot see the equally real costs of suppression.

Williams's intricate theoretical analysis of what, in this postmodern era has perhaps become an outdated basis for First Amendment rights, leads her to examine truth as a socially constructed, evaluative concept that individuals see differently depending upon the epistomology or ideology that determines their plane of vision. Thus in a world where the Enlightenment ideal of objective truth is no longer a given, a central question for First Amendment legal theory becomes, How does one explain the role of speech in the search for a new kind of truth? If all knowledge is culturally situated, how can people ever come to common ground when they begin in different cultural contexts? In the face of postmodern relativism, Williams challenges us to "commit ourselves to take greater responsibility for changing the underlying conditions that make the [hate speech or pornography] so damaging. This commitment must mean a widespread, serious, active, and immediate program of social reform. By connecting speech explicitly to our joint construction of social reality, a feminist epistomology makes plain the relationship between the protection of speech and other responsibilities."

Williams says she has come to believe that any truly complex gender problem can only be viewed through all of these lenses, by using all of these schools of feminist thought to structure various responses. Like a visit to the optometrist in which one tries a series of lenses to see which makes the world as it is appear most clearly, the various schools of feminist thought help us to bring our gendered world into closer, more detailed focus. While Williams's scholarship interrogates the theoretical foundations of our laws, Lamber's concerns are the more pragmatic questions of what is possible within the current context of American democracy. Congress did not define gender equality in its legislation; consequently, the question for Lamber remains what definitions of equality are possible under the statutes and what are the consequences of those choices.

Equal Righs Amendment

NOW

--Susan Moke