Feminist Jurisprudence - The 1990 Myra Bradwell Day Panel


"FEMINIST JURISPRUDENCE"
THE 1990 MYRA BRADWELL DAY PANEL
Elizabeth M. Schneider*

Lucinda Finley"

Carin Clauss'

Joan Bertin" "

Elizabeth M. Schneider is a Professor of Law at Brooklyn Law School and a
Visiting Professor at Harvard Law School, 1991. She received her J.D. from New
York University in 1973, her M.Sc. from The London School of Economics and
Political Science in 1969, and her B.A. from Bryn Mawr College in 1968. She formerly
served as Staff Attorney at the Center for Constitutional Rights in New York (1973-
80) and as Staff Attorney and Administrative Director of the Constitutional Litiga-
tion Clinic at Rutgers Law School-Newark (1980-83).

- Lucinda Finley is a Professor of Law at the State University of New York at
Buffalo. She received her J.D. from Columbia University School of Law in 1980,
and her B.A. from Barnard College in 1977. She teaches and writes on feminist
jurisprudence and equality theory.

- Carin Clauss is an Associate Professor of Law at the University of Wiscon-
sin Law School, where she specializes in labor law, employment discrimination
law, administrative law, and civil procedure. She also engages in a primarily pro
bono practice of law, representing plaintiffs in civil rights and union dissident
cases. She is currently serving as Chairperson of Wisconsin's Worker Compensation
Study Commission and was recently Vice-Chairperson of the Wisconsin Task Force
on Comparable Worth. Prior to coming to Wisconsin, Ms. Clauss was appointed
by President Carter as Solicitor of Labor at the U.S. Department of Labor. She has
been a frequent speaker and lecturer on equal employment opportunity law and
on labor issues generally. She received her LL.B. degree from Columbia University
School of Law in 1963, and her A.B. degree from Vassar College in 1960.

Joan E. Bertin is a lawyer with the Women's Rights Project of the American
Civil Liberties Union (ACLU). She has litigated extensively in the area of women's
legal rights, and specifically on legal issues relating to reproductive health and
pregnancy discrimination. She is on the editorial board of Women and Health and
served on the Advisory Panel for the Congressional Office of Technology Assess-
ment Report, Reproductive Health Hazards in the Workplace. She writes, speaks, and
consults on a variety of women's legal and health issues.



Columbia Journal of Gender and Law

Myra Bradwell Day is an annual event held by the Columbia Law Wom-
en's Association at Columbia Law School to celebrate women in the law.
In 1990, a panel of feminist scholars discussed the connection between
theory and practice in the real-lived lives of women and the law.

Elizabeth M. Schneider

I'm delighted to have the opportunity to talk with you today about
some important aspects of feminist legal theory. My comments will focus
on the implications of feminist legal theory for legal education. Feminist
legal theory has important ramifications for legal education. Feminist legal
theory is theory that is connected to doing and to being. Thus, an important
dimension of feminist legal theory is its interconnection with legal practice
and with legal education.

Here at Columbia, as well as at many other law schools, there has
been much discussion concerning problems of gender bias in legal educa-
tion. It is now widely acknowledged that law school courses do not ade-
quately incorporate issues relating to women and women's perspectives
into the curriculum. 2 As a result, many law professors and law students
have begun to rethink every facet of the law school curriculum, particularly
first-year courses, from the standpoint of gender. Today I want to suggest
some contributions that feminist legal theory can make to the teaching of
one of the most important courses in the first-year curriculum--Civil
Procedure.

I'd like to make a few introductory points concerning feminist theory.
Generally, feminism can be understood as "a self-consciously critical stance
toward the existing order with respect to the ways it affects different
'women as women.' ' 3 However, there are many different feminist
perspectives. Feminist theory is not unitary; there is no one feminist theory,

I I am grateful to Martha Minow for the many years of conversation about
feminism and civil procedure that led to the ideas discussed here; this talk is part
of an ongoing joint effort.

This talk is dedicated to the memory of Mary Joe Frug whose life and work
inspired and continues to inspire me.

2 See generally Symposium on Gender Bias in Legal Education, 38 J. Legal
Educ. 1-193 (1988); Erickson, Sex Bias in Law School Courses: Some Common Issues,
id. at 101-16; Menkel-Meadow, Feminist Legal Theory, Critical Legal Studies, and
Legal Education or "The Fem Crits Go To Law School," id. at 61-85; Shalleck,
Report of the Women and the Law Project: Gender Bias and the Law School Cur-
riculum, id. at 97-99; Schneider, Task Force Reports on Women in the Courts: The
Challenge for Legal Education, id. at 87-95.

3 Bartlett, Feminist Legal Methods, 103 Harv. L. Rev. 829, 833 (1990).

[Vol. 1:1



Feminist Jurisprudence

one politically correct feminist theory.' One of the most exciting develop-
ments in feminist theory has been the recent effort to expose feminism's
tendency toward "essentialism," feminism's tendency to imply that there
is one "essential" womanness. Feminist theory, or to put it more accurate-
ly, feminist theories, must take account of the varied experiences of all
women.

Feminist theory has two dimensions--one which breaks down old no-
tions and another which reconstructs new visions. The first dimension ex-
poses the ways in which the law presently fails to reflect the range of
women's experiences or the values that many women have. This dimension
provides a critique of existing legal standards and the notion that law is
objective and neutral. It exposes the extent to which law masks the per-
spectives and experiences of women. The second dimension of feminist
theory, its reconstructive aspect, is very much a part of what the women's
movement has been about: namely, our efforts to reconstitute law and
legal institutions to incorporate within them the viewpoints of all women.
This reconstructive dimension attempts to use the multiplicity of women's
experiences to create new visions of law on both a theoretical and a practical
level.

One of the central aspects of feminist theory is what I have elsewhere
called the dialectical relationship between theory and practice.' A unique

4 See Harris, Race and Essentialism in Feminist Legal Theory, 42 Stan. L. Rev.
581 (1990); E. Spelman, Inessential Woman: Problems of Exclusion in Feminist
Thought (1988).

s Schneider, The Dialectic of Rights and Politics: Perspectives From the Women's
Movement, 61 N.Y.U. L. Rev. 589 (1986).

The dialectical approach ... explores the process which connects ideas
that appear to be in opposition to one another. One "moment" in the
process gives rise to its own negation, and "out of this negativity, emerges
a 'moment' which at once negates, affirms, and transcends the 'moment'
involved in the struggle." Thus, an idea may be both what it appears to be
and something else at the same time; the idea may contain the seeds of its
own contradiction, and ideas that appear to be in opposition may really
be the same or connected. At any given "moment," ideas may appear to
be connected or in opposition because this connection or opposition exists
in only one stage of a larger process. The dialectical process is not a me-
chanical confrontation of an opposite from outside, but an organic emer-
gence and development of opposition and change from within the "mo-
ment" or idea itself. [Cites omitted].

Id. at 599.
The notion of dialectical process is a critical aspect of feminist theory. The

term dialectical and the concept of dialectic are frequently used by feminist
theorists in a wide range of contexts. See id. at 601 n.58.

1991]



Columbia Journal of Gender and Law

contribution of feminist theory is this special dynamic interrelationship
between theory and practice based on women's experiences. Feminist the-
ory emphasizes direct and personal experience as the place that theory
should begin. Theory is not something which is "out there"; theory is "in
here." It is in our lived experiences, it is in the sharing of these experiences
together, and it is summed up in the traditional phrase which I'm sure is
familiar to many of you: "the personal is political." This phrase has impor-
tant political and theoretical dimensions. Politically, it reflects the view
that the realm of personal experience, the "private" world, which has tra-
ditionally been devalued for women, is an appropriate subject of "public"
inquiry. Theoretically, it suggests that, for feminist theory, "private" and
"public" worlds are inextricably linked.

Consciousness raising, as a feminist method, is an example of this dia-
lectical process. Consciousness raising begins with personal experience,
experience which is usually conceived of as "private." Through the sharing
of personal experience, individuals realize that their own experience is
really widely shared, and this insight moves the understanding of indi-
vidual experience to the recognition that the commonality of women's ex-
perience reflects larger social structures. These insights then move back to
the personal.

Consciousness raising begins with the lived experiences of women,
uses personal experience to understand, create, and inform theory, and
then reshapes theory based on the insights gained from exploring person-
al experience. The richness of this process, the moving back and forth be-
tween the personal and the political, the private and the public, exposes
the complex, dialectical interrelationship between the social dimension of
individual experience and the individual dimension of social experience.
Consciousness raising reveals the profound link between individual and
group interest-between individual change and social change.

The legal work of each of us on this panel reflects this dynamic inter-
relationship between theory and practice. We have all engaged in both the
articulation of theory and the practice of law. I worked as a civil rights
lawyer at the Center for Constitutional Rights in New York for many years
before becoming a full-time law teacher. Lucinda Finley has been involved
in practice as well as legal scholarship. Carin Clauss has moved back and
forth between governmental, policy-making, and academic work for many
years. Joan Bertin has long been shaping work on equality and reproduc-
tive hazards in the workplace at the Women's Rights Project of the Ameri-
can Civil Liberties Union (ACLU). In all of our work, we have begun with
the concrete and lived experiences of women and then articulated these

[Vol. 1:1



Feminist Jurisprudence

experiences in legal theory and legal argument. Our legal arguments in
court and legislatures grew out of women's experiences, and the impact of
these arguments then further developed our theory.

Feminist legal theory also looks at the diversity of human experience
and examines varied factual situations and kinds of moral/political choic-
es that are implicit in the decisions faced by women. Some have called this
"emphasizing context."' Although all law involves an understanding of
context in some sense, the emphasis on context, on particularity, on chal-
lenging the general and looking closely at particular experience, is an im-
portant contribution that feminist theory makes to law.

These aspects of feminist theory underscore the central role of process
in feminist theory. Of course, feminist theory also has a substantive and
political importance. But the perspective on feminist theory that I have
just suggested implies a concept of, and an experience with, process that
has shaped my thinking and teaching in civil procedure. However, my
work in civil procedure also needs to be situated in the larger context of
the impact of feminist theory generally on legal education.

I'm sure many of you are aware of the burgeoning scholarship on gen-
der bias in legal education.7 This work is very important. Feminist theory
tells us to develop theory based on our experiences in the places where we
live, and of course all of you here as students and faculty, and several of
us on the panel, live a good part of our lives in law schools. It is important
that we apply both dimensions of feminist theory-particularly its recon-
structive aspect-to these institutions and try to change them.

In the 1970s when I was in law school at New York University (NYU),
I was active in NYU Law Women and concerned with issues of gender

'Minow & Spelman, In Context, 63 S. Cal. L. Rev. 1597 (1990). Martha Minow
and Elizabeth Spelman urge a renewed attention to context as a means of high-
lighting the "particular particularities associated with legacies of power and op-
pression." Id. at 1601.

7 See Finley, Breaking Women's Silence in Law: The Dilemma of the Gendered
Nature of Legal Reasoning, 64 Notre Dame L. Rev. 886 (1989); Worden, Overshoot-
ing the Target: A Feminist Deconstruction of Legal Education, 34 Am. U.L. Rev.
1141 (1985); Menkel-Meadow, supra note 2; Elkins, On the Significance of Women
in Legal Education, J. Am. L. Stud. A.F. 290 (1988); Project, Gender, Legal Educa-
tion and the Legal Profession: An Empirical Study of Stanford Law Students and
Graduates, id. at 1209; Homer & Schwartz, Admitted But Not Accepted: Outsiders
Take an Inside Look at Law School, 5 Berkeley Women's L.J. 1 (1989-90); Melling
& Weiss, The Legal Education of 20 Women, 40 Stan. L. Rev. 1299 (1988); Sympo-
sium on Gender Bias in Legal Education, supra note 2; infra notes 12-16.

19911



Columbia Journal of Gender and Law

bias in legal education. In 1971, in my first year of law school, a colleague
and I addressed the NYU Law School faculty about problems of gender
bias in the classroom, and in 1972, in my second year of law school, the
Association of American Law Schools (AALS) had a symposium at NYU
to explore problems of gender bias in the law school curriculum. Many
years later, after the release of the Report of the New York Task Force on
Women in the Courts,8 I was asked to give a speech to the New York City
Bar Association about the implications of the Report for legal education.9

In the course of preparing for that speech, I went back to the notes of my
talk to the NYU Law faculty and found a disturbing similarity between
the concerns that had animated my work then as a law student and those
that occupy my attention now as a law teacher. We are talking about 1990!
Some of the language of the description for the 1972 conference sounded
like it was written today! So, even in 1972, while only a few law schools
offered courses on women and the law, it was recognized that serious
problems of gender bias pervaded the law school curriculum, and that
inclusion of women's concerns in the law school community meant more
than a few token courses on women and the law.

Now I don't want to criticize these courses. I've been teaching Women
and the Law since 1974. I love it. It's a critically important course. But it
can't do the work needed to correct problems of gender bias in the rest of
the law school curriculum. It simply can't do it. More importantly, it
shouldn't be doing it. What we study in courses such as Women and the
Law or Feminist Legal Theory needs to be affirmatively integrated into
every aspect of the law school curriculum.

Today there is, I'm happy to say, a growing interest in the exploration of
these issues of gender bias in the law school curriculum. I know that you've had
quite a bit of interest in this area here at Columbia. I know that a colloquium on
gender bias was held so that the faculty could discuss student concerns.10 Sim-
ilar events have been taking place at other law schools as well." It is very excit-
ing. Moreover, there has been a lot of very important work going on and a
growing body of literature developing in the areas of criminal law,"

s Report of the New York Task Force on Women in the Courts, 15 Fordham
Urb. L.J. 11 (1986).

' Schneider, supra note 2.
10 Columbia Gender Bias Task Force Faculty Colloquium (March 29, 1989).
"See supra note 7.
12See generally Erickson & Taub, Final Report- Sex Bias in the Teaching of Criminal

Law, 42 Rutgers L Rev. 309 (1990); Coombs, Crime in the Stacks, or A Tale of a Text. A
Feminist Response to a Criminal Law Textbook, 38 J. Legal Educ. 117 (1988).

[Vol. 1:1



Feminist Jurisprudence

torts, 3 property,14 and contracts. It is important for us to explore issues of gen-
der bias throughout the entire curriculum, to identify courses in which
women's experiences, concerns, and perspectives have been excluded, and
to include the contributions of feminist theory in reconstructing legal educa-
tion.

I want to give you some examples of how this thinking has influenced
my own work and teaching in civil procedure. I think it fair to say that
feminist work is just developing in this area. 6 A colleague, Martha Minow,
and I have started thinking about how, as feminists, our concern with
process has led us to love teaching procedure and to think differently about
problems of procedure. As we have discussed it over several years, we, as
feminists, have realized that process is something that we value in and of
itself. Feminist theory and feminist praxis have long valued "process."
Process-the methods by which we talk, decide, organize a meeting, orga-
nize organizing-has been viewed as important independent of result. At

13 See generally Bender, A Lawyer's Primer on Feminist Theory and Tort, 38 J.
Legal Educ. 3 (1988); Bender, Feminist (Re)torts: Thoughts on the Liability Crisis,
Mass Torts, Power and Responsibilities, 1990 Duke L.J. 849 (1990); Finley, A Break
in the Silence: Including Women's Issues in a Torts Course, 1 Yale J.L. & Feminism
41 (1989); Joint Program of AALS Sections on Torts and Compensation Systems
and Women in Legal Education, Teaching Torts: A New Perspective (AALS An-
nual Meeting January 1987); Tobias, Gender Issues and the Prosser, Wade and
Schwartz Torts Casebook, 18 Golden Gate U.L. Rev. 495 (1988).

" See generally Joint Program of AALS Sections on Real Property and Women
in Legal Education, Losing and Gaining Ground: Feminism and Property (AALS
Annual Meeting January 1990); Radin, Market-Inalienability, 100 Harv. L. Rev.
1849 (1987).

" See generally Program of AALS Section on Women in Legal Education in
Cooperation with the Society of American Law Teachers, The Influence of Femi-
nist Theory and Gender Bias in Contracts (AALS Annual Meeting January 1989);
Frug, Re-Reading Contracts: A Feminist Analysis of a Contracts Casebook, 34 Am.
U.L. Rev. 1065 (1985).

16 See generally Schneider, Rethinking the Teaching of Civil Procedure, 37 J.
Legal Educ. 41 (1987); Resnik, On the Bias: Feminist Reconsiderations of the Aspi-
rations for Our Judges, 61 S. Cal. L. Rev. 1878 (1988); Resnik, Housekeeping: The
Nature and Allocation of Work in Federal Trial Courts, 24 Ga. L. Rev. 909 (1990);
Farina, Conceiving Due Process, 3 Yale J.L. & Feminism 189 (1991); White, Subor-
dination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of
Mrs. G., 38 Buffalo L. Rev. 1 (1990). There is growing interest in this topic. In
January 1992, a program on Feminism and Civil Procedure will be held at the
AALS Annual Meeting, jointly sponsored by the AALS Sections on Women in
Legal Education and Civil Procedure.

1991]



Columbia Journal of Gender and Law

the same time, we believe that process counts precisely because it pro-
foundly affects result and the way in which people experience both process
and result. The very definition of process and what we bring to this defini-
tion is shaped by a feminist perspective. We're starting to explore the con-
tributions that feminist theory can make to thinking about process; the
ways in which feminist theory both heightens our understanding of the
significance of process and at the same time provides a critical perspective
on process. Here, I will give some examples of how feminist theory can
contribute in fundamental ways to our thinking about procedure.

A central tenet of feminist theory has been an understanding of the
dynamic nature of process. The way in which consciousness raising ac-
tively involves moving back and forth between personal experience and
practice, private and public, is an example of this dynamic process. 17

Feminist theory emphasizes the active dimensions of process, that process
is never constant or fixed but always changing. Attention to the dynamic
nature of process, and the nature of change in the relationship between
process and substance, highlights valuable elements of the civil procedur-
al system.

This view of process has important implications for our thinking about
civil procedure. On a macro level, the dynamic nature of our civil proce-
dural system is evident historically. For example, with the development of
the Federal Rules of Civil Procedure, civil procedure in the United States
has changed dramatically over the last 100 years."8 These changes continue
with ongoing modification of the Federal Rules and statutory revisions.9

On a micro level, within the context of individual litigation, the fluid and
dynamic nature of the procedural system is also apparent. A complaint is
filed, it brings on a response, which brings on another response, and so
on. In the very process of litigation, issues, strategies, and problems emerge,
unfold, and change. The very notion of procedure as a fixed set of rules, a
static framework, or even a linear unravelling denies the complexity, rich-
ness, and ad hoc nature of the procedural system in action. Learning the
"rules" or "doctrines" of civil procedure without attention to the textured,
chaotic, and dynamic aspects of the process violates the fundamental nature
of procedure itself

"See supra text accompanying notes 5 & 6.
18 See generally Subrin, How Equity Conquered Common Law: The Federal

Rules of Civil Procedure in Historical Perspective, 135 U. Pa. L. Rev. 909 (1987).
'" See, e.g., 1983 amendments to the Federal Rules of Civil Procedure; 1991

amendments to the Federal Rules of Civil Procedure; Judicial Improvements Act
of 1990, Pub. L. 101- 650, 104 Stat. 5089 (1990).

[Vol. 1:1



Feminist Jurisprudence

Feminist theory also values process because it has a transformative
potential beyond the results in a given case or moment. In the process of
sharing insight, participating in group discussion or in political activity,
consciousness and identity can be transformed. This understanding of process
as potentially transformative has implications for our thinking about pro-
cedure. The process of litigation, of asserting claims in legal form, can be
transformative for individuals and for groups. Asserting a claim in court
can impart to a group the power to effect change through legitimization,
strength in niumbers, and a sense of solidarity.20 In the process of litigation,
individual claims can be transformed into group claims, both through for-
mal procedural mechanisms such as class action2 and party joinder,2 and
through more subtle processes of legitimization. Of course, process can
also be transformative in a negative sense. The procedural system can also
limit efforts for more radical vision or thwart and frustrate activist ener-
gy.2 But feminist theory helps us to understand the potentially transformative
dimension of process, and the difference that the type and availability of
process have on individual lives and political mobilization.

Feminist theory recognizes that process and result are closely inter-
connected. There is a deep feminist sense that process and result are linked
in important ways; that methods of institutional practice and decision
making affect who is silenced and who can speak; that the context in which
rules are applied affects their meaning; and that the value of an experience
includes the way in which it unfolds and is understood. When we think
about what process is due, or consider the various values of process, we
must consider who can speak and the way in which procedural rules al-
low or deny access to courts. Different forms of process take on different
meanings, both in fact and symbolically, to individuals and to the society
at large. The way in which process is experienced and understood be-
comes part of the individual and social meaning of that process.

Feminist theory focuses on the process of unearthing hidden voices
and identifying rules and practices that have had the effect of silencing the
views of those with less power. Procedural rules provide vehicles to bring
those voices to the surface and remedy those practices. For example, the
constitutional commitment to a right to be heard rests on the fundamental

" See, e.g., my discussion of this process in the women's rights movement in
Schneider, supra note 5.

21 Fed. R. Civ. P. 23.

1 Fed. R. Civ. P. 19, 20, and 22.
2 See Simon, The Ideology of Advocacy: Procedural Justice and Professional

Ethics, 1978 Wis. L. Rev. 29.

1991]



Columbia Journal of Gender and Law

notion of providing access for those voices that are not likely to be heard.
Feminist theory underscores the importance of access and the need for a
critique of procedural rules that impose obstacles to participation, for
example, bonds and costs, denial of access to counsel, or those that chill
vigorous advocacy or deter unfamiliar arguments, such as Rule 11.24 The
valuing of process in feminist theory also provides a critique of rules that
measure due process by some kind of economic calculus of the values at
stake. 2s

Another contribution of feminist theory to our thinking about civil
procedure is the interrelationship between individual and group interests.
The very process of consciousness raising discussed earlier involves a dy-
namic process of individual discovery and sharing of collective experience,
and collective discovery and sharing of individual experiences, in ways
that then allow individuals to experience commonality and to imagine
their own strengths and identity in a different way. In the formal civil
procedural system, we see these concerns reflected in rules on party joinder
and class action that address the question of the interrelationship between
individual and group interests and define the parameters of when indi-
vidual claims or group claims are appropriate. A common insight from
feminist discussions is the realization that what each of us thought was
our own insight really is widely shared and reflects larger social struc-
tures, and that there is a close interrelationship between private and pub-
lic. Similarly, the formal procedural system frequently transforms
individual disputes into group claims and gives private disputes a more
public, shared experience and meaning.

Another example of feminist focus on process is the experience of self-
reflection and self-criticism implicit in the dynamic nature of the con-
sciousness-raising process. In the dialectic of consciousness turning in on
itself, we see a capacity for reflection, for reconsideration. Feminist "pro-
cess" has also developed a practice whereby feminist groups discuss the
methods by which to conduct a meeting, then review the experiences peo-
ple have with the meeting or a particular discussion in order to validate
those experiences and foster self-criticism and reform. Similarly, in the

24Fed. R. Civ. P. 11 provides for sanctions for attorneys and parties who sub-
mit pleadings, motions or other papers in court that are not "well grounded in
fact," "warranted by existing law or a good faith argument for the extension,
modification, or reversal of existing law" or are interposed for an "improper pur-
pose, such as to harass or to cause unnecessary delay or needless increase in the
cost of litigation."

2 For provocative reinterpretations of procedural due process from feminist
perspectives, see generally Farina, supra note 16; White, supra note 16.

[Vol. 1:1



Feminist Jurisprudence

civil procedural system, we see the theme of reconsideration in judgments
n.o.v., motions for new trial, and appellate review. The need for opportu-
nities to construct more particularized forms of process is also addressed
in procedures such as pre-trial conferences and summary jury trial.

There is, however, an obvious tension between the desire to maximize
opportunities for reconsideration and the need for finality and closure.
One of the criticisms of feminist methodology and activist practice in the
1960s and 1970s was that there was too great an emphasis on process, and
a failure to acknowledge the importance of both final decision making and
different tiers of decision-making authority. This tension is also present in
our procedural system. For instance, the concept of appellate review is
based on fundamental notions of the importance of adjudication by differ-
ent tiers of decision makers, but there is a limit to the amount of review
available. Similarly, preclusion cuts off the possibility of reconsideration
of issues or claims that have been previously decided. The doctrines of
finality and preclusion balance the value of continued process, of recon-
sideration and reflection, with the need for closure. Feminist theory em-
phasizes the value of openness but also recognizes the appropriateness of
legal boundaries, the notion that at some point there must be an end.
Feminist theory illuminates the way in which these concerns can be rea-
sonably balanced.

In the past few minutes, I have focused mainly on the ways in which a
feminist approach to process can help us to understand our civil proce-
dural system. But I do not want to simply celebrate the "process" connection.
between feminist theory and civil procedure. There are important differ-
ences between feminist conceptions of process and those dominant in the
civil justice system. If, as mentioned earlier, feminist theory provides the
basis for a self-consciously critical stance toward law, then it is important
not to lose the critical focus of feminist work. The "process" enabled by
the civil procedural system is lacking in many important ways. Feminist
interest in process provides some analytic tools for identifying those
shortcomings.

Feminist theory exposes the norms and values of different models of
procedural systems. For example, the traditional image of litigation and
of the adversary system as "battle" is inappropriate in feminist theory.
Feminist theory doesn't talk about battle. Some feminist theories have em-
phasized the alternative of dialogue and connection, and posited these
values as traditionally female.2' But the dichotomies of warfare versus

" See, e.g., C. Gilligan, In a Different Voice (1982). Carol Gilligan's work has
been interpreted, possibly misinterpreted, to support this view.

1991]



Columbia Journal of Gender and Law

connection are oversimplified. 7 Although the adversarial model of
procedure is somewhat alien to the conception of feminist process which
I've been discussing, recent feminist work has emphasized the danger of
suppressing difference and disputes within feminism and has called for
attention to conflicting points of view, competition, and other aspects of
potential contention."'

There are considerable dangers in positing the formal procedural sys-
tem as male, as some scholars do, in contrast with, for example, alterna-
tive dispute resolution as "female."2 Indeed, sensitivity to issues of power
and the problematic dichotomy of public versus private within feminist
theory underscores the dangers of this approach. Although in theory al-
ternative dispute resolution can be viewed as a form of more unstructured
and potentially dialogic process, this kind of informal process can disad-
vantage women. Since women are in unequal power relations to begin
with, the problems that women face in using alternative dispute resolu-
tion mechanisms in battering, divorce, or custody situations are consider-
able.30 However, feminist theory can sensitize us to the need for attention
to power relations and some combination of dialogue and vigorous advo-
cacy, if not exactly battle, in the litigation context.

A further difference may arise concerning the balance struck between
efficiency and fairness, and between the need for closure and the need for
reevaluation and revision. Preclusion rules, summary judgment, and dis-
missal, and, for that matter, ex parte orders, reflect lines drawn by the pro-
cedural system on these matters. Feminists may at times prefer more process
and reevaluation than the civil rules typically provide-but sometimes
feminists may prefer closure or may evaluate the costs and benefits of
process differently.

27For example, some feminist theorists have expressed concern that Gilligan's
articulation of connection as woman's mode of expression (see Gilligan, supra note
26) is too dichotomized. See, e.g., Schneider, supra note 5, at 616-17 n.140; Wil-
liams, Deconstructing Gender, 87 Mich. L. Rev. 797 (1989).

" See generally M. Hirsch & E. Fox Keller, Conflicts in Feminism (1990); Taub,
Thoughts on Living and Moving with the Recurring Divide, 24 Ga. L. Rev. 965
(1990).

" See generally Note, Alternative Dispute Resolution in a Feminist Voice, 5
Ohio J. on Dispute Resolution 337 (1990); Menkel-Meadow, Portia in a Different
Voice: Speculations on a Women's Lawyering Process, 1 Berkeley Women's L.J. 39,
52-53 (1985).

3o Grillo, The Mediation Alternative: Process Dangers for Women, 100 Yale L.J.
1545 (1991); Lerman, Mediation of Wife Abuse Cases: The Adverse Impact of In-
formal Dispute Resolution on Women, 7 Harv. Women's L.J. 57 (1984); Holmes-
Norton, Bargaining and the Ethic of Process, 64 N.Y.U. L. Rev. 493, 568-74 (1989).

[Vol. 1:1



Feminist Jurisprudence

In sum, a feminist embrace of process does not mean acceptance of
existing procedural rules and their pattern of application. Feminist legal
theory can help us question process by providing a different vision of civil
procedure. Feminist concerns can help us to identify important areas of
reform and challenge to prevailing procedural rules.

These are some preliminary thoughts on the way that feminist theory
can inform our thinking of civil procedure. I will be very interested in
hearing your reactions.

Lucinda Finley

It is crucially important for dealing with gender issues in legal educa-
tion to look at what I call "curricular integration." This involves bringing
issues of relevance to women's lives and the perspective of gender analysis
into the entire legal curriculum, rather than keeping it in the marginalized
territory of women and the law or gender and the law courses. The reason
that curricular integration is so important is that so long as gender issues
are confined to courses like Gender and the Law or Women and the Law,
the message being conveyed is that these issues are not core concerns of
the law and are not present throughout every area of the law. Neither of
these assumptions is true.

One of the privileges of being part of the dominant group in society is
that the members of that group are able to think that a characteristic, such
as race or gender, only describes or pertains to others, not to them. For
example, how many white people really think that they, too, have a race,
or think that race issues are about whiteness just as much as they are
about blackness? How many people whose sexual orientation follows the
so-called "straight" path really think that issues of "sexuality" have any-
thing to do with them? They probably think that those issues just have
meaning to people who are not "straight."

Well, the same problem of the dominant group's blindness to its own
characteristics occurs with gender. This can be illustrated by examining
the enrollment in gender and the law courses. Every once in a while, when
I'm teaching women and the law or gender and the law courses, I wonder
about why the class is predominantly women. Indeed, I am perplexed
why this audience today is predominantly women. So occasionally I ask
male students, "Why are there only one or two men in the Gender and the
Law course?" And frequently the response goes something like this: "Well,
gee, that course is about gender. It's got nothing to do with me." I respond

But see Rifkin, Mediation from a Feminist Perspective: Promise and Problems, 2
Law & Inequality 21 (1984).

1991]



Columbia Journal of Gender and Law

by saying, "Oh, then you don't have a gender?" The male students look
startled and say, "Oh, well I never really had to think about it." That,
precisely, is the point-if the male gender is considered the "genderless
norm," few men ever think about how their gender affects their lives.

Sometimes a man's response goes like this: "Oh, well that course is
about women's issues. Women's issues have nothing to do with me and
they don't have anything to do with any of the areas of law I'm interested
in." I usually just scratch my head to this response and get depressed by
the fact that some people aren't interested in the areas of law that most
closely touch our own lives. But I wish I had thought on the spot to say:
"Oh, women's issues have nothing to do with you. Then what is it that
you think that women's issues are?" To which the man would probably
say, "Oh, well, you know, stuff like pregnancy and rape and domestic
violence and all, you know, that kind of stuff." I would then say, "If you
can show me that pregnancy or rape or domestic violence doesn't almost
always involve men too, then you will have finally convinced me that
women's issues have nothing to do with men and are indeed only women's
problems." These issues certainly affect men and women differently, but
the pervasive assumption that they are only matters of concern to women
is one of the barriers to making progress in addressing them.

Until we start integrating a gender perspective into legal education,
and into legal thinking, argumentation, practice, and, ideally, into legal
decision making, the powered members of society will continue to have
the luxury of thinking that gender issues have nothing to do with them.
They will continue to think that they are not participants in or architects of
society's gendered structures. They will also continue to believe that a
course like Tort Law does not or should not include women's torts or
gendered torts.

One way to begin disrupting these beliefs and integrating a gender
perspective into legal analysis is to "ask the woman question."31 To "ask the
woman question" means to look at an area of the law and ask, "If we
consider the experiences, needs, and perspectives of women, what sup-
posedly neutral or objective aspects of that area of the law are actually
nonneutral and nonobjective because they wholly fail to consider, or ren-
der invisible, the experiences and perspectives of women?" I will give some
practical examples of what happens when I "ask the woman question" of
tort law. Once I started looking at tort law from that perspective, tort law
started looking very different to me.?

3' Bartlett, supra note 3, at 837 n.23.
32I have written an article about this subject, which has served as a spring-

board for my later work. Some of the ideas presented in this talk are elaborated on

[Vol. 1:1



Feminist Jurisprudence

One of the obvious areas of tort law to examine is the venerable rea-
sonable person rule.3 At one time, it was called the reasonable man rule.
Then, when sensitivity to gendered pronouns crept into law, the reason-
able man got linguistically transformed into the reasonable person. We
thought that the gender problem was gone, right? Wrong. The linguistic
transformation did not cure the underlying image. What is it that judges
see when they close their eyes and imagine the reasonable person? What
does he look like to them? He looks like a he. His life experiences look a
lot like his, the judge's, experiences and his reactions. And what, therefore,
is reasonable to do under the circumstances looks a lot like paradigmatic
male experiences and reactions.

Rabidue v. Osceola Refining Co.,' a sexual harassment case in the Sixth
Circuit involving the standard for finding an offensive work environment,
is one of the more egregious and obvious examples. Although brought under
Title VII,3s the court used a tort standard: would the reasonable person find
this work environment offensive.' In this case, one of the first woman su-
pervisors at this company was subjected to a workplace where her male co-
workers addressed her with four-letter terms, such as the "c" word. Whenever
she complained about this, the male supervisor told her what she really
needed was a good "f_ _." This was the sort of daily conversation to which
she was subjected. The male workers littered the walls, particularly the area
around her desk, with sexually graphic-often violently so-posters. After
a while, the woman began to go quite crazy in this environment. She brought
an offensive environment sexual harassment case.

in the article. See Finley, A Break in the Silence: Including Women's Issues in a
Torts Course, 1 Yale J.L. & Feminism 41 (1989).

'3D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Torts 173 (5th ed.
1984).

31 805 F.2d 611 (6th Cir. 1986) (Keith, J. concurring in part, dissenting in part),
cert. denied, 481 U.S. 1041 (1987). See also Carin Clauss' discussion of Rabidue, infra
note 72 and accompanying text.

3s Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2000e-17 (as
amended in 1972).

-1Rabidue, 805 F.2d at 620. The court adopted the district court's analysis for
determining standards for sexual harassment under Title VII. The district court
noted the lack of statutory language concerning sexual harassment and looked to
the Equal Employment Opportunity Commission (EEOC) guidelines on sexual
harassment. These guidelines define sexual harassment as conduct which "has the
purpose or effect of unreasonably interfering with an individual's work performance
or creating an intimidating, hostile, or offensive working environment." EEOC
Guidelines, 29 C.F.R. § 1604.11(a)(3). The district court viewed the term "unrea-
sonably" as inviting judicial analysis. It therefore adopted the objective, reason-
able person standard to direct its determination of a hostile work environment

1991]



Columbia Journal of Gender and Law

Rabidue was one of the first cases after the Supreme Court decision in
Meritor Savings Bank v. Vinson37 to go to a court of appeals. The Sixth Cir-
cuit majority, both white and male, said, in effect, that since pornography
is widely available and widely consumed in society, and you can buy it at
any newsstand or go into all sorts of corner theaters, and everybody uses
bad words, how can we possibly say a person would reasonably find violent
or pornographic posters of women offensive? Therefore, Sharon Rabidue,
in finding them offensive, is not a reasonable person.3

The only dissenter was a black man, Judge Damon Keith. I believe his
race is significant, because he was much better positioned to be sensitive
to different realities than the two white male judges of the majority. He
said, basically, that we have to ask ourselves just who are these "reasonable
people" who go out and eagerly consume pornography? There aren't too
many women among these reasonable people. This suggests that the rea-
sonable person standard used by the majority is a biased standard. 3

That case illustrates the obvious problem with a supposedly neutral
rule like the reasonable person. Actually, the content of the rule is being
drawn from the life experience of one rather small segment of society.
Then, if women react differently due to different life experiences, they are
excluded from the bounds of reasonable people by the supposedly objective
legal standard. This example shows how using feminist jurisprudence,
which tries to be inclusive of the full diversity of human life, enables us to
take a new look at the content and impact of our legal standards. Once
you start asking "the woman question" you start moving beyond merely
what I call the integrative approach, and start examining to what extent
the entire structure and values of our legal system are themselves

under Title VII. Rabidue v. Osceola Refining Co., 584 F. Supp. 419,430 (E.D. Mich.
1984).

- 477 U.S. 57 (1986) (holding that a plaintiff may establish a violation of Title
VII by proving that discrimination based on sex has created a hostile or abusive
work environment). In this case, the Court rejected the view that the language of
Title VII in sexual harassment cases is limited to "economic" or "tangible" dis-
crimination. See also Carin Clauss' discussion of workplace harassment, infra notes
58 & 59 and accompanying text.

3 ' Rabidue, 805 F.2d at 622.
Id. at 626-27. See also Ellison v. Brady, 924 F.2d 872, 879 (9th Cir. 1991)

(adopting a "reasonable woman" standard for evaluating whether a work envi-
ronment is abusive, because a "sex-blind reasonable person standard tends to be
male-biased and tends to systematically ignore the experiences of women").

[Vol. 1:1



Feminist Jurisprudence

gendered.4' As an example of this level of inquiry, in my current research I
am concentrating primarily on the concept of injury in tort law. I am asking
questions about the kinds of things that get recognized and do not get
recognized as injuries in tort law and the ways in which we evaluate inju-
ries.

Several years ago someone posed to me the challenge: "You're a femi-
nist and you also teach torts, so how do you teach torts differently?" In
response to this challenge, I decided to examine gender issues in tort law.
I decided that'the area of reproductive harm would be a logical and ripe
area for such an investigation. Initially, I tried to start doing it at the usual
analytical, doctrinal, and legal research level. But I got stuck, and I then
realized that what I was really looking for was not what was in the legal
opinions, but rather the thing that never was in the opinions-the real-
lived experiences of the people who suffered the harm and how they ex-
perienced the way they were injured. What I was interested in exploring
just did not fit with the traditional legal categories, and therefore dropped
out of the doctrinal picture.

So I decided that rather than research out of books, I was going to
have to do legal research with people. Consider this an example of femi-
nist methodology in operation. I embarked on what is now a book project
on the experiences of women who have suffered reproductive harm from
the drug DES and also from the Dalkon Shield.41 I have primarily concen-
trated on DES, although I know there are some of you in the audience who
are more affected by the Dalkon Shield.

41 I have developed these ideas in Finley, supra note 7.
41 DES litigation arose from the use by pregnant women of the synthetic estro-

gen drug diethylstilbestrol (DES) from the late 1940s through the early 1970s. Doc-
tors prescribed the drug to prevent miscarriages, although it proved ineffective. It
has been established that DES causes a rare form of cervical and vaginal cancer, as
well as reproductive organ malformations and fertility problems, among the
daughters of the women who ingested the drug while pregnant. There is also
growing concern about similar problems among the sons born to these women.
See Sindell v. Abbott Laboratories, 26 Cal.3d 588, 607 P.2d 924, 163 Cal.Rptr. 132,
cert. denied, 449 U.S. 912 (1980); D. Dutton, Worse Than the Disease: Pitfalls of
Medical Progress 31-90 (1988).

The Dalkon Shield litigation arose from the use by women of the intrauterine
contraceptive device (IUD) known by that name. The shape of the Dalkon Shield
and the composition of its tail string made it highly conducive to bacteria, and it
also posed a high risk of uterine perforations. Hysterectomies and infertility often
resulted. See R. Bacigal, The Limits of Litigation: The Dalkon Shield Controversy
(1990).

1991]



Columbia Journal of Gender and Law

I have been going around the country for the last year or so interview-
ing DES victims. I speak with them about their experiences and about the
ways in which they feel injured. For those who have sued, I ask about
their motivations for suing, what they expected, what their expectations
were from the legal system, and how they feel the legal system has been
able to deal with their needs. I think about what I have been hearing from
these women, and I then apply feminist theory to my findings. This process
has enabled me to come up with some insights about the concept of injury
in tort law and the way the tort system evaluates damages.

The concept of injury and the way of evaluating injury in tort law are
what I call "market-referenced." The primary focus of tort law is on things
that keep people out of market activity, ways of earning income, and in-
come-producing activities. That perceived split between the public world
which encompasses market-related activities and the private world which
includes domestic activities structures a lot of our life and thinking.
Women's reproductive capacity is not a market-oriented activity. It is not
highly valued in a market-referenced system. Infertility does not keep you
out of work. So you are not going to have a big lost income item of damages
in a tort suit. It also means your case is not going to be worth much for a
lawyer to bring. If a lawyer does bring it, it is not going to be worth much
in a jury's evaluation of damages.

An example of the devaluation of women's reproductive capacity is that,
so far in the DES area, very few cases where the injury is infertility, as distin-
guished from cancer, have even gone successfully to a jury verdict.42 One
"bellwether"4 case was brought by a woman who had three ectopic preg-
nancies caused by her DES exposure. In the process, she lost both of her
fallopian tubes, and she went through years of expensive infertility treat-
ment. Finally, she and her husband adopted a child. After six or seven
years of litigation, a jury awarded her $50,000. Then, of course, the defen-
dants won a retrial on appeal, and her lawyer would not retry the case,
because it was not worth enough to retry it. She settled for $45,000. As she
put it, she did not even have enough to buy a new car afterwards.

She spoke eloquently to me about her experience with the tort system.
She said that the message that she got from society was that the most
important thing about being a woman was her reproductive capacity, and

42 My information is based on interviews I conducted with DES plaintiffs and
attorneys. Several infertility cases have been settled, but the amounts of settle-
ments cannot usually be divulged.

43Lawyers use jury verdicts such as the one in the case described in the text as
"bellwether" for gauging the likely value of other cases.

[Vol. 1:1



Feminist Jurisprudence

that what women are really valued for is their reproductive, nurturing
role. And then, as she put it, when she had the opportunity to make the
legal system "put society's money where its mouth was," they told her
that all of that was really worth only $50,000. Why? Because she did not
have any lost income. She had a little bit of time out of work when she had
to have surgery, but she did not have the major kinds of damage items
that tort law considers really important. She did not lose marketplace time,
even though her entire reproductive capacity had been taken from her.

This woman's experience is an example of how women's experiences
have not been factored into the basic structure of the tort system. The
seemingly neutral choice to categorize types of injury and types of harm,
when referenced toward male experiences, is going to leave out or barely
acknowledge very significant kinds of women's injuries. Another exam-
ple can be seen in the emotional distress area. Tort law is hesitant to com-
pensate emotional distress," unless it is accompanied by physical injury.
Somehow physical harm is seen as more real. This works in combination
with the medical profession's tendency to diagnose women's complaints
of physical harms as psychological in origin. So, rather than getting treat-
ed for a back injury, a woman may get valium and the advice to consult a
psychiatrist.45 In other words, even when women do suffer physical harm,
it may be seen as only emotional. Infertility, for example, is a physical
problem, but its impact is often dismissed as emotional. The injury of in-
fertility is likely to be comprehended by tort damages categories as "pain
and suffering" or as "emotional distress." Thus, through the congruence
of the medical system, the tort system, and gender bias, another aspect of
women's injuries often goes unaddressed in tort law. Moreover, tort re-
form statutes, which often put a cap on the amount of noneconomic dam-
ages like pain and suffering that a plaintiff can recover, and thus tend to
further privilege economic damages, can subsequently intensify these

4'D. Dobbs, R. Keeton & D. Owen, supra note 33, at 54-55. See, e.g., Payton v.
Abbott Labs, 386 Mass. 540, 437 N.E.2d 171 (1982) (claims of DES-exposed plain-
tiffs dismissed because the injuries were classified as trivial emotional harm and
therefore not compensable unless causally related to physical harm).

41 For discussions of how the medical profession responds to women patients,
see B. Ehrenreich & D. English, Complaints and Disorders: The Sexual Politics of
Sickness (1973); B. Ehrenreich & D. English, For Her Own Good: 150 Years of the
Experts' Advice to Women (1978); S. Fisher, In the Patients' Best Interest: Women
and the Politics of Medical Decisions (1986). For discussion of the social and medi-
cal construction of pain, see M. Pernick, A Calculus of Suffering: Pain, Profession-
alism, and Anesthesia in Nineteenth Century America (1985).

1991]



Columbia Journal of Gender and Law

market-referenced gender bias effects in the tort system." Those who earn
the least, or are "worth" the least, in the marketplace-women and children-

most need the damages for nonpecuniary harm to redress adequately their
injuries.

In this short synopsis of the kinds of work I am now doing to exam-
ine gender and tort law, I hope that it is evident how the theory informed
the practice, and the practice then informed the theory, and the theory
drew from the insights of the real people affected by the tort system.
The lived experience can also be used to make different kinds of argu-
ments in cases. In legal education, consideration of gender is necessary
to educate future lawyers better about the need to be aware of the po-
tential gender-biased effects of seemingly neutral rules. With such an
awareness, lawyers can more effectively represent the whole diversity
of their clientele-women as well as men. It also allows them to argue
more effectively before legislatures that, for example, tort damage reform
statutes exacerbate the devaluation of women's injuries. Asking "the
woman question" often means asking-and seeing-what no one has
dared to mention before.

Carin Clauss
My area of practice, teaching, and research has been employment law,

with an emphasis in recent years on sex discrimination. One of the chal-
lenges and frustrations of work in this area has been the failure of our
legal system to fashion a definition of nondiscrimination that effectively
addresses workplace inequities and burdens affecting women. When Title
VII of the Civil Rights Act was enacted in 1964, neither the courts nor the

I In 1989, the Coalition for Consumer Justice, in Washington, D.C., evaluated
the effect of limitations on noneconomic damages and concluded that such limita-
tions have a particularly harmful impact on women and children because their
losses may not be easily validated by their economic worth. Caps on noneconomic
damages prevent such victims from receiving full compensation for injury. See
also N. Armatas, An Empirical Study of Gender Bias in the Awarding of Civil
Damages (Harv. Law School 1989) (unpublished manuscript on file with the au-
thor) (concluding that male jurors value a case differently depending on the
plaintiff's gender, i.e., male jurors gave statistically significant higher awards for
diminished earning capacity to male plaintiffs in a controlled experiment in which
juries evaluated cases factually identical except for the gender of the plaintiff);
Nagel & Weitzman, Women as Litigants, 23 Hastings L.J. 171, 183 (1971) (finding
that adult female plaintiffs receive medical expenses and lost wages awards 2%
below national average for similar injuries, while adult male plaintiffs receive
awards 6% above national average).

[Vol. 1:1



19911 Feminist Jurisprudence 25

Equal Employment Opportunity Commission (EEOC), the federal agency
having the primary responsibility for administering Title VII, were pre-
pared for the large volume of sex discrimination complaints.47 These
complaints were initially met with ridicule and disinterest, if not outright
hostility. They were also met with little understanding of what constituted
sex discrimination. In part, this was because none of the legislative hearings
on the various civil rights bills had addressed the issue, since sex discrimina-
tion was not included in the proposed legislation.' It was added to the Civil
Rights Bill only during the last few days of debate in the House5 1-in what

"In the first year of the EEOC's operation, 37% of all individual complaints
contained a charge of sex discrimination. EEOC, First Annual Report 6 (1966). Since
then such complaints have consistently averaged 25% of the total. See H. Graham,
The Civil Rights Era 228 & n.90 (1990).

48 In his book, The Civil Rights Era, which examines federal civil rights en-
forcement from 1960 to 1972, Hugh Davis Graham cites a number of examples
illustrating the tone of ridicule used in discussing the Act's prohibition of sex-
based employment discrimination. For example, when the first chair of the EEOC,
Franklin Roosevelt, was asked about sex at a news conference marking Title VII's
effective date, on July 2, 1965, he replied, "I'm all for it." H. Graham, supra note 47,
at 211. Shortly thereafter, the EEOC's executive director, Herman Edelsberg, in-
formed the press that, "There are people [at the EEOCI who think that no man
should be required to have a male secretary--and I am one of them." Id. at 217.
Mr. Edelsberg outraged the women's community again when in 1966 he commented
at New York University's Annual Conference on Labor that the sex provision in
Title VII was a "fluke" that was "conceived out of wedlock." Id. at 223. For a
response to this remark, see Margolin, Equal Pay and Equal Employment Oppor-
tunities for Women, in Proceedings of New York University Nineteenth Annual
Conference on Labor 297, 306 (T. Christensen ed. 1967). The newspapers had a
heyday with a wide variety of sex jokes. H. Graham, supra note 47, at 211.

49The program budget officer at the Bureau of the Budget, in reviewing the
EEOC's request for fiscal 1968, recommended that the EEOC reduce its complaint
backlog by devoting "less time.., to sex cases since ... they deserve a lower
priority than discrimination because of race or other factors." H. Graham, supra
note 47, at 203-04. The Department of Justice did not even consider sex discrimina-
tion charges in selecting targets for enforcement action until after 1972, and it in-
cluded sex discrimination counts in only two of the 76 suits filed between 1966 and
1972. U.S. Comm'n on Civil Rights, The Federal Civil Rights Enforcement Effort-
1977, at 267-74 (1977).

" H. Graham, supra note 47, at 39-40, 97, 134-39. Only three states-Hawaii,
New York, and Wisconsin-had amended their Fair Employment Practice Acts by
1964 to include a prohibition against sex-based employment discrimination. Bu-
reau of Nat'l Affairs, The Civil Rights Act of 1964, at 59 (1964).

11 A summary of the legislative history relating to the addition of the word
"sex" to Title VII is set forth in the Supreme Court's decision in County of Wash-
ington v. Gunther, 452 U.S. 161, 171-76 (1981).



Columbia Journal of Gender and Law

some say was an unsuccessful attempt to defeat the bill.s2 The lack of under-
standing about sex discrimination was further compounded by the fact
that few federal judges had any experience with sex discrimination. At the
time of the bill's enactment, only three women had ever served on the
federal judiciary s33 Moreover, there was very little existing scholarly work
addressing the issues of sex discriminatign in the workplace.5 '

As a result of all this, both the courts and the agencies struggled with
the concept of sex discrimination. The courts, for example, found no dis-
crimination in policies that excluded married women but not married men
from flight attendant positions," or that excluded from employment
women with preschool age children, but not men with preschool age chil-
dren,-' or that distinguished between non-pregnant workers and pregnant
workers. s7 Typically, sexual harassment complaints were dismissed on the
ground that they were insufficiently related to the workplace, involv-
ing only individual "personal urge[s]"-" and "inharmonious...
relationship[s].""

s2 See, e.g., Miller, Sex Discrimination and Title VII of the Civil Rights Act of
1964, 51 Minn. L. Rev. 877, 880-82 (1967). But see Berger, Equal Pay, Equal Em-
ployment Opportunity and Equal Enforcement of the Law for Women, 5 Val. U.L.
Rev. 326, 333-37 (1971); H. Graham, supra note 47, at 97, 134-39.

-" They were Judge Florence Allen, U.S. Court of Appeals for the Sixth Circuit;
Judge Burnita Matthews, U.S. District Court for the District of Columbia; and Judge
Sarah Hughes, U.S. District Court for the Northern District of Texas.

s4 One of the few early law review articles on sex discrimination in employ-
ment was Murray & Eastwood, Jane Crow and the Law: Sex Discrimination and
Title VII, 34 Geo. Wash. L. Rev. 232 (1965).

55 This view, expressed in a dissenting opinion by Judge (now Justice) Stevens,
was rejected by the court's majority in Sprogis v. United Air Lines, 444 F.2d 1194
(7th Cir. 1971), cert. denied, 404 U.S. 991 (1971).

-6 The Fifth Circuit's holding to this effect was rejected by the Supreme Court.
Phillips v. Martin Marietta Corp., 411 F.2d 1, 3-4 (1969), reh'g denied, 416 F.2d
1257 (5th Cir. 1969), vacated and remanded, 400 U.S. 542 (1971).

s General Electric v. Gilbert, 429 U.S. 125 (1976), reh'g denied, 429 U.S. 1079
(1977). Congress overturned the Court's premise in Gilbert when it enacted the
Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000e(k), making it clear that
discriminatory classifications based on gender-related biological characteristics such
as pregnancy constitute sex discrimination for all Title VII purposes. See also
Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983).

" Come v. Bausch & Lomb, 390 F. Supp. 161, 163 (D. Ariz. 1975), vacated and
remanded, 562 F.2d 55 (9th Cir. 1977).

I Barnes v. Train, 13 Fair Empl. Prac. Cas. (BNA) 123,124 (D.D.C. 1974), rev'd
sub nom. Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977). The first case to hold that
sexual harassment was treatment prohibited by Title VII was Williams v. Saxbe,

[Vol. 1:1



Feminist Jurisprudence

In the same spirit, the EEOC refused to prohibit classified advertise-
ments segregated by sex, as it had those by race, noting that culture and
mores, personal inclinations, and physical limitations operate to make many
job categories primarily of interest to one sex or the other.60 Neither the
EEOC nor the Department of Labor were prepared to rule that the so-
called state protective laws, barring women from specific occupations as
well as from any job requiring night work, heavy lifting, or constant
standing, had been preempted by Title VII or that such standards could
not qualify as a bona fide occupational qualification.61 The EEOC also would
not accept any sex-based wage discrimination claims unless they met the
standards of "equal pay for equal work" set forth in the Equal Pay Act.
The Department of Labor could not decide whether it was sex discrimina-
tion to pay lower monthly pension benefits to women than to men despite
the fact that women had made equal contributions to the pension plan.6
Meanwhile, several agencies complained about the already burdensome
volume of sex discrimination charges. The Department of Justice which,

413 F. Supp. 654 (D.D.C. 1976), rev'd in part on other grounds, vacated in part, sub
nom. Williams v. Bell, 587 F.2d 1240 (D.C. Cir. 1978). The Supreme Court has since
confirmed that workplace harassment is prohibited by Title VII. See Meritor Say.
Bank v. Vinson, 477 U.S. 57 (1986); Lucinda Finley's discussion of workplace ha-
rassment, supra notes 34-39 and accompanying text.

6 EEOC Guidelines on Discrimination Because of Sex, 30 Fed. Reg. 14926 (1965).
The problem of sex-segregated classified ads is discussed in H. Graham, supra
note 47, at 214-21. A change in the EEOC's position, banning sex-segregated ad-
vertising except where there was a bona fide occupational qualification, 33 Fed.
Reg. 11539, was announced on August 14, 1968, but did not become effective until
January 24, 1969, because of an intervening court suit. Fuentes, Federal Remedial
Sanctions: Focus on Title VII, 5 Val. U.L. Rev. 374, 386-88 & n.70 (1971).

61 H. Graham, supra note 47, at 213-14. The EEOC changed its policy in August
1969, "finding that state laws that restrict the employment of women are superseded
by Title VII." Fuentes, supra note 60, at 384-85. The courts agreed. See, e.g., General
Elec. v. Hughes, 454 F.2d 730 (6th Cir. 1972); Rosenfeld v. S. Pac. Co., 444 F.2d 1219
(9th Cir. 1971); LeBlanc v. S. Bell Tel. & Tel., 333 F. Supp. 602 (E.D. La. 1971), aff'd,
460 F.2d 1228 (5th Cir. 1972), cert. denied, 409 US. 990 (1972).

62 29 U.S.C. § 206(d). This restriction was subsequently deleted from the
Guidelines in 1972. EEOC Guidelines on Discrimination Because of Sex, 37 Fed.
Reg. 6835, 6837 (1972) (currently codified at 29 C.F.R. § 1604).

6U.S. Comm'n on Civil Rights, supra note 49, at 158-60,318-19. The Supreme
Court ruled that such practices were discriminatory in Los Angeles Dep't of Water
and Power v. Manhart, 435 U.S. 702 (1978). See also Arizona Governing Comm. v.
Norris, 463 U.S. 1073 (1983) (applying the Manhart principle to invalidate an Ari-
zona pension system that called for equal contributions, but paid lower pensions
to women).

19911



Columbia Journal of Gender and Law

until March 1972, was the only federal agency authorized to bring enforce-
ment suits under Title VII, virtually ignored sex discrimination for the first
seven years following the law's enactment."

While these early administrative actions were subsequently reversed, 6

and while the more egregious misconstructions of the Act were corrected
by the Supreme Court in Phillips v. Martin Marietta Corp.," and Los Angeles
Department of Water & Power v. Manhart,6" and by Congress in the Pregnan-
cy Discrimination Act of 1978,0 the search for a comprehensive concept of
sex discrimination that will meaningfully address the barriers to employ-
ment confronting women in the workplace continues to this day. Moreover,
the search raises questions about policies that exclude fertile women from
the workplace because of potential harm to a future fetus," that close off
nontraditional employment opportunities," that deny reasonable leave for
women who bear and care for their children," and that measure the legal-
ity of workplace pornography by the effect it would have on a "reasonable
person"-as opposed to a "reasonable woman"-"when considered in the
context of a society that condones and publicly features and commercially
exploits open displays of written and pictorial erotica .... ."72

"See U.S. Comm'n on Civil Rights, supra note 49, at 274.
sSee generally Fuentes, supra note 60; EEOC Guidelines on Discrimination

Because of Sex, supra note 62.
"400 U.S. 542 (1971).
67435 U.S. 702 (1978).
"42 U.S.C. § 2000e(k).
69 Several circuit courts refused to invalidate such policies. International Union,'

UAW v. Johnson Controls, Inc., 886 F.2d 871 (7th Cir. 1989) (en banc); Wright v.
Olin Corp., 697 F.2d 1172 (4th Cir. 1982); Hayes v. Shelby Memorial Hospital, 726
F.2d 1543 (11th Cir. 1984). However, these decisions all have been mooted by the
Supreme Court's recent decision in International Union, UAW v. Johnson Con-
trols, 111 S.Ct. 1196 (1991) (holding that fetal protection policies can never be legal
under Title VII of the Civil Rights Act).

EEOC v. Sears, Roebuck & Co., 628 F. Supp. 1264 (N.D. Ill. 1986), aff'd, 839
F.2d 302 (7th Cir. 1988).

7' But state laws mandating such protection were upheld in Cal. Fed. Sav. &
Loan Ass'n v. Guerra, 479 U.S. 272 (1987) (upholding a California law extending
rights to employees disabled by pregnancy, even if those rights are not given to
employees disabled by other medical conditions, because it furthers Title VII's
purpose of achieving employment opportunities for women who are pregnant).

n Rabidue, 805 F.2d at 627, See Lucinda Finley's discussion of the "reasonable
person" standard and Rabidue, supra notes 34-40 and accompanying text. See also
Highlander v. K.F.C. Nat'l Management Co., 805 F.2d 644 (6th Cir. 1986). But some
courts have now rejected the Sixth Circuit's "reasonable person" standard and

[Vol. 1:1



Feminist Jurisprudence

It is in this context that we need to view and understand the contribu-
tion of feminist scholarship since the late 1960s. The earlier absence of
women's voices-and of women's experiences in the workplace-was re-
flected in the initial and continuing failure of the courts and the enforce-
ment agencies to address the more fundamental barriers to equal
employment opportunities for women. Thus, an important function of
women in academia is not merely to provide role models for students, but
to perform research, to write, and to think critically about women's issues.
And when I say research, I do not only mean doctrinal work that provides
the theoretical basis and, sometimes, breakthrough, for analyzing work-
place barriers and inequities, but also empirical research that describes the
reality of women in the workplace.

It seems so simple to start with the reality of sex discrimination, like the
reality of race discrimination, and from there to develop legal theories for
remedying that discrimination. But just defining the reality of sex discrimi-
nation-e.g., are female-dominated jobs really paid less because performed
by women? or will women actually accept traditional male jobs if offered the
opportunity?-is something that seems to have escaped many male schol-
ars. One academic expert told the U.S. Commission on Civil Rights in 1984
that he had "not yet seen a persuasive demonstration that wage rates based
on private bargaining and free competition are, in fact 'unfair' to women."13
And in a Wall Street Journal report, published a few days before Title VII
went into effect, a telephone company official dismissed as "fantasy" the
notion that women would want to become linesmen.74

The reality for these two men-who doubted the existence of pay dis-
crimination or the interest of women in better paying jobs-was not my
reality. My reality was that when I was about to graduate from Columbia
Law School, I and the other female students were advised by the place-
ment office to ask for $400 less than the then going rate for male graduates
in the Wall Street firms. My reality was that when I graduated from Vas-
sar College, the only major recruiting for women was for librarians and
teachers. Vassar graduates in 1960 were never offered the chance to con-

have adopted a "reasonable woman" standard. See, e.g., State v. Wanrow, 88 Wash.
2d 221, 239-41, 559 P.2d 548, 558-59 (1977) (en banc) (superseded by statute as
stated in State v. Bonilla, 23 Wash. App. 869 (1979)); Ellison v. Brady, 924 F.2d 872
(1991).

73 Rabkin, Comparable Worth as Civil Rights Policy: Potentials for Disaster, in
U.S. Comm'n on Civil Rights, Comparable Worth: Issue for the 80's, 187, 195 (1984)
[hereinafter U.S. Comm'n on Civil Rights, Comparable Worth].

74 H. Graham, supra note 47, at 211.

1991]



Columbia Journal of Gender and Law

sider a junior executive position with Texaco or Xerox. In other words, as
Jane Larson and Clyde Spillenger commented in defending the historians'
brief that they helped write in Webster v. Reproductive Health Services:75

[Slubjective perspective shapes the way in which a scholar empiri-
cally perceives and interprets reality. An observer is shaped by
social location and by all the particularities of experience that cre-
ate individual perspective. Thus, for example, a historian who has
first-hand experience of racism, ethnocentrism, or sexism in an in-
stitutional setting is more likely to detect evidence of these phe-
nomena in historical materials. Another historian, less concerned
with such experiences in either the present or the past, may see
something less pernicious or systemic when examining the same
historical evidence.7'

Women scholars-writing from the perspective and with the insight
provided by their own experiences-have in the last decade produced a
large body of writing that has helped redefine the concept of sex-based
employment discrimination." Women academics have also participated

7 492 U.S. 490 (1989) (upholding a Missouri statute restricting the use of public
employees and facilities for performing abortions not necessary to save the life of
the mother and requiring all physicians to determine a fetus' viability before per-
forming an abortion).

I Larson & Spillenger, "That's Not History": The Boundaries of Advocacy and
Scholarship, 12 The Public Historian 33, 37-38 (Summer 1990).

7 See, e.g., C. MacKinnon, Sexual Harassment of Working Women: A Case of
Sex Discrimination (1979); Blumrosen, Wage Discrimination, Job Segregation, and
Title VII of the Civil Rights Act of 1964, 12 U. Mich. J.L. Ref. 397 (1979); Taub,
Keeping Women in Their Place: Stereotyping Per Se as a Form of Employment
Discrimination, 21 B.C.L. Rev. 345 (1980); Law, Rethinking Sex and the Constitu-
tion, 132 U. Pa. L. Rev. 955 (1984); Schultz, Telling Stories About Women and
Work: Judicial Interpretations of Sex Segregation in the Workplace in Title VII
Cases Raising the Lack of Interest Argument, 103 Harv. L. Rev. 1750 (1990) (de-
bunking the "lack of interest" defense in hiring and promotion cases); Becker, From
Muller v. Oregon to Fetal Vulnerability Policies, 53 U. Chi. L. Rev. 1219 (1986)
(demonstrating the per se illegality of employment policies that exclude fertile and
pregnant women from numerous jobs because of their exposure to toxic substances
that could be harmful to a future fetus). See also the equal treatment/special treat-
ment debate that surrounded Cal. Fed. Say. & Loan Ass'n v. Guerra, 479 U.S. 272
(1987), and other efforts to address the effects of pregnancy and maternity on
workplace participation. Williams, Equality's Riddle: Pregnancy and the Equal
Treatment/Special Treatment Debate, 13 N.Y.U. Rev. L. & Soc. Change 325 (1984-
85); Taub, From Parental Leaves to Nurturing Leaves, 13 N.Y.U. Rev. L. & Soc.

[Vol. 1:1



Feminist Jurisprudence

more directly in the litigation of most of the important sex discrimination
issues to come before the courts, either by authoring briefs for the princi-
pals or for amici curiae, by presenting oral argument, or by testifying as
experts. 7 While the courts have not always credited the more important
feminist scholarship, 9 there have been a number of other cases, for exam-
ple, in the area of sexual harassment and sexual stereotyping, where the

Change 381 (1984-85); Krieger & Cooney, The Miller-Wohl Controversy: Equal
Treatment, Positive Act and the Meaning of Women's Equality, 13 Golden Gate U.
L. Rev. 513 (1983).

In addition to this legal scholarship, the past decade has produced a large
body of important work by feminist scholars in all fields, including economics,
sociology, history, and psychology. See, e.g., A. Kessler-Harris, Out of Work: A
History of Wage-Earning Women in the US. (1982); B. Wertheimer, We Were There:
The Story of Working Women in America (1977); R. Kanter, Men and Women of
the Corporation (1977); R. Steinberg Ratner, Equal Employment Policy for Women
(1980); J. Baer, The Chains of Protection: The Judicial Response to Women's Labor
Legislation (1978); Women in the Workplace (P. Wallace ed. 1982); England, The
Failure of Human Capital Theory to Explain Occupational Sex Segregation, 17 J. of
Hum. Resources 358 (1982); B. Bergmann, The Economic Emergence of Women
(1986); Women's Work, Men's Work: Sex Segregation on the Job (B. Reskin & H.
Hartmann eds. 1986); Sex Segregation in the Workplace: Trends, Explanations,
Remedies (B. Reskin ed. 1984); The Economics of Women, Men and Work (F. Blau
& M. Ferber eds. 1986).

" Catharine MacKinnon wrote the brief for the plaintiff in Meritor Say. Bank
v. Vinson, 477 U.S. 57 (1986); Ruth Bader Ginsburg argued as amicus curiae for the
plaintiffs in Frontiero v. Richardson, 411 U.S. 677 (1973); Wendy Williams was
counsel to the plaintiffs in Geduldig v. Aiello, 417 U.S. 484 (1974) and filed an
amicus brief in Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737 (1976); Herma Hill
Kay, Susan Ross, and Wendy Williams all filed briefs in Cal. Fed. Sav. & Loan
Ass'n v. Guerra, 479 U.S. 272 (1987); and Nadine Taub, Lucinda Finley, and I filed
briefs in International Union, UAW v. Johnson Controls, Inc., 111 S.Ct. 1196 (1991).
I also served as counsel in International Union, UAW v. Michigan, 886 F.2d 766
(6th Cir. 1989) and Grant v. General Motors Corp., 908 F.2d 1303 (6th Cir. 1990).
Sarah Burns represented the plaintiffs in Robinson v. Jacksonville Shipyards, Inc.,
55 Emp. Prac. Dec. (CCH) P40, 535 (1991) (LEXIS, Genfed library, Dist. file). Our
other two co-panelists have also served as advocates. Joan Bertin, in addition to
writing extensively and teaching, has participated, at the Women's Rights Project
of the ACLU, in virtually every major case involving sex-based employment dis-
crimination. And Elizabeth Schneider represented the female defendant in State v.
Wanrow, 88 Wash.2d 221, 559 P.2d 548 (1977). See in this connection Schneider,
supra note 5, at 604-10.

" See, e.g., Milkman, Woman's History and the Sears Case, 12 Feminist Stud-
ies 375 (Summer 1986).

1991]



Columbia Journal of Gender and Law

work of women scholars has clearly influenced the successful outcome of
those cases.'

Just recently, in a widely reported sexual harassment case,8' the trial
judge, after setting out in some detail the qualifications and expert testi-
mony of a social psychologist, concluded as follows:

Dr. Fiske's testimony provided a sound, credible theoretical
framework from which to conclude that the presence of pictures
of nude and partially nude women, sexual comments, sexual jok-
ing, and other behaviour previously described creates and con-
tributes to a sexually hostile work environment. Moreover, this
framework provides an evidentiary basis for concluding that a
sexualized working environment is abusive to a woman because
of her sex.2

While some scholars are uncomfortable with legal advocacy-fearing
that their work will be perceived as ideological or lacking in objectivi-
ty '-it is my belief that scholars can (and I would argue should) seek to
use their scholarship to change the lives of working women. Their partici-
pation as advocates has the same objective that Sylvia Law had when she
filed the historians' brief in the Webster 8 case: "to preclude the court from
relying on history [economics, sociology] in a stupid way, to tell the truth,
and to support a political mobilization of [specific] voices."M We have a
motto at the University of Wisconsin, that "the boundaries of the Univer-
sity are the boundaries of the state." This motto embodies the "Wisconsin

1 See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) (holding that
the use of sexual stereotypes can be evidence of gender discrimination); Robinson
v. Jacksonville Shipyards, Inc., 55 Emp. Prac. Dec. (CCH) P40, 535 (1991) (LEXIS,
Genfed library, Dist. file) (finding a hostile work environment in violation of Title
VII based on visual displays and sexual comments). In finding discrimination, the
courts in both these cases relied heavily on the testimony of Dr. Susan Fiske, a
social psychologist. For an interesting discussion of the role played by Dr. Fiske in
Price Waterhouse, see Chamallas, Listening to Dr. Fiske: The Easy Case of Price
Waterhouse v. Hopkins, 15 Vt. L. Rev. 89 (1990).

81 Robinson v. Jacksonville Shipyards, Inc., 55 Emp. Prac. Dec. (CCH) P40, 535
(1991) (LEXIS, Genfed library, Dist. file).

Id. at para. 62 (Finding of Fact).
See Mohr, Historically Based Legal Briefs: Observations of a Participant in

the Webster Process, 12 The Public Historian 19 (Summer 1990).
84 Webster, 492 U.S. 490.

8 Law, Conversations Between Historians and the Constitution, 12 The Public
Historian 11, 12 (Summer 1990).

[Vol. 1:1



Feminist Jurisprudence

idea" to use the University's resources and scholarly work to promote
legislative and social reform. The most prominent of such Wisconsin
scholars was John R. Commons, who revolutionized the condition of the
American worker by initiating unemployment insurance, workers com-
pensation, and collective bargaining. He never apologized for his advoca-
cy, and I do not believe that any of us should either."

I would like to use my remaining time to discuss two areas of sex-
based employment discrimination-pay equity and occupational barriers.
I leave my third area of interest (fetal protection policies) to be discussed
by Joan Bertin.

When wage discrimination first became a rallying point for a growing
women's movement in the 1960s, advocates for the issue took an overly
simplistic approach and distributed to women everywhere little green and
white buttons which had written on their front "590." The 59¢ referred to
the then-ratio of women's to men's annual earnings." In other words, the
reference was to macroeconomic data and not to the earnings of any par-
ticular woman in any specific occupation or workplace.

This may have been a good strategy for mobilizing women into a po-
litical movement. It may have been an effective device for highlighting the
depressed economic condition of working women" with its harsh conse-
quences for large numbers of children and the elderly. It did little, howev-
er, to document the fact of sex-based wage discrimination. This was so

J. Commons, Myself: The Autobiography of John R. Commons (1964).
97Historically, the so-called wage gap between men's and women's earnings

has been reported in terms of annual earnings. Those figures do not adjust for
differences in total hours worked; hourly earnings by sex are generally not pub-
lished. In 1970, the annual earnings of women who worked full-time was 59.4% of
the annual earnings of men who worked full-time. Nat'l Comm. on Pay Equity,
Briefing Paper #1: The Wage Gap 3 (1989). This percentage of women's to men's
earnings increased to 60% in 1979, to 64.8% in 1987, and to 68.3% in 1989. Women's
weekly earnings as a percentage of men's is somewhat higher, increasing from
62.5% in 1979 to 71.8% in 1989. Using hourly rates (which, however, do not include
the earnings for women who work on a wage or salary basis), the ratio of women's
to men's earnings has increased from 64.1% in 1979 to 76.8% in 1989. Women's
Bureau, U.S. Dep't. of Labor, 90-3 Facts on Working Women, Earnings Differences
Between Women and Men 2 (Oct. 1990).

88 In 1987, families maintained by women represented 52% of all families liv-
ing below the poverty level. And while a married couple family with two children
had a median income of $36,807, a female headed family with two children had a
median income of $11,257. Women's Bureau, U.S. Dep't. of Labor, 89-3 Facts on
Working Women, Working Mothers and Their Children 2 (Aug. 1989).

1991]



Columbia Journal of Gender and Law

because the earnings ratio-that 590 slogan-had too many explanations
other than wage discrimination." One explanation for some of the gap was
the fact that women worked in different occupations. True, we now know
that this occupational segregation contributes significantly to the under-
valuation of women's work.90 But that was not intuitively so in 1965. What
was so was that women were secretaries and men were lawyers. And no
one was going to interpret the Act's prohibition against sex-based wage
discrimination as requiring employers to pay secretaries the same as law-
yers.

A second explanation for some part of the earnings gap was that women
worked fewer hours. Of course, this may not have been by choice. Women
are disproportionately concentrated in more marginal firms. There may
have been less opportunity for longer and more regular hours. Or the
women may have been unable to work the longer hours because of inade-
quate child care facilities, or because they more often had the primary
responsibility for the care of home and hearth. But these indirect effects of
the traditional family, and of more limited employment opportunities, do
not constitute wage discrimination.

Finally, some part of the earnings gap can be explained by differences
in the human-capital characteristics of men and women workers-differ-
ences in education, training, prior job experience, years in the workforce,
uninterrupted work history, etc.91 Obviously, many of these differences may
have been the result of discriminatory educational and training policies 'or
of discriminatory employment policies. And such policies, along with the
now invalidated state protective laws, may have indirectly caused women
not to seek certain education and training. For example, you would not
expect women to invest in a mining engineering degree if most state laws
prohibited women from working underground, or if mining companies
never hired women. But again, while some of these differences in human
capital may have been the direct and indirect results of discriminatory

See Clauss, Comparable Worth-The Theory, Its Legal Foundation, and the
Feasibility of Implementation, 20 U. Mich. J.L. Ref. 7,20-21 (1986).

10 Newman & Vonhof, "Separate but Equal"-Job Segregation and Pay Equity
in the Wake of Gunther, 1981 U. Ill. L. Rev. 269. See also Blumrosen, supra note 77;
Nat'l Comm. on Pay Equity, supra note 87, at 5-6.

91 For a discussion of the various factors that may explain some of the earnings
gap between full-time male and female workers, see 1 U.S. Comm'n on Civil Rights,
Comparable Worth: Issue of the 80's (1984); Weiler, The Wages of Sex: The Uses
and Limits of Comparable Worth, 99 Harv. L. Rev. 1728, 1779-93 (1986).

[Vol. 1:1



Feminist Jurisprudence

policies, and of social role conditioning, they are not evidence of wage
discrimination.

In other words, the very rhetoric adopted by the women's movement
to focus attention on women's disproportionately low earnings obscured
the fact that a significant factor affecting women's earnings was intention-
al wage discrimination. By looking at macroeconomic data, with its many
explanatory factors, the 59¢ slogan permitted the opponents of pay equity
to argue that the only problem for working women was job access, not pay
discrimination, and that Title VII's guarantee of equal employment oppor-
tunity would, over time, correct that part of the earnings gap that was the
indirect result of discriminatory employment opportunities.9

But any notion that the only employment-related factors adversely af-
fecting women's earnings are job access and training simply discounts the
actual wage experience of women working with men in the exact same
establishment. Prior to the Equal Pay Act of 1963, when women did the
exact same work as men for the same company in the same establishment,
they were typically paid less than their male counterparts. And this was
so without regard to any differences in productivity, seniority, or merit.
Even after 1963, many companies continued to pay women less than men
for equal work. Moreover, the same wage setting practices that once rou-
tinely led employers to pay women less than men for equal work now
lead employers to pay less for various levels and types of skill, effort, and
responsibility in a female-dominated job than for equivalent levels of skill,
effort, and responsibility in a male-dominated job.

I have written elsewhere documenting disparate wage treatment based
on sex, both historically and in current pay systems, and explaining its
origins.9 But perhaps the best empirical documentation that discrimination
has adversely affected the wage rates for predominantly female jobs are
the numerous pay equity studies conducted by various state and local
governments in the 1980s. These studies, using a variety of techniques,
determined how men were paid in each of the systems examined, and
then applied that same criteria to the wage rates established by that same

92 See Abram, Affirmative Action: Fair Shakers and Social Engineers, 99 Harv.
L. Rev. 1312, 1326 & n.53 (1986) (equating comparable worth with affirmative ac-
tion and criticizing both as the pursuit of redistributive goals in the name of civil
rights). See also Bunzel, To Each According to Her Worth?, 67 The Public Interest
77, 84 (Spring 1982). For the application of this idea to racial discrimination see
Reynolds, Individualism vs. Group Rights: The Legacy of Brown, 93 Yale L.J. 995,
1003 (1984).

" See Clauss, supra note 89, at 7, 10-15, 27-34.

1991]



Columbia Journal of Gender and Law

system for female-dominated jobs. Every single study found that women's
jobs were paid from ten to twenty percent less than men's jobs with equiv-
alent characteristics." It is these studies of individual pay systems and not
some macroeconomic analysis that demonstrate the continuing effect of
sex on wage rates.

The focus on macroeconomic data has also allowed the opponents of
pay equity to claim significant progress for equal employment opportuni-
ty based on earnings data without ever examining the effects of the last
two decades on wage rates for individual male- and female-dominated
jobs. Thus, the most recent data on earnings show that the ratio of wom-
en's to men's earnings has increased from 59.4%, where it was in 1970, to
68.3% in 1989. And if you use hourly rates, it is 76.8%." So really, there is
no problem!

But this data tells us very little about the relative wage rates of male-
and female-dominated jobs in individual companies, or even about long-
term gains for women's earnings. For example, the data on men's earnings
include data from high-wage industries like auto, steel, and tire, whereas
the data on women's earnings include data from notoriously low-wage
industries like textiles. Following a major wave of economic dislocations
in the late 1970s, many of the jobs in these high-wage industries disappeared
while the lowest paid female jobs often were exported to other countries.%
It is unclear how much of the improvement in women's to men's earnings
ratio is due to a relative increase in women's wages, and how much to the
exportation of American jobs-both the best and the worst.

Moreover, can we say that this decreasing gap between women's and
men's earnings reflects a long-term, and not just short-term, gain? For ex-
ample, one of the concerns addressed by a wage discrimination theory is
that career ladders for predominantly female jobs are substantially shorter
than the career ladders for predominantly male jobs, even when those jobs
require equivalent skills and responsibilities. In this connection, the data

94 See, e.g., Report of Wisconsin's Task Force on Comparable Worth 53-59
(1985). For a discussion of the findings of this report as well as of the Comm'n on
the Economic Status of Women, Pay Equity: The Minnesota Experience (1983) and
New Jersey Comm'n on Sex Discrimination in the Statutes, An Analysis of Wage
Discrimination in New Jersey State Service (1983), see generally Clauss, supra note
89. See also Blumrosen, Remedies for Wage Discrimination, 20 U. Mich. J.L. Ref. 99
(1986); Rothchild, Pay Equity-The Minnesota Experience, 20 U. Mich. J.L. Ref. 209
(1986).

s Women's Bureau, U.S. Dep't. of Labor, supra note 87, at 2.
"See The Bureau of Nat'l Affairs, Inc., Daily Labor Report (Aug. 12, 1983).

[Vol. 1:1



Feminist Jurisprudence

show that younger women have a better female/male earning ratio than
older women. Thus, in the twenty-one- to twenty-nine-year-old age group,
women's hourly earnings are 83.2% of the hourly earnings of men in that
same age group. If the men and women have completed four or more
years of college the earnings ratio increases to 86 .2 %." But in the thirty- to
forty-four-year-old age group the women's to men's earnings ratio drops
to 72.4% (and drops proportionately for each level of educational attain-
ment below four years of college).9s And, when we get to the forty-five- to
sixty-four-year-olds, who typically are the women that Joan Bertin and I
represent, the earnings ratio is 60.1%." And for those of you who are
graduating from law school and are thinking, "At least, by choosing a
professional career, I will escape the wage disparity," let me just tell you
that in 1986, women attorneys earned 63% as much as men attoreys.100

And can we really say that a wage gap set at 68.3%-and not the old
59.4%-has wrung out any remaining sex taint in the establishment of
wage rates for female-dominated jobs? All the data that I have seen on
wage practices of individual employers--either in court transcripts or in
state studies-suggest that the sex-based wage disparities for jobs of com-
parable worth have remained unchanged. 01

The last point I want to make on the topic of wage discrimination
concerns the rhetoric used by the opponents of pay equity. This rhetoric
borrows heavily from the language surrounding the debate on affirmative
action.12 It uses words like "equal results" and "quotas" and creates the

9 Women's Bureau, U.S. Dep't. of Labor, supra note 87, at 5.
sId. at 5.

Id. at 5.
'"Nat'l Comm. on Pay Equity, supra note 87, at 7.
101 Id. at 5.
1021 It is not surprising that the critics of comparable worth would attempt to

use the rhetoric surrounding the more controversial concept of affirmative action.
In contrast to the unfortunate lack of support for affirmative action (which is com-
monly misunderstood by the public), comparable worth and pay equity have en-
joyed consistent popular support, even if that support has not been reflected in the
case law or in the Administration's civil rights agenda. A 1985 national survey
conducted by Marttila and Kiley, a Boston polling firm, found that 69% of U.S.
workers think that women are not paid as fairly as men. The reason most fre-
quently cited for this disparity is sex discrimination, and 80% of those surveyed
supported the principle of pay equity. This survey was commissioned by the Na-
tional Committee on Pay Equity, and its results were released on February 12,
1985. Nat'l Comm. on Pay Equity, A National Opinion Survey: Working Women

1991]



Columbia Journal of Gender and Law

imagery of victims. Clarence Pendleton, the former chair of the U.S. Civil
Rights Commission during the 1980s, called comparable worth "repara-
tions for middle-class white women" and a "financial quota system."103

This rhetoric was perfectly captured in a radio commercial sponsored
by the Wisconsin Manufacturer's Association and aired during the public
debate preceding Wisconsin's adoption in 1985 of legislation requiring pay
equity for state classified employees.' °' The commercial featured the voice
of a woman identified as Pearl. She was a plumber, and over the sound of
water gushing from a broken pipe which she was in the process of repair-
ing as she talked, she explained how she had become a plumber and how
rewarding the work was. She then stated that what really bothered her
were the women who demanded equal wages but who were not willing to
take jobs like hers.1 5

and Pay Discrimination (Feb. 1985). Similar results were reported in a subsequently
released Harris Poll (Aug. 19, 1985), which found that 70% of those polled believed
that women were not paid the same as men for comparable work. The Harris
Survey, Women's Movement on Verge of Major Comeback (Aug. 1985).

103 U.S. Comm'n on Civil Rights, Comparable Worth, supra note 73, at 127.
Act of July 17, 1985, No. 29, § 3019(2), 1985 Wis. Legis. Serv. 20, 474 (West)

(No. 3).
105 Cahill-Sweeney & Associates, Anti-Comparable Worth Radio Spots, Spot

#1. The 55 second spot ran thus:
Background: (continuous tapping sound, like pounding on a pipe)
(woman's voice is strong, tough-sounding)
Woman: Hi! I'm Pearl, the Plumber. You know, it used to be we had
men's work and women's work. But now, women like me are doing all
kinds of jobs and doing them well, too.
Man: Pearl, could you show me how to fix this?
Woman: Sure, just a minute! But you know what gets my goat, a bunch of
these high-falutin' Madison bureaucrats want to take us back to the idea
of "women's work" again. They call their plan comparable worth, but old
Pearl here says it's a joke. They claim they want women's work to pay as
well as men's work. If they had passed a law saying things like, "dental
hygienists have to [be] paid exactly the same as electrical engineers" and
stuff like that, well I don't buy the idea that there are "women's jobs."
And there's no fair way to compare one job with another. (sound of water
rushing out-pipe burst) Comparable worth, it's a slap in the face to
women like me who've worked hard to break down the old barriers. Help
me fight it. Write your state legislator or better, call the Legislative
Hotline-1-800-362-9696 and register your concern about comparable
worth. Call today--800-362-9696. (tapping begins again)

Voiceover: Sponsored by Comparable Worth Project, Madison, Wisconsin.

[Vol. 1:1



Feminist Jurisprudence

Look how this commercial mirrors the intellectual argument against
comparable worth. First, it reframes the issue as one of job access and,
after the corrective effect of Title VII, as one of job choice. Women can
become plumbers and, if they do, they will be paid the same as male
plumbers. But women do not really want equal treatment. They want equal
results. They do not want to become plumbers; they want plumbers' wag-
es for the easier work they do now. In other words, women want men's
wages but are not willing to take men's jobs. Once again, the rhetoric con-
ceals the reality. Comparable worth does not ask that women be paid the
same as plumbers or any other specific occupation. Rather, it asks that
female-dominated jobs be compensated using the same criteria as are used
by the employer in setting wage rates for male-dominated jobs. If male
jobs are compensated at x amount for a specific level and type of skill, the
female jobs should be compensated by the same amount for that same
level and type of skill. This may or may not result in secretaries being paid
the same as plumbers.

Secondly, the language and dramatis personae of the Wisconsin com-
mercial mirror the rhetoric against comparable worth in another way. The
commercial is subtly-and perhaps not so subtly-divisive, appealing to
both racism and classism. Its message, like Clarence Pendleton's when he
referred to "reparations for middle-class white women," 106 is that compa-
rable worth will benefit white women, who are already economically se-
cure and have the better paying female-dominated jobs, and not minority
and other less advantaged women. It also suggests that the money to pay
for these "reparations" will come from male craft jobs, which typically
have been held by middle-class whites, but which increasingly are attract-
ing minorities who have taken advantage of the opportunities offered by
Title VII to move into better paying jobs.

Once again, the reality is quite different. Under the Wisconsin study,
it was the lower skilled, and the lowest paid, female-dominated jobs (such
as worker compensation assistant, seamstress, data entry operator, and
licensed practical nurse) that received the largest percent wage increases,
ranging from 16.4% to 18.2%. The higher paid and more skilled female-
dominated jobs were less affected by sex discrimination, and received
generally smaller percent wage increases, ranging from 10.7% to 11%.107

Finally, the very word "reparations" is misleading in that it suggests
that men's wage rates can be reduced to help pay for comparable worth.

I06 U.S. Comm'n on Civil Rights, Comparable Worth, supra note 73, at 127.
107 Report of Wisconsin's Task Force on Comparable Worth, supra note 94, at

57-58.

1991]



Columbia Journal of Gender and Law

Any such action would be illegal, and it, in fact, has not been done in any
other state adopting pay equity legislation."

Joan Bertin

When I filed my first sex discrimination case, there was no "feminist
jurisprudence." Then and now, we had to find arguments within the law
as it exists to deal with the problems that women experience. That remains
the driving force in my professional career as an advocate for women.
What I'm charged with doing every day is finding solutions to address
concrete injuries. For me, these experiences both define the proper goals of
"feminist jurisprudence"-to address the real problems of real women-
and shape my philosophy about how the law should relate and respond to
the problems of women.

The central recurring issue that I have encountered, since I embarked
on a career in women's rights, relates to pregnancy. Because pregnancy is
often viewed as sui generis, the ability of the law to respond to the rights
and needs of pregnant and potentially pregnant women has been
inconsistent at best. I can hardly believe, as the fourth person on a panel
on Myra Bradwell Day, that I'm actually going to be the first person to
quote from Justice Bradley's concurring opinion in Bradwell v. Illinois: "The
paramount destiny and mission of woman are to fulfil the noble and benign
offices of wife and mother. This is the law of the Creator." "'9 It is this per-
ception of women primarily as childbearers and nurturers that, in my
opinion, has accounted for the inability of courts and legislatures to rec-
ognize and accord women full legal rights and privileges. It seems that as
long as women are viewed primarily as "fetal vessels," they will not be
viewed as persons in their own right.

Let me give you a few examples. If Carin had another five minutes,
she would have talked about an area that we have worked on together for
a long time, having to do with reproductive health hazards in the work-
place and the exclusion of women from jobs that allegedly pose a hazard
only to the fetus. About a decade ago, when I filed my first such case
representing women at the American Cyanamid Company who had sub-
mitted to surgical sterilization to keep their jobs, I filed it as a Title VII case,
a sex discrimination case.'10 Some people asked why women workers would
want equal access to hazardous workplaces. That, of course, is not what

' For a discussion of this issue, see Clauss, supra note 89, at 94 & n.344.
'0 83 U.S. (16 Wall.) 130, 141 (1872) (Bradley, J. concurring).
10 Christman v. American Cyanamid Co., 92 F.R.D. 441 (N.D.W. Va. 1981).

[Vol. 1:1



Feminist Jurisprudence

women workers (or men, for that matter) want. They want access to jobs
and safe working conditions. Enforcement of the occupational safety and
health laws, however, was not an option. For starters, there is no private
right of action by which workers could enforce the provisions of the feder-
al statute.

From a strictly pragmatic perspective, therefore, advocates for women
workers in these situations have had to rely largely on Title VII's nondis-
crimination entitlement to obtain any relief. We have attempted to con-
strue that statute and to construct arguments in ways that will force
employers to upgrade workplace conditions for all workers, rather than
exposing women to the risks to which men have been subjected. An
amendment to the Occupational Safety and Health Act (OSHA), strength-
ening its enforcement provisions, would be a more direct way to achieve
these goals. In the absence of that remedy, we use whatever tools are
available.

It is no coincidence that women have been excluded en masse from high-
paying jobs that make the difference between being on welfare and being
self-sufficient. These cases demonstrate how the emergence of women from
their "separate sphere" in the home, attending to the bearing and rearing
of children and other domestic activities, a role that women have tradi-
tionally played, is met by the same question-echoed by society at large,
by the law, by their bosses, by their husbands: can women still fulfill their
duties as wife and mother? The more women venture away from traditional
activities, the more intense the pressure to address this question becomes.
For women who would enter certain male bastions, the only way to quali-
fy was to get sterilized. The message, not even a terribly covert message, is
that if you want to live in a man's world, you've got to be like a man.

By 1984, when several cases had been litigated involving the validity
of corporate "fetal protection" policies, partial victories for plaintiffs chal-
lenging the policies"' seemed to have dampened corporate enthusiasm to
exclude fertile women workers. Recently, however, that progress was halted
by the Seventh Circuit's opinion in the Johnson Controls case, in which that
court sitting en banc upheld Johnson Controls' policy of excluding all fertile
women from certain jobs."' The policy applied to women up to the age of

"I See, e.g., Zuniga v. Kleberg County Hosp., 692 F.2d 986 (5th Cir. 1982);
Wright v. Olin Corp., 697 F.2d 1172 (4th Cir. 1982); Hayes v. Shelby Memorial
Hosp., 726 F.2d 1543 (11th Cir. 1984), reh'g denied, 732 F.2d 944 (11th Cir. 1984).

"
2 The Seventh Circuit Court's decision has since been overturned by Interna-

tional Union, UAW v. Johnson Controls, Inc., 111 S.Ct. 1196 (1991), rev'g 886 F.2d

1991]



Columbia Journal of Gender and Law

seventy. The chemical from which women were being "protected" was
lead, and the level of protection was the same level that OSHA said ten
years ago endangered the reproductive capabilities of both men and wom-
en. Johnson Controls apparently disbelieved the part about men.

The exclusion of women from hazardous jobs is by now a familiar
problem. Of more recent vintage are related issues raising questions about
other limitations on pregnant women's conduct. These include a host of
legislative proposals and other government activities in response to wom-
en's use of drugs and alcohol during pregnancy. First, there's the crimi-
nalization of certain prenatal conduct, and second, there are abuse and
neglect proceedings also based on undesirable prenatal conduct.

In Florida, Jennifer Johnson was convicted for delivering illicit drugs
to a minor. 1" 3 The prosecutor identified the moments after birth before the
umbilical cord was cut as the basis for the prosecution. She is appealing
the decision. In California, Pamela Rae Stewart was charged with prenatal
child abuse, in part because she failed to go to the hospital as she had been
instructed by her doctor when she started bleeding vaginally."4 She had
placenta previa, which is a condition of pregnancy requiring medical at-
tention. Because she delayed in going to the hospital, her child was born
prematurely and died shortly thereafter. The charges against her were ul-
timately dismissed. Then there was a case in Wyoming involving a wom-
an who, in the fourth month of pregnancy, went to the police to complain
that she had been physically abused by her husband."15 She was sent over
to a clinic, and while she was there the police obtained a warrant for her
arrest for prenatal child abuse because she had been drinking. In Indiana,
a charge of possession of illicit drugs against a mother was based upon a
drug toxicology done on the newborn child ."6

871 (7th Cir. 1989) (en banc). See also Carin Clauss' discussion of workplace fetal
protection policies supra note 69 and accompanying text.

"3 Johnson v. Florida, No. 89-1765 (Fla. App., 5th Dist. 1991) (WESTLAW 1991
WL 56359) (appeal pending, No. 77831 (Fla. Sup. Ct. 1991)). I came into contact
with this and the other unpublished cases at infra notes 114-18 and 120-23 through
my work with the ACLU. Materials relating to some of the cases are available at
the ACLU National Office.

4 People v. Stewart, No. M 508197 (San Diego Mun. Ct. 1987). See supra note
113.

"I State v. Pfannenstiel, No. 1-90-8CR (Laramie County Ct. 1990). See supra
note 113.

"6State v. Yurchak, No. 64D01-8901-CF-181B (Porter County Super. Ct. 1989)
(pending). See supra note 113.

[Vol. 1:1



Feminist Jurisprudence

In Massachusetts, a woman was charged with criminally negligent ho-
micide for driving while intoxicated and pregnant.1

1
7 She had an accident

and suffered injuries which resulted in premature labor and stillbirth. This
case raises some particularly interesting issues, because the indictment was
justified on the basis of an earlier decision in Massachusetts, holding an
outside agent liable for prenatally inflicted injuries. The idea is that if an-
other person can be liable for such harms, why not the mother?

In Washington, D.C., a couple of years ago, Brenda Vaughn was jailed
for a routine, minor shoplifting charge. 8 She never would have been giv-
en a jail sentence except for the fact that she was pregnant and had a drug
problem. The judge said that he was going to put her in jail to keep her
from getting drugs. This is ludicrous. Even prosecutors concede the ready
availability of drugs in many jails. In jail it is much harder to get a nutri-
tious diet and access to prenatal care. Many of these criminal prosecutions
get dismissed-a lot of grand juries refuse to indict-but that does not
stop the flow of cases.

On the legislative front similar things are happening. For example,
former Senator (now Governor) Pete Wilson from California introduced a
bill that would make access to drug treatment funds contingent on the
state's making it a crime for a woman to give birth to a child adversely
affected by a woman's prenatal use of any drug, apparently including legal
and therapeutic drugs."9 Interesting constitutional issues are raised by the
state making it a crime to give birth under any circumstances.

Criminalization of prenatal conduct attracts a good deal of press at-
tention. An equally serious but less well recognized issue is the use of
neglect and abuse proceedings against women who engage in undesir-
able, "bad mother" kinds of behavior. Many social services officials be-
lieve that any evidence of drug use during pregnancy is per se evidence of
the mother's unfitness to care for the child. Other relevant questions are
not even addressed: whether such women are capable of taking care of
their children, whether they have taken care of other children successful-
ly, or whether the children have a father who has taken care of them or is
capable of taking care of them. Evidence of maternal drug use has report-
edly even been obtained by squeezing out a newborn's diapers to get a
urine sample for toxicology testing. In some places, health care providers

"I Commonwealth v. Levey, No. 89-2725-2729 (Mass. Super. Ct. 1989). See supra
note 113.

U.S. v. Vaughn, No. F-2172.88B (D.C. Super. Ct. 1988). See supra note 113.

"9 S. 1444, 101st Cong., 1st Sess., § 509H, 135 Cong. Rec. S9,134 (1989).

1991]



Columbia Journal of Gender and Law

are required to do drug testing and to report positive test results to state
authorities, making health care providers the agents for separating new-
borns from their mothers.

In Nassau County, New York, a woman lost custody of her child for
smoking marijuana while she was in labor.'2 Recently, we assisted on a case
in Nevada involving a woman who went into labor on Super Bowl Sun-
day.121 She had had a few drinks, and someone at the hospital smelled the
alcohol on her breath. Her child was placed in foster care shortly after
birth, on the basis of a state statute defining a child born with Fetal Alco-
hol Syndrome (FAS) as needing protection. There was no evidence that
this child had FAS or any other problem; the sole evidence of maternal
"unfitness" was the mother's elevated blood alcohol reading.

In a California case, a heroin addict had to travel to a distant county
every day in order to get methadone maintenance while she was
pregnant.' 2 She had another child and was ultimately unable to continue
treatment because of the travel. Because her county provided no free drug
services, she relapsed into her drug habit and ultimately lost custody of
her child. In the Florida case mentioned earlier, Jennifer Johnson had been
unable to get drug treatment services until she was convicted and the court
ordered that it be provided.

These cases demonstrate the "Catch-22" situation in which many
pregnant drug users find themselves. There is little or no treatment for
low-income substance abusers generally and even less for pregnant wom-
en. Such women cannot obtain treatment, but are then punished for their
drug habits by being declared unfit mothers. To begin to address this di-
lemma, my office recently sued four alcohol and drug treatment centers
for their discriminatory refusal to provide treatment services to pregnant
women, in an effort to break this destructive cycle.'2

A survey conducted recently in New York found that of the children
who were put in foster care or some other kind of substitute care, more
than fifty percent were ultimately returned to their parents when further

'21 Nassau County Dep't of Social Services v. Teresa L., No. 365-88 (Nassau
County Fam. Ct.), appeal dismissed; In Re Ryan L., Motion No. 3527 (App. Div., 2d
Dep't, May 17, 1989). See supra note 113.

121 In Re Autumn Bean, Case No. J-960 (Humboldt County Juv. Dep't, 6th J.
Dist., 1990). See supra note 113.

'2 In Re W., No. J-17240 (Butte County Super. Ct., Juv. Div., 1988). See supra
note 113.

1 Elaine W. v. North General Hosp., No. 6230-90 (N.Y. County Super. Ct.
1990) (pending). See supra note 113.

[Vol. 1:1



Feminist Jurisprudence

investigation revealed that the parents were not in fact unfit or neglectful.
Other studies document the harms done to children in the foster care sys-
tem.'2 ' But these problems are rarely acknowledged in the rush to remove
children from women who fail to provide a socially acceptable fetal envi-
ronment.

There is an element of vindictiveness toward women who engage in
these socially undesirable activities. It is obvious in the incarceration of
drug-using women and in the removal of their children. It also appears
prominently in the workplace reproductive hazards area, as evidenced by
overbroad policies that impose sterilization requirements on all women.
In both sets of cases, the response is contingent on a selective view of the
science of reproduction that assigns disproportionate responsibility for fe-
tal and childhood well-being to maternal factors.

Many commentators have noted that research on reproduction tends
to focus on the maternal/fetal unit and to ignore the male half of the equa-
tion. Since sperm are rapidly dividing cells, they may be particularly vul-
nerable to chemical insult. And since half of the fetus' genetic complement
is provided by the male parent, there is every reason to study men who
are exposed to toxic substances and their children, to identify adverse
pregnancy outcomes and transgenerational effects of chemicals that inter-
fere with genes and chromosomes.

Some scientists assert that only strong, healthy sperm participate in
fertilization. This is what one scientist calls the "macho sperm theory" of
conception. But this ignores the fact that male exposures to chemicals,
drugs, alcohol, and other substances influence the course of pregnancy
and potentially the health of a future child. The potential for toxic agents
to alter genetic material or damage sperm in other ways does not neces-
sarily impair the sperm's ability to participate in fertilization. Paternal
preconception exposures have been associated with childhood cancers,
reduced birth weights, miscarriages, stillbirths, and other adverse preg-
nancy outcomes. The risk of adverse pregnancy outcome may be increased
when both parents are exposed to certain chemicals. Employers, judges,
and others have been reluctant to acknowledge this data, much less to
recognize their implications with regard to the "right" of men to work in
hazardous jobs or the "dufy" of fathers to protect the health of the next
generation by not drinking smoking, or using drugs. So far, they have
been content to pretend that women alone are responsible, and that all
would be well if women would just behave.

124 See DeParle, Ideas & Trends; The Fight to Save Children Shifts to the State-
house, N.Y. Times, June 23, 1991, at D4, col. 1.

1991]



Columbia Journal of Gender and Law

As these examples demonstrate, advocacy on behalf of women leads
us to explore some unexpected territory in order to resolve the dilemmas
of women's lives. The cases also reveal the power of the cultural invest-
ment in sex role stereotypes, as if social equilibrium were dependent on
these arrangements remaining fixed. This is most apparent in the strug-
gles over the rights of pregnant women, where social expectations are en-
trenched and unyielding, and where women's claims to basic and
fundamental rights taken for granted by men-the right to personal self-
determination and to legal equality-are most seriously and persistently
challenged. Because pregnancy, or pregnancy potential, is central to the
perception of women, even women who never have children can be the
victims of pregnancy-based discrimination. The pervasiveness of this
problem, which extends far beyond the two nine-month periods in the
average woman's life during which she will be pregnant, will undoubted-
ly challenge women's rights advocates for some years to come to develop
both a jurisprudence and a practice that deals with the reality of what
happens to women because they are or might be pregnant.

[Vol. 1:1