A Legal Conundrum:
The Law's Treatment of Women

Susan Nott*

The term 'conundrum' signifies, according to its dictionary definition, a riddle or a
complex question. The proposition considered in this article is that the law's
treatment of women constitutes a legal conundrum since it raises numerous
complex questions, in particular why, given the law's apparent desire to improve
the situation of women, it has failed them so consistently. The issue is an important
one since there are numerous groups within society - ethnic minorities, the
disabled, the elderly and homosexuals - who regard themselves as the targets of
discrimination. The law's lack of success in achieving equality for women may
provide important lessons for other groups in society who wish to use the law as a
means of securing equality.

How has the law failed women?
The proposition that the law has failed women is one which requires examination
in greater detail. There are those who regard this negative attitude towards the law
as misrepresenting real achievements and discouraging women from seeking a
legal remedy when they are the object of discrimination.· There is no denying that
compared to their position one hundred and fifty years ago or even fifty years ago
women have made considerable gains. There has been a pattern to that progress.
The first stage is represented by women's struggle to gain access to those privileges
enjoyed by men from which women were excluded, either because they were
women or, alternatively, because they were married women. This culminated in a
series of legislative successes:2 the Married Women's Property Acts 1870, 1882,
which gave married women the freedom to acquire and dispose of property;3 the

* Senior Lecturer in Law, University of Liverpool.

1. M. Rubenstein, "Beyond the Whinge", 11 OxfordJo. of Legal Stud. (1991), p. 254.
2. These successes were achieved only after lengthy campaigns for change. As an alternative but
unsuccessful strategy, a number of cases were brought involving claims by women that the use of
gender-neutral terms, such as 'person', in the legislation regulating the right to vote and entry to higher
education and the professions gave women access to those rights, although previously they had been
enjoyed by men alone. An account o( these co-called 'persons' cases is given in A. Sachs and J. H.
Wilson, Sexism and the Law (O.U.P., 1978).
3. Before the passage of this legislation control of a married woman's property was in the hands of her
husband.

137



THE DENNING LAW JOURNAL

Sex Disqualification (Removal) Act 1919, which gave women access to public
office, the professions and higher education; and the Representation of the People
Act 1918 and the Equal Franchise Act 1928, which gave all women over the age of
21 the right to vote. The struggle for access continues to the present day with
women's campaign to be admitted to the priesthood.

The second stage came with the realisation that legislation granting women
access to what had previously been denied them did little to alter the status quo. To
take a single example, although women obtained the right to enter the legal
profession in 1919 by the "mid-fifties only two per cent of solicitors and 3.2 per
cent of barristers were women".4 It was abundantly clear that legislation
guaranteeing access, or perhaps more accurately formal equality, was no defence
against discrimination on the grounds of a person's sex or their married status.
This is not to suggest that these gains were worthless but rather that they failed to
address the true causes of women's inequality. To quote one commentator:

"The campaign for the vote, for married women's property rights, for
custody and so on, were politically important. The fact that history has
shown that women's oppression is not simply a matter of equal rights under
the law should not blind us to the importance of those early struggles."5

The passage of the anti-discrimination legislation - namely the Equal Pay Act
1970 and the Sex Discrimination Act 1975 - represented an effort to eliminate
discrimination on the grounds of sex or marital status and secure women equal
pay. At the time, this legislation, with its condemnation of discrimination on the
grounds of sex, seemed to offer the key to equal opportunities. This was despite the
warning in the White Paper which preceded the legislation that, without the right
social and economic conditions, there were limits to what the law could achieve.6
Under the terms of section 1(1) ofthe Sex Discrimination Act 1975 discrimination
is said to occur in the following circumstances:

A person discriminates against a woman in any circumstances relevant for the
purposes of any provision of this Act if -

(a) on the ground of her sex he treats her less favourably than he treats or would
treat a man, or

(b) he applies to her a requirement or condition which he applies or would apply
equally to a man but -

(i) which is such that the proportion of women who can comply with it is
considerably smaller than the proportion of men who can comply vlith it,
and

4. The Reporf of the Hansard Society Commission on Women At The Top, 1990, p. 46.
5. C. Smart, Feminism and fhe Power of Law (Routledge, 1989), p. 139.
6. EquaJifY for Women (H.M.S.O., 1974), Cmnd. 5724, para. 21.

138



A LEGAL CONUNDRUM: THE LAW'S TREATMENT OF WOMEN

(ii) which he cannot show to be justifiable irrespective of the sex of the person
to whom it is applied, and

(iii) which is to her detriment because she cannot comply with it.

This definition of discrimination applies also to the manner in which a man or a
married person is treated.7 In respect of pay a woman can utilise the Equal Pay Act
1970 to demand the same rate of pay as a higher paid male colleague in the same
employment if that woman is engaged on like work, or work rated as equivalent
under a job evaluation scheme or work of equal value. B The employer can defeat
her claim ifhe can establish that the woman's lower rate of pay is genuinely due to a
material factor which is not the difference in sex.

There is no denying that the existence of the anti-discrimination legislation has
proved beneficial to some women. Any likely benefit has undoubtedly been
enhanced by the United Kingdom's membership of the European Community.
The promotion of equal opportunities and equal pay are important aspects of
Community policy. Article 119 of the Treaty of Rome provides that:

"Each member state shall ... maintain the application of the principle that
men and women should receive equal pay for equal work."

In addition the Community has approved various directives to promote equal
opportunities such as the Equal Treatment Directive9 and the Equal Pay
Directive. 10 The reason for the Community's insistence on equal pay and equal
treatment is that without it those states that continued to pay women less than men
would represent unfair competition to states where men and women were
guaranteed equal treatment.

The strength of the European Community's commitment to equal opportunities
is particularly apparent from the jurisprudence of the European Court of Justice.
Its interpretation of Community directives and Treaty articles is based on a
purposive rather than a literal approach. The desire to seek out the intention
behind the legislation can prove very helpful to women. In the Dekker case, 11 for
example, the European Court stated categorically that a refusal to employ a
woman because she was pregnant and would not be covered by an insurance
scheme amounted to direct discrimination. Since only a woman can become

7. Sections 2 and 3, Sex Discrimination Act 1975. Discrimination against those who are married is
relevant only in the context of employment. For an account of how the courts have defined and
interpreted direct and indirect discrimination see A. E. Morris and S. M. Nott, Working Women and the
Law (Routledge, 1991), Chapter 5; E. Ellis, Sex Discn'mination Law (Gower, 1988).
8. Section I, Equal Pay Act 1970. For an account of how the courts have chosen to interpret this section
see Morris and Nott, supra n. 7, Chapter 6.
9. Directive 76/207.
10. Directive 75/117.
II. Dekker v. Stichting Vormingscentrum voor Vo/wassenen (VJV - Centrum) [1991] I.R.L.R. 27.

139



THE DENNING LAW JOURNAL

pregnant the unassailable consequence of this was that a refusal to employ her
represented direct discrimination on the grounds of sex. This contrasts sharply
with the United Kingdom courts' treatment of claims that a dismissal on the
grounds of pregnancy constitutes direct discrimination. Such claims have, in the
main, been rejected unless the claimant can show that a man would not be treated
in this manner. Since men cannot become pregnant this necessitates considering
how a man suffering from some illness would be treated. 12 The courts' contrived
approach to pregnancy dismissal cases is attributable to their literal application of
the Sex Discrimination Act when it calls for a comparison to be made between a
woman and a man in comparable circumstances. 13

Women in the United Kingdom have, however, been able to take advantage of
the Community's greater commitment to equal opportunities. There have been
occasions when the United Kingdom has chosen to implement Community
legislation that gives women greater protection against discrimination.14 If the
United Kingdom has not ensured that its law is in accordance with Community
law then it seems that the English courts are now under an obligation to interpret
their domestic legislation in a manner that is consistent with Community law.ls
This is irrespective of whether the legislation in question was intended to
implement Community law.16

There is a third and final stage to the process whereby women have attempted to
use the law to achieve equal opportunities. This has required a reassessment of
laws that ostensibly are designed to give women special protection. That special
protection is usually said to be inspired either by the wish to safeguard a woman's
fertility or to acknowledge her family responsibilities. In the past, for example,
women had their hours of work restricted in recognition, so it was said, of their role
as mothers. L 7 Employing the law in this fashion provokes the reaction that it

12. See, e.g., Hayes v. Malleable Working Men's Club [1985] I.R.L.R. 367. In Webb v. hMU (Air
Cargo) Ltd. [1992] I.R.LR. 116, the Court of Appeal affirmed once again that English law required a
comparison to be made not simply between a woman and a man but between a woman and a man in
comparable circumstances. In the case of a woman who was pregnant this entailed asking how a man in
similar circumstances, that is suffering from an illness, would be treated. The European Court's
decision in Dekker was distinguished on the basis that it concerned a decision not to recruit a pregnant
woman, whereas in Webb the pregnant employee was incapable of performing the job for which she had
been hired. See now the House of Lords' decision in Webb [1993] I.R.L.R. 27.
13. Sections 1(1)(a), 5(3), Sex Discrimination Act 1975.
14. See, e.g., Social Security Act 1989 which implemented Directive 86/375. As a consequence the
concepts of direct and indirect discrimination became applicable to occupational pension schemes and
the Sex Discrimination Act 1975, section 6(4) was amended to take account of this.
15. Marleasing SA v. La Comerciallnrernacional de Alimenracion C 106/89, 13 November 1990.
16. According to the English courts, iflegislation was not intended to implement Community law then
they were under no obligation to interpret that legislation so as to take account of Community law: Duke
v. Reliance Systems [1988] I.R.L.R. 118.
17. The Factory Act 1848 limited women's working hours to ten a day as well as forbidding night-time
working. Restrictions on the hours women might wotk were finally repealed in the Sex Discrimination
Act 1986, section 7. The true motives behind legislation of this nature are hard to discern. Such
measures may have been intended to prevent women from competing with men for employment or to
reassert women's primary role as caring for the family.

140



A LEGAL CONUNDRUM: THE LAW'S TREATMENT OF WOMEN

condones discrimination since no account is taken of the needs of individual
women. If the law sees fit to grant women special protection, and there are
circumstances such as pregnancy when this is essential if women are to compete on
equal terms with men, then it needs to be specific. The Employment Protection
(Consolidation) Act 1978 and the Social Security Act 1986 do this very thing by
granting a pregnant employee four specific rights: the right not to be unfairly
dismissed because of pregnancy; the right to paid time off for ante-natal care; the
right to Statutory Maternity Pay; and the employee's right to return to her job
after the birth of her child. IS In contrast, other special protection measures exist
which are regarded with much greater ambivalence. Section 51 of the Sex
Discrimination Act 1975 renders lawful discrimination in employment which is
necessary to comply with laws passed prior to the Sex Discrimination Act, for
example the Health and Safety at Work Act 1974, where the discrimination is
aimed at protecting women in relation to pregnancy, maternity or other risks
specifically affecting women.l9 Under the terms of section 51 an employer may
attempt to exclude a woman from certain types of work using the excuse that this is
necessary to safeguard her fertility, whatever her views on the matter might be.
The special protection on this occasion would be no more than an excuse for
discrimination.20

One positive feature, so it is said, of women's campaign for equality is a growing
awareness on the part of those responsible for the application and interpretation of
the law of the purpose behind the equal opportunities legislation.

As Rubenstein has remarked:

"The generation of judges which heard the first discrimination cases tended
to regard the laws as infringements on the liberty of the subject and therefore
to be interpreted restrictively. The new generation is much more prepared to
accept that they are reforming statutes and therefore to be interpreted
purposively. The older generation tended to view discrimination as an
aberration from traditional English standards of 'fair play'. The new
generation, if not quite prepared to accept that discrimination is

18. Sections 31A, 45 and 60, Employment Protection (Consolidation) Act 1978 and section 46, Social
Security Act 1986. For a full account of the manner in which the law regards pregnancy see Morris and
Nott, "The Legal Response to Pregnancy", 12 Legal Studies (1992), p. 54. The Trade Union Reform
and Employment Rights Bill will, when it becomes law, add to this protection.
19.The original wording of section 51 was amended by the Employment Act 1989 so as to take account
of the European Court's decision in Johnston v. The Chief Constable of the Royal Ulster Constabulary
[1986] I.R.L.R. 263.
20. In Page v. Freight Hire (Tanker Haulage) Ltd. [1981] I.c.R. 299 an employer who did just this was
held to have a defence under the unamended terms of section 51. His discriminatory action was
necessary in order to comply with a statute, the Health and Safety at Work Act 1974, which predated
the Sex Discrimination Act 1975. If a similar situation were to arise today it is not clear whether the
same decision would be reached or whether the English courts would insist on an employer
demonstrating that he had no alternative to excluding the woman in question, which was the European
Court's approach in Johnson (see n. 17).

141



THE DENNING LAW JOURNAL

'institutional', would seem to recognize that it is widespread, yet difficult to
prove."21

Decisions such as those of the House of Lords in Picks tone v. Freemans22 and
James v. Eastleigh Bor()ugh Counci[23 are cited as instances of this enlightened
approach which emphasises the purpose behind the anti-discrimination
legislation and owes much to the example set by the European Court of Justice. In
other contexts, however, the judiciary can still be found expressing stereotypical
views of women. Rape is one such example where a woman's behaviour may be
condemned as somehow 'causing' the rape.24

The positive benefits that changes to the law, a more sympathetic judicial
attitude and membership of the European Community have brought women are
undeniable. Indeed, greater awareness of women's needs has extended beyond the
application of the anti-discrimination legislation. From the seventeenth century
onwards the accepted view was that a husband could not be found guilty of raping
his wife.

To Sir Matthew Hale: " ... the husband cannot be guilty of a rape committed
by himself upon his lawful wife, for by their mutual matrimonial consent and
contract the wife hath given herself up in this kind unto her husband which she
cannot retract. "25

Over the years exceptions were developed to this general principle, though in
the main the principle remained intact. Yet the House of Lords' decision in R. v.
R. has put an end to this immunity previously enjoyed by husbands.26 The reason
for this was that such a state of affairs no longer accorded with the modem status of
women.

To Lord Keith: "The common law is, however, capable of evolving in the light
of changing social, economic and cultural developments. Hale's proposition
reflected the state of affairs in these respects at the time it was enunciated. Since
then the status of women, and particularly of married women, has changed out of
all recognition in various ways which are very familiar and upon which it is
unnecessary to go into detail. Apart from property matters and the availability of
matrimonial remedies, one of the most important changes is that marriage is in
modern times regarded as a partnership of equals, and no longer one in which the
wife must be the subservient chattel of the husband. Hale's proposition involves
that by marriage a wife gives her irrevocable consent to sexual intercourse with her
husband under all circumstances and irrespective of the state of her health or how

21. Rubenstein, supra n. 1, p. 257.
22. [1988] I.R.LR. 357.
23. [1990] I.R.L.R. 288.
24. Smart, supra n. 5, Chapter 2.
25. Sir Matthew Hale, History of the Pleas of the Crown, 1 Hale P.c. (1736) 629, quoted by Lord Keith
in R. v. R. [1991] 4 All E.R. 481, p. 483.
26. [1991] 4 All E.R. 481.

142



A LEGAL CONUNDRUM: THE LAW'S TREATMENT OF WOMEN

she happens to be feeling at the time. In modern times any reasonable person must
regard that conception as quite unacceptable. "27

In view of these constructive features of the law's treatment of women it would
seem difficult to sustain the assertion made in the opening paragraphs of this
article that the law has failed women. There is, however, clear evidence that
women are not benefiting as one might expect from the anti-discrimination
legislation and it is impossible to dismiss this claim as feminist carping. The annual
statistical reports prepared by the Equal Opportunities Commission (EOC) in
order to compare the situation of working men and women in Britain provide
many illustrations ofthdaw's failure. The EOC's report for 1991 showed that in
1990 women who worked full-time earned on average 77 per cent of the hourly
earnings of male full-timers.28 There was an even wider difference between the
sexes when weekly earnings were compared. Though these figures are
disappointing they represent an improvement as compared with previous years.
As the EOC's statistical survey shows there are many reasons for these variations,
one of the principle ones being job segregation. Women predominate in certain
sectors of industry and certain occupations. For example, women's employment is
concentrated in the service sector of industry as opposed to the manufacturing
sector. Within the service sector women are most frequently found in certain
occupations such as medical and other health services.29 It would appear that
where women employees are in the majority then low pay is the order of the day.
Men also seem better able to supplement their basic earnings with additional
payments such as overtime payments or shift bonuses. The EOC quotes the
example of electrical and electronic engineering where male manual workers
derive 26 per cent of their total pay from additional payments but female manual
workers derived only 17 per cent from the same source.30

A study undertaken by Industrial Relations Services entitled Pay and Gender in
Britain sheds further light on the differences in pay between men and women.31
The study uncovered a number of potential sources of pay inequality. Pay
structures tended to be segregated by gender so it was not uncommon to find one
pay structure for management which was dominated by men and another for
clerical staff which was dominated by women. Grading structures covering mostly
women tended to be shorter and when women were in the majority a pay structure
was less likely to provide for additional payments. Indeed, the authors of the study
concluded that the equal pay legislation, and in particular the notion of equal
value, had a limited impact on pay restructuring. Tradition was far more likely to
be quoted as the reason for organising pay structures in a particular fashion.32

27. Ibid., pp. 483-484 (Lord Keith).
28. Women and Men in Britain 1991, Equal Opportunities Commission, pp. 1-7.
29. Ibid., pp. 9-20.
30. Ibid., p. 7.
31. Pay and Gender in Britain, a research report for the Equal Opportunities Commission from
Industrial Relations Services, 1991.
32. Ibid., Chapter 6.

143



THE DENNING LAW JOURNAL

The EOC in its 1991report also draws attention to the large numbers of women
who work part-time. In 1989forty three per cent of female but only eight per cent
of male employees worked part-time. 33 Part-time employees always seem to be at a
disadvantage when compared with full-time workers. To quote the EOC:

"Women who work part-time continue to receive lower average hourly
earnings than their full-time equivalents; indeed, the difference between the
average hourly pay of full-timers and part-timers has actually widened over
the past decade. "34

The reason why so many women work part-time as compared with so few men is
linked to whether or not a woman is married, whether she has dependent children
and the age of her children.3s Such factors do not in general affect the economic
activity rates of men. This emphasises that, 'whatever the anti-discrimination
legislation may have achieved, it has not led to a more equitable division of the
burden of childcare between men and women. Opportunities to work part-time
are often to be found in low paid occupations. According to the EOC the figures
for 1989 show that" 52 per cent of all female part-time employees worked either in
selling (the lowest paid of the non-manual occupations) or in catering, cleaning
and related occupations (one ofthe lowest paid of the manual occupations). This
compared to only 16 per cent of their full-time equivalents." 36

Women's lower earning capacity as compared with men and the likelihood that
during their working lives they may experience periods of economic inactivity or
part -time work have other more indirect effects. One of the most significant is the
consequence it may have on women's ability to provide for their old age and
retirement. The figures show that in 1989 "61 per cent of male and 37 per cent of
female employees were in pension schemes. "37 Part of the explanation for this
difference between the sexes is related to the number of female part-time
employees. Few part-time employees, according to the EOC, are members of
occupational pension schemes.

The Equal Opportunities Commission is not the only source of evidence that
women have not derived the advantages one might expect from the anti-
discrimination legislation. The Hansard Society established a Commission to
consider the problems facing women wishing to gain access to senior positions in
public, corporate and professional life. Their report, Women at the TOp,38
highlights that women are still very much in a minority in these influential
positions. Although, for example, increasing numbers of women are now entering

33. Women and Men in Britain 1991, Equal Opportunities Commission, p. II.
34. Ibid., p. 1.
35. Ibid., p. 23.
36. Ibid., p. 27.
37. Ibid., p. 33.
38. The Report of the Hansard Society Commission on Women At The Top, 1990.

144



A LEGAL CONUNDRUM: THE LAW'S TREATMENT OF WOMEN

the legal profession, a considerable number will leave in mid-career in order to
raise families. These women may return to practis~ as barristers or solicitors but
their absence wil have caused them loss of seniority and consequently make their
promotion to partnerships or Head of Chambers less likely. Women are also in a
minority in the judiciary. Since judicial appointments are made from senior
members of the legal profession and far fewer women than men will have the
necessary seniority this produces a pool of candidates for the judiciary heavily
dominated by men.39

Besides drawing attention to the lack of women in senior positions, the Hansard
Society identifies what it sees as the barriers to equality. They are outmoded
attitudes about the role of women, direct and indirect discrimination, the absence
of proper childcare provision and inflexible structures for work and careers.40
Indeed they state categorically that discrimination against women is still
widespread. This discrimination is not the unsubtle 'we will not employ women
kind'. It consists instead of unspoken assumptions that are made about women,
the existence of networks that exclude women, such as membership of the
Freemasons, and the insistence that job applicants possess certain qualities such as
youth or geographical mobility. Other research studies have also underlined the
subtle and complex nature of discrimination which the legislation seems
completely powerless to tackle. In Managing To Discriminate,41 a detailed study
was undertaken of the recruitment practices of various private companies in a
number of industries. What emerged from this study was "that informality in the
channels, criteria and procedures of recruitment was both a common
practice ... and one that facilitated the reproduction of job segregation. "42Indeed
the authors of this study were forced to conclude that "despite anti-discrimination
legislation in the mid-1970s, a substantial number of employers, many of whom
publicly subscribe to equal opportunities, are still 'managing to discriminate' on
the grounds of sex through a variety of recruitment practices."43

Apart from this overwhelming evidence of discriminatory practices continuing
unabated it appears that those women who try to make use of the anti-
discrimination legislation face an uphill task.44 Research undertaken into the
experiences of women bringing sex discrimination and equal pay claims has
pinpointed the difficulties that women may encounter. They comprise the
problem of securing good quality advice and representation before the tribunal, of
withstanding the stresses, including victimisation, of bringing a claim and of

39. Ibid., p. 44.
40. Ibid., p. 2.
41. D. L. Collinson, D. Knights, M. Collinson, Managing fa Discriminare (Routledge, 1990).
42. Ibid., p. 193.
43. Ibid., p. 192.
44. See, e.g., A. Leonard, Judging Inequaliry: The Effeaiveness of rhe Indusrn'aJ Tribunal Sysrem in Sex.
Discn'minarion and Equal Pay Cases (Cobden Trust, 1987);A. Leonard, Pyrrhic Viaories: Winning Sex
Discriminarion and Equal Pay Cases in rhe Indusrrial Tn'bunals 1980-84 (H.M.S.O., 1987);J. Gregory,
Trial by Ordeal (H.M.S.O., 1989); Morris and Nott, supra n. 7, Chapter 8.

145



THE DENNING LAW JOURNAL

facing the prospect that, even if she is successful, a woman may secure little in the
way of compensation. There is also evidence that the members of industrial
tribunals often show incomprehension or ignorance of the anti-discrimination
legislation.45

Why has the law failed women?
There appears to be incontrovertible proof that for all its promise the anti-
discrimination legislation is failing women. It remains to be seen why this is so.
One obvious explanation is that the anti-discrimination legislation has not
succeeded in its aim of promoting equal opportunities. Part of the problem may be
that the concept of equality championed in the legislation does not accord with
women's needs and aspirations. The Sex Discrimination Act identifies two forms
of discrimination - direct and indirect. Direct discrimination occurs when a
woman is treated less favourably on the grounds of her sex than a man. Indirect
discrimination takes place when a condition is applied to both sexes but the
proportion of women who can comply with it is considerably smaller than the
proportion of men and as a consequence a woman suffers a detriment because of
her inability to comply. In the case of indirect discrimination it is a defence to show
that the condition in question is justifiable irrespective of sex.

Direct discrimination requires that men and women be treated in the same
fashion. The problem with this approach is that it totally ignores the differences
between men and women. Apart from the obvious biological differences, there are
the differences that arise from the fact that women are expected to assume and do
assume the major responsibility for childcare. This fact has an obvious and adverse
effect on women's economic prospects. Therefore, the hypothesis that if a woman
is treated in the same manner as a man would be she has achieved equality, is
patently untrue. In order to benefit from the current definition of direct
discrimination a woman has to be able to adopt a lifestyle that approximates to that
of a man. The lack of practical impact of the legislation comprehensively
demonstrates the inability of the majority of women to do this. The concept of
indirect discrimination does admittedly offer an opportunity for challenging what
appears to be even-handed treatment to assess its true effect on women. Women
can argue that a seemingly neutral requirement works to their disadvantage
because of the inability of a sizeable number of them to comply with it. The scope
that indirect discrimination affords for challenging institutionalised discrimination
has been undermined in the United Kingdom by the manner in which the

45. See, e.g., The Employment Appeal Tribunal's decision in Berrisford v. Woodward Schools
(Midland Division) Lrd. [1991] I.R.L.R. 247. The Employment Appeal Tribunal apparently took
account of the employer's motive in dismissing a pregnant employee when coming to its finding that
there had been no direct discrimination. The House of Lords has, however, made it plain (James v.
Easrleigh Borough Council [1990] I.R.L.R., 288) that motive is irrelevant in relation to direct
discrimination.

146



A LEGAL CONUNDRUM: THE LAW'S TREATMENT OF WOMEN

legislation has been interpreted46 and, more importantly, by the provision in the
legislation which allows a practice which undeniably has an adverse impact on
women to be justified, for example, on the grounds that it is economically
necessary. The very fact that this can happen means that a condition that works to
men's advantage will remain in place. In such cases the standard to which women
have to aspire will remain a male standard.

The Equal Pay Act also appears to work to men's benefit. To derive assistance
from the legislation a woman has to demonstrate that she is undertaking work that
can be considered the equivalent of that undertaken by a higher paid male
colleague in the same employment. The job segregation that is such a feature of
women's employment may mean that this is an impossible task. Even if a woman
can point to a male comparator, the employer can then try to justify the
discrepancy in pay on grounds other than those of sex.

There are those who dispute the claim that the concepts of direct and indirect
discrimination work only to the advantage of women who can adopt a male
lifestyle.

To quote Rubenstein again:

"To dismiss equality of opportunity merely as 'formal' equality, of benefit
only to those women similarly situated to men, is far too negative a
conception of disparate treatment theory. The fundamental direct
discrimination principle is that gender (or race) may not be used as a
criterion or ground for an employment decision. "47

The problem with this statement is that since the pattern of many women's lives
is so very different from those of men they will never find themselves in a position
where the anti-discrimination legislation can be of use. Even if its aim is to stop
gender being used as the basis for an employment decision, and there may be
doubts over whether the courts actually apply the law in this manner, many
women are never in the fortunate situation where they have the same opportunities
as men. Where they do have those opportunities all the evidence seems to point to
the process of discrimination continuing unchecked.

Women obviously face a dilemma in determining the legislative strategy which
will best secure them equality.48 Should they demand to be treated in exactly the
same manner as men or should they expect the law to acknowledge the differences

46. E.g., the manner in which the court determines whether a considerably smaller number of women
as opposed to men can comply with the condition. A full analysis of how the court has applied the
concept of indirect discrimination can be found in Morris and Non, supra n. 7, Chapter 5 and E. Ellis,
Sex Discrimination Law (Gower, 1988).
47. Rubenstein, supra n. 1, p. 262.
48. In her essay "Difference and Dominance: On Sex Discrimination" in Feminism UnmodIfied
(Harvard Univ. Press, 1987), p. 32, Catherine MacKinnon explores the thinking that underlies sex
equality law.

147



THE DENNING LAW JOURNAL

between the sexes, as already happens in relation to pregnancy?49The problem is
that the more women demand that the law should take account of differences the
more that is seen as undermining women's claim for equal treatment. In other
words, how can equal treatment demand different treatment? Viewed in this light
the anti-discrimination legislation is bound to be less than a whole-hearted success
since by espousing the concept of equal treatment it fails to address the differences
which exist between the sexes. Indeed, a concept of equality which is based on
equal treatment may in reality do women more harm than good. As a matter of
history situations have arisen where women have been treated more favourably
than men. They are few in number but undoubtedly they do exist. The most
familiar of these relates to the age when an individual becomes entitled to their
retirement pension. Within the United Kingdom a woman may be entitled to a
pension, and hence to retire, when she reaches her sixtieth birthday but a man may
have to wait until he is sixty-five. After a series of cases it has been settled that to
have one age (commonly sixty) at which women retire and draw their pensions and
another (commonly sixty-five) for men can be discriminatory. 50 The practical
consequences of these decisions has been the equalising of pensionable and
retirement ages for men and women. In many cases that process of equalisation has
ended with women being treated in the same manner as men. In other words, this
has been a situation where men have not secured the favourable treatment
previously accorded women but have ensured that women no longer enjoy this
advantage.

Indeed the notion that equality requires that men and women be treated in the
same fashion has permeated beyond the public sphere of the workplace. Rightly or
wrongly, it was generally accepted that the welfare of any child might best be
served by granting custody to its mother, with its father being allowed reasonable
access, after its parents had divorced. That practice has now been abandoned in
favour of granting custody to both parents on the basis that it is in the best interests
of any child to maintain contact with both its parents after a divorce. Leaving aside
the psychology of what best suits a child, many commentators feel that the notion
of equal treatment and equal rights has been exploited by men in order to advance
their case. In so doing the role of the primary caregiver, who is normally the child's
mother, is ignored in resolving the issue of custody.51This is yet another instance
of how the language of equality can be used to women's disadvantage.

49. Employment Protection (Consolidation) Act 1978, sections 31A, 45 and 60.
50. Marshall v. Southampton and South-West Hampshire Area Health Authon'ty (Teaching), 152/84
[1986] 1.c.R. 335. Marshall determined that to force a woman to retire at 60 when a man need not retire
until he was 65 was in breach of the Equal Treatment Directive and hence discriminatory. See now
section 3, Sex Discrimination Act 1986. Barber v. Guardian Royal Exchange Assurance Group [1990]
I.R.L.R. 240 determined that refusing a man an occupational pension when a woman of the same age
would be paid a pension was discriminatory. The benefits represented by a contracted out occupational
pension constituted 'pay' within the terms of Article 119 which requires that men and women should
receive equal pay for equal work.
5!' Smart, supra n. 5, pp. 153-157.

148



A LEGAL CONUNDRUM: THE LAW'S TREATMENT OF WOMEN

If it is correct to argue that the current anti-discrimination legislation does not
secure equal opportunities for women then the best solution would simply seem to
be to remodel the legislation. The law could be amended to better serve the needs
of women if it assessed their treatment from the perspective of whether the
behaviour in question had an adverse impact on women. The fact that men were
treated in the same manner or that the practice was said to have an economic
justification would be irrelevant. Legislation along such lines appears unlikely. It
would provoke charges that it amounted to positive discrimination in favour of
women and discriminated against men. The term 'positive discrimination' has
always been anathema in the United Kingdom with its underlying implication that
an individual is being given access to a benefit that somehow they do not deserve.
To treat women in a certain manner simply because they are women and not
because of need or merit is regarded as unjust.52 The counter-argument that men
have benefited from positive discrimination for centuries, since it is the male
standard which is adopted as the norm, is met with disbelief or the response that
two wrongs do not make a right.

There are those who, faced with the equality/difference argument over anti-
discrimination legislation, argue that it is women's subordination to men which
explains their lack of progress and that until this subordination is exposed women
can hope for little from the law. In short, "an equality question is a question of the
distribution of power. "53To tackle inequality it is not sufficient to try to construct
laws that accept the existing imbalance of power. Instead, the real root of the
problem has to be tackled. A writer such as Catherine MacKinnon who adopts this
particular approach dismisses any attempt to "make rules that fit reality". Instead
she urges criticism of reality and exposure of "that which women have had little
choice to be confined to, in order to change it."54 That reality includes not only
poor payor the poverty that women experience in old age but also the sytematic
abuse that women endure in the shape of domestic violence, rape and
pornography. The very fact that women are treated as objects and that their
sexuality is regarded as a legitimate means of generating wealth is evidence of the
low esteem in which women are held and their lack of power. In short, power
belongs to men and as a consequence men have been able to shape the law and the
entire legal system in order to reflect their standards. To quote Catherine
MacKinnon once again, the "law sees and treats women the way men see and treat
women."55 So the problem is not simply to secure better anti-discrimination
legislation but to bring about fundamental changes in the entire legal system and
society in general so that they cease to reflect the standards of one particular sex.

52. J. Edwards, Positive Discrimination (Tavistock, 1987).
53. C. MacKinnon, "Difference and Dominance: On Sex Discrimination", Feminism Unmodified
(Harvard Univ. Press, 1987), p. 40.
54. Ibid., p. 40.
55. C. MacKinnon, "Feminism, Marxism, Method, and the State: Towards a Feminist
Jurisprudence", Signs, 1983, p. 644.

149



THE DENNING LAW JOURNAL

Undoubtedly this represents a radical explanation for the law's failure to
improve the situation of women in society. Discrimination is seen as a process that
can extend to every aspect oflife and is not confined to those situations specifically
referred to in the anti-discrimination legislation, such as the workplace or the
education system. Whole areas oflaw, such as those relating to crime or property
rights require re-examination in order to deduce whether they do indeed embody
male standards. Nor should this review be confined to the law's content. The
whole mechanism of legal administration may also work to men's advantage. For
example, the law's use of the adversarial system whereby each party presents their
version of the truth using only those facts that the law considers relevant may work
to women's detriment. As one commentator has pointed out: "[W]hat the judge
decides is the truth of the matter is not only a function of the persuasive skills of the
advocate but is also a product of the judge's own experience of 'reality'. "56As a
consequence, the law's much emphasised objectivity may be no more than a
"powerful political tool which has served to disguise what feminists have shown to
be the often sexist assumptions implicit in the workings of the law."57

Many writers associate themselves with this condemnation of the law as
reflecting male values. Whilst it may provide the key to women's lack of progress it
poses a dilemma as to how women should proceed so as to gain the equality that has
eluded them. On the one hand, there are those, such as Catherine MacKinnon,
who seem convinced that, for all its imperfections, it is still possible for women to
resort to the law. Presumably by identifying the true problem women are thereby
equipped to demand laws that will truly serve their purposes and will not be
deflected by arguments that what they require is unjust. Instead, they will be able
to counter any such claim with the response that the eradication of male
domination is not something over which one should argue.

Other writers, however, having conceded the law's power to represent itself as
embodying an objective truth and to oppress women, do not accept that it is to the
law that women must turn in order to secure change. Carol Smart, for example,
criticises Catherine MacKinnon for placing so much faith in the law:

"I agree with MacKinnon that law is powerful in silencing the alternative
discourse of women, but I see it as far less powerful in transforming society
to meet the various needs of all women. "58

Instead, Smart urges women to resort to non-legal strategies rather than law
reform. Changes to the law can be taken away or can be interpreted out of
existence. What is important is for women to be aware of the law's power to ignore
their opinions and to represent itself as objective. Once this has been

56. N. Naffine, Law and the Sexes (Allen and Unwin, 1990), p. 46.
57. Ibid., p. 47.
58. Smart, supra n. 5, p. 81.

150



A LEGAL CONUNDRUM: THE LAW'S TREATMENT OF WOMEN

acknowledged then women will recognise the futility of expecting the law to offer a
solution to their problems.

There are some women, however, who concede that it is unrealistic to claim that
the law always works to men's advantage. 59 This view of the law combines feminist
as well as socialist elements. Whilst conceding the law's masculinity, the point is
made that not all men benefit equally from the law. Only those men who fit a
certain stereotype can extract the maximum benefit. Any woman who can fit this
stereotype can just as easily take advantage of the legal system. Judged on this
basis, the law favours a particular class as well as a particular sex. The law is not
seen as being so systematic in its approach that it is consistently capable of
favouring one sex over another. Other factors such as wealth and the possession of
property are seen as influencing the law. Hence if a woman owns property, though
admittedly far fewer women than men do so, the law will protect her interests in
preference to a non-property owning man.

Faced with these numerous explanations of why the law has failed women, it is
impossible to state categorically that one rather than another represents the truth.
What they all have in common, however, is the notion that the legal system, as it
currently exists, is imbued with male (and perhaps middle-class) values. Perhaps
this is the nearest one can come to offering a solution to the conundrum of the law's
treatment of women. That solution demands a vigorous reappraisal of the values
which underpin our legal system and the manner in which it is administered.

59. Naffine, supra, n. 56.

151