Discrimination and Disadvantage in Feminist Legal Theory: A Review of Deborah Rhode's "Justice and...

Discrimination and Disadvantage in Feminist Legal Theory: A Review of Deborah Rhode's"Justice and Gender"Author(s): Patricia SmithSource: Law and Philosophy, Vol. 11, No. 4 (1992), pp. 431-447Published by: SpringerStable URL: http://www.jstor.org/stable/3504860 .

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PATRICIA SMITH

DISCRIMINATION AND DISADVANTAGE IN

FEMINIST LEGAL THEORY: A REVIEW OF

DEBORAH RHODE'S JUSTICE AND GENDER

In this book Deborah Rhode tells the story (and tells it very well) of the legal response to discrimination based on sex or gender and observes that sexual inequality does not seem to be dissipating very quickly. Discrimination dies hard. The question is why? Why do

inequities persist so stubbornly? How does law either diminish or entrench those inquities?

By examining how law reflects and reinforces, or challenges and undermines patterns of inequality, Rhode believes that we may come to understand the social construction of gender and the best way to effect social change. To this end the book explores law's response to sex discrimination within a broader social context, and hypothesizes that much of the difficulty that traditional legal frameworks have in

dealing with sex discrimination stems from two particular limits: 1) a focus on abstract rights rather than social context; and 2) a focus on

gender differences rather than the disadvantages caused by differential treatment. The object of the book, then, is 1) to examine the legal history (and current law) of sex discrimination focusing on social context rather than abstract rights, and 2) to suggest a reorientation of law to a principle of gender disadvantage rather than a focus on

gender differences.1

I. THE SIGNIFICANCE OF METHOD: DISCRIMINATION AND CONTEXTUAL ANALYSIS

In the first objective Rhode succeeds admirably in one respect but not

These are not the only objectives of the book, but they are primary ones. Another objective is to set out the feminist responses to this legal history and situate the feminst debates within these issues.

Law and Philosophy 11: 431-447, 1992. ? 1992 KluwerAcademic Publishers. Printed in the Netherlands.



Patricia Smith

in another. That is, she does not clearly demonstrate the problems (if there are any) with legal analysis in terms of rights, but she does indeed examine law by focusing on social context. In fact, she demonstrates not only the possibility but the value of contextual analysis by engaging in it, by doing it.

Over all, the book provides a carefully researched, responsible, informative history of cultural and legal thought on inequality and sexual differentiation often called "separate spheres" ideology. This

history is well told, and for some (like me) the mere telling of the

story demonstrates our heritage of universal sex discrimination. It reminds us, for example, that just seventy years ago, within the

memory of our own grandmothers, women could not vote, let alone hold office or practice professions. Women's liberation is very recent and halting in its progress. Sexual prejudice is deep and old. It represents a way of life feminists are struggling to leave behind. Yet it is a cornerstone of our legal and cultural heritage, informing "natural

assumptions" of well-meaning people from all walks of life. It is not

necessary to postulate malice to account for it, and Rhode does not. There is no shrill accusing tone, no righteous indignation. She simply tells the story of historical and current attitudes and practices con-

cerning sex roles and assumptions about human nature. She tells the story by relating particular cases, judicial opinions, actual statements made, specific actions taken. These cases speak for themselves, exhibit-

ing assumptions based on prejudice, on stereotypes which presuppose inherent differences between men and women which have had enor- mous impact on differential treatment and the construction of roles

throughout history and in the present day. This story well told, in my opinion, is the greatest value of the book.

Rhode's meticulous attention to detail has numerous benefits. One

interesting thing that her careful contextual analysis shows over and over is the inability of judges and legislators (and other officials as well) to think very far beyond or outside the confines of predominant public opinion. That is not really surprising, when you think about it. It might be a little disappointing (if you are an idealist, since these people are supposed to be leaders) but it is not really surprising when you think about it. If we live in a sexist society (as every society is)

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A Review ofDeborah Rhode's Justice and Gender

then judges and legislators are just as likely as anyone else to be sexist. The stronger and more pervasive the prejudicial standards, the more likely judges and legislators are to be part of the predominant opinion rather than opponents of it.

What follows is that law is largely a servant of public opinion, and not a generator of it. (Although I would not want to put this point too categorically. I would not cynically claim that law cannot influence public opinion at all.) Yet, we are not likely to win in court if we look to law to transform basic old longstanding institutions or to defend victims of those institutions. This is because the status quo is presumed to be normal (and possibly therefore good or inevitable) and victims of the status quo are not perceived as victims. Instead, they are perceived as themselves at fault. They are people who do not measure up to the status quo for one reason or another. They are odd, or they are troublemakers. They don't fit in. They simply don't understand "how things work". They do not function well by "normal" standards. The point is that the fault lies (it is naturally assumed) with the outsider and not with the standard. That bodes ill for women making claims against the status quo since the status quo is universally construed in terms of the experience of men. Rhode provides numerous examples of this problem, all well documented.

Consider the case of sexual harrassment. Sexual harrassment is widely perceived as a joke. It is not a serious offense. It is concerned with mere flirtation, and anyway it is inevitable. Boys will be boys, you know. You can't buck nature. It took years of argument to get sexual harrassment to be recognized as a cause of action at all. And now that it is formally recognized, women who claim it are pre- dominantly characterized as lacking a sense of humor. They are bitches. Presumably losing their jobs and promotions is intended to improve their sense of humor. Or they do not understand how to function in the business world. If they can't handle a little flirtation with finesse they don't belong in the public sphere. Such are the common attitudes.

Rhode shows that sexual harrassment is a genuine harm and a common problem. She points to studies showing that at least 42% of women in academic and work environments reported harassment in

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any given year since 1981, and that typical consequences of such harrassment were serious: e.g., job dismissal, demotion, economic

injury, transfer, decreased productivity, and increased turnover. Yet

many employers have been reluctant to institute grievance procedures, and courts have been largely unresponsive to the problem.

In case after case Rhode demonstrates that judges do not perceive the "victims" of sexual harrassment as real victims. These judges reflect the attitudes and experience of men, and consequently sexual harassment is outside their range of experience. It is not seen as a genuine threat. It is interesting that claims of sexual harrassment brought by men against gay or bisexual superiors have been quite highly successful. Male judges can identify with that threat. But ordinary heterosexual harrassment? Many judges (as Rhode's copious citation

shows) have been overtly hostile to any such claims; their attitude says it is not a real harm; it is frivolous.

And then there is spouse abuse, another joke. As the old saw goes, if

you can't beat your wife who can you beat? Chastisement of one's wife is an old and recognized tradition. Thus, domestic violence is

widely disregarded or underrated. It is not "real violence". If a man assaults a person on the street he is charged with assault. If he assaults his wife he is told to take a walk and cool off Beating your wife is not real violence. Somehow it doesn't count. Furthermore, the law should

stay out of it. We should not clutter up court dockets with personal squabbles, which is to say it is not serious. Rhode cites case after case of judges (not to mention police and prosecutors) who are unsympa- thetic to the claims of battered wives. It is her own fault, judges seem to say. She provoked it. Or even if she didn't, it is her own fault if she

stays. The difficulty of leaving one's home is widely ignored. It is

apparently irrelevant that many women have nowhere to go, children to support, and little or no income. There is also the interesting question why she should be compelled to leave home if he is the violator. If he is the wrongdoer why is she the one to be punished? The answer is that the violation is not recognized as real. Either it is trivial or it is her own fault.

Although Rhode does not mention it, this attitude of judges reflects the attitude of the public at large. We do not want to know about this

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A Review of Deborah Rhode's Justice and Gender 435

problem, especially if it is common. We do not want to think badly of

people we know. It cannot be my neighbor, or friend, or colleague, or uncle, or brother who beats someone vulnerable to him. It must be someone far away that I don't know. So it can't be common. Either it's not "real" violence, or it's rare. So if you confront me with it often you must be making it up. And I have better things to do with my time than to hear distressing stories that I don't want to believe anyway.

Rhode sets out the facts. Domestic violence accounts for more

injuries to women than any other cause, including one-third of all female homicide victims. Nevertheless, (she shows) restraining orders are often unavailable or unenforced, offenders usually receive lenient treatment, minimal fines, suspended sentences, or dismissals, and com-

plaints are regularly disregarded or disbelieved. In these and many other contexts (e.g., employment discrimination,

welfare law, divorce law, rape, and abortion) Rhode shows the inability of judges (and consequently, of law) to confront challenges to longstanding social arrangements. Insofar as the equality and liberty of women depends on the success of such challenges, we have before us an uphill battle. This is not to say that no progress has been made, but it does indicate how far we have left to go. It is not to suggest that law is an inappropriate avenue for the defense of women's claims, but it does suggest the limits of law both in terms of its institutional or

conceptual structures, and in terms of individual perceptions and

judgments. Ironically, it also suggests that law has great capacity to

perpetuate discrimination and prejudice, but little ability to eliminate them. That may not be the conclusion Rhode wanted (or drew) but it does demonstrate that careful contextual analysis can indeed provide a

picture of how law institutionalizes discrimination, both formally and

informally. Thus, Rhode does demonstrate, I think, the value of historical and

contextual analysis as legal method. What her analysis really shows is

something we already knew about making rational evaluations or

judgments. Namely, you cannot make them unless you are well informed. Historical and contextual analysis makes us better informed for the purpose of making legal judgments because legal judgments are fundamentally about human life and social history. To disconnect



Patricia Smith

law from this context is a perversion of its purpose, no matter how

elegant (or certain) we might thereby make it as a system of logic. Oliver Wendell Holmes told us that experience and not logic is the life of the law. Many legal theorists do not like this approach because it requires hard work and produces untidy results. Rhode embraces it, and the results are good, even if untidy.

What she does not demonstrate, however, at least to my satisfac- tion, is that contextual analysis should somehow replace a focus on, as she puts it, "abstract rights". It is currently fashionable in some circles to deny the value of rights (Rhode doesn't do this) and more so to

point out the hidden costs associated with them, especially for the

underprivileged (and Rhode does do that). The critique of rights does not originate with Rhode, nor even with feminists. It originates with certain members of the critical legal studies school, and is joined by some feminists, many of whom use various tools fashioned by critical

legal theorists. Other feminists, however, disagree with the critique of

rights, pointing out that the assertion of rights has often well served the causes of women and minorities, or the underprivileged or out- siders in general. I myself am sympathetic to this view, and thus am

skeptical of the critique of rights, although I do not think it is without

any point whatsoever. What Rhode does is simply report the debate with the pros and cons of each side. (This, by the way, is what she does with all the debates she covers, which is a definite virtue of the

book.) However, in this case she sides with the critique of rights without ever really saying why.

Thus, throughout the book, Rhode argues (or rather claims) that attention to abstract rights rather than social context has hampered the

ability of traditional law to deal with problems of sex discrimination. This is a claim often made by feminists, and it is worth discussing for several reasons, not the least of which is that it seems to lead some to conclude that feminists (particularly radical feminists) are not very concerned about rights. That would be a gross error.

Feminists are concerned about women's rights first and foremost. The feminist movement grew out of a concern to obtain equal rights for women, not (merely) to protect their welfare. Feminists never have argued that men should be kinder to women, or more charitable, or

436




take better care of us, or love us more. Surely no one thinks that is the

object. No feminist asks for charity: feminists demand justice. Fair and

equitable treatment is and has always been the goal of the women's movement, clearly and explicitly stated, or so it seems to me. It may be one of the few things on which all feminists agree.

So what, then, do feminists like Rhode mean when they complain about the inadequacy of the traditional focus on abstract rights? The

complaint is not really about rights as such, but about how rights are construed within traditional legal categories. It is rather like the

problem of being rule-bound or formalist. It is a complaint about

rigidity. After all, what is the basis of legal rights, formally, that is, in the abstract? It is by and large, precedent. And how good is precedent at handling new claims? Now good at all. That is not what it is for. What is precedent good at? It is good at maintaining the status quo (no question about that), and order (possibly), and (supposedly) procedural justice. That is, it is supposed to be good at treating like cases alike, assuming, of course, that we can easily or at least clearly tell which cases are alike, and what it means to treat them the same. However, it should be noted that from the point of view of women there is not much ground for optimism on this last point, since the courts have been astoundingly obtuse about supposedly significant differences between men and women. Until very recent times our own courts have held that given our differences of intellect and nature we women need not be educated or trained in any formal way; we could be barred from participation in universities, professions, or politics; we could be prohibited from engaging in certain businesses, from owning property, or even from voting because, after all our nature and intellect are so different from that of men. Women were not allowed to vote until the 1920s. We were not allowed admission to Harvard until the 1950s. That's 19 (not 18) 50s. And the courts did virtually nothing about any of it, presumably because we are "so different".

With a record like that, feminists can hardly be faulted for maintaining some skepticism about the courts' abilities to discern which cases are alike and which are different. If the courts cannot discern which cases are alike and which are different (especially with regard to women) then women have no reason to expect even procedural justice.

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And no one ever claimed that the courts did anything about substan- tive justice for anyone. So the only thing that precedent does clearly is maintain the status quo pretty well. Courts can usually manage to do

things the way they always did them. (And I am not saying that that is not worth anything; it is worth something.)

What it means in terms of rights is that if you already have one, precedent will tend to maintain it. On the other hand, if you do not

already have one, precedent sets a barrier to your getting it. That is, precedent, in and of itself and without any reference to your particular case, supplies a reason or presumption that because a claim like yours has not been recognized in the past, it ought not to be recognized in the future. If you are one of the haves, then you can appeal to abstract

legal rights for your protection. If, you are one of the have-nots, you will have to use a different sort of argument. And that is acceptable too, so long as you do not get stuck with a judge who will not listen to other arguments, who says that if there is no right pre-existing, no

right will be recognized in the future no matter what the circumstances or arguments. That is an appeal to abstract rights. It is a focus on a system of rights abstracted from their connection to human

beings in actual circumstances. The feminist point is that rights, properly regarded, are essentially

and fundamentally connected to human freedom and well-being, and not abstract freedom and well being, either. The point of rights (what makes them make sense) is the protection of actual individual people with real lives, real plans, and real problems, who function in particular circumstances, and interact with other real people in the real world. Rights abstracted from their human connections make no sense. And a system of abstract rights turned into a barrier to the serious consideration of real claims is a perversion of the natural function of

rights. Of course, rights must be justified. Not every claim is or should be

considered a right. In that sense, rights might be considered the natural conclusion to a reasonable or perhaps compelling set of arguments. If the argumentation for a claim is not sufficiently compelling, then no right should be granted. But for a system of rights abstracted from human connection to act as a bar to the serious consideration of

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argument in support of claims is to get things backwards. The legal system exists for the convenience of the people, not the other way around. More to the point, legal rights perpetuate the status quo in the name of justice. But if the status quo is unjust, it should not be allowed to hide that injustice behind a rhetoric of rights that blocks the introduction of new claims that challenge the injustice. Rights that protect injustice are the worst sort of perversion.2

So, feminists are willing to support their claims, to give arguments, to offer reasons to be recognized. We just do not want to be ruled out of court without consideration of our arguments by rigid deference to a system of abstract rights that was put together before women were included in the system, and is now perpetuated by precedent without regard to current human circumstances. Feminists also recognize that judicial activism is a genuine concern, but so is the abdication of responsibility for ajust legal system.

Of course, Rhode did not say any of this. I would have been very interested in her defense of the view that social context should temper deference to abstract rights. That is one of my quibbles. I think she should have said something in defense of that view, since she holds it, indeed, relies on it. But perhaps what she does instead is more effective. She tries to show in each context how the appeal to abstract rights has led to inequitable decisions and has worked to the disadvantage of women on a regular basis. The question is does she accomplish this goal, and if so, is her accomplishment sufficient to show that the courts should do anything about it? I would like to consider these questions in light of the major thesis of the book.

II. THE THESIS: GENDER DIFFERENCE AND DISADVANTAGE

The approach of the courts and the legislatures toward unequal treat-

2 This is not the only feminist critique of rights; there are others, but this is one that I find plausible. Cf. e.g., Olsen, 'Statutory Rape: A Feminist Critique of

Rights Analysis', 63 TEX. L.R. 387 (1989); or Williams, 'Alchemical Notes: Reconstructed Ideals from Deconstructed Rights', 22 Harv. Civ. Rts/Civ. Lib. L.R. 401 (1987).

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ment on the basis of sex has been putatively or formally Aristotelian. That is, it is held that treatment of persons must be equal (or the same) unless some relevant difference can be shown to justify a difference in treatment. If a relevant difference is found, the court will not interfere to impose its judgment on how the plaintiff must be treated. This is true both in constitutional cases and in statutory ones, such as in Title VII evaluations. In constitutional cases the defendant must show reasonable and substantial grounds (the Supreme Court's "intermediate" standard of review) for a policy that treats people differently because of their sex. Similarly, Title VII of the Civil Rights Act of 1964 requires equal treatment of employees unless a "Bona Fide Occupational Qualification" (or BFOQ) provides a justification for different treatment. Thus, the courts, to interpret constitutional and statutory language, have embarked upon an exploration of what constitutes relevant differences between the sexes for purposes of legal treatment or protection.

Is anything wrong with this "difference" approach? Rhode points out at least two problems. First, as she ably illustrates by relating court history, what constitutes a relevant difference between the sexes has been mistaken and misapplied more often than not. Judges, historically, have demonstrated no particular talent at determining what a relevant difference is between men and women. The very construction of gender difference was a legal discrimination against women, effec- tively eliminating any possibility for women to function as equals in the public sphere, providing, as it did, a flat ban to participation in many or most areas of public life, and ensuring the economic and political dependence of women on men. Courts were no more forward-looking, equitable, or even rational than any other elements of society in explaining the nature and relevance of gender differences. For example, less than 100 years ago judges (like others of their time) were irrational enough to hold without evidence that rigorous education beyond puberty would stunt the reproductive capacity of women. They were even irrational enough to hold that women were strong enough to labor in laundries, factories, farms, and mills, but much too delicate for professional practice, such as law. And judges were inequitable enough to hold that women could be barred from libraries

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and universities because their presence was feared to be distracting to men who studied there.

Obviously, as far as judges were concerned, women's interests did not count, as Rhode's historical account shows. That is, women were denied to have any interests independent of the interests of men, and certainly none that conflicted with the interests of men. And, the restrictions placed on women were almost always made on the ground that they are different from men and need protection. This, despite the fact that these "protections" almost always worked to the disadvantage of women. That is, the "protections" prohibited women from doing things.

It now sounds strange to say that women were being "protected" from education or legal practice (among other things) but it is true, as illustrated by the many quotations that Rhode cites, such as the declaration by a Columbia University trustee in 1897, that "No woman shall degrade herself by practicing law especially if I can save her". What was being protected was a certain conception of womanhood, that is well described by Justice Bradley, in denying that the equal protection clause required allowing women admission to the bar in the case of Bradwell v. State3 in 1872:

The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordenance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood ... [and] is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. ... The paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.

That same year in the Slaughter-House Cases4, which involved the establishment of a monopoly for butchers in Louisiana, Bradley himself had argued that the (categorical) denial of employment was a violation of the 14th Amendment. But it was clear to him that women were different, and so should be protected from improper employ-

3 83 U.S. 130 (1872). 4 83 U.S. 36 (1872).

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Patricia Smith

ments such as legal practice. The point is that if women are "different" the law need not protect them equally with men.

It might be objected that all this is, after all, history. These cases occurred 100 years ago, or at least 50 years ago, and the courts are no

longer biased. Women have achieved formal equality. Sex discrimination is a recognized cause of action. Obviously the courts are doing better, so the difference standard may be effective now, even if it wasn't 50 years ago.

But it is not clear that the courts are doing better now, or for that

matter, how to tell whether they are doing better by sticking with a difference standard. After all, they always did more or less reflect

popular opinion. If they are still doing that, is that doing better? It is not clear how the difference standard can tell us. Consider a couple of recent cases, current law.

In 1986 the case of EEOC v. Sears5 raised a Title VII employment discrimination claim against Sears Roebuck Co. Title VII will support two sorts of claims: disparate impact (that is, facially neutral practices which have a disparate impact upon some group such as women or

blacks) and discriminatory treatment (that is, intentional discrimina-

tion.) Now this sounds like a legitimate and useful distinction, but in

practice the distinction may blur, and plaintiffs find themselves faced with proving intent to supplement or substantiate disparate impact claims. That is, Title VII says that disparate impact is enough, but some courts are reluctant to enforce it. In Sears the EEOC alleged discrimination against hiring or promoting women to higher paying commission sales positions, citing substantial statistical evidence of female underrepresentation in such jobs. Sears claimed that the dis-

parity was due to women's own choices, relying, among other things, on the testimony of a prominent feminist scholar, who argued (like Carol Gilligan) that women often prefer the traditional values of

caretaking and nurturing to competitiveness and economic gain. Thus, in spite of rebuttal testimony from actual women who wanted the

competitive and higher paying jobs, the court concluded once again that perhaps women are different (after all, women themselves say so);

5 628 F. Supp. 1264 (N.D. Ill. 1986), affd., 839 F.2nd 302 (7 Cir. 1988).

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perhaps they have different values and preferences, so without evidence of overt bias, the disparate impact of Sears' promotion policies might be due to women's own choices. It might be true (even though the EEOC presented substantial evidence that it was not true), but whether it is true or not, the question is now how could disparate impact ever be proven illegitimate? If old stereotypes can now be used to rebut a claim of discrimination on the ground that women's "different" preferences may account for the disparate impact, is this case any better than Bradwell? And what does this leave of the protection of Title VII? It will protect against overt, individual, intentional discrimination. But the disparate impact of an unfair system, on the Sears model may never be provable again. If, as Sears assumes, the fact that women have traditionally held low-paying jobs shows that we prefer low-paying jobs, and are not discriminated against if passed over syste- matically for higher paying but more competitive jobs, how could we ever show that we prefer competitive jobs? I'd like to know how this case represents progress in combating bias against women rather than the entrenchment and institutionalization of it.

Second case. In 1974 Geduldig v. Aiello6 raised the issue of the con-

stitutionality of a California insurance program that excluded coverage for pregnancy but included coverage for disabilities affecting only men. In an amazing feat of mental gymnastics the Supreme Court upheld the program on the ground that pregnancy was not a sex-based classification as such, but rather a distinction between pregnant and nonpregnant persons. The former class could only be constituted of women, of course, but the latter class could comprise both women and men. What can explain such a decision? It is, of course, a brilliant piece of semantic manipulation, but to what end? It is hard to explain what could motivate such a decision other than overt bias. In fact, it is more likely that the Court just wanted to stay out of it, not interfere in state business. But is that not to condone discrimination? You tell me, is the Court doing better?

Feminists themselves are split over these decisions. Applying the difference standard gets more and more subtle and unclear. The stand-

6 417 U.S. 484 (1974).

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ard itself appears infinitely malleable and amorphous. If (ust to use these two examples) the desire for commission sales jobs can be inter-

preted as sex-related, and pregnancy as non-sex-related, is there any interpretation that this standard is not susceptible to? I believe Rhode

(along with other critics, both feminists and others) have shown that the difference standard is unworkable. (But it may be the courts' own

opinions that demonstrate that best.) Furthermore, Rhode raises a second complaint. Even if it were

possible to apply this standard in some rational and fair way that did not rely on stereotypes or unsupported assumptions, it affirms essen-

tially a male standard of what is normal. Difference is a relational

concept. It only makes sense as compared to some norm, and the norm is male. What, after all, is it that women are supposedly different from?

So the question arises why the male norm should be maintained as the basis of, say, ordinary business practice or standards of safety and convenience in the workplace. Notice that if such standards are not met for men, the practice or working conditions must be corrected. On the other hand, if they are not met for women, women can be excluded from the occupation. The question is why should the standard be "man" rather than "human being"?7 Historically, of course, the answer is easy. It has been "man" ever since the division of labor was invented. But that is not a justification for retaining it, since historical standards merely reflect historical discrimination.

So the difference standard, as Rhode shows, is flawed for two reasons. First, it assumes a male standard of what is normal, and

protects women only insofar as they can prove that they are like men. Second, it is exceedingly difficult to apply and consequently is highly

subject to misapplication and abuse, thus failing to protect women even when they are (at least arguably) the same as men.

7 As I write this a new Supreme Court case held that employers could not ban women from potentially hazardous work. Women now have the right to decide for themselves whether to engage in work that might pose risks to their future reproductive capacities. (Without reading the case) this could be interpreted as a sign that the Court itself is moving away from a difference standard. Of course, other interpretations are also possible.

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What does Rhode propose as an alternative? Rhode suggests that the law be reoriented from a focus on gender difference to a focus on

gender disadvantage (or perhaps disadvantage in general). She argues that the courts would be on firmer ground to eschew the ephemeral evaluation of "real" or "relevant" differences, and move instead to more empirically supportable assessment of the effects of differential treatment. What is important, she argues, is not whether differences are "real" (whatever that means) but whether policies and practices create and/or entrench disadvantage for an entire group of people as a class, in this case specifically women. This is not a new thesis. Other feminists have made similar arguments with minor (and major) variations.8

This approach represents the recognition among feminists, first, that there are some real problems with the "sameness" thesis, the predominant view of the 1960s and early 70s that focused on the simi- larities between individual men and women, and argued for gender neutrality (or "gender blindness"). That view failed to consider the

disadvantages created for women by social roles, historical stereotypes, and traditional expectations or assumptions. This led to the super- woman syndrome in which a few women managed to "do it all", and the vast majority of women were set up for failure or second rate status by an unequal system further entrenched by a policy of "gender blindness" that ignored these disadvantages.

This position was challenged in the late 70s and 80s by a second view, the "difference" thesis, which focused on the problems of the sameness thesis, and on the differences between men and women as

groups. But it is now apparent to feminists that the difference thesis has problems of its own. Some of these are illustrated by the Sears case, in which the testimony of feminists advocating the difference thesis was used to explain the wide disparity between men and women in commission sales positions as a function of women's preferences rather than prejudice. The difference thesis is an invitation to per-

8 E.g., Littleton, 'Reconstructing Sexual Equality', Cal. L.R. 75 (1987); See also

Taub and Williams, 'Will Equality Require More? ..,' Rutgers L. Rev/Civ. Rts. Devs. 37 (1985): 825, among others.

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petuate stereotypes and the prejudice that has always accompanied them.

The new argument (which Rhode represents) is that we need to get past the sameness/difference debate altogether to an assessment of the fairness of conditions created and maintained by legal policies and business practices. An interesting point made by Rhode is that feminists and legal policy makers have gotten stuck in this debate before. The progress of the women's movement from the sameness thesis of the 60s to the difference thesis of the 80s was paralleled, she notes, by shifts in public attitudes in the nineteenth and early twentieth cen- turies. It is indeed time to move on.

Would a shift in focus from difference to disadvantage facilitate moving beyond that old snag? Possibly, especially if it focused on disadvantages caused for any group, rather than women exclusively. But the basic issue remains: how to correct disadvantages caused by discrimination (especially unconscious discrimination) without refer- ring to, and thus inviting recognition and entrenchment of the stereotypes which led to the disadvantage in the first place? Rhode's approach does not really resolve this issue, but at least she does raise it.

III. CONCLUSION

The greatest virtue of this book is its scholarship. It provides an excellent survey of the field of feminist legal theory and the law of sex discrimination. It would function well as a textbook, although not only as one. I would recommend it particularly for two purposes.

First, for those who already work in these areas, this is a handy resource book. It will not tell you anything you haven't heard before. This book does not really advance a new position of its own origin. However, it does provide excellent background and analysis of virtually all major positions, pro and con, of virtually all issues of interest in the area of feminist legal theory and sex discrimination, collected together in one place. It is a fine way to fill in gaps efficiently, and to assure yourself of well-balanced coverage, even if you go elsewhere for depth.

Second, (and perhaps more important) for the general public, that is, the educated general public, especially the law professors, philoso-

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phers, lawyers and other intellectuals who do not specialize in feminism or focus on issues of discrimination professionally, but are interested in them in general, this is the book for you. It is responsible, thorough, well researched, well balanced, sane, well written, and comprehensive. Its virtue is breadth, rather than depth. But you could reasonably consider yourself generally well informed on the topics of feminist legal theory and the law of sex discrimination if this were the only book you read.

One final value of Rhode's book is that it works against a particularly frustrating and destructive social tendency. The problem of sex discrimination is subject to a psychological phenomenon that plagues all long-standing, entrenched, chronic social problems. Namely, people who once were concerned get tired of them. Like problems of home- lessness or poverty, discrimination takes too long to correct. People don't want to hear about it any more. Former sympathisizers use tokens and single incidents to conclude that the battle has been won. Yes, women were once discriminated against, but not any more, really. Systematic discrimination is basically a thing of the past, they con- veniently conclude. The system has been purged. If anything discrimination falls the other way now, in favor of women. The battle against the system is over, they tell me.

But it is not. Sexism is still widespread and systematic (although more hidden and less legal). And single incidents (such as the divorce settlement of Johnny Carson's wife, or the success of Sandra Day O'Connor) do not rebut the overall picture drawn by general statistics (e.g., that after divorce the standard of living drops 73% for women and rises 42% for men, that women earn 64 cents for every male dollar, or that a majority of women lawyers do not make partner in their firms). It is very difficult to show that such things are due to a discriminatory system rather than, say, to individual incompetence. But they are due to a discriminatory system. Through its meticulous detail and documentation, Rhode's book shows that they are.

Patricia Smith

Dept. of Philosophy, University of Kentucky,

Lexington, Kentucky, U.S.A.

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Discrimination and Disadvantage in Feminist Legal Theory: A Review of Deborah Rhode's "Justice and...

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