Feminism and legal reform

Social movement organizations are also shaped by the governmental and legal institutions of the societies in which they operate, their links with the political process (including political parties and trade unions), and the ideological nature of the political environment, all of which affect opportunities for action (Gelb, 1987: 270–8; Martin, 1990: 190–1; Staggenborg, 1989: 234–6; 1995: 339–42). Indeed, sometimes a social movement’s identity is externally imposed which in turn can form part of the basis for grievances (Bernstein, 2005: 48). Law, legal institutions and legal concepts and symbols will often shape and constrain the way grievances, social movement identities and objectives are framed or articulated (Pedriana, 2006). Looking at transformations in the US Women’s Movement in the 1960s, Pedriana concludes: ‘Legal frames and legal framing processes offer a unique analytic framework for exploring the link between social movements and social change because law is simultaneously a collective action frame and a collective action goal’ (Pedriana, 2006: 1754, emphasis in original).

A central aim of various feminist organizations is to achieve the reform of laws to reflect women’s experiences more accurately and to ensure that laws are applied in the private or domestic domain. Nevertheless, considerable ambivalence exists about the role or the capacity of law to ameliorate diverse women’s situations and to effect enduring social change. Legislation prohibiting or criminalizing sex discrimination, differential pay structures, rape, domestic violence and sexual harassment has had little deterrent effect and such reforms do not seem to have empowered significant numbers of women or provided greater access to justice. Law enforcement and judicial personnel often dilute the promises held out by progressive legislative change. Some feminist critics maintain that a focus on law as a route to social change is self-defeating from the outset. A reliance on law merely reproduces gender inequalities because law is so infused with patriarchal or masculine values. Resorting to law may in fact make conditions worse for the groups supposed to benefit as the resolution of problems is usually formulated as requiring more law, thereby extending the power and reach of law and further marginalizing nonlegal discourses, especially feminist perspectives (Smart, 1989: 161–2; Thornton, 1991: 454).

1. Many women will not be able to realize their formal rights because of substantive and pervasive gender inequality.
   
2. The notion of rights means that different rights are equivalent and conflicts in the legal arena become contests over whose rights will predominate. For example, contemporary abortion debates are often couched in terms of the woman’s rights versus those of the fetus, or even the embryo.
   
3. The legal recognition of rights requires an individual, or sometimes a group, to actively lodge a complaint and to initiate legal proceedings.
   
4. Rights discourses are easily appropriated by opposing groups. For example, in 1982 the Charter of Rights and Freedoms, which guarantees equal rights, was entrenched in the Canadian Constitution and heralded as a political victory both by and for the women’s movement. However, some of the first equality cases to come before the courts consisted of attempts by male defendants to invoke the guarantees of sex equality in order to invalidate statutory rape provisions of the criminal law (Fudge, 1989: 450–1).

Nevertheless, rights claims can give women an important sense of collective identity, actively shape public discourse and be a source of empowerment. The public nature of rights assertion is especially significant because of the often private nature of discrimination against women (Schneider, 1986: 624–6). Moreover, women do adopt a rights discourse in everyday life, and not just in legal arenas, in their attempts to effect social change on local and personal levels (Villmoare, 1991: 401–7).

Employment discrimination

Equal pay and work discrimination have been central issues for feminists seeking change through legal or industrial relations systems. Historically, women have been paid less than men for identical work, reflecting an assumption that women’s income supplements the male wage; women have been explicitly excluded from employment after marriage or child bearing or relegated to jobs with fewer opportunities and less pay. In addition, women’s commitment to their careers, jobs and employers is often viewed as lower than that of men (Hakim, 1995: 432–5). Women have lobbied in the legal arena to reduce wage gaps between men and women and to achieve equal employment opportunities (Burstein, 1991: 1203–5). Debate continues regarding the relative importance of women’s choices and the structural constraints that impinge unequally on women’s opportunities to combine employment with family responsibilities (Crompton and LeFeuvre, 1996: 436–42; Ginn et al., 1996: 169–70).

The construction of women as economically dependent on men has had a long history and has resulted in the development of such concepts as the ‘family wage’, that is, the amount that an average (male) worker is considered to need in order to support himself, his wife and an average of three children (Graycar and Morgan, 2002: 139–70). In Australia, the minimum rate for adult women was defined in terms of the needs of an average female employee who has to support herself. Thus, the family wage concept perpetuated the notion of differential needs between men and women workers and reflected assumptions about the respective responsibilities of men and women, both in the labour market and at home (Cass, 1985: 70; Hunter, 1988: 148–9; Land, 1980: 74). The notion of the family wage assumes that male earners will equitably distribute their income among family members/dependants (Zelizer, 1989: 353). Even where women worked in male-dominated occupations, special female classifications attracted lower wage rates (Hunter, 1988).

Most western industrial nations have implemented equal pay laws to close the gap in earnings between men and women. Intentional and direct pay discrimination is easy to identify and to remedy (so long as the political will and adequate resources exist). The fact that most men and women work in different kinds of occupations has led to claims for equal pay for work of equal or comparable value as an attempt to achieve pay equity.

In 1963, the US Congress made it an illegal sex discrimination for most employers to pay women less than men for equal work in jobs that require equal skill, effort and responsibility and that are performed under similar working conditions. This was interpreted as requiring the jobs being compared to be very similar in work content (Treiman and Hartmann, 1981: 3–4). The UK’s Equal Pay Act 1970 provided equal pay for like work, not work of equal value, and abolished male and female rates for the same job. Equal pay for work of equal value was limited to jobs that had been evaluated by the employers (Atkins and Hoggett, 1984: 21). Because of job segregation, many women found themselves unable to find a suitable comparison and, even where this was possible, the assessment of equal value depended on the employer’s consent. In 1983, the European Court ruled that the Act be extended to fully embrace the concept of equal pay for work of equal value (Byrne, 1984: 247–8). In Australia in 1969, the Arbitration Commission granted equal pay for equal work, that is, equal pay for women working in predominantly male occupations. However, four-fifths of women workers were engaged in disproportionately female occupations (Hunter, 1988: 157–60). In the national wage and equal pay cases in 1972, the Australian Council of Trade Unions (ACTU), the peak union organization (which had been confronted by women unionists demanding that it attend to the special needs of working women), successfully argued for the adoption of the principle of equal pay for work of equal value. In 1974, the Arbitration Commission, after a long history of activism by the National Council of Women, the Union of Australian Women and the Women’s Electoral Lobby, removed the consideration of family needs from the calculation of minimum wages (Cass, 1985: 75–6).

The doctrine of comparable worth is one strategy to overcome this problem. Comparable worth emphasizes formal job-evaluation plans to help establish equitable wages. The content of jobs is described (as distinct from descriptions of their usual incumbents) and jobs are compared and scores assigned in terms of such criteria as knowledge, skill, complexity, responsibility, effort and working conditions (Acker, 1990: 148). Jobs having the same number of points – that is, they are similarly situated in the overall work organization – should be compensated similarly. Nevertheless, practices of assessing the worth of jobs and assigning relative pay rates do incorporate discriminatory elements. For example, skills in managing money, more often found in men’s jobs, receive more points than those dealing with clients or human relations skills, more often found in women’s jobs (Acker, 1990: 150).

Comparable worth arguments have been used in Australia, but with little success. In 1985, a union of nurses lodged an application via the ACTU before the Australian Conciliation and Arbitration Commission as part of a broad strategy to reduce structural inequality between men and women in the labour market by addressing the traditional undervaluation of women’s work. The nurses argued that pay increases were justified in accordance with the principle of equal pay for work of equal value and incorporated in the notion of comparable worth. The Commission, pointing out that comparable worth meant different things in different countries and that it was inappropriate to adopt the US model, rejected the use of the term, maintaining that it would be confusing and inappropriate to equate it with the 1972 principle of equal pay for work of equal value (Hunter, 1988: 167–9).

Sex discrimination laws

A controversial aspect of this case was the deployment of historians as expert witnesses for both sides. For Sears, Rosalind Rosenberg testified that historically men and women have different relationships and orientations to paid work. She suggested that ‘many workers, especially women, have goals and values other than realizing maximum economic gain’ (United States District Court, 1986: 758). Specifically, women predominantly choose jobs that complement their primary family obligations. Differences between men and women in the workplace are not evidence of discrimination by Sears. In contrast, Alice Kessler-Harris argued that women’s choices are constrained by available economic opportunities that, in turn, are shaped by employers’ actions, preferences and assumptions about women’s roles. Where opportunities have existed, women have moved into a wide variety of occupations. The judge was not convinced by the EEOC case and decided that the underrepresentation of women in the better jobs was not due to sex discrimination on the part of Sears. This case also occurred against a backdrop of increasing conservatism in the political arena; Sears was able to devote USD $20 million to defending the case, while the EEOC spent USD $2.5 million; and the head of the EEOC – Clarence Thomas – had proclaimed publicly his dislike of statistical evidence (Milkman, 1986: 394).

In the 1970s, the US Supreme Court did not consider that the exclusion of pregnant women from disability insurance schemes violated sex discrimination legislation. It disagreed that discrimination based on pregnancy is sex discrimination reasoning that exclusion from the insurance provision was based on a physical condition (pregnancy) and not sex. It reached this conclusion reasoning that only some, and not all, women would be excluded, therefore the insurance programme did not discriminate against any definable group or class; both men and nonpregnant women were included in the disability scheme (Williams, 1984–5: 336–9). Eisenstein observes: ‘The engendered nature of the law privileges non-pregnant persons. It is this category – which includes all men and some women – that is used to deny the sex-class status of pregnancy – which applies to no men but a majority of women’ (1988: 67, emphasis in original). Thus the Court asserted that pregnancy is unrelated to sex/gender; it is something special, with no comparable disability.

A number of court decisions resulted in a polarization between equal treatment and special treatment advocates. Equal treatment proponents argue that pregnancy is just one of the physical conditions that affect workplace participation; pregnancy does not create special needs, it is one human condition among others that may affect an employee’s activities (Finley, 1986: 1145). In contrast, special treatment advocates emphasize substantive equality and support laws requiring employers to provide maternity leave to those who want or need it. In both instances, the norm for determining whether treatment is the same or different is the unencumbered male worker. Thus the issue becomes whether women (and which kinds of women) are like men and, if they act like male workers, whether they should receive the same benefits and rewards (Finley, 1986: 1155). While this norm is a stereotype itself, arguably more women than men will find conformity to it difficult (Naffine, 1990: 146).

A coalition of feminist, labour, civil rights, church and even antiabortion groups mobilized to support the passage of the Pregnancy Discrimination Act in the USA, a 1978 Amendment to Title VII, which rendered discrimination based on pregnancy (or other physical characteristics unique to one sex) as sex discrimination and therefore illegal. This law requires that employers treat pregnant workers in the same way as others who are comparably able or unable to work and assess their capacity to work. An examination of appellate court decisions indicates how judges undermined the economic justifications for a range of practices, including forced leave, discharge, loss of promotion opportunities, and exclusion from health insurance and sick-leave benefits, that had previously rendered pregnancy incompatible with paid work. Pregnant workers’ mobilization of equal employment law achieved success, albeit limited by the continuing absence of paid maternity leave, in shifting the responsibility for accommodation on to employers (Edwards, 1996: 254–65). Nevertheless, unease remains regarding the provision of special benefits to pregnant workers and the achievement of equality in the workplace (Vogel, 1990: 14–19).

Sexual harassment

Catharine MacKinnon’s book Sexual Harassment of Working Women (1979) was especially influential in the early publicizing of sexual harassment and its framing as an issue of sex discrimination. She argues that ‘sexual harassment of women at work is sex discrimination in employment’ (MacKinnon, 1979: 4). The emergence of sexual harassment as a public issue followed the activities of such organizations in the USA as Working Women United and the Alliance Against Sexual Attention, as well as other groups providing support and assistance. These interest groups organized public rallies and counselling services for the victims of sexual harassment, promoted links with the legal profession and monitored legal developments, sought media attention, and attempted to institute legislative change through research and lobbying. Although these specialist interest groups did not engage in litigation as a central strategy, the courts were critical in redefining sexual harassment as sex discrimination remediable under Title VII of the Civil Rights Act of 1964. Activist lawyers involved in the landmark cases of the mid-1970s constituted an informal network of information exchange and contributed to the huge increase in media publicity during the late 1970s and early 1980s (Weeks et al., 1986: 435–41).

Most definitions of sexual harassment focus on the unwelcome or unwanted nature of sexual advances from the viewpoint of the recipient (Dine and Watt, 1995: 355–77; Meritor Savings Bank v Vinson 1986: 60). The Australian Commonwealth Sex Discrimination Act 1984 (as amended) provides that:

a person sexually harasses another person if: (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or (b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed; in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated. (s 28A(I))