Precis of the Day: Schultz on Telling Stories About Women and Work
I like Vicki Schultz's work.
Vicki Schultz, Telling Stories About Women and Work: Judicial Interpretations of Sex Segregation in the Workplace in Title VII Cases Raising the Lack of Interest Argument, 103 Harv. L. Rev. 1749 (1990).
Schultz raises the case of EEOC v. Sears Roebuck & Co. as a point of departure for judicial interpretations of sex segregation in the workplace. In Sears, the district court interpreted statistical patterns of sex segregation in the Sears commissioned sale workforce as being the expression of female employees’ own personal employment choices, rather than being due to Sears’ sex discrimination. The Court stated that the EEOC’s statistical analyses of Sears’ workforce as evidence of sex discrimination, because they “were based on the faulty assumption that female sales applicants were as ‘interested’ as male applicants in commissions sales jobs.”
The “lack of interest” argument “rests on conventional images of women as ‘feminine’ and nurturing, unsuited for the vicious competition in the male dominated world of commission selling.” Thus, employers are not at fault for sex discrimination if their sex-segregated workforce is due to the natural employment preferences of their female employees.
Schultz argues that by relying in the lack of interest argument, courts legitimate women’s economic disadvantage. “Courts have missed the ways in which employers contribute to creating women workers in their images of who “women” are supposed to be,” ignoring the “structural features of the workplace that gender jobs and people and disempower women from aspiring to higher-paying nontraditional employment.”
Women often face what could be called the direct effects of discrimination in traditionally male fields: men stereotype women and try to exclude them from the workplace, and female workers, less likely to be treated well, are more likely to quit. Schultz argues that to the extent that women prioritize family or leisure over work, they do so because they perceive little opportunity for career advancement. In traditionally male fields, male hostility (e.g., harassment, sabotage, denial of training) makes women less likely to succeed. Whatever the reasons for why discrimination occcurs, “empirical evidence,” such as studies of the gender wage gap, testing of employer treatment of identical male and female applicants, and widespread cases of discrimination demonstrate “that an important part of the explanation for women’s present labor market position is the continued existence of . . . discrimination against women.”
Indirect effects of discrimination also heavily influence female labor force participation. Sex discourages women from entering (or remaining in) the workforce, and particularly from seeking traditionally male jobs.
Schultz examines the decisions of the lower federal courts concerning the “lack of interest” argument. Schultz includes in her data set all published employment discrimination decisions since 1965 to 1990 concerning cases raising the argument that women failed to apply for the work at issue due to lack of interest in the work.
The data set include 54 “lack of interest” sex discrimination claims. Schultz employed three methods for analyzing how courts have treated the lack of interest argument: 1) a content analysis examining the relationship between evidence of discrimination and the outcomes of the cases, 2) a study of the rhetoric courts have used to justify their decisions, and 3) drawing on sociological research to challenge the assumption that women form stable job preferences through pre-work socialization.
Schultz’s content analysis of lower federal court decisions shows that courts have relied on two mutually exclusive explanations for sex segregation in the workplace:
a. Conservative explanation: accepts the lack of interest argument and attributes sex segregation to women workers’ own “choice”
b. Liberal explanation: rejects the lack of interest argument and attributes sex segregation to employer “coercion.”
c. Courts rely heavily on anecdotal evidence of discrimination, and focus on individual suits of discrimination, but often ignore statistical proof of segregation without supplemental evidence that the employer discriminated against individual women. This makes it hard to make a statistical argument of systemic, structural employer-driven sex-segregation.
Schultz’s analysis of the rhetoric courts have used to justify the lack of interest argument:
a. Conservative Story: Women are “feminine,” nontraditional work is “masculine,” and therefore women don’t want to do it. “Common sense,” dictates that once a job is classified as “masculine,” women lack the personal interest and capabilities to apply to or perform the job. This implies that “working women choose their own economic disempowerment.
b. Liberal Story of Coercion: the liberal story invokes the image of the victim, again focusing on the individual while obscuring more structural and systemic views of discrimination. Liberal courts assume that women form their job preferences before they begin working, and this assumption drives liberal courts to a rhetoric hat suppresses gender difference, portraying women as ungendered subjects who have the same experiences, values, and work aspirations, as men. Schultz argues that the liberal suppression of gender difference actually reinforces the conservative story, because it accepts the notion that only women who are socialized the same as men desire such work, validating the conservative notion that women who are ‘different’ (‘feminine’) in non-work aspects automatically have ‘different’ (‘feminine’) work preferences as well.
Amazing article—hard to summarize succinctly, but her empirical analysis of court decisions, as well as her analysis of judicial rhetoric is illuminating. Her conceptual approach to the lack of interest argument—positing a narrative approach—is a strong argument for a more structural, systemic approach to analyzing sex-segregation in the workplace