New York: Crown Publishers, Inc. 1991. Pp. xxiii, 552. $ 24.00.
In every generation, American women have campaigned for equality, only to suffer powerful counterassaults. When Elizabeth Cady Stanton and the Seneca Falls Convention appealed for equal jobs and education, America enacted bans on divorce, contraception and abortion; when women won the right to vote in 1920, they were met with protective labor codes and the Miss America contest; after World War II, the government proposed giving unemployment benefits only to men, closed day care facilities and ousted women from their jobs when the "boys" came home. Now, after the women's rights movement of the 1970s secured new opportunities for women to enter elite "male" professions and gained judicial protection for abortion rights, women are confronted with glass ceilings, an epidemic of sexual assault and rape, and increasingly restricted access to safe abortions. What is it that has made women's progress towards equality so "strangely reversible?" (p. 46). According to feminist author Susan Faludi, the answer lies in the "Backlash."
In Backlash: The Undeclared War on American Women, Susan Faludi exposes a recent wave of antifeminism in politics, the media, and popular culture. The most recent backlash, according to Faludi, operates on two levels: it seeks to force women into their traditional roles by propagating such images in the media; and, to the extent that women have managed to achieve equality, it seeks to restore traditional gneder roles by harassing women and depriving them of personal autonomy. Through personal interviews, revealing anecdotes, and tenacious investigative journalism, Faludi illustrates the varied manifestations of the backlash in American society. Her snapshots of women's experiences provide a basis for realistic analysis of the legal status quo. Armed with her insights, the legal profession can at last implement the ideal of equality between the sexes.
Faludi suggests in her title that a perceived threat 2 to men's social status, self-esteem and position as breadwinners of the family has provoked their backlash. Faludi does not accuse men of deliberately conspiring to subordinate women. 3 Instead, she sees the backlash largely as the cumulative effect of the individual reactions of anxious men (pp. 63- 70). 4 Commercial advertisers, contemporary authors, political leaders, fashion designers, pop psychologists and even "feminist" revisionists are implicated. The media is a particular target of Faludi's inquiry. Faludi claims that the media, by pandering to the desires and fears of male viewers, reinforces sexist social attitudes (pp. 70-72). For example, Faludi argues that the media habitually deprecates single women. Television script writers consistently write them out of series plots; even when included, single women usually serve to exemplify the devastating consequences of deviating from women's traditional social roles (pp. 88-90). Movie producers also depict independent female characters in the same unfavorable light. "Fatal Attraction," Faludi writes, showed a "good mother" ultimately killing the "evil temptress" in order to convey the message that "[t]he best single woman is a dead one" (p. 123).
Furthermore, Faludi asserts that the media also fuels the backlash through its distorted coverage of "trend stories" 5 that portray women's progress as a source of unhappiness (pp. 79-82). According to Faludi, the most renowned of these stories was the 1986 Harvard-Yale Marriage Study, a preliminary survey which reported that women who put off marriage to pursue education or a career were frequently unable to find a husband (pp. 9-11). Faludi reports how the media transformed sparse data into a national consensus that single women who reach age forty were more likely to get killed by a terrorist than to find a mate (pp. 9-19). Major newspapers and magazines picked up and amplified the story, but none bothered to confirm its underlying data. When demographers presented contrary data, the media dismissed the new findings as unimportant or uninteresting (pp. 10-18). The net effect, according to Faludi, was a widespread misconception that women who become educated or pursue careers permanently sacrifice their chances to have a family in the process. Such myths, according to Faludi, were tailored precisely to discourage women from seeking independence (pp. 8-9, 48).
In addition, Faludi contends that the backlash drives women back by mistreating women who seek to transcend the roles of dependent wife and mother (pp. 54-55). The curtailment of women's employment opportunities and reproductive rights illustrates this trend. In the employment realm, Faludi reports an increase in "inequity and intimidation" (p. 368). Women entering the work force in the 1980s were channelled into traditionally "female" jobs, such as secretarial, service, and clerical positions (p. 365). Faludi reports that the number of sex discrimination claims reported to the EEOC increased by 25-30% and claims of harassment rose by 200% during the Reagan years alone (p. 368). Nonetheless, the EEOC actually decreased the number of suits it pursued by more than 300% (p. 369).
As for reproductive rights, Faludi contends that the backlash reinforces women's roles as traditional mothers by seeking to control their reproductive autonomy (p. 55). For example, Faludi points out the sharp decline in the availability of legal abortion (p. 415). She also bemoans recent fetal protection legislation that purposrts to protect unborn children by regulating the behavior of pregnant women. 7
Although written for the general public, Backlash can benefit the legal community as well. Faludi's incisive accounts of women's lives provide a meaningful and accurate basis for legal redress of social inequality. 8 Whatever the normative scope of antidiscrimination law, it is irrational to construct law in accordance with unfounded assumptions about the world we live in. 9 Once a lawmaker or judge recognizes the status quo as a product of gender hierarchy 10 -- of disadvantage 11 rather than mere difference 12 -- and recognizes the many ways in which the law ignores the reality of women's lives, then present legal doctrines are revealed to be discriminatory, and affirmative transformation of the legal system becomes a reasonable step towards equality. 13
Faludi's illustrations of women's experiences in the workforce demonstrate that antidiscrimination laws in the field of employment are themselves based on unfounded assumptions and stereotypes 14 about women and their lives. For example, Faludi exposes the sexist basis of the "difference in interest" defense, which allows employers sued under title VII of the Civil Rights Act of 1964 15 to justify statistical differences in hiring patterns. A typical example of this is EEOC v. Sears, Roebuck & Co. 16 In that case, saleswomen were concentrated in Sears' apparel and cosmetics departments, while the company's higher-paying commission sales jobs were filled almost entirely by men. Resting on a finding that few women had applied for these jobs, the Seventh Circuit concluded that women's "lack of interest" 17 explained the disparity. Faludi is appalled that "in all of the years of government investigation, multimillion-dollar litigation, and intensive media coverage, no one ever asked any actual Sears saleswomen what their 'interests' were" (p. 387). The "lack of interest" defense, whether or not it is plausible in the abstract, simply ignored the reality of these women's lives. 18
A better explanation for apparent lack of interest in advancement is that women in the work force often have good cause to fear certain consequences of promotion. Diane Joyce, a widow with four children, was a Santa Clara construction worker who won the right to keep her promotion to county dispatcher when challenged by a male co-worker bringing a reverse- discrimination suit. 19 According to Faludi, even though civil rights attorneys hailed Joyce's suit as a breakthrough for women, "victory in Washington was not the same as triumph in the transportation yard" (p. 392). Joyce still had to endure threats, profanities, and destruction of her property by her co- workers (pp. 390-92). A legal rule that regards women's reluctance to undergo such an ordeal as mere apathy is lamentably uninformed.
Faludi also uncovers the flawed foundations of the "pervasiveness" doctrine in title VII gender-based harassment claims. 20 In order to establish a prima facie case of "hostile environment" discrimination, a plaintiff must demonstrate that the conduct about which she is complaining was so pervasive that it "alter[ed] the conditions of her working environment." 21 In judging whether the alleged harassment was sufficiently pervasive to constitute an actionable claim, courts scrutinize the woman's behavior under a "reasonable person" standard. 22 If a woman does not report harassing behavior immediately after it occurred, courts tend to construe her hesitation as "ambivalence" toward 23 or even acceptance of 24 the conduct.
Faludi's stories demonstrate that fear, rather than acceptance, is often the principal cause of delay in reporting harassment claims. For example, the first women promoted to relatively high-paying "Tester" positions at AT&T did not immediately file complaints when their male co-workers were sabotaging their work, debasing their work environment with humiliating posters, and re-designing the seniority system in order to undermine the women's job security (pp. 394-97). Although the women at the plant were greatly distrubed and offended by the men's actions, they feared the consequences of reporting: '"why cause trouble when you don't have to?'" (p. 397). 25 Moreover, they felt that only time would tell if they had to resort to filing a legal grievance. Current standards of sexual harassment ignore these reactions, motivations, and legitimate fears. 26
Ultimately, Susan Faludi provides clear evidence that facially "neutral" laws reflect only men's concerns and experiences. Even when laws endeavor to prevent discriminatory treatment of women, 27 judicial interpretations 28 negate and ignore the reality of women's lives. Armed with Faludi's insights, lawmakers and judges can enact the necessary legal changes in order to make gender equality a reality, rather than a mere myth.
endnotes
1 Former reporter, Wall Street Journal; winner, Pulitzer Prize, 1991.2 Faludi emphasizes that the backlash was triggered by a false perception of equality, not by its actual attainment. She calls the backlash a "pre- emptive strike" that hits long before women reach the "finish line" (p. xx).
3 Faludi's tone is far from accusatory. Interestingly, however, several reviewers have referred to the book as "angry" or "hostile." See, e.g., Eleanor Clift, Have We Come a Long Way, Baby?, WASH POST, Nov. 3, 1991, Book World, at X[3] (calling Faludi's analysis "angry"); Richard Cohen, Why Do Women Accept Inequality?, WASH. POST, Dec. 6, 1991, at A[31] (labelling it "hyperventilated"). Such reactions conform with Faludi's contention that small assertions of women's rights are met with hyperbolic reactions and feelings of being threatened (p. 62).
4 For example, Faludi quotes a remark made by President Reagan in 1982: "Part of the unemployment is not as much recession . . . as it is the great increase of people going into the job market, and -- ladies, I'm not picking on anyone, but . . . -- because of the increase in women who are working today." (p. 67). Faludi, however, does not blame the backlash only on men. She also indicts women who benefit through their economic and political involvement in the anti-feminist movement.
5 Trend stories are "articles that claimed to divine sweeping shifts in female social behavior while providing little in the way of evidence to support their generalizations" (p. 79).
6 In many instances, rules that bar pregnant or fertile women from the workplace have been upheld by the courts, UAW v. Johnson Controls, Inc., 111 S. Ct. 1196 (1991), notwithstanding. See Mary Joe Frug, A postmodern Feminist Legal Manifesto (An Unfinished Draft), 105 HARV. L. REV. 1045, 1062 & n.26 (1992) (citing cases).
7 For example, Faludi contends that restrictions on women's conduct during pregnancy indicate an attempt to mandate for women inflexible parenting roles. She attacks the recent increase of prosecutions of primarily poor, African-American pregnant women for drug use (pp. 427-30). Because the common punishment for such crimes of "fetal abuse" is incarceration or the loss of custody of the child, women become afraid to visit doctors, which thereby increases the number of "toilet bowl" or otherwise unhealthy babies -- a completely counterproductive result (p. 430). Hence, Faludi suspects that it is backlash revisionism, rather than genuine concern for the unborn, that lay at the heart of these policies.
8 Primarily, Faludi reinforces the fact that male characteristics -- social and biological -- provide the "neutral" baseline from which all difference and sameness are measured. It is this masculinist view that leads to discriminatory ends. Even though empirically, men are as different from women as women are from men, men can legally be different but equal. Women, however, cannot -- such a request is called "special protection." See CATHERINE MACKINNON, FEMINISM UNMODIFIED 41-45 (1987); DEBORAH RHODE, JUSTICE AND GENDER 1-3 (1989); Catharine A. MacKinnon, Reflections on Sex Equality Under Law, 100 YALE L.J. 1281, 1284 (1991) ("An account of sex inequality under law in the United States must begin with what white men have done and not done because they have created the problem and benefited from it, controlled access to addressing it, and stacked the deck against its solution.").
9 See United States v. Kras, 409 U.S. 434, 460 (1973) (Marshall, J., dissenting) ("It is perfectly proper for judges to disagree about what the Constitution requires. But it is disgraceful for an interpretation of the Constitution to be premised upon unfounded assumptions about how people live.").
10 See MACKINNON, supra note 8, at 42.
11 See RHODE, supra note 8, at 2.
12 See generally CAROL GILLIGAN, IN A DIFFERENT VOICE (1982) (discussing two different frameworks of moral reasoning).
13 See MACKINNON, supra note 8, at 45; MacKinnon, supra note 8, at 1325.
14 Cf. MacKinnon, supra note 8, at 1292-93 (discussing the harmful effects of stereotypes, regardless of their empirical accuracy).
15 42 U.S.C. @@ 2000e to 2000e-17 (1988).
16 839 F.2d 302, 322 (7th Cir. 1988).
17 Id. at 322.
18 This is not to argue that no women prefer to sell "traditional" women's items. Rather, the courts use of these generalizations served to enforce and affirm the very type of stereotypes that title VII was most likely enacted to address. See id. at 362 (Cudahy, J., dissenting). Feminist scholars largely agree, noting that the more unequal men and women are with regard to a particular issue, the more easily such an inequality is explained by mere gender "differences." See MacKinnon, supra note 8, at 1296. For a comprehensive critique of the interest defense, and the Sears case in particular, see 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, 1752-54 (1990).
19 See Johnson v. Transportation Agency, 480 U.S. 616, 641-42 (1987).
20 See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67-68 (1986).
21 To establish a prima facie case of "hostile environment" sexual harassment under title VII, a plaintiff must demostrate that she is a member of a protected group, that she suffered discrimination on account of that membership, and that she received sexual attention that was unwelcome and pervasive. See id.
22 See id.
23 See, e.g., Dockter v. Rudolf Wolff Futures, Inc., 684 F. Supp. 532, 533 (N.D. IIl. 1988) ("Although Plaintiff rejected [her boss's sexual overtures], her initial rejections were neither unpleasant nor unambiguous, and gave [her boss] no reason to believe that his moves were unwelcome."), aff'd, 913 F.2d 456 (7th Cir. 1990); Susan Estrich, Sex at Work, 43 STAN. L. REV. 813, 826-34, 843-47 (1991) (arguing that the pervasiveness requirement, as construed, places women in a no-win situation whereby if they complain, they are deemed hypersensitive, and if they endure harassment, they are presumed not to have been bothered by it).
24 See e.g., Reed v. Shephard, 939 F.2d 484, 492 (7th Cir. 1991) (rejecting the sexual harassment claim of a female police officer who explained that she was forced to endure rather than report unwelcome conduct because "it was real important to [her to] be accepted" among the primarily male police force); cf. Hearing of the Senate Judiciary Committee, Federal News Service, Oct. II-13, 1991, available in LEXIS, Legis library, Nomine File (partial transcript of the Thomas Hearings, in which Senate Judiciary Committee members expressed confusion over Professor Anita Hill's delay in reporting her alleged incidents of sexual harassment by now-Justice Clarence Thomas).
25 Statements of Pat Lorance, a woman who ultimately sued AT&T and lost on statute of limitations grounds. See Lorance v. AT&T Technologies, Inc., 490 U.S. 900, 913 (1989).
26 According to many feminist commentators, the use of an "objective" reasonable person as the means of analyzing the pervasiveness and seriousness of sexual harassment legitimates the gender hierarchy, affirms the male-based status quo, and erases the experiences of women. See Kathryn Abrams, Gender Discrimination and the Transformation of Workplace Norms, 42 VAND. L. REV. 1183, 1197-1202 (1989); Wendy Pollack, Sexual Harassment: Women's Experience v. Legal Definitions, 13 HARV. WOMEN'S L.J. 35, 64-65 (1991); cf. Ellison v. Brady, 924 F.2d 872, 879 (9th Cir. 1991) (adopting the perspective of a "reasonable woman" as the legal standard in sexual harassment cases because "a sex-blind reasonable person standard tends to be male-biased and tends to systematically ignore the experiences of women").
These, of course, are only a few of the problems with the current judicial interpretations of sexual harassment under title VII. For an excellent and recent overview of the subject, see Estrich, supra note 23.
27 Not surprisingly, there is virtually no case law on the inequality of depriving women of equal opportunities to balance both a family and a career by failing to provide childcare, parental leave, or other "basic requirements to achieve equality in the work force" (p. xiii). Faludi points out that the United States is alone among industrialized nations in failing to institutionalize child care and parental leave (p. xiii). See Wendy S. Strimling, The Constitutionality of State Laws Providing Employment Leave for Pregnancy: Rethinking Geduldig After Cal Fed, 77 CAL. L. REV. 171, 171 (1989). Depriving workers of day care and family leave often forces women to make a choice between two unpleasant options -- work and forego a family, or have a family and potentially sacrifice a chance for advancement or a career altogether.
28 As Faludi points out, less than eight percent of all current federal and state judges are women (p. xiii). See Abrams, supra note 26, at 1203.
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