BOOKS-ON-LAW/Past-Perfect - March 2001; v.4, no.3

Breaking New Ground:
Epstein and Faludi on Women’s Progress

In honor of Women's History Month, we present two book reviews from, respectively, the 1984 and 1992 issues of the Harvard Law Review. The first reviews Cynthia Epstein's Women in Law (2^nd ed., 1983); the second examines Susan Faludi's Backlash: The Undeclared War Against American Women (1991). Epstein's work is a landmark study of women's progress in the legal profession; the first edition of that book celebrates its twentieth publishing anniversary this year. Faludi's Backlash, which chronicled a post-feminist backlash against women's progress and helped to ignite feminism's Third Wave, celebrates its tenth anniversary this year.

We reprint reviews of these noteworthy books in order to provide some sense of how they were originally received. A comparison between these reviews, and those of Peggy Orenstein's Flux (Doubleday, 2000) by contemporary women lawyers, may also reveal whether (and if so, how much) the intervening two decades have changed women's struggle for equality and perceptions of their professional progress and social equality.

Note that these book reviews have been edited to include subheadings and to follow the Books-on-Law format. Also, all footnotes have been omitted from the original reviews.

Book Note: Women in Law
Originally published at 97 Harvard Law Review 2001 (1984)
Copyright :1984 by the Harvard Law Review Association
Reprinted with permission of the Harvard Law Review Association

Women in Law
Cynthia Fuchs Epstein
Garden City, NY: Anchor Press / Doubleday (2^nd edition, 1983)
Paper: $18.50
Pp. 438
ISBN: 025206

Reprint Edition
Champaign, IL: University of Illinois Press,1993
Paper: $19.95
Pp. 491
ISBN: 025206

It is unfortunate that the title of Cynthia Fuchs Epstein's book, Women in Law, may dissuade some people, particularly men, from reading it. For although her study focuses on the particular difficulties that women face within the legal profession in the United States, Women in Law also provides a revealing look at the profession as a whole -- the rules, rituals, and folkways of an occupational culture in which, according to Dr. Epstein, hierarchy and exclusion operate in remarkably subtle and complex ways.

Much of Dr. Epstein's comprehensive study is historical -- a chronicle of women's progress in eliminating some of the more overt, formal barriers to their participation in the legal profession. Her account is enlivened by facts and anecdotes that attest to this progress and provide a jarring reminder of how much has changed even in the last few decades. For example, when Supreme Court Justice Sandra Day O'Connor graduated from Stanford Law School in 1953 -- third in her class and a law review editor -- she received only one job offer: a position as a legal secretary. (84) Dr. Epstein also reports that women were physically segregated in the classrooms of Brooklyn Law School (61) and recounts the astonishing remark made to Chief Justice Susie Sharp of the North Carolina Supreme Court by a male attorney appearing in her trial court: "Honey, I don't think you understand my case very well." (244)

Dr. Epstein concludes that, although much has changed, women's assimilation into the profession is by no means complete. Her book describes a paradoxical combination "of radical changes and the prevalence of old patterns" (381), a combination that she effectively illustrates with statistics about the profession. The percentage of lawyers who are women, for example, has jumped from about three percent in 1960 to twelve percent in 1980; observers predict that women will constitute a third of the legal profession by the year 2000. (4, 381) Nevertheless, women continue to be disproportionately clustered in specialties such as "family and government law, public interest and defender work," in which both pay and prestige are lower than in such fields as corporate law. (381) Similarly, although the number of women law professors has increased, they are proportionally under represented at the "top ten" schools, they receive promotions less readily than their male counterparts do (224), and the rate of improvement in their hiring situation appears to be leveling off. (222) To be sure, the appearance of women on the bench marked a "major breakthrough" (244); yet nearly half the states still had no women appellate judges as of 1980. (243)

Although the facts, anecdotes, and statistics provide a useful perspective on the struggles of women to overcome overt forms of discrimination in the profession, the most instructive aspect of Dr. Epstein's account is its analysis of the subtle cultural and institutional barriers that remain. Her analysis focuses on two types of barriers that operate to exclude women from complete participation: our cultural views about the nature of men and women, and the structure of the profession. (265)

Cultural stereotypes operate to exclude women because the qualities that are seen as typically male are those that are also associated with good lawyering. Women, for example, are seen as nonassertive and hence are dismissed as lacking the aggressive personality necessary for practicing law. Of course, if they are assertive, women are chided for being too "ballsy." (280) These views are part of the "male culture" of the profession. (283-302) The subtle manifestations of this culture often surface when women try to learn the "informal dimensions" (288) of the professional role – a role generally defined by an oscillation between "cool, detached, and emotionless" behavior (281) and joking, back-slapping chumminess. (281-282) As one partner at a large firm observed, the legal profession is "still a man's world" (281); yet women lawyers often must learn to navigate this world without mentors or role models to guide them. (288) Thus, many women still find law firms "inhospitable" (214) despite the climate of formal nondiscrimination.

The structure of work and opportunity in the legal profession poses another set of obstacles for women – obstacles that are related, at least in part, to the unequal division of domestic labor in our society. Women attorneys who wish to have families often face both exacting professional obligations and the ultimate responsibility for child rearing (373) and housekeeping. (350) Both the family and the legal profession are "greedy institutions" that demand total commitment (206-07, 318), and it is generally the wife rather than the husband who curtails her career because of children. (374) When faced with such competing commitments, many women opt for a pattern of "discontinuous participation in professional life." (252) Yet this solution is hardly satisfactory; law firms generally do not welcome part-time employment arrangements (364), and in many firms work interruptions will mean losing a chance for partnership.

Although Dr. Epstein devotes considerable attention to this conflict between work and family roles, her treatment of the issue is perhaps the most disappointing aspect of an otherwise highly insightful book. Dr. Epstein acknowledges that "the profession has been structured to mesh with the lives of men and the norms of society which encourage men's commitment to work." (8) Yet she fails to explore whether such intense commitment is necessary, and her analysis lends itself too easily to the conclusion that the conflict between work and family must be resolved through adaptations made by individual women.

To adapt, to "play by men's rules" (212), and to succeed in the legal profession is of course what the women Dr. Epstein describes have done. They have often done so, however, at the cost of accepting the male definition of success – a definition that, in the legal profession, generally boils down to a single word: work. Dr. Epstein details the obsessive patterns of work and overwork that are typical in much of the profession and observes that women receive little support from family and friends for these exertions, whereas men do get such support, if not from their families, then from their peers and more generally from cultural norms. (318, 320) Thus, the difference between men's and women's willingness to commit themselves to exceedingly long hours at work is related to the different meanings that work and career success have for women and men in our society. Yet the social meaning of work is shaped, at least in part, by the expectations of employers, such as law firms, that have made success depend on conformity to a standard that not only favors overwork, but often demands it.

Surprisingly, Dr. Epstein hardly questions the need for such long hours. Of course, the existing arrangement of legal work is neither natural nor inevitable; it has evolved to meet the cultural norms and business needs of those who run the profession and who in turn justify these arrangements by reference to the "demands" of litigation or corporate practice. (197, 210) The profession itself creates the urgency of these demands by organizing legal work in such a way that schedules are often unpredictable and time frames short. Thus, the profession has the opportunity, and perhaps the duty, to restructure its work norms to ensure that practitioners who choose to have – and to enjoy – a family are not penalized for that choice. This restructuring, like the elimination of cultural stereotypes in the profession, cannot be accomplished wholly through the adaptations of individual women. These are problems for which the profession as a whole – law firms, practitioners, judges, law schools, and even law reviews – must take ultimate responsibility.

Editors' Note: Only information on the reprint edition of the book is provided, since the edition originally reviewed in 1984 is currently out of print.

Book Note: An Unlady-Like Response to Legal Conceptions of Women
Originally published at 105 Harvard Law Review 2104 (1992)
Copyright: 1992 by the Harvard Law Review Association
Reprinted with permission of the Harvard Law Review Association

Backlash: The Undeclared War Against American Women
Susan Faludi
New York, NY: Crown Publishers, 1991
Paper: $24
Pp. 552
ISBN: 0385425074

Reprinted by Anchor Press
Paper: $14.95
Pp. 552
ISBN: 0385425704

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?" (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 gender 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 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. Instead, she sees the backlash largely as the cumulative effect of the individual reactions of anxious men. (63-70) 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. (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. (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." (123)

Furthermore, Faludi asserts that the media also fuels the backlash through its distorted coverage of "trend stories" that portray women's progress as a source of unhappiness. (79-82) According to Faludi, the most renowned of these stores 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. (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. (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. (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. (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. (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" (368) Women entering the work force in the 1980s were channeled into traditionally "female" jobs, such as secretarial, service, and clerical positions. (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. (368) Nonetheless, the EEOC actually decreased the number of suits it pursued by more than 300%. (369)

As for reproductive rights, Faludi contends that the backlash reinforces women's roles as traditional mothers by seeking to control their reproductive autonomy. (55) For example, Faludi points out the sharp decline in the availability of legal abortion. (415) She also bemoans recent fetal protection legislation that purports to protect unborn children by regulating the behavior of pregnant women. Faludi insists that these policies are usually counterproductive, and suggests that the actual motivation for such laws is to confine women to traditional roles of mothering. (402-05)

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. Whatever the normative scope of antidiscrimination law, it is irrational to construct law in accordance with unfounded assumptions about the world we live in. Once a lawmaker or judge recognizes the status quo as a product of gender hierarchy – of disadvantage rather than mere difference – 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.

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 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 to justify statistical differences in hiring patterns. A typical example of this is EEOC v. Sears, Roebuck & Co. 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" explained the disparity. Faludi is appalled that "in all of the years of governmental investigation, multimillion-dollar litigation, and intensive media coverage, no one ever asked any actual Sears saleswomen what their 'interests' were." (387) The "lack of interest" defense, whether or not it is plausible in the abstract, simply ignored the reality of these women's lives.

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. 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." (392) Joyce still had to endure threats, profanities, and destruction of her property by her co-workers. (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. 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 "altered the conditions of her working environment." 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. If a woman does not report harassing behavior immediately after it occurred, courts tend to construe her hesitation as "ambivalence" toward or even acceptance of 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. (394-97) Although the women at the plant were greatly disturbed and offended by the men's actions, they feared the consequences of reporting: " 'why cause trouble when you don't have to?'" (397) 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.

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, judicial interpretations 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. [See also Brian Lamb's C-SPAN interview with Susan Faludi.]

© Ronald K.L. Collins and David Skover, 2001.