En-gendering economic inequality.

• Author: Gilman, Michele E.
• Position: Abstract through II. Wal-Mart v. Dukes and Modern-Day Discrimination D. The Court's Market Assumptions, p. 1-31

Abstract

We live in an era of growing economic inequality. Luminaries ranging from the President to the Pope to economist Thomas Piketty in his bestselling book Capital in the Twenty-First Century have raised alarms about the disparity between the haves and the have-nots. Overlooked, however, in these important discussions is the reality that economic inequality is not a uniform experience; rather, its effects fall more harshly on women and minorities. With regard to gender, American women have higher rates of poverty and get paid less than comparable men, and their workplace participation rates are falling. Yet economic inequality is neither inevitable nor intractable. Given that the government creates the rules of the market, it is essential to analyze the government ,'v role in perpetuating economic inequality.

This Article specifically examines the role of the Supreme Court in contributing to gender-based economic inequality. The thesis is that the Supreme Court applies oversimplified economic assumptions about the market in its decision-making, thereby perpetuating economic inequality on the basis of gender. Applying insights of feminist economic theory, the Article analyzes recent Supreme Court jurisprudence about women workers, including Wal-Mart v. Dukes (denying class certification to female employees who were paid and promoted less than men), Burwell v. Hobby Lobby Stores, Inc. (granting business owners the right to deny contraception coverage to female employees on religious grounds), and Harris v. Quinn (limiting the ability of home health care workers to unionize and thereby improve their working conditions). In these cases, the Court elevates its narrow view of efficiency over more comprehensive understandings, devalues care work, upholds harmful power imbalances, and ignores the intersectional reality of the lives of low-wage women workers. The Article concludes that the Court is eroding collective efforts by women to improve their working conditions and economic standing. It suggests advocacy strategies for reforming law to obtain economic justice for women and their families.

INTRODUCTION

President Obama calls economic inequality the "defining challenge of our time." (1) Pope Francis decries "trickle-down theories which assume that economic growth, encouraged by a free market, will inevitably succeed in bringing about greater justice and inclusiveness in the world." (2) Federal Reserve Chair Janet Yellen asks whether growing economic inequality "is compatible with values rooted in our nation's history, among them the high value Americans have traditionally placed on equality of opportunity." (3) Corporate America is also sounding the alarm, concerned that falling incomes will hurt profits and hinder economic growth. (4) In short, economic inequality is firmly on the public agenda, as experts, policymakers, and presidential candidates debate its causes, consequences, and cures. Less attention is focused on the reality that not all groups experience inequality similarly. To the contrary, economic inequality falls most harshly on minorities and women. (5) The intersection of economic inequality with gender, as shaped and reinforced by law, is the focus of this Article.

Currently, the top 1% of households earns one-fifth of the nation's income. (6) Wealth inequality is even greater, as the top 1 % of the distribution owns approximately 42% of the nation's wealth. (7) Meanwhile, a majority of Americans face stagnant wages, reduced social mobility, and higher job insecurity. (8) The middle class is shrinking, (9) while at the bottom of the economic barrel, nearly 15% of the population lives below the poverty line, (10) where they struggle to meet basic needs such as food and housing." Economic inequality causes not only individual financial struggles, but it also harms the economy through "lower productivity, lower efficiency, lower growth, [and] more instability." (12) By contrast, nations with greater economic equality have more economic growth. (13) Our growing economic divergence is also linked to social dysfunctions, ranging from high rates of infant mortality, to crime, and substance abuse; educational failures; and lower life expectancy--all of which impose their own costs. (14)

Gender both generates economic inequality and magnifies its effects. For instance, women's workplace participation is falling, thereby impacting family incomes. (15) Women get paid less than men for the same work. (16) Women are disproportionately poor and more likely to work in low-wage jobs with few benefits or employee protections. (17) These trends are drags on the economy and limit household wealth and opportunities. However, this lamentable state of affairs is neither inevitable, nor impossible to reverse.

An important insight in understanding economic inequality is that it is rooted in market trends that arise within the context of state action and inaction. (18) As Nobel Prize winning economist Joseph Stiglitz explains, inequality is not solely the result of market forces; rather, "government policies have been central to the creation of inequality in the United States." (19) For instance, the government establishes the playing field regarding unionization, corporate governance, and competition laws, all of which relate to economic inequality. (20) Political scientists Jacob Hacker and Paul Pierson similarly elucidate, "[government rules make the market, and they powerfully shape how, and in whose interests, it operates." (21) As legal scholar Martha McCluskey notes, government's role in economic inequality is an observation with a "long and articulate history," but one that is muted by economic rhetoric that treats the market and state as separable. (22)

Current public policies favor the top 1% at the expense of the 99%. Wealthy and corporate interests have an outsized role in shaping the public agenda, due to the role of money in political campaigns and lobbying. (23) Substantial evidence shows that Congress is responsive to the concerns of wealthy Americans, while dismissing those of the bottom 90%. (24) The Supreme Court has solidified these political trends in decisions such as Citizens United v. Federal Election Commission. (25)

Less noticed, but equally problematic, the Supreme Court also contributes to gender-based economic inequality. (26) Thus, this Article examines the Supreme Court's recent doctrine where gender and class intersect. (27) It imports core insights from feminist economic theory into legal analysis to help understand the harm to women wrought by the mainstream, neoclassical economic models based on efficiency and individual self-interest to which the Court majority adheres. The thesis is that the Supreme Court either overtly or implicitly applies neoclassical economic assumptions in its decision-making, thereby perpetuating economic inequality on the basis of gender.

Part I describes the current patterns of income and wealth inequality and explains how gender interplays with these trends. It also sets forth basic principles of feminist economic theory, which reveal how the market and assumptions about the market shape inequitable outcomes. In Parts II to IV, the Article focuses on three recent Supreme Court cases that limit the rights of women in the low-wage workforce. Each case bears out the observations of feminist economists. These cases are significant not only due to the sheer numbers of women workers impacted, but also because the workplace dynamics exemplify the chasm between the economic fortunes of the top 1% and everyone else. In Wal-Mart v. Dukes (28) (discussed in Part II), the Court made it difficult, if not impossible, to challenge discriminatory pay and promotion policies that arise from discretionary personnel policies, which dominate the modern workplace. In Harris v. Quinn (29) (discussed in Part III), the Court limited the ability of home health care workers to unionize and thereby improve their working conditions. In Burwell v. Hobby Lobby Stores, Inc. (30) (discussed in Part IV), the Court granted business owners the right to deny contraception coverage to female employees on religious grounds. Reflecting on these cases, this Article concludes that the Court overturns or interprets legislation designed to correct for market imperfections in favor of corporate preferences. (31) In so doing, the Court fails to acknowledge its own hand in fostering economic and gender inequality. At the same time, the Court reinforces gender-based stereotypes about women workers that have long limited their economic opportunity. The Court's benign view of the market and its biased view of women create a potent combination that results in further entrenchment of economic inequality for women.

1. Economic...