Structuralist and cultural domination theories meet Title VII: some contemporary influences.

• Author: Chamallas, Martha

I often have trouble predicting how Title VII cases will come out. Like so many fields of law, Title VII law is dynamic, unsettled, and hotly contested. Particularly because the advance sheets seem to contain at least two divergent lines of cases - conservative and progressive - it is useful to speak in the plural when describing the visions of equality and discrimination embedded in the contemporary caselaw. In many cases, equality seems narrowly conceived. To avoid charges of discrimination, employers need only provide formal access to jobs and occupations, freedom from overt bias stemming from race or gender prejudice, and an opportunity to assimilate into the existing structures and processes of the workplace. A smaller group of cases, however, implicitly embraces broader visions of equality. Courts sometimes question the legitimacy of established patterns of racial and gender stratification. They then reach beyond issues of access to uncover the links between access and the working culture and environment.

This contest over the meaning of workplace equality is most visible in the scholarly trends that have developed over the thirty years since the passage of Title VII. In critical legal scholarship and in the social sciences, structuralist and cultural domination theories have emerged to challenge more conventional notions of equality centering on individual motivation and choice. These two newer approaches, I believe, already have had a discernible influence in the courts. Although such progressive incursions into Title VII have been limited and sporadic, they are enough to allow me to speculate on the direction Title VII might take if these two nondominant visions gained more prominence in the law.

This essay first looks at three important theoretical approaches - motivational,(1) structural(2) and cultural(3) - that mark the scholarly discourses on workplace equality since 1965. The motivational or individual choice theory is well established and has dominated legal discourse throughout this period. I concentrate in this essay on the other two visions, dating structuralist accounts from the mids 1970s and cultural domination theories from the mid-1980s.

I then sketch the impact of these new visions on Title VII doctrine - noting cases in which plaintiffs have relied on structural or cultural accounts of discrimination to help articulate their theories of liability. The structuralist influence has surfaced in sexual stereotyping and sexual harassment cases in which expert testimony has been used to explain the distinctive problems women face in intensively male-dominated workplaces.(4) The impact of cultural domination theories can now be seen in a few sexual and racial harassment cases that challenge the choice of perspective from which the law evaluates a charge of offensive or hostile working environment.(5) These structuralist and cultural domination influences are still at the margins of Title VII and have yet to be adequately theorized in legal scholarship. The nondominant visions have had little or no impact in several core areas of the law, including challenges to wage structures and occupational segregation, disputes about affirmative action, the scope of available remedies, and litigation over oppressive workplace rules and conditions other than violence or harassment.

This essay begins to explore the implications of structuralist and cultural domination theory for Title VII doctrine. In the 1990s, the most pressing issue is no longer formal access; at least some members of traditionally excluded groups have successfully integrated virtually every high-status occupation. The demographics of most organizations remain stratified, however, with disproportionate numbers of white men continuing to occupy the highest ranks, accompanied typically by token numbers of minorities and women.(6) Moreover, most women continue to work in low-paying, low-mobility, largely segregated jobs.(7) Research of the last two decades supports the view that differences in the motivations or choices of individuals cannot adequately explain such persistent patterns of tokenism and segregation. Legal doctrine that does not address the impact of workplace structures, processes, and cultural norms on the lives of employees is incapable of responding to many of the "second generation" issues arising in Title VII disputes.

1. MOTIVATIONAL EXPLANATIONS IN SOCIAL SCIENCE AND

   LEGAL DISCOURSE

   When Title VII was first enacted and throughout the 1960s, research in the social sciences often focused on identifying psychological characteristics of women and racial minorities that would explain why these groups did not achieve "success" in the workplace. In its most simplified form, the motivational line of scholarship asked what there was about outsiders - what were the traits, qualities, and dispositions - that prevented them from attaining positions of power and status. This inquiry directed attention to those who had been excluded and away from the actions of decisionmakers. Posing the question in this way was apt to elicit a victim-blaming response that held the outsider responsible for his or her own predicament.

   A classic example of motivational research that was used to explain women's lack of representation in professional or high-status careers is Matina Horner's work on women's "fear of success" in the late 1960s.(8) Horner argued that highly educated women often undermine their own prospects for achievement in the outside world because of internal conflicts about their potential success. According to Horner, women's ambivalence about success arises both from their fears that intellectual achievement would result in a loss of femininity and from a deep-seated, unconscious association of success with loneliness, societal rejection, and despair.(9) The construct of the fear of success was hypothesized as a static property, acquired in early childhood and activated later to stifle career goals.(10) Horner envisioned the fear of success as something that most women brought with them into college classrooms or the workplace and that could not readily be changed by the actions of employers or other institutional decisionmakers. The construct was particularly well suited to explain the phenomenon of tokenism, because only exceptional women who did not possess the fear of success could be expected to integrate male domains. The focus on the inadequacy of the excluded group, moreover, meant that the criteria and measures of success would not be subjected to close scrutiny.

   The motivational explanation for women's exclusion from maledominated jobs struck a responsive chord in the 1960s, a time when highly educated women often found themselves working as homemakers or secretaries. Horner's theory was taken up by researchers(11) and the popular media(12) to a degree that is rare for academic work. It has been described, for example, as "one of the most extensively studied psychological theories involving women's behavior"(13) and as a "proven personality trait . . . [that] has worked its way into standard sources of gospel."(14)

   Perhaps the most important feature of Horner's line of motivational research was its focus on the psychology of individual women, locating the origin of the problem in the early socialization of women. The implication of Horner's research was that success is within the reach of individual women, if only their psychological makeup would allow them to attain it. Further, because patterns of women's psychological development are unlikely to change quickly, it was reasonable to expect sexual integration of jobs to proceed very slowly. The practical implications of the motivational theory posed no substantial threat to existing organizations or professions. Congruent with Horner's own career as president of Radcliffe College,(15) the best antidote for fear of success promised to be the counseling of individual women at elite schools to help them reevaluate their career aspirations.

   The motivational orientation continues to influence contemporary scholarship on workplace equality and probably dominates the discourse in the popular culture. It is most prominent in discussions about women and work, but it also surfaces in analyses of the situation of racial minorities. Randall Kennedy's analysis of the demographics of the legal academy, for example, relies in part on a fear-of-failure theory to explain the small percentage of black academics, especially at elite institutions.(16) Reminiscent of Horner, Kennedy speculates that such fear may cause black scholars "to engage in various strategies of avoidance: for example, exempting themselves from the risks of failure by refusing to compete on the same terms as whites or refraining from investing themselves wholeheartedly in their careers."(17)

   In its contemporary version in the mass media, the motivational explanation for women's occupational status has tended to shift from fear of success and fear of loss of femininity to an emphasis on women's choice to subordinate their careers to accommodate family obligations. Tokenism and segregation is now typically explained by women's lack of geographic mobility, their need to interrupt careers to have children, and their desire to spend less time at work - the "mommy track."(18), Like the earlier motivational explanations, however, the central feature of these "family conflict" theories of women's occupational status was to locate the principal cause of tokenism and segregation in the choices that individual women make and to imply that women's psychology is highly relevant to those choices.

   Motivational explanations have also been prominent in the rhetoric and reasoning of courts deciding Title VII cases, exerting a significant influence on how courts view patterns of segregation and tokenism. The most well-established theory of liability - the theory of intentional disparate treatment - is premised on the...