Title VII and the complex female subject.

• Author: Abrams, Kathryn

There are so many roots to the tree of anger

that sometimes the branches shatter

before they bear.

Sitting in Nedicks

the women rally before they march

discussing the problematic girls

they hire to make them free.

An almost white counterman passes

a waiting brother to serve them first

and the ladies neither notice nor reject

the slighter pleasures of their slavery.

But I who am bound by my mirror

as well as my bed

see causes in color

as well as sex.

and sit here wondering

which me will survive

all these liberations.

One strength of Title VII(2) has been its capacity to accommodate the changing conceptions of discrimination and the self-conceptions of subject groups. In the first decades of its enforcement, advocates have raised - and courts have endorsed - a range of contrasting conceptions in order to broaden the employment opportunities of protected groups. This flexibility is particularly evident with respect to women.

The most recurrent, and most influential, theory has been an "equality" or "sameness" theory of discrimination. This theory describes women as substantially similar to men in most respects germane to employment; it describes discrimination as the prejudiced or erroneous failure to recognize this similarity, resulting in treatment of women as inferior, unable, or otherwise different from the paradigmatic male denizens of the workplace. A second theory, which has surfaced in cases involving pregnancy or gender-role expectations, highlights ways in which women differ from men. It notes that women's participation in the workforce is shaped by biological differences related to gestation and childbirth and by gender-role expectations that affect behavior in the workplace and require the integration of conflicting responsibilities of work and family. According to this "difference" theory, discrimination results from the failure to recognize these differences, to anticipate the devaluative light in which employers may view them, or to accommodate them in structuring the demands of workplaces. A third theory, which has been particularly influential in cases involving sexual harassment, characterizes discrimination as the devaluative sexualization or derogation of women in the workplace. Whether employers are expressing overt hostility or manifesting "sex role spillover,"(3) harassment characterizes women primarily as sexual objects, or as objects of sex-based derision, rather than as competent workers. Women themselves are shaped by the pervasiveness of sexual objectification inside and outside the workplace; they are likely to perceive sexualized conduct as more of a threat to their professional and personal security than would their male counterparts, and they may feel less able to complain or take action against the harasser.

Despite outward differences, however, the theories that have informed Title VII enforcement also reflect important similarities. Each characterizes the identity on the basis of which women claim relief as comparatively simple and fixed. It may be biologically given, as with some difference theories; or emerge from social construction, as with sexual objectification or other difference theories; or arise from some unspecified combination of forces, as with equality theory. But regardless of the source of this identity, what it means to be a woman is, in the context of each of these theories, a fairly straightforward proposition. The defining characteristics can be simply stated, generally through comparison to men; they apply with relative consistency to the group in question, and they do not shift in valence or emphasis over time or in response to differing circumstances. The discrimination women suffer is similarly unitary, in that it rests on a particular understanding or set of related understandings that operate consistently across the membership of the victim group.

Title VII enforcement may face a greater challenge as it responds to a more recent series of accounts of gender discrimination - those that emphasize the complex, intersectional character of the female subject(4) and the variability of the discriminatory animus that subject encounters. These accounts, as they have emerged in feminist theory and political practice, reflect not only a concern about the conceptual inadequacy or instability of categories but also a concern with the political stakes of unitary, or categorical, representations of women. Categorical representations have privileged the perspectives of the most powerful women; they have fueled the mobilization of negative stereotypes and prevented the recognition of ambivalence that might ground alliances with other groups.

Cases highlighting complex subjectivity have increasingly appeared in court, as persons claiming intersectional forms of discrimination, or manifesting identities that are ambivalent in relation to the existing statutory categories, have sought relief under Title VII. Many courts have been unwilling to accommodate these understandings within Title VII doctrine, requiring that claimants disaggregate and choose among the elements of their identities; others have awarded relief to complex claimants but failed to give an account of the discrimination they face that would help integrate such claims into the mainstream of Title VII doctrine. One factor contributing to these failures is that courts have made little effort to make explicit either the assumptions that underlie complex subjects' claims of discrimination or the barriers that Title VII doctrine currently presents to them.5

After exploring recent doctrinal efforts to respond to complex claimants, I address these questions and assess the prospects of change. Although the unitary or categorical notions of group identity under which Title VII has historically been enforced might run counter to this goal, two other features of Title VII jurisprudence will assist proponents of interpretive change: the demonstrated capacity of Title VII doctrine to accommodate diverse accounts of discrimination, and the integration of assumptions that will be useful to complex claimants into existing bodies of Title VII doctrine, such as sexual harassment, disparate impact, and disparate treatment law relating to stereotypes.

1. The Emergence of a Complex Female Subject

   1. Antecedents

      The claim that "second wave" feminists embraced a notion of a unitary, identitarian female subject should not be overstated.(6) The singular conceptualizations of women's perception or experience that marked early feminist efforts were partly strategic; to highlight the voices that had been excluded, it was often useful to streamline the message and downplay complexity or contradiction.(7) Moreover, even when unitary conceptions were not attributable solely to strategic ends, they often held the seeds of their dissolution. Accounts that hypothesized the social construction of gender(8) at least implicitly raised the question of why women were not subject to other constructive influences as well. In addition, the juxtaposition of any two such theories - the difference and dominance theories, for example - revealed that even one's identity "as a woman" could be shaped by multiple images, norms, and influences.

      Nonetheless, it is difficult to deny the tendency in many earlier feminist theories toward singular characterizations of female subjects. Equality theory's designation of women as "similar to men" involved little specification of women's subjectivity, yet it implicitly invoked the Enlightenment image of the presocial, rational, self-directing subject - a subject whose essential unity and coherence were distinguishing and influential characteristics. Difference and dominance theories, whose subjects were constituted through social construction, offered comparably singular accounts: the woman manifesting the "ethic of care"(9) was constituted predominantly by her domestic commitments and the social expectations that reinforced them; the woman described by dominance theory was forged by the relentless and violent sexualization to which she was subjected.(10) Moreover, some of these theorists struggled to present their theses as the singular and correct explanation of women's condition, explicitly opposing the kind of juxtaposition that might highlight the construction of a complex subjectivity.(11)

      Several concurrent developments helped to move feminist legal scholars and advocates toward expression of a more complex female subjectivity. One was a shift in the strategic considerations that had encouraged the tendency toward unitary depictions. Opponents of change began to use singular characterizations of women's perceptions or experiences to stigmatize and stereotype women claiming injury. The difference-based imagery of domesticity was used to ascribe segregated workforces to women's choice.(12) The mainstream media transformed the dominance-tinged account of "learned helplessness" into images of pathologically passive women,(13) and unsympathetic courts used it to deny child custody to battered mothers.(14) The earlier - and continuing - need to articulate readily intelligible images of women was supplemented by a contrasting need to show heterogeneity, within the group and within individual women, to resist the damaging manipulation of unitary understandings.(15) Yet this very interpretation of and response to the problem by feminist activists was itself informed by contemporaneous developments in feminist theory.

      One was the movement within social theory from structuralist to poststructuralist accounts of social construction. Structuralist theories had challenged liberal phenomenological accounts of the subject by introducing descriptions of that subject - its actions and, indeed, its awareness - as being determined or produced by structures of language or economics.(16) Poststructuralist theories retained the structuralist challenge to the autonomy of individual subjectivity, while exposing the...