The Glass Ceiling
Since the landing of the Mayflower, the fabric of American society has shifted with increased scientific advancements which have affected the daily lives of Americans. While these changes have boded well for the level of human comfort, there still remain certain aspects of American society that have resisted progress.
The Age of Reason denounced the concept of the Divine Right of Kings and introduced to us the concepts of individuality and human rights. These ideologies led the country now known as the United States of America to declare its independence from Britain in 1776. The American British colonies' bid for autonomy result- ed in increased freedoms, yet those freedoms have tended to apply to a restricted class of citizens. Historical data reveal to us that American men have had a longstanding claim on the reigns of power and influence; although there is a slight shift in the status quo, the overwhelming tendency is toward a male-dominated society. The ensuing result is that women are, and continue to be, second-class citizens with restricted physical and intellec- tual freedom when compared to that afforded to men.
It is undeniable that there exists physiological differences between men and women. This truth is used to justify the unequal treatment of women on all levels of human interactions. The uneven treatment is clearly reflected in the attitude of the American legal system toward the female gender. And the prevail- ing historical attitude of men towards women would have us believe that physiological differences limit women in their choice of career, their intellectual maturity, their credibility, as well as their ability to be effective contributors to the advancement of human society and that these differences warrant that women be treated differently from men. Thus, this attitude defines a view of women in which their "role" is that of keeper of hearth and home while that of the man is to provide for and protect this "weaker sex"--a view which continues to define different social roles for men and women. In that spirit, protective legislation for women was born out of Muller v Oregon in 1905. The case involved a laundromat owner who was fined $10.00 for requiring a female employee to work more than ten hours. He appealed this fine to the Supreme Court which ruled against him on the grounds that a woman's "physical structure and proper discharge of her maternal functions...justif[ied] legisla- tion to protect her from greed as well as the passion of men" (qtd in Mezey 14). Yet protective laws seem to be more advanta- geous to male interests than female interests. Leo Kanowitz would disagree with me on this, for he is of the opinion that the lack of similar protective legislation for men is injurious to their health and accounts for the greater number of widows than widowers. (Kanowitz 29).
In many respects, the degree of freedom women enjoy, or rather do not enjoy, has a great deal to with the politics of economics. Women who are not able to pursue a career or who do not earn enough to maintain an adequate standard of living are dependent on their husbands or government agencies for financial support. During the period from 1985-1986, one out of every four U.S. women earned less than $10,000 a year (Rhoodie 259)--which is a less than adequate "living wage" for single mothers and divorced women with custodial children. For those women who do pursue a career and hold a university degree, that degree confers no advantage in the job market. Eschel M. Rhoodie reports that such women, on average, have an effective income little more than that of a man with comparable years of work experience without a high school diploma (271). These numbers may seem startling for the times in which we live, but the truth of the matter is that since the inception of the women's rights movement in the late 1800s, the comparative improvements in the status of women have been few. This is due partly to the low number of women repre- sented in the higher echelons of the legal establishment as well as to a lack of governing bodies to enforce the few laws that have been beneficial to women. Yet, one must realize that the existence of such bodies do not necessarily guarantee the en- forcement of these laws. The wage gap between men and women is then an important aspect of the status of U.S. women--social, legal, and economic. Thus, the combination of these factors has resulted in the formulation of state and federal statutes that contribute to the devaluation of women and their achievements.
It should come as no surprise to any of us, then, that in an essentially male-dominated American society, the needs of, and issues of importance to, women are not being adequately addressed by the American legal system which remains largely a bastion of male ideals. According to Judith A. Baer, gifted female law school graduates do not necessarily obtain positions at the higher hierarchy of the legal profession. The proof of this statement is reflected in the fact that currently there is, and there has only been, one female Supreme Court Justice; further- more, as of 1991, only forty women have served on the highest court of thirty states and the District of Columbia and only five have presided over their state's court as chief justice (Baer 270) and only 5.4 percent of all federal judges were women at the time of Sandra Day O'Connor's appointment (Rhoodie 32). Because influential women within the hierarchy of the legal profession are such a minority, it is harder for their point of view to come across in the shaping of state and federal statutes that affect their social and personal lives. Some, like Karen Morello, would argue that the same forces that worked to keep women out of the legal profession would work to keep them out of positions of power within the establishment (32). Although the probability for this is high, I take courage in Janet Reno's recent confirma- tion as the first female U.S. Attorney General. I think this bodes well for the future of American womanhood, but I am aware that certain stereotypes still persist. This was made evident by the speculation, during the confirmation hearings, about Ms. Reno's sexual preference because she is in her fifties, has never been married, and has born no children.
There have been men like Aristopanes, author of Lysistrata, or John Stuart Mills, author of The Subjugation of Women, who have denounced the stereotypical views of women (Kanowitz 11), yet it seems to me that no amount of empathy can accurately convey the degree to which women have been ignored and victimized by the male-dominated legal establishment because despite such support, asserts Kanowitz, the women's movement is still largely regarded as a movement by women against men when in truth it is a movement for basic human rights that would benefit both sexes (Kanowitz 1). Where to a large extent, public sentiment and rules of social conduct directly influence the shaping of Ameri- can law, and vice versa, it becomes necessary to institute legal reform in order for the women's movement to produce tangible results. If the laws that govern our lives take so little account of women, how can the contributions of women be valued by the women and men who must abide by these laws? It can be argued that legal reforms do not necessarily guarantee the end of all discrimination against women. I can see how this is a valid point because the laws cannot change what people think, but their existence may contribute to a lessening of discriminatory prac- tices, for concrete laws are not as easy to evade or ignore as theories about what should be--or at the very least their exis- tence provide those whose rights have been violated some basis on which to seek redressment in court.
With the failure of the Constitution to explicitly declare women and men equal, men, who are largely favored by that docu- ment, hold a certain power over women and that power is directly linked to the matrimonial bond--its social and legal definitions and ramifications. Joan Hoff reports that as recently as 1974, the state of Georgia's legislature instituted a statute that defined the husband as "head of the family" with the "wife...subject to him, her legal existence...merged in the husband, except so far as the law recognizes her separately either for her own protection, or for her benefit, or for the preservation of public order" (281). She goes on to cite a 1970 ruling by the Ohio Supreme Court which defines a wife as "at most chattel with no personality, no property, and no legally recog- nized feelings or rights" (281). It is startling to see that such archaic notions have survived and permeate the language of legal texts and it is such archaic notions that perpetuate the view of women as individuals in need of special treatment. If marriage joins man and woman as one, how does one justify holding the man to a different standard than the woman? It seems that husband and wife are one in theory only and that the concept is only applicable insofar as the will of the wife is subordinate to that of the husband. In essence we are being told that the woman has no life outside of the home and should not aspire to have one because her every need will be provided for by her mate.
In his book, Equal Rights: The Male Stake, Leo Kanowitz asserts that men are just as much victims of sex-role stereo- typing as women (3); I agree with him on some level because certain restrictions placed on women also act to restrict men. This is certainly observable in the case of careers labeled as "feminine," or the often de facto practice of awarding custody to mothers above fathers when the latter may be just as capable of raising the children as the ex-wife. Mr. Kanowitz further contends that the current language of the law places an undue burden on the man to provide financially for his wife and progeny while society contributes to his chronic unemployment by closing to him careers that are considered inherently "female" such as those of elementary school teacher, clerk-typist, or secretary (30). There is a certain logic behind his assertion in that we are all more than the sum of our parts. Gender should not be deterministic, ability and inclination should be; this is one more reason why the laws need to be changed. It is a matter of simple human dignity and self-respect that one should be able to make an independent living and make one's own decisions about the course of one's life. A wife who must depend on her husband financially is deprived of her free will as an individual. Marriage, in my view, should be an equal partnership in which neither party is free to make unilateral decisions which may have unforeseen negative effects on the other.
Not to take away from similar problems men may face, the reality is that a woman is more directly affected by discrimina- tory policies than a man. Where the problems she faces are symp- tomatic of a disease which corrupts our social structure, the man's problems are aberrations within the norm. Furthermore, the woman is more vulnerable within the bounds of marriage than the man because social mores impose upon her a code of conduct whereby she must be the "little homemaker" while her husband "brings home the bacon." The In situations where the family needs two incomes, the woman's paths to professional advancement are few as a result of her employer's perceived notions of what her conjugal and motherly duties are. Most states, according to Dorothy McBride Stetson, still retain the common law of domicile which requires a husband and wife to have the same legal resi- dence, arbitrarily that of the husband. To illustrate the effects of such laws, she explains that when a woman who has lived all her life in one state marries a man with legal resi- dence in another state, she loses her voting registration as well as her eligibility to run for elected office in her native state (Stetson 63). Feminist and legal scholar Karen DeCrow agrees that such laws carry psychological and sociological implications for working women who may be passed over for a promotion if the employer believes she will follow her husband if he moves (167).
There are even more immediate financial ramifications for married women in community property states. In all these states, except Texas and Washington, the husband holds power of attorney over the community property (Rhoodie 274). What this means is that, in effect, he may dispose of assets such as real-estate and stocks and bonds without his mate's consent or knowledge. Furthermore, as early as 20 years ago, before the Equal Credit Opportunity Act of 1974 was enacted, married women could not obtain a credit card in their own name without their husband's consent, but today, 20 percent of American Express cards in circulation are registered to women (276). In Joan Hoff's opinion, the above examples are testimony to the loss of legal identity of married women and to "how the law [creates] private conditions of existence [for women]" (36).
Just as women are victimized within the bonds of matrimony, so it is when they try to dissolve that bond through divorce. Ordinary people hear of the Ivana Trumps of the world and believe settlements like the one she received to be the norm for all women--of course on a much more modest scale, but the expectation is that women receive considerable sums in alimony and child support payments. Eschel M. Rhoodie cites a landmark study by Stanford sociologist Lenore Weitzman in which she concluded that divorce spelled financial disaster for a great number of American women and their dependent custodial children (255). One can see the logic and truth of this by considering that women receive priority consideration in child custody decisions and that according to Gilda Berger "[i]t takes women nine days to earn what men earn in five" (qtd. in Rhoodie 269). In addition, Sylvia Hewlett reports in her book, A Lesser Life: The Myth of Women's Liberation in America, that programs to help single parents are sadly lacking; she also reports that 1982 census figures indicated that 41 percent of custodial mothers are not awarded child support and that in the cases they are, the ex- husbands are delinquent on those payments while managing to make their car payments on time. Thus, out of the less than 14 percent of women nationwide who are awarded alimony, less than 10 percent actually collect (256-257). Noted legal scholar and feminist, Karen DeCrow writes that ex-husbands are able to, and often do, mask their child support payments as alimony because taxes on alimony are payable by the ex-wife who receive the payments while the total amount is subtracted from the husband's income. In contrast to these benefits, deductions for child support payments cannot exceed the allotted $600 limit (DeCrow 171). Ms. DeCrow goes on to cite a Florida statute according to which "no alimony shall be granted to an adulterous wife"-- the language makes it clear that an adulterous husband will not suffer any financial losses (191).
With so many factors working against women to reduce their effective income, it is no wonder that their incomes decrease by as much as 70 percent after divorce (Rhoodie 256). Women are pressured to be good mothers and are expected to play a very active role in raising their children, yet these outside forces require them to maintain a career in order to provide for those children. I take exception with the view point that women should rely on their husbands to provide for them. It is a matter of innate human dignity and self-respect that one should be able to pursue a meaningful life no matter their gender--something over which they have no a priori choice. Such dependence speaks to me of something akin to slavery where in essence one individual is able to dictate to another the manner in which she may live her life; this is an idea totally repugnant to me.
Joan Hoff, in her book Law, Gender and Injustice: A Legal History of U.S. Women, asserts that although the preamble to the Constitution begins with an all inclusive "We the People," reality teaches a different lesson because these words are not legally binding. She goes on to state that because the Constitu- tion does not explicitly outlaw discrimination against women (3), its potential and that of "other legal texts to perpetuate the psychological domination of women in contemporary society is alive and well..." (374). The Fourteenth Amendment's privileges and immunities clause states that "no state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States" (Mezey 11). At first glance, this clause seems to qualify as grounds for challenging discriminatory practices against women, but that is not how it has been inter- preted by the courts. When Myrna Bradwell was denied admittance to the Illinois bar despite being qualified, she took her case to the Supreme Court, in 1873, based on the above clause. The court ruled against her. The majority opinion was that "the right to practice in the courts of a state is not one of [the rights of national citizenship the clause guaranteed]" thus, the right to practice law "in no sense depends on citizenship of the United States" (11). When this avenue for redressment was closed to women, they were left with no other recourse but to use litiga- tion as a means to challenge and rewrite the laws that affect their lives so directly.
One of the major goals of the women's movement has been the addition of an Equal Rights Amendment (ERA) to the Constitution. The original ERA was introduced into Congress in 1923 by Alice Paul and her National Women's Party (Stetson 21). The ERA, however, was not unilaterally supported by all women's rights proponents. Some objected to it on the grounds that it would eliminate the "superior" position women enjoyed under the law (Kanowitz 4), yet this legislation was proposed so that preferred treatment for women would not be necessary (Stetson 22). Accord- ing to Leo Kanowitz, the opposing position is fallacious in that the inherent nature of special treatment for women under the law, tends to perpetuate stereotypes about their "proper role" (4) and the logic in that is clear. The very fact of such treatment infers that women are limited when in fact they are not. There is no denying the physical differences, even to some extent the psychological differences, but who is to say that they make a woman less capable than a man? Do we value conformity so much that there should be only one standard for all? There is tremen- dous pressure on American women to conform to male ideals of what it means to be female. The laws are such that women are forced to espouse these ideals in order to achieve professional success and financial independence. In my opinion, there is no concrete evidence pointing to the fact that women cannot be successful in their own right using qualities that are inherently female.
Although Eschel M. Rhoodie is not opposed to the idea of an Equal Rights Amendment, he perceives that the hope it seems to offer for the elevation of the status of women is unlikely to be fully realized for several reasons. According to him, federal laws that outlaw discrimination, which have been in effect for 20 years, are routinely violated; furthermore, he argues, far ranging changes will not be manifest within one year, or even 10 years, of the passage of an ERA because even if it were to be vigorously enforced, discrimination against women has a more insidious aspect which no ERA could hope to eradicate--the exclusion of women from certain prestigious private clubs. He goes on to illustrate this with a rather surprising anecdote. England, he says, has a woman on the throne, a female prime minister (at the time), and a woman judge on its highest court, yet these influential women may never aspire to become members of Britain's M.C.C., the headquarters of the (Rhoodie 277) cricket- playing world in London (278). This reflects the ingrained male attitudes towards women which are proving to be a major impedi- ment to the goals of the women's movement (9). And after 60 years of revisions and compromise, in 1983, the ERA finally failed to garner enough support from state legislatures and was taken off the Congress' docket (275).
Despite the failure of the ERA at the federal level, seven- teen states have adopted ERAs and the most active legislatures of these states have instituted special commissions to review current laws and institute reforms with a goal towards more gender neutral language--that is the language of the laws would be such that gender should not be at issue (Stetson 35). But there is a price to pay for such reforms. Says Martha Minow, "...embracing the theory of sameness mean[s] that any sign of differences between women and men could be used to justify treating women differently from men" (qtd in Mezey 27). I agree with that statement because women are being forced to conform to the male ideal if they want to succeed professionally and any deviation from the male norm is seen as a sign of weakness, indicative that women are not able to handle power.
Indeed, power is at the root of the struggle for women's rights--power to determine one's own destiny. I do not mean to imply by my arguments that the law is totally antagonistic to all womanhood. There are laws such as Title VII of the Civil Rights Act of 1964, the Equal Pay Act, the Pregnancy Discrimination Act of 1978, the Wage Discrimination Act, the Education Amendment of 1972, and the Credit Opportunity Act of 1974 (Rhoodie 281) which have tipped the scales ever slightly for women, but I take note of Joan Hoff's warnings. She warns that such concessions are often made when the restrictions they redress are no longer important to those in power and that many have resulted in unintended negative consequences (Hoff 7,3). Affirmative action is one policy that, although designed to relieve imbalances in the male to female ratio in certain professions, has acquired negative connotations. The practice often breeds tension between men and women in the job market; when a woman attains enviable positions in the work place there may be doubts as to whether that position is warranted because of merit or to fulfill a quota requirement. In consideration of this, I tend to agree with the view that gender neutrality in the law should not necessarily be of concern; what should concern us is whether the "laws, as written, given biological differences of men and women, work to harm women or perpetuate [our] disadvantage" (Stetson 37).
In doing the research for this paper, I was struck by the picture that was revealed to me about what it means to be a woman living in the United States as we approach the next century. The potential is there for women to achieve an equal footing with men, but the social mores and male attitudes make an effective barrier to women rising above a certain point; this tendency brings to mind a glass ceiling. Because it is invisible until one reaches its border, women believe that equal rights can become a reality for them, but until that ceiling caves in, women will continue to be second-class citizens despite changes in the law and despite successful litigation. But as Virginia Woolf once wrote, "Anything may happen when womanhood [ceases] to be a protected occupation..." (Woolf 70).
Baer, Judith A. Women's Rights in the U.S.A.: Policy Debates and Gender Roles. Pacific Grove: Brooks/Cole Publishing Company, 1991.
DeCrow, Karen. Sexist Justice. New York: Random House, 1974.
Hoff, Joan. Law, Gender and Injustice: A Legal History of U.S. Women. New York: New York University Press, 1991.
Kanowitz, Leo. Equal Rights: The Male Stake. Albuquerque: University of New Mexico Press, 1981.
Mezey, Susan Gluck. In Pursuit of Equality: Women, Public Policy, and the Federal Courts. New York: St Martin's Press, 1992.
Rhoodie, Eschel M. Discrimination Against Women: A global Survey of the Economic, Educational, Social, and Political Status of Women. Jefferson: Mc Farland and Company, Inc., 1989.
Woolf, Virginia. A Room of One's Own. New York: Harcourt, Brace and Company, 1929.
April 12, 1993
Last modified 2005-01-21 02:33 PM