Feminism and business law: the essential interconnection

Feminism and business law: the essential interconnection

Feminism to do with business law.

“What has feminism to do with business law?,” many of you may be asking. It is a question asked of me by colleagues and students who sometimes complain that I present “my views” on topics such as labor law, discrimination law, etc., instead of just teaching “The Law”. My answer to their question is that feminism informs who I am. It is the way I look at the world, the way I make sense of what I see and hear. It is an organizing schema, a frame of reference, a point of view. It reflects a set of beliefs and values. It is a mandate to educate, to inform, to act in particular ways and in particular situations.

Does this make me any different than my colleagues? Yes, in the sense that they may not view feminism as reflecting their beliefs, their perspectives, their actions. No, in the sense that they, too, have a world-view, a set of beliefs and values, and principles informing their actions. Are they more “neutral” than I? No, they are simply different. Do their views, beliefs, and values inform what they present in the classroom and their own research, and how they present it? Of course — their perspectives are just as inescapable as mine. And to the extent that their perspectives are considered more “mainstream,” meaning more in line with judicial interpretation or the offerings of current law texts (both in content and organization), they are more likely to be perceived as “neutral” transmitters of information. To the extent their perspectives match those of their peers and students, they are more likely to be perceived as agenda-less, non-political, “objective.” To the extent that their presentation of law re-enforces the privileges granted by the status quo and deemphasizes the contextuality of law, they are more likely to be viewed as presenting “facts” or “truth” about law from which colleagues and students can “learn.”

This dilemma faces feminist academics, who are labeled as “political,” “subjective,” or who are seen as harboring a particular “agenda.” They are condemned for their introduction of “values” into scholarly research and curriculum alike. Their research is sometimes marginalized or dismissed, and seen as “unscholarly.” What are feminist academics — particularly those employed in traditionally conservative business law areas — to do?

Increasingly, feminist legal scholars are publishing books and articles that articulate the views of feminist academics, validate their work, and lend support to the perspectives that they bring to their research and the classroom.(1) Feminist jurisprudential research and activism have led to changes in the way the law sees women — e.g., in matters of employment, divorce, abortion, sexual relations.(2) A legal system that had served to codify behavior between men has been forced to acknowledge and name women’s experiences (for example, consider the relatively recent evolution of sexual harassment and marital rape as two such experiences for which the law previously had no name(3)). Feminism has provided important challenges to other views of authority, meaning, and obligation in law, challenging “traditional” schools such as legal realism, positivism, law and economics, law and literature, and critical theorists.(4) Perhaps an ultimate test of the feminist impact on law, at least in the world of academe, will be whether feminist perspectives come to be addressed throughout typical “business law” or “legal environment” textbooks. For now, however, feminist legal scholars have a somewhat limited canon from which to draw, both for pedagogical and research purposes.

Two recently published volumes exemplify modern feminist thought and provide the legal researcher wishing to enter the stream of feminist work with solid beginnings: Women and the Law, by Mary Joe Frug (a casebook),(5) and Feminist Jurisprudence, edited by Patricia Smith (a collection of scholarly essays).(6)

Women and the Law was published after the murder of its author, a law professor at the New England School of Law. Professor Frug was a feminist, which she defined as having a commitment to two goals: “(1) advancing the position of women socially, economically, and in their personal relationships, and (2) undermining the effect of gender on the lives of women and men.”(7) Acknowledging that there are many feminist approaches(8) instead of one unified definition or view of what constitutes feminism, she did not organize her book around feminist theory per se. Instead, the book is organized around areas in which legal problems of particular importance to women arise: the workplace, the family, the body. Within each of these sections, the reader is exposed to both pertinent cases and selections from a variety of feminist writers addressing issues relevant to that section’s discussion. Thus, although the book may not aid the reader in understanding how feminist principles or theory can structure jurisprudential concerns at the most general level, the uninitiated reader can instead begin to discern what feminism embodies and how it relates to the advancement of women in society. The reader gains by being exposed to excerpts of feminist writings by some of the foremost feminist legal scholars of the time, women such as Catharine MacKinnon, Kimberle Crenshaw, Andrea Dworkin, Marie Ashe, Patricia Williams, Susan Estrich, and Deborah Rhode (among others).

Obviously, any book requires organization, and the organization of this one is both convenient and sensible for introducing legal problems that women continue to experience. Many feminists may be comfortable with this organization. However, it is easy for the assignment of legal issues into three categories — work, family, body — to promote the idea that these areas are distinct and non-overlapping, or that the issues raised in the book are solely “women’s issues,” or that these issues are the only legal issues that affect women. These simple interpretations would be most unfortunate (and ones with which Professor Frug herself would have been most uncomfortable).

The three doctrinal categories are falsely separated in the sense that they are all touched by the gendering(9) of the legal system, as evidenced by the ways that the law views issues that arise within each. The traditional socio-historical notions of separate public and private spheres, long-discussed by feminist theorists in a variety of disciplines (including law),(10) affect each of these three problem areas. Perhaps the most obvious false dichotomy(11) involves separation of family and workplace issues, since both of these arenas involve overlapping roles that many women must play, and since law has traditionally been structured to facilitate (or at least reflect) sex segregation in work and family roles.

Inextricable linkages should be readily apparent as each reader reflects on the organization of the casebook. For example, is divorce a family issue (due to its obvious dissolution of “family”), or is it a workplace/economics issue (due to the separation of property that allows pensions and human capital investments to be “split,” and due to the relative impoverishment of divorced women(12))? Is prostitution about women’s bodies, a family problem, or about women’s right to work? Does pornography represent sexualized or violent speech about women’s bodies, or is it commodification and therefore an economics/ market or even a workplace-related issue (particularly as it becomes part of sexual harassment)? Is the abortion debate about women’s bodies, or is it a family issue? Upon reflection, it should be elemental that every legal issue that Frug treats can be placed in any of the three divisions she has created. Often, but not always, Frug allows issues to surface in more than one category. Nonetheless, feminists may disagree with the elementary taxonomy that Frug uses in categorizing the legal problems she discusses, or in the way she assigns particular cases or excerpts to the categories. Her taxonomy is itself influenced by gendering(13) and therefore fails to explicate fully how the public sphere (represented by market and workplace) cannot truly be separated from the private sphere (family and home).

Space limitations, probably coupled with the norms for structuring a casebook, have caused Frug to succeed in only part of her feminist mission. She identifies how women have fared in a legal system based on assignment of individual rights, where patriarchy has allowed some rights to take precedence over others. Discrimination in the workplace, personal violation through rape, divorce and custody issues, abortion rights, and reproductive freedom are all areas that Frug uses to demonstrate how our legal system has traditionally favored or protected men, and not women. She also provides some sense of how feminism has led to (or attempted to lead to) legal reform. Frug has situated feminist jurisprudence as law for or about women. Missing, however, is the more global aspect of how all law (which would include all aspects of business law) is a feminist concern — i.e., of how our entire legal system is gendered, and what kinds of changes would be required to remove this gendering from legal doctrine and procedure. Also missing is a fuller sense of the legal ethics that permits a patriarchal jurisprudence to continue to dominate the lives of a multiplicity of women — i.e., the ethics of applying a man’s law to women, whose experiences and truths may be very different. In short, Frug’s book has failed to demonstrate that for the feminist, there needs to be a re-vision of the entire legal system, and not just of a few “women-centered” ideas. This broad approach is precisely what feminist jurisprudence — and Feminist Jurisprudence — is all about.

In this collection of essays, edited by Patricia Smith, we can read recent works that expose oppressive gendering in the full spectrum of the law, all written by talented and respected feminist scholars. True, many of the essays focus on so-called “women’s issues” — the very real experiences of discrimination, harassment, rape, and lack of reproductive autonomy — but unlike Frug’s book, these legal issues and experiences are imbedded within a more conceptual, philosophical framework. Thus, Feminist Jurisprudence provides an excellent introduction to feminist scholarship for academics, lawyers, or judges who are open to re-thinking the nature of law.

This re-thinking advances from the starting point of recognizing that law is part of society’s patriarchal organization — i.e., it functions as part of society’s subjugation of women. As Patricia Smith editorially notes, this fundamental belief seems to be common to all forms of feminism, each recognizing that “the analysis and critique of law as a patriarchal institution”(14) is central to a feminist school of thought. Beyond this, however, there is disagreement as to the nature of the problem, the effects of patriarchy on women, men, social relationships and institutions, and on how to remedy the problems that arise as a result of patriarchy. In essence, feminist jurisprudence means that concepts that are traditionally viewed as fundamental to our understanding of law — concepts such as equality, justice, and freedom — must be re-thought, re-evaluated, and perhaps re-made. How would law be different were it not influenced by patriarchy? What role would it play — how would it function — in a society that was not organized by gender? These are the questions that feminists, even though holding diverse views, continue to explore.

One of the major strengths of Feminist Jurisprudence is Section III, entitled “On Adjudication: Patriarchy, Neutrality, and Judicial Reasoning.” This section makes it clear to the skeptic that feminist theory has something to say about the process of law and adjudication — about jurisprudence itself — and not just about so-called “women’s issues.” This section could be viewed as a chapter on the ethics of legal decision-making

Martha Minow’s essay (“Justice Engendered”)(16) raises a continuing feminist concern with how difference is treated and imposed in law, but she extends the focus by considering the interaction between “difference” on the one hand and “neutrality” and “discretion” on the other. By examining not only discrimination cases but First Amendment cases involving freedom of religion (i.e., Edwards v. Aguillard(17)), she explains the tension between governmental respect for differences and government neutrality toward differences. According to Minow, the “dilemma of difference” rests on five unstated assumptions that must be made part of the legal discourse if advances in the treatment of individual differences can ever be made.(18) In other words, decision-makers must come to realize (1) that difference is not intrinsic in an individual, but is instead relational and measured against some unstated norm, (2) that those who deviate from unstated norms are fully human, (3) that objectivity is an illusion and all of us “see” subjectively, based on an internal perspective, (4) that perspectives other than our own are not irrelevant to decision-making, and (5) that the status quo should not be privileged as “normal,” “good,” or “neutral.”(19) Based on these new realizations, decision-makers should not be paralyzed into passivity, but should instead forge ahead in good faith, empowered by their new awareness.

Although Minow doesn’t use the word “empathy,” her plea for adjudicators to get inside the “other” to see difference from a new perspective would seem to be a plea for just that. Lynne N. Henderson’s essay, “Legality and Empathy,”(20) continues this theme to show the role that empathic narrative can play in legal discourse’ Henderson persuasively argues that the “Rule of Law” can deny adjudicators the capacity to perceive circumstances from the perspectives of others, thus frustrating empathic understanding and intersubjectivity. Emphasis on legal doctrine and legal categorization can foreclose understanding of “the Other” — the person who is situated very differently from the judge (who is often a privileged white male). Instead, a narrative form replete with emotion, description, and context can effectively convey a real human situation that transcends mere legal categorization and stereotyping. Interestingly, Henderson views empathy as a blending of cognition and affect,(21) which suggests that empathy should lead to richer, more fully informed, decision-making than the impoverished-by-comparison rationality of law.

The last essay in this section clearly exemplifies the points made by Minow and Henderson. Given that we can’t know all there is to know about an individual, how can we decide how to treat that individual? Facile, formal categorization would be one possibility, but that route falsely adheres to attempts at rationality and objectivity. For example, black women can simply be viewed as having two distinct statuses: one based on race, and one based on sex. This view fails to see the particular plight of black women regarding power distribution, stereotyping, and discrimination. Instead, as Judy Scales-Trent points out,(22) adjudicators should avoid routine categorization into protected classes and consider the special plight of African-American women (and by implication, other women of color) who attempt to prove discrimination (either under Title VII or under the Equal Protection Clause of the Constitution). Although this essay ends the section on a so-called “women’s issue,” readers who have relished the preceding two essays can appreciate this final essay of the section with new understanding.

Another particularly strong section of the book, entitled “On Human Dignity: Commodification and Dehumanization,”(23) explores the role of the market economy and its rhetoric on self individuation and development, helping to provide a feminist re-vision of commodities and commercial transactions. Margaret Jane Radin’s essay, “Market Inalienability,”(24) explores what factors are relevant to determining what can and cannot be traded or sold in the marketplace. Neither capitalist nor Marxist in her feminist perspective, she instead presents a new middle ground that identifies “human flourishing,”(25) or a sense of personhood or self-realization, as the key to determining a line between commodification and inalienability. According to Radin, the essential aspects of human flourishing — contextuality,(26) identity, and freedom — can be protected only through the noncommodification of things that can be conceived as personal (such as love, friendship, sexuality, or reproductive capability), because of the unequal power distribution that exists in our society.(27)

The remainder of the section considers pornography within this frame, i.e., pornography is evaluated as a commodification of sexual services. Two distinct feminist perspectives are presented. First, Elizabeth Wolgast (“Pornography and the Tyranny of the Majority”)(28) explores how traditional judicial and popular interpretations of free speech have been used to prohibit governmental restrictions on pornography. She argues that since the production of pornography impugns women’s claims of equality by demeaning them — i.e., pornography causes injury to women — it therefore should not be tolerated by the government. She questions a view of pornography that has allowed it to be examined only from its impact on and desirability to men, thereby treating women as invisible in society. Andrea Dworkin continues this discourse on pornography (“Censorship, Pornography, and Equality”)(29) by demonstrating that it represents male domination and female subordination through intimidation, and she, too, calls for its restriction.

An interesting contrast is provided by the final chapter in this section

My focus on particular sections of Feminist Jurisprudence should not be construed to indicate that other sections of the work are not as compelling. They are all excellent and serve to present the diversity of opinion among feminists on how the law should be re-made (ungendered) to eliminate oppression and achieve equality for women. Nor should my criticisms of Women and the Law be construed as indicating that I find the book inadequate for an introduction to feminist law. It is an excellent beginning, filling an important niche, and fulfilling a feminist goal of locating jurisprudence within women’s actual experiences. My preference, however, would be that the two books should be read together, so that novices to the area receive a more informed view of a perspective (really a set of perspectives) that has important implications for all of us, and that has been misrepresented or only selectively presented in the popular press.

One immediate benefit of a joint reading of the texts is the enhanced focus on stereotypes as a problem inherent in our legal system.(32) Although Frug discusses sex-role stereotypes as informing employment discrimination law, she does not address other types of stereotyping directly nor the role that they play in constructing race and gender within the legal system. She has not emphasized the fluidity, the instability of categories such as race and sex, and how they cannot support a static view of individuals in our society. Nor does she fully examine how the issue of stereotyping divides feminists (as alluded to above in the discussion of pornography). A full reading of both texts illuminates the variety of stereotypes that pervade our legal system and the roles that they play in substantive law as well as within the entire adjudicative system.

Perhaps Frug’s strongest presentation of stereotypes is via the UAW v. Johnson Controls(33) case, which she explicitly includes in a sex roles stereotypes subsection to demonstrate the stereotypic nature of the bona fide occupational qualification (BFOQ) defense to disparate treatment discrimination under Title VII.(34) Although she is far from the first to interpret the BFOQ in this way,(35) her presentation will be new to many readers of her casebook, who may view Johnson Controls as purely a “victory” for women. My own experience with both colleagues and students indicates that many people hold rather narrow definitions of what constitutes a stereotype, and most of them do not immediately see the BFOQ as representing legally-sanctioned stereotypes that an employer can use in job selection. I always find it interesting to contrast the BFOQ version of stereotyping with Supreme Court language about stereotypes in Los Angeles Department of Water and Power v. Manhart(36) (a case, and pension issue, entirely missing from the Frug book). It is through Manhart that one learns that “facts” or “statistical truths” can still be the basis for illegal stereotypes when their use disadvantages a protected class, as when all women are asked to pay higher pension premiums because as a class, women tend to live longer than men. The Manhart case also raises interesting insights about differences between sex and gender, the causal nature of longevity (i.e., biological? lifestyle choices?), and what degree of stereotyping can be used in employment decision-making to support differential use of terms, conditions, or privileges of employment. (Manhart is briefly discussed in an essay in Feminist Jurisprudence by Nadine Taub and Wendy W. Williams, “Will Equality Require More than Assimilation, Accommodation, or Separation from the Existing Social Structure?”(37)).

The stereotyping theme can be carried across other well-known employment discrimination cases as well. Two such cases that explicitly involve discussion of stereotypes have not been included in Frug’s casebook: Price Waterhouse v. Hopkins(38) (although the brief on stereotyping by the American Psychological Association is included), and EEOC v. Sears, Roebuck & Co.(39) (which is referred to briefly in a couple of commentaries(40)). Since both of these cases have involved key judicial language on stereotyping, and since both of them have been discussed at length in the feminist jurisprudence literature, their absence from Frug’s book is somewhat surprising. Important and extensive discussion of the Sears case can be obtained from Joan C. Williams, “Deconstructing Gender,”(41) in which she makes clear that the implications of how “difference” is viewed by feminists can be institutionalized in judicial decision-making. Is there an essential difference between men and women, so that it makes sense to talk of a “woman’s voice” or a “woman’s ethic of caring”? Or is any difference not essential but instead constructed through gender, and therefore subject to reconstruction? As many feminists have noted, the interaction between sex and gender can enforce gender stereotypes and support further oppression of women.(42) The implications for all areas of law are enormous: can law exploit any existing differences without encouraging further stereotyping, or without encouraging further subordination of members of a group that is deemed to be different?

The final essays in Feminist Jurisprudence encourage us to look to a more post-modern feminist view that rejects the old debate about the difference issue, thus positing an evaluative stance that perhaps should come last in a joint reading of the two works.(43) They call for a feminist epistemology that does not get caught up in the patriarchal framework that focuses on difference for its own sake. Instead, as Deborah Rhode notes, “the crucial issue becomes not difference, but the difference difference makes.”(44) It is power and advantage that are important, and bow our system of law comes to create and maintain them. In these articles we receive the call to deconstruct(45) the false dichotomies that exist within patriarchy, to acknowledge the diversity that exists within all humankind, and to seek unity and inclusion through a reconstruction based on this diversity — to move forward with increased understandings for social change and with increased sensitivities to the needs of all people, so that positive law cannot be used to dominate or subjugate, so that there is “a new relation between life and law.”(46) Until we recognize that difference, per se, is not the issue — that in fact, difference is highly situational and can be exacerbated or suppressed by context — we cannot move ahead to understand what lies beyond difference.

To me, this is the essence of feminist jurisprudence, regardless of one’s individual perspective. Law is a strategy for assigning or legitimating power

Admitting our biases and intolerances means situating ourselves within a complex social context, so that our individual perspectives can be revealed and acknowledged. As author of this essay, it is important for me to situate myself as a white, forty-year-old, heterosexual, middle-class woman who continues to struggle to overcome the patriarchal learning that has informed so much of my life. The interpretive strategies that I bring to legal texts necessarily reflect my demographic make-up, while at the same time reflecting approximately twenty years of increasing feminist awareness. I further situate myself as a post-modern feminist who is painfully aware of absences — representing silenced voices — in legal texts. In reading Women and the Law and Feminist Jurisprudence, I noticed several absences (in one or both texts) resulting from space limitations and content preferences.

For example, where is the systematic discussion of Constitutional law that explicates a system of interpretation that has been gendered to the detriment of women? Clearly, some areas have been addressed — First Amendment rights concerning pornography, Equal Protection, and the illusory right to privacy all appear as particular feminist concerns,. But there is still much work to be done here. For example, First Amendment claims to free speech also arise in the context of sexual (and presumably racial) harassment and hate speech, particularly within the context of academic environments. More work on the power relations implicit in our “marketplace of ideas” approach to free speech may help to reveal a bias that would help to produce change. Other areas of the Constitution can be examined in new and provocative ways as well. One innovative approach (not appearing in either book) recently argued that the battering of wives should be included within the involuntary servitude prohibition of the Thirteenth Amendment.(47)

Although both texts consider the intersection of race and sex or gender to some extent, where are the special concerns of diverse hispanic and other “minority” women? Despite rather minimal discussion of sexual orientation, where are the legal concerns of lesbian-identified women addressed? These groups of women have arguably been overlooked by (academic?) feminism,(48) and deserve special consideration of the particular legal challenges that they face.

Also absent is the examination of “fundamental” areas of law, such as contract and property law systems that have historically allowed women to be sold or treated as chattel. Perhaps the most poignant writing in this area is by Patricia Williams, who has written of her great-great-grandmother who, at age 11, was purchased by a white lawyer and “immediately impregnated” by him.(49) This ancestral violation has led to new insights in her study of contract law and commercial transactions, and her observation that a relational ethic(50) seems to be missing from contract interpretation and enforcement.

Feminist interpretation within the commercial law area has provided many insights into the public sphere/private sphere false dichotomy and the gendering of marketplace determinations regarding which exchange relationships have value and which do not. In particular, contract law highlights the law’s traditional separation of objective (the four corners of the document) and subjective (the intent of the parties) interpretation, all of which has worked to obfuscate the questions of power relations in contractual transactions.(51) Radin’s feminist call for “noncommodification” of the personal(52) can perhaps provide new insights not only into areas directly affecting women such as domestic arrangements, surrogate mothering, prostitution, and sexualized advertising (i.e., advertising that uses sexual attractiveness to sell products), but in “private” contracts in general.

Similarly, feminist interpretation within the torts arena has led to further study of power relationships, particularly those involving corporate defendants. “Power-balancing” may be a way of restructuring litigation power (e.g., shifting burdens of proof, establishing rebuttable presumptions) so that plaintiffs with relatively poor access to information and resources will not be disadvantaged at law.(53)

At the heart of all of these feminist investigations lie women’s experiences within the legal system. The gendered structure of this system, complete with false dichotomies of process and outcome, form and substance, often make it difficult for women to relate their experiences in ways that keep the story “true” for them. Women (and other oppressed groups) need a new language and narrative style that will help to empower them,(54) so that the outcome for them is not wholly determined by a too-restrictive process that does not meet their needs. (Outcome and process are not disconnected, despite the myth that process is neutral and objective and fair to all.) Legal storytelling is important

The dominant image of power pervasive in law — stare decisis, primacy of appellate texts over lower court texts, the ultimate authority of Supreme Court decisions — is perhaps more fragile than the “conventional wisdom” indicates.(56) Law has served as an instrument of social change,(57) and power within law need not reside exclusively within its “formal” makers and interpreters.

Change will require that judges not be detached decision-makers, but empathic and careful evaluators. They must focus on the relational aspect of their call instead of the supposed desirability of detachment, recognizing that what passes as “objective” or “reasonable” does not represent universal truth, but the influence of individual perspective.(58) They must practice empathic listening and “power-balancing,” reaching beyond stereotype to understand context and individual pain. At the same time, they must remember that even the oppressed may speak the language of the oppressor, so that they must pursue a rendering of experience that is not wholly determined by the perspective and language of patriarchal culture. Empathy will prevent process and “legal reasoning” from taking precedence over outcome. For example, it may fully expose the “Causation” element in tort law as merely a proxy for determining who must be held responsible for harm, and power-balancing may yield a new answer to that question. Thus, empathic listening will aid legal facilitators or decision-makers in abandoning the patriarchal image of power — one tied to domination and control on the one hand, and protective patronization on the other — in favor of one allowing power to be shared by all participants.

Feminist jurisprudence will continue to develop methodologies for practicing law and evaluating legal claims and theories. These methods are critical to the continued growth of both feminist theory and politics, which today face a challenge to reconstruct — in new and legitimate ways — the illegitimate power structures that have been deconstructed and criticized. Discourse is essential to the development of knowledge or even its definition

Further, gender categories are not stable but are instead fluid, changing over situation and time. See, e.g., Joan W. Scott, Gender: A Useful Category of Historical Analysis, 91 Am. Hist. Rev. 1053 (1986). At least one article has suggested that we do, instead of have, gender. Candace West & Don H. Zimmerman, Doing Gender, 1 Gender & Soc’y 125 (1987).

Thus, the “gendering” of the legal system stems from a view that sees law embedded within (and reflecting) social or cultural roles and characteristics that are interwoven with gender. Potentially, all of the legal system is subject to question because of this gendering. For example, we could ask whether the primary role of the ethic of “justice” is the result of a legal system that has been created by men. This is not to suggest that women cannot or should not be concerned with justice

Here, “family” and “workplace” are exposed as falsely oppositional categories. Despite the fact that we “know” that individuals are involved in both, and despite a possible integrative view that would deny their distinction, we are accustomed to hearing about trade-offs between family and workplace obligations and responsibilities. (12) See, e.g., Joan C. Williams, Deconstructing Gender, in Smith, supra note 6, at 531, 544. (13) See supra note 9.

RAMONA L. PAETZOLD Assistant Professor of Management, Department of Management, Texas A&M University. (14) Smith, supra note 6, at 3. (15) Smith poses these three major problems to adjudication in her introductory comments to Section III. Id. at 211, 212. (16) Id. at 217. (17) 482 U.S. 578 (1987) (discussing whether a state statute requiring the teaching of creation science whenever evolutionary science is taught violates the establishment clause). (18) Smith, supra note 6, at 227. (19) Id. at 227-230. (20) Id. at 244. (21) Id. at 245. (22) Judy Scales-Trent, Black Women and the Constitution, in SMITH, supra note 6, at 282. (23) This is Section V of Smith, supra note 6. (24) SMITH, supra note 6, at 389. (25) Id. at 408. (26) Contextuality refers to the importance of physical and social contexts in an individual’s self-development or individuation process. In other words, contextuality implies that all individuals must constitute themselves “in relation to the environment of things and other people.” Smith, supra note 26, at 408. (27) Id. at 408-411. (28) Id. at 431. (29) Id. at 449. (30) Id. at 467. (31) 475 U.S. 1001 (1986). (32) Numerous articles have discussed the ways in which the legal system views stereotypes. One recent one of interest is Susan T. Fiske, Controlling Other People, 48 Am. Psychol. 621 (1993). (33) 499 U.S. 187 (1991). (34) This defense allows employers to engage in sex discrimination if they can show that the business interest being served by the sex requirement is reasonably necessary to the essence of the employer’s business, and either (1) that all or substantially all members of the excluded class cannot satisfy this legitimate business interest, or (2) that some members of the excluded class cannot satisfy this business interest and it is impossible to determine on a case-by-case basis which members of the excluded class can satisfy the interest. This definition comes from Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 412-417 (1985). (35) Several feminist writers have discussed the BFOQ defense as representing sanctioned, stereotypical decision-making for employers. E.g., Deborah L. Rhode, Justice and Gender 92-98 (1989)