Monday, September 28, 2015

Subtle Sexism

by Sherry F. Colb

It seems odd to describe anything about Donald Trump as subtle, but his sexism may be.  For my Verdict column for this week, I discussed Trump's insult to Carly Fiorina's appearance and her highly effective response at the second Republican presidential debate.  I argued that his insults toward her were sexist and bought into an ideology of women as things to be exploited and to be assessed on their utility as sexual objects.  In this post, I want to talk about the subtle nature of the sexism on exhibition by Donald Trump and why, in my view, such sexism is both subtle and noteworthy.

The unsubtle form of sexism and sex discrimination involves treating a woman or a girl in a way that a man or a boy would not be treated and doing so on the sole basis of the woman's or girl's sex.  The old advertisements for jobs that said "only men need apply" represent one example.  Such unsubtle discrimination acts on the basis of a quality that is shared by all of the members of one sex and none of the members of the other.  Males may apply for the job, while females may not.  It is accordingly uncontroversial to describe what is happening as sex discrimination when an employer fails to promote an employee who is otherwise qualified in virtue of her being a woman.  In such a case, the quality that bars her promotion is her sex, and it accordingly is shared by all members of her sex and none of the members of the opposite sex.  Were she a man, she would have been promoted.  Sex is a clear and uncomplicated causal factor in her mistreatment.

The more subtle form of sexism and sex discrimination involves treating some people differently from others because they lack qualities that some members of their sex lack but that other members of their sex have.  Take, for example, pregnancy discrimination.  Not all women are pregnant, so one could miss the reality that an employer who discriminates against pregnant women is necessarily discriminating against women as a group.  One could conclude that pregnancy discrimination is not sex discrimination, since a large proportion of the female population would not suffer from its effects.

I mentioned this possibility to my 11-year-old daughter, and she said "that's stupid."  Perhaps it is, but the U.S. Supreme Court held in two separate decisions, Geduldig v. Aiello and General Elec. Co. v. Gilbert, that pregnancy discrimination does not count as sex discrimination, precisely because the class of non-pregnant people includes both women and men, and correspondingly, the class of pregnant people includes only a subset of women.  So long as a characteristic (here pregnancy) fails to overlap with 100% of women and with 0% of men, one could deny that it is sexist or sex-discriminatory to use that characteristic as a basis for differentially bestowing or denying benefits.

The same could be said of Trump's comments about the appearances of women (including that of Carly Fiorina, prior to the second Republican presidential debate).  So long as he insults the appearances of both men and women, and so long as it is possible for both men and women to be unattractive or attractive, one could argue that Trump is not behaving in a sexist or discriminatory fashion.

The reality, however, is that if one deliberately singles out a physical condition (such as pregnancy) that occurs in only one sex (women) and mistreats people on the basis of that physical condition, then one is intentionally discriminating against women, even if one has allowed some women to avoid the discrimination (those who avoid pregnancy).  The outcome, moreover, for women under a regime of pregnancy discrimination is an inferior set of choices and opportunities, relative to those that men encounter.  Men can decide whether or not to have a family unhampered by the impact of one or the other choice on his career; women cannot.

For similar reasons, appearance discrimination tends to disfavor women more than men, even though (1) men are as likely as women to be ugly, (2) men do sometimes suffer from looks-oriented distribution of benefits, and (3) many women are pretty and therefore do not suffer the effects of appearance-based discrimination.  Looks discrimination harms women as a sex because, as I describe in my column with respect to Trump, such discrimination tends to demand more of women and to demand it of women in more situations than it does of men.  Men, in other words, do suffer the effects of looks discrimination, but women suffer more.  We can see this most dramatically in the film industry, where men--including many unattractive men--play a whole range of roles throughout their lives, and women on the screen tend to be those who are beautiful, slim, and young, other than in exceptional cases.

In one sense, what I am describing is disparate impact--the type of discrimination that may not be intentional or conscious but that results in a disproportionate disadvantage to one group over another. Requiring that everyone applying for a job be capable of lifting over a hundred pounds, for example, would have a disparate impact on women applicants (and would therefore be subject to a type of business necessity test applicable under federal employment discrimination law).  In another sense, however, what I describe has greater intentionality than we typically ascribe to disparate impact. Someone (such as Donald Trump) is deliberately singling out women for derision; it's just that the way he does so makes the damage less obviously sex-based (in an individual case) than it would be if he just said "women should not be allowed to run for public office."  We might need to look at the collective impact of such behavior on women to see its sex-based results.  What we are examining, then, is not quite disparate impact; it is subtle disparate treatment whose impact is likely to be most striking across the run of cases.

Because of its potential subtlety, I was especially pleased to see Republican men and women condemning Donald Trump for his mistreatment of women in his remarks.   Despite their subtlety (and his obsession with being opposed to "political correctness"), people on both sides of the political aisle showed themselves capable of identifying sexism and taking issue with it.  I am glad that we have reached a point at which the kind of discrimination overlooked by the Supreme Court in Geduldig can now be understood as a true and noteworthy form of sex discrimination.