Document Type

Working Paper

Publication Date

1-13-2007

SSRN Discipline

Legal Scholarship Network; Law School Research Papers - Legal Studies; LSN Subject Matter eJournals; Law School Research Papers - Public Law & Legal Theory; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Employment, Labor, Compensation & Pension Law eJournals

Abstract

This paper begins with the thesis that an andocentricassimilation model of womens liberation both has affected workplace outcomes for women and has desensitized us to those outcomes The paper then applies that thesis to understandings of equality within a hierarchical framework arguing that the equalityliberty dichotomy is false in the context of gender discrimination in the workplace Instead the paper argues that disparate treatment is a liberty concern In seeking to have our professional fates married to the fates of our male colleagues which is what workplace equality doctrines aim to do women are seeking to be only as free as our male colleagues are to find work and to find meaning in our work to procreate or not to coast along or to stand out and if we choose to stand alone Further this paper offers the perspective that we should resist the inclination to make our peace with the ordering of the gendered paradigms as they stand and to negotiate compromises from these vantage points Within this theoretical framework this paper explores the implications of the regulation versus governance debate in the context of gender discrimination The article suggests that renaming and reframing aside the approach embodied by the governance paradigm as it is applied to gender discriminatory contexts is neither new nor a deal for those already occupying a subordinate bargaining position but it is instead a framework by which to privilege existing power structures and efficiencybased values over other values and interests Moreover this paper defends the civil rights model of rulesbase stateenforced mandatory antidiscrimination measures such as Title VII as an admittedly nonpanacean yet nonetheless indispensable means by which private gender hierarchies are inhibited Finally this paper contends that in looking to the law to inhibit this particular privatelyenforced tyranny women are correctly interpreting the obligation of the state within our constitutional scheme to disrupt private tyrannies when those tyrannies reach the point of functioning as classbased power monopolies limiting the fundamental freedoms of those outside the monopolist class

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