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A Feminist View of Equality and Its Implications for Affirmative Action

Published online by Cambridge University Press:  09 June 2015

Christine M. Koggel
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Extract

Affirmative action generates so much controversy that very often proponents and opponents both fail to understand the other’s position. A recent work by Michel Rosenfeld convincingly argues that the incommensurability of the opposing sides is based on fundamental disagreements about the meaning of such concepts as equality and justice: “the affirmative action debate is not between persons who are ‘pro-equality’ and others who are ‘anti-equality’. Both the most ardent advocates of affirmative action and its most vehement foes loudly proclaim their allegiance to the ideal of equality.” Within a liberal framework, two conceptions of equality are commonly defended—formal and substantive equality of opportunity. Both conceptions assume background conditions of the scarcity of goods, a need to compete for educational, social and economic benefits, and the value of rewards for fair competition as a means to individual self-development and self-realization. In the first section, I outline each conception briefly, summarize the sorts of affirmative action each defends, and show that the irreconcilability of the opposing sides is ultimately grounded in different conceptions of the self. I then go on to argue that both conceptions limit our understanding of selves and ultimately constrain attempts to achieve equality in a context in which individuals are also members of groups with identities formed in historical contexts of discrimination.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 7 , Issue 1 , January 1994 , pp. 43 - 59
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1994

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References

I am grateful to Christine Sypnowich, Christine Overall, J.E. Bickenbach, Andrew Brook, Kathleen Okruhlik and the participants at the C-SWIP 1993 conference in Calgary for providing useful comments and criticisms. I would also like to acknowledge financial support for my research from the Social Sciences and Humanities Research Council of Canada and Queen’s University Office of Research Services.

1. Rosenfeld, Michel Affirmative Action and Justice: A Philosophical and Constitutional Inquiry (New Haven: Yale University Press, 1991) at 2–3.Google Scholar

2. I use the phrase ‘substantive equality of opportunity’ rather than ‘substantive equality of results’ because the latter is generally associated with radical egalitarianism and not liberalism.

3. Carole Pateman and Zillah Eisenstein provide extensive accounts of the tension in liberal feminism between its feminism and its liberalism. Eisenstein writes: “To the extent that feminism requires the recognition of women’s life within a sex class (however implicit and unformulated this understanding is), feminism lays the basis for the move beyond liberal individualism.” See Eisenstein, Zillah The Radical Future of Liberal Feminism (New York: Longman, 1981) at 192.Google Scholar See also Pateman, Carole The Sexual Contract (Stanford: Stanford University Press, 1988).Google Scholar

4. See Karen Offen’s historical analysis in which she contrasts ‘relational’ and ‘individualist’ arguments within feminism and argues that “there are important sociological reasons for positing two and only two categories rather than ‘varieties’ or ‘relative degrees’ of feminism.” “Defining Feminism: A Comparative Historical Approach” (1988) 14 Signs: J. of Women in Culture and Soc. at 137.

5. Nearly all conceptions of equality, including a Marxist equality of results conception, begin with back-ground assumptions about the scarcity of goods. Scarcity immediately raises questions about the just distribution of goods.

6. Jan Narveson formulates an extreme version of mere formal equality. He argues that even anti–discrimination legislation is an unjust interference with the freedom of private sector employers to associate with whomever they choose regardless of their reasons. See Narveson, Jan “Have We a Right to Non–Discrimination?” in Poff, D.C. & Waluchow, W. eds, Business Ethics in Canada 2nd ed. (Scarborough: Prentice-Hall Canada, 1991).Google Scholar

7. Supra note 1 at 29.

8. Hawkesworth, Mary “The Affirmative Action Debate and Conflicting Conceptions of Individuality” in Poff, D.C. & Waluchow, W. eds, Business Ethics in Canada 2nd ed. (Scarborough: Prentice-Hall Canada, 1991) at 297.Google Scholar

9. Linda Nicholson provides an extensive account of the sorts of external and internal barriers that limit the opportunities of members of disadvantaged groups. See “Affirmative Action, Education, and Social Class” (1983) 39 Philosophy of Education: Proceedings.

10. There is unnecessary confusion about underrepresentation and underutilization. Judy Wubnig, for example, misrepresents proponents of affirmative action as arguing for proportional representation for all members of all groups in all positions with no regard for qualifications. She argues, for example, that proponents of affirmative action would support measures that ensured that because women represent half the population, positions such as basketball players, musicians, mathematicians, etc. would have 50–50 representation by women and men. See “The Merit Criterion of Employment: An Examination of Some Current Arguments Against its Use” in W. Cragg, ed., Contemporary Moral Issues 3rd ed. (Toronto: McGraw-Hill Ryerson, 1992) at 212–14. I know of no proponents of affirmative action who make this argument.

11. There is an extensive literature which defends affirmative action as a means of levelling out the effects of biased perceptions. See Warren, Mary Anne “Secondary Sexism and Quota Hiring” (1977) 6 Phil. & Publ. Affairs;Google Scholar Purdy, Laura “In Defense of Hiring Apparently Less Qualified Women” (1984) 15 J. of Social Phil.;CrossRefGoogle Scholar and Sumner, L.W. “Positive Sexism” (1987) 5 Social Phil. and Policy.CrossRefGoogle Scholar

12. Nielsen, Kai Equality and Liberty: A Defense of Radical Egalitarianism (Totowa, NJ: Rowman & Allanheld, 1985) at 231.Google Scholar Nielsen’s account is one which defends radical egalitarianism and equality of opportunity.

13. Code, Lorraine What Can She Know? Feminist Theory and the Construction of Knowledge (Ithaca, NY: Cornell University Press, 1991) at 80.Google Scholar

14. Ibid, at 83.

15. Gilligan, Carol In a Different Voice: Psychological Theory and Women’s Development (Cambridge, MA: Harvard University Press, 1982) at 6.Google Scholar

16. Gilligan provides an interesting discussion of how women confront perceptions of their ‘difference’ well after their childbearing years are over. In our society, “the events of mid-life—the menopause and changes in family and work” are perceived as events that end women’s purposeful function. It is not difficult to see that in this context, such perceptions “affect her sense of herself” and “can give way to the melancholia of self–depreciation and despair.” Ibid, at 171.

17. Ibid, at 22.

18. Ibid, at 174.

19. The ‘view from nowhere’ is a phrase well known from Nagel’s book title. It is also used by feminist critics such as Susan Bordo to depict male theory. See Bordo, Susan “Feminism, Postmodernism, and Gender-Scepticism” in Nicholson, L. ed., Feminism/Postmodernism (New York: Routledge, 1990).Google Scholar

20. Young, Iris Justice and the Politics of Difference (Princeton, NJ: Princeton University Press, 1990) at 105.Google Scholar

21. Supra note 15 at 171.

22. Ibid, at 168.

23. hooks, bell Feminist Theory: From Margin to Center (Boston: South End Press, 1984) at ix.Google Scholar

24. See, for example, Harding, Sandra Whose Science? Whose Knowledge? Thinking from Women’s Lives (Ithaca, NY: Cornell University Press, 1991);Google Scholar Hartsock, Nancy “The Feminist Standpoint: Developing a Ground for a Specifically Feminist Historical Materialism” in Harding, S. ed., Feminism and Methodology: Social Science Issues (Bloomington: Indiana University Press, 1987);Google Scholar Lorraine Code, supra note 13; Sellar, Anne “Realism versus Relativism: Towards a Politically Adequate Epistemology” in Griffiths, M. & Whitford, M. eds, Feminist Perspectives in Philosophy (Bloomington: Indiana University Press, 1988);Google Scholar and Linda Alcoff, “Cultural Feminism versus Post–structuralism: The Identity Crisis in Feminist Theory” (1988) Signs: J. of Women in Culture and Soc, as examples of feminist epistemologists who argue for the importance of experiences and points of view in an account of what we can know.

25. Minow, Martha Making all the Difference: Inclusion, Exclusion and American Law (Ithaca, NY: Cornell University Press, 1990).Google Scholar

26. (1978), [1979] 1 S.C.R. 183, [1978] 6 W.W.R. 711, 23 N.R. 527,92 D.L.R. (3d) 417, 78 C.L.L.C. 14,175. The Supreme Court effectively overturned the Bliss decision in the 1989 Brooks v. Canada Safeway Ltd. judgment, [1989] 1 S.C.R. 1219, 59 D.L.R. (4th) 321, [1989] 4 W.W.R. 193, 26 C.C.E.L. 1, 89 C.L.L.C. 17,012, 94 N.R. 373, 10 C.H.R.R. D/6183, 58 Man. R. (2d) 161,45 C.R.R.

27. Harding, Sandra “Is the Equality of Opportunity Principle Democratic?” (1978/1979) 10 Phil. Forum at 218.Google Scholar

28. Mary Anne Warren labels some of these unarticulated perceptions “secondary sexism” (see supra note 11). It needs to be noted that a lot happens before the candidates are determined to be equally qualified. More overt perceptions such as that her philosophical interests are not mainstream or that she is less aggressive in philosophical debates or that she is too aggressive about feminism are factors that may prevent her from ever getting as far as the tie-breaking situation.

29. Michel Rosenfeld, for example, argues that Gilligan and her supporters who valorize the virtues traditionally associated with women have a difficult time supporting affirmative action because their position calls for a much more radical restructuring of society: “women who oppose affirmative action as inconsistent with a program of radical transformation would have no reason to be part of any consensus or compromise on the legitimacy of affirmative action.” Supra note 1 at 320 and 281. My account of Gilligan is at odds with Rosenfeld’s in that I do not see Gilligan and her supporters as merely valorizing traditional women’s virtues.

30. Harding, supra note 24 at 55.

31. Supra note 20 at 200.

32. Bacchi, Carol Lee Same Difference: Feminism and Sexual Difference (Sydney: Allen & Unwin, 1990) at 169.Google Scholar

33. Women are notoriously underrepresented in philosophy. Data available from Statistics Canada, the Canadian Philosophical Association, and numerous philosophy departments across Canada show Philosophy to run a close second to Religion as the discipline in Arts and Social Sciences with the fewest number of women. For example, Statistics Canada has figures for female faculty in Philosophy which show women’s representation to be 4.7% in 1971 and 6.9% in 1980. While undergraduate female representation has climbed to the 50% mark in the last decade, the representation of female PhD students has remained around the 20% mark in the discipline. See Statistics Canada, Teachers in Universities, 81–241 (Ottawa: Minister of Supply and Services) and Universities: Enrolment and Degrees, 81–204 (Ottawa: Minister of Supply and Services); and, Baker, Brenda et al., Report to the Canadian Philosophical Association from the Committee to Study Hiring Policies Affecting Women (Ottawa: Canadian Philosophical Association, 1991).Google Scholar

34. Baker, ibid, at 14.

35. These reasons were the same ones cited by the Canadian Philosophical Association in its 1991 report on equity hiring. Ibid.

36. Supra note 15 at 49.

37. Martin, Michael “Pedagogical Arguments for Preferential Hiring and Tenuring of Women Teachers in the University” (1973) 5 Phil. Forum at 328.Google Scholar

38. Hall, Pamela Courtenay “From Justified Discrimination to Responsive Hiring: The Role Model Argument and Female Equity Hiring in Philosophy” in Cragg, W. ed., Contemporary Moral Issues 3rd ed. (Toronto: McGraw-Hill Ryerson, 1992) at 238.Google Scholar

39. Code, Lorraine “Simple Equality is Not Enough” (1986) Supplement to 64 Australasian J. of Phil, at 58.Google Scholar

40. The following anecdote is an illustration of Margaret Thatcherism. At the Canadian Philosophical Association meetings in 1992 I presented a paper to a panel set up to discuss the recommendations of the CPA Hiring Committee report in which I drew on my experiences and those of other women to show the ways in which philosophy marginalizes women. During the discussion period, a female faculty member showed some blindness to what I described as experiences common to women in philosophy by claiming that she had never encountered any discrimination against her as a woman and by denying that gender made a difference to either the learning or the teaching of philosophy.

41. Supra note 13 at 263.

42. hooks, bell Yearning: Race, Gender, and Cultural Politics (Toronto: Between the Lines, 1990) at 229.Google Scholar

43. Much has been written about the quest for truth and objectivity in philosophy as privileging male reason over the kinds of experiences traditionally associated with women. See, for example, Boddington, Paula Ruth “The Issue of Women’s Philosophy” and Griffiths, Morwenna “Feminism, Feelings and Philosophy” in Griffiths, M. & Whitford, M. eds, Feminist Perspectives in Philosophy (Bloomington: Indiana University Press, 1988);Google Scholar Janice Moulton, “A Paradigm of Philosophy : The Adversary Method” and Sherwin, Susan “Philosophical Methodology and Feminist Methodology: Are They Compatible?” in Garry, A. & Pearsall, M. eds, Women, Knowledge, and Reality: Explorations in Feminist Philosophy (Boston: Unwin Hyman, 1989).Google Scholar