Beyond Comparison: Sex and Discrimination

By Timothy Macklem | Go to book overview
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In four books published between 1979 and 1994,1 Catharine MacKinnon, drawing on the record of women's experience of sexual harassment, pornography, and rape, has developed and articulated a trenchant critique of the understanding of sex discrimination prevalent in American law and social practice. In its place she offers a feminism that is entirely unmodified, unqualified by a situation in any larger, more abstract politics of liberalism or socialism.2 MacKinnon's feminism takes its factual inspiration from the experience of women as told by women, and its analytic method from Marxism. On these bases she constructs a theory of sex discrimination as the unequal distribution of power between men and women, the comprehensive social process by means of which sexuality and gender are defined and constructed so as to maintain the hegemony of men.3

MacKinnon's uncompromising approach and powerful rhetoric have succeeded in establishing hers as the most prominent and perhaps most influential feminist voice in American law. Her writing and her advocacy have played a significant part in winning judicial endorsement, not only in the United States but in Canada as well, of the idea that sexual harassment constitutes sex discrimination.4 More broadly, her general thesis that discrimination is a matter of the subordination and disadvantage5 of one social group to another has been judicially endorsed as the correct interpretation of the

Catharine MacKinnon, Sexual Harassment of Working Women: A Case of Sex Discrimination (New Haven, Conn., 1979), Feminism Unmodified: Discourses on Life and Law (Cambridge, Mass., 1987), Toward a Feminist Theory of the State (Cambridge, Mass., 1989), Only Words (London, 1994).
MacKinnon, Feminism Unmodified,6.
Id. at 48–50.
Meritor Savings Bank v. Vinson, 106 S. Ct. 2399 (1986); Janzen v. Platy Enterprises, [1989] 1 S.C.R. 1219.
As MacKinnon herself acknowledges, this thesis draws upon the concept of group disadvantage outlined by Owen Fiss in “Groups and the Equal Protection Clause”, 5 Phil. & Pub. Aff. 107 (1976): see Sexual Harassment of Working Women, supra n. 1, at 4, n. 9.


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Beyond Comparison: Sex and Discrimination


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