Perceiving Subtle Sexism: Mapping the Social-Psychological Forces and Legal Narratives That Obscure Gender Bias

By Brake, Deborah L. | Columbia Journal of Gender and Law, Fall 2007 | Go to article overview

Perceiving Subtle Sexism: Mapping the Social-Psychological Forces and Legal Narratives That Obscure Gender Bias


Brake, Deborah L., Columbia Journal of Gender and Law


In early January of 2007, the AALS Section on Women in Legal Education held a panel discussion on "Subtle Sexism in Our Everyday Lives" at the AALS Annual meeting in Washington, D.C. Such discussions about the barriers facing women in the legal profession often trigger a fatigue with talking about gender and a denial by some that gender remains worthy of attention. (1) The denial of gender bias can occur at a collective level, in which detractors urge "getting past" gender in setting an agenda, and at an individual level, in which individuals deny the role of gender bias (or gender privilege) in their own lives. (2) The denial of gender bias at the individual level can fuel a collective denial of the importance of gender issues. This Article explores the complexity of perceiving gender bias at the individual level, which in turn affects understandings of the role of gender in society more broadly, and surveys some of the psychological processes that contribute to the denial of gender bias in everyday life. In this Article, I am concerned both with how women law faculty and women lawyers--the immediate subjects of the panel discussion perceive gender bias, and with the more general forces that complicate perceptions of gender bias across professional lines.

Sorting out the influence of gender on an individual's professional life is no easy task. For women law faculty, contemplating the role of subtle sexism might raise a nagging set of questions. How does my gender affect my professional life? Do students react differently to me because of it? (3) What explains that small but disturbing set of hostile course evaluations in my large required classes, and do my male colleagues get them too? (4) Is it my imagination, or are those guys in the back row challenging my authority? (5) Is the tenure process gendered or just crazy? (6) How does gender shape my professional obligations and institutional commitments? (7) Why are so many women on the faculty silent during faculty meetings, while almost all of the big talkers are men? (8)

These questions defy easy and absolute answers, and in this respect, are no different than similar questions that might interrogate the role of gender in other professional settings. We live in a world where gender, race, and sexuality form a complex web of identity that subtly affects, in myriad ways, how people respond to us. As we know from life experience and the study of law, facts are messy and causation is tricky to pin down. How do we make sense of the uncertainty? Social psychologists use the term "attributional ambiguity" to refer to the "uncertainty about whether the outcomes you receive are indicators of something about you as an individual, or indicators of social prejudices that other people have against you because of your stigma." (9) Short of written policies that openly discriminate or overt expressions of prejudice, discerning the presence of gender bias necessarily involves attributional ambiguity.

The messy reality of perceiving gender bias contrasts sharply with the common assumption, reflected in discrimination law, that a person's belief that she has experienced discrimination is fixed and immediate. My interest in exploring the process by which people come to believe they have experienced gender bias grew out of my work on an amicus curiae brief filed in Ledbetter v. Goodyear Tire & Rubber Co. (10) In Ledbetter, the Eleventh Circuit ruled that an employee must bring a Title VII pay discrimination claim within 180 days of the time the intentionally discriminatory decision was first made or else be time-barred from ever bringing the claim, even if the employee continues to receive less pay because of sex. (11) The lower court's decision treats pay discrimination as analogous to other "discrete" discriminatory acts governed by the rule the Supreme Court adopted in National Railroad Passenger Corporation v. Morgan. (12)

In Morgan, the Court held that each discriminatory act, such as a hiring, firing, promotion, demotion, or transfer decision, triggers Title VII's statute of limitations period, even if it is part of a related pattern of discrimination that extends beyond that "discrete" act.

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