Migdal, Ariela, Columbia Journal of Gender and Law
Thank you, Katherine Franke, for your kind introduction and to the Columbia Law School Center for Gender and Sexuality Law for hosting this event. I am privileged to moderate this conversation among distinguished scholars and activists, each of whom will offer a unique perspective on the women's rights litigation of the 1970s. Justice Ginsburg spearheaded this litigation campaign, in collaboration with a number of our panelists. And I am tremendously honored to be part of this event celebrating Justice Ginsburg. As attorneys at the ACLU's Women's Rights Project, my colleagues and I, under the leadership of our director Lenora Lapidus, try to carry forward the work of these litigators and scholars.
I'm grateful for this opportunity to reflect on all that women's rights litigators achieved during that era, and to think about how we can most effectively build on those accomplishments to advance the cause of gender equality. When I reflect on the groundbreaking litigation that our panelists undertook in the 1970s, I confront a paradox. On one hand, I am acutely aware of their revolutionary accomplishments in exposing and ultimately overturning a web of laws and practices that limited women's equality. Yet, as a litigator and advocate, I spend most of my energy focusing on the remaining, entrenched inequality and devising ways to combat it. When I come to work in the morning, I focus on the part of the glass that is half empty.
When you spend your time examining how much more remains to be done, the stubborn persistence of gender inequality in many facets of life and society can seem overwhelming:
* Despite all the gains, women still make up less than a quarter of Congress and of state legislators. (1) Only twelve Fortune 500 companies are run by women, down from last year. (2) And while women make up about half the workforce, they make up the majority (fifty-nine percent) of the low-wage workforce, and they are clustered in lower-paying positions. (3)
* Women are still a tiny minority of those employed in good-paying blue collar jobs like construction. (4) While it is wonderful to hear that women make up about half the class at Columbia Law School, the same is not true in the world of unionized and other higher-paying blue collar jobs. Women also are a small percentage of those who are promoted in those jobs, and there are good reasons for this. My clients have explained to me that many of the training and certifications programs in those careers require nighttime and after-hours work and study, investments that are difficult for many working mothers to make.
* Mothers have it particularly bad--while wages of childless men and women are roughly equal depending on which measurement you look at, mothers' wages are only sixty percent of fathers'. While fathers benefit from a wage advantage, mothers face a Motherhood Penalty (with low-wage mothers affected the most) and a Maternal Wall in Advancement, although fathers who play a caregiving role are also penalized. (5)
* As Justice Ginsburg pointed out in her recent opinion concurring in part and dissenting in part in Wal-Mart Stores, Inc. v. Dukes, workers at one of the nation's largest employers alleged that women made up seventy percent of hourly workers, but only a third of managers, and that the higher up the corporate ladder, the fewer women held leadership positions. (6) In her opinion dissenting in Ledbetter v. Goodyear Tire & Rubber Co., a Title VII case from a few years ago, after which Congress had the last word, Justice Ginsburg noted that gender-based pay disparities that start out small can grow stark over time. (7) While women have entered the workforce in droves, they too often land in lower-paid sectors.
Fortunately, the litigators of the 1970s laid much of the groundwork for uprooting the discrimination and biases that underlie these troubling remaining imbalances. Embedded within their victories are the insights and resources upon which we can draw to combat those inequalities. …