University Women's Experiences in Bringing Second Generation Sex Discrimination Claims: Further Support for Adoption of a Structural Approach

By Goltz, Sonia; Reinsch, Roger et al. | Texas Journal of Women, Gender, and the Law, April 1, 2009 | Go to article overview

University Women's Experiences in Bringing Second Generation Sex Discrimination Claims: Further Support for Adoption of a Structural Approach


Goltz, Sonia, Reinsch, Roger, Tuoriniemi, Joel, Texas Journal of Women, Gender, and the Law


I. INTRODUCTION

Research suggests that regulatory and justice systems may help perpetuate, rather than decrease, sex discrimination at universities. Thus, in the present study, fourteen women were interviewed about their experiences when they attempted to address the inequities they experienced at their universities via these systems. Results indicated that the women, in large part, experienced the more subtle but pervasive second generation discrimination, as opposed to the more overt and identifiable first generation discrimination. The purpose of this article is to further the understanding of second generation sex discrimination claims and to provide support for adoption of a structural approach when addressing second generation discrimination claims. Drawing extensively from the work of Professors Susan Sturm, Samuel R. Bagenstos, and Susan BisomRapp, we analyze the women's experiences and argue for substantive changes in the workplace and legal process in order to better identify and remedy second generation discrimination. Part II of this article outlines the distinction between first generation and second generation discrimination claims and also describes the difficulty in bringing such claims due to the continued embracement of rigid rules and procedures. This difficulty is further perpetuated by the perception of second generation discrimination claims generally held by employers and attorneys as well as the federal and state agencies established to investigate such claims. Part III of this article examines past literature that describes the difficulty in bringing second generation discrimination claims in academia, the workplace of our interviewees. The methodology and sample used in conducting our work is contained in Part IV. Part V sets forth reasons that were identified by our interviewees as to why second generation sex discrimination claims were so difficult to bring against their respective universities and representatives. A framework to alleviate the obstacles associated with bringing second generation discrimination claims, including a discussion of a key Supreme Court decision, is provided in Part VI, calling for development of theoretical models and further research that will allow the regulatory and justice systems as well as employers to better address second generation discrimination claims arising not only within academia, but also across all lines of employment.

II. THE DIFFICULTY IN BRINGING SECOND GENERATION DISCRIMINATION CLAIMS

A. First Generation Versus Second Generation Discrimination Claims

"First generation discrimination" is generally defined as the blatant, easily detectable form of discrimination that was relatively common prior to the Civil Rights Act of 1964. Thus, after this seminal piece of legislation was passed, it was only natural that this became the type of discrimination the legal system attempted to eliminate. Professor Susan Sturm outlined the social landscape prevalent with this form of discrimination in writing:

The first generation employment discrimination cases mirror the social and political conditions that led to the adoption of the civil rights legislation. Workplace segregation was maintained through overt exclusion, segregation of job opportunity, and conscious stereotyping. Dominant individuals and groups deliberately excluded or subordinated women and people of color. Job requirements that highly correlated with gender or race, such as educational and training prerequisites and height and weight requirements, solidified these patterns of exclusion. Thus, the first generation cases focused largely on dealing with the consequences of a long-standing structure of job segregation. . . . These more blatant practices obviated the need to uncover and analyze more subtle forms of bias that certainly operated even at the early stages of the civil rights laws and contributed to racial and gender marginalization.1

First generation discrimination claims of the "[s]moking guns - the sign on the door that 'Irish need not apply' or the rejection explained by the comment that 'this is no job for a woman' - are largely things of the past. …

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