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Using a Legal Toolkit to Fix the Leaky Pipeline: Overcoming Discrimination through the Interplay of Science and Strategy

by Charlotte Fishman

January 2007

Charlotte Fishman is Executive Director of Pick Up the Pace, a San Francisco nonprofit whose
mission is to identify and eliminate barriers to the advancement of women in the workplace,
including glass ceiling discrimination, gender stereotype and work/family conflict. This paper
was presented at the 2003 Women in Astronomy II meeting. At the time of the 2003 Women
in Astronomy II meeting, she was Director of the Higher Education Legal Advocacy
Project at Equal Rights Advocates in San Francisco.

The Good News: The Social Consensus Supports Women in Science

In June 2003, in the wake of the United States Supreme Court’s decision in the University of
Michigan affirmative action case, New York Times reporter Linda Greenhouse analyzed Justice Sandra Day O’Connor’s approach to the law:

In her new book “The Majesty of the Law,” a collection of essays published the week after the Michigan cases were argued in April, Justice O’Connor wrote that “courts, in particular, are mainly reactive
institutions.” Noting that “change comes principally from attitudinal shifts in the population at large,” [O’Connor concluded] “rare indeed is the legal victory—in court or legislature—that is not a careful byproduct of an emerging social consensus.”


It is instructive to consider these words in the context in which we find ourselves today. If you look around
American colleges and universities, particularly in the fields of science, technology, engineering, and math (the so-called STEM disciplines), you find that women are present in the academy, but not in sufficient
numbers compared to their availability in the relevant labor force. Now why should that be?
It has been almost 40 years since the enactment of Title VII of Civil Rights Act of 1964, which
barred gender discrimination in employment, and over 30 years since the 1972 amendments made it applicable to colleges and universities. There has been a steadily increasing number of women obtaining Ph.D. degrees in “hard science” fields, yet in many academic departments they are scarce as hen’s teeth in the faculty ranks. Moreover, to the extent that they are present, they are over-represented in relatively low-status positions (adjunct, lecturer or soft money positions), and under-represented at the top (tenure ranks
at elite research universities). What accounts for this troubling picture, which I would describe as
admitting women to the (scientific) club, but treating them as second-class citizens after they join?


Second, what is an emerging social consensus, and how does it emerge? What changes have
affected the treatment of women in the workplace? An example of attitudinal shift can be found in
the development of pregnancy discrimination law, an area of great concern to the younger women
at this conference, if discussion in the breakout sessions is a reliable guide. The evolution of
federal pregnancy discrimination law provides us with an example of Justice O’Connor’s
emerging social consensus. I am confident that no one in this room finds the idea of pregnancy
discrimination problematic today, and in fact, I venture to say that there is consensus that where
it exists it is a bad thing. Believe it or not, this was not always the case.


When Congress enacted Title VII of the Civil Rights Act of 1964, sex discrimination was
prohibited along with race, and a host of other categories, but there was no specific prohibition
against pregnancy discrimination. Those of us who worked in the plaintiff’s employment
discrimination arena believed that pregnancy discrimination was sex discrimination, but
there was no statute that said so. In 1972, the EEOC filled this gap by promulgating guidelines
that prohibited polices and practices adversely affecting female employees because of pregnancy,
childbirth, or related medical condition.2 Thus, it may surprise the younger women in this audience
to learn that the very concept of pregnancy discrimination was rejected by the United States
Supreme Court two years later.


In 1974, in the case of Geduldig v. Aiello 417 U.S. 484, the United States Supreme Court ruled
that a state law that excluded pregnancy from temporary disability benefits did not violate
the Equal Protection Clause of the Fourteenth Amendment because legislative classifications
based on pregnancy were not necessarily sexbased distinctions! Two years later, in General
Electric Co. v. Gilbert (1976) 429 U.S. 125, Justice Rehnquist rejected the EEOC guidelines and
extended Geduldig’s flawed reasoning to a Title VII case, holding that a company’s refusal to
cover pregnancy in an otherwise comprehensive medical benefit plan did not constitute sex
discrimination under Title VII because the plan distinguished not between men and women, but
between pregnant persons and non-pregnant persons. One year later, Rehnquist authored the
majority opinion in Nashville Gas Co. v. Satty, 434 U.S. 136 (1977), which drew a distinction
between the unequal provision of benefits (OK) and forcing pregnant women to forfeit seniority
when they returned from childbirth leave (not OK):


Here…petitioner has not merely refused to extend to women a benefit that men cannot and do not receive, but has imposed on women a substantial burden that men need not suffer. The distinction between benefits and burdens is more than one of semantics. We held in Gilbert that [Title VII] did not require that greater economic benefits be paid to one sex or the other“because of their differing roles in ‘the scheme of human existence.’” But that holding does not allow us to read [Title VII] to permit an employer to burden female employees in such a way as to deprive them of employment opportunities because of their different role.


Well, even 30 years ago, the Court’s decision not to treat pregnancy discrimination as sex
discrimination ran afoul of the social consensus, not to mention common sense, and Congress
was finally moved to enact the Pregnancy Discrimination Amendment to Title VII in 1978.
This Act explicitly defines sex discrimination to include discrimination on the basis of pregnancy,
childbirth, or related medical condition. The PDA, as it has come to be known, also raised expectations
and engendered lots of controversy in the feminist civil rights community about how far to go in
pushing for “pregnancy accommodation.”

There was a fierce debate about whether pushing for job-protected pregnancy leave was
a good thing or a bad thing. The argument against pregnancy accommodation was: if we
start insisting that employers give women time off to have babies, won’t the consequences be
bad for women’s employment? Maybe we should just argue for “equal treatment.” Maybe the price
of women’s equality is that women who want good careers will have to remain childless or be
able to manage domestic responsibilities without involving their employers. People lost friendships
over these arguments. Eventually, as we know, the pregnancy accommodation faction won out
over the equal treatment faction. Since the sky did not fall, it is tempting to dismiss the losing
arguments as ridiculous.


In fact, the losing arguments were not ridiculous. There was genuine fear that pregnancy
accommodation would undermine women’s equality in the workplace. That fear was not
fanciful, and it tends to pop up again as the social consensus evolves and new issues surface. Now
there are many young women in the workplace who assume that they will have both good jobs
and families. This raises new problems—it turns out that in order to survive and thrive in the
workforce in significant numbers, women need more than job-protected pregnancy leave. Babies
become children, and they go to school. They have teacher conferences, school vacations, and
they get sick. Who takes care of this in families where there is no stay-at-home mom/parent?
Even for women who do not have children, spouses or partners or aging parents need care at
one time or another. Well, who is the culturally normative person to take care of these needs? I
don’t have to tell you. So the same fear-based debate recurs, this time around “family friendly”
job protections.


Only now there is a difference. Now we have a generation of families in which women left the
home and went to work, a generation of people who are very familiar with the strain of everyone
working and no one available to handle domestic responsibilities. And this difference is the
“context” that, according to Justice O’Connor, affects the way the courts view the issues brought
before them.


Keeping in mind that thirty years ago Rehnquist wrote the Gilbert and Satty opinions, and held the view that said denying medical benefits to “pregnant persons” is not discrimination on the basis of sex, let’s flash forward several decades. In May of 2003, the United States Supreme Court issued a very important decision interpreting the Family Medical Leave Act, the federal law that permits workers to take time off from work to attend to their own or family members’ serious medical needs. The case name is Nevada Department of Human Resources v. Hibbs 538 U.S. 721 (2003).


In Hibbs, the issue presented was whether a private individual (in this case, a man who was
terminated from his job after he took a FMLA leave to care for his wife) could sue his state
employer for money damages under the Act, or whether the State of Nevada was immune
from such suits. The Court’s decision was good news for employees—it ruled that Congress had
intended states to be covered by the law. But what is more interesting for our purposes today
is the language used by the Court in coming to that decision:

The impact of the discrimination targeted by the FMLA is significant. Congress determined: “Historically, denial or curtailment of women’s employment opportunities has been traceable directly to the pervasive presumption that women are mothers first and workers second. This prevailing ideology about women’s roles has in turn justified discrimination against women when they are mother or mother-to-be.” [Joint Hearing 100]


Stereotypes about women’s domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men. Because employers continued to regard the family as the woman’s domain, they often denied men similar accommodations or discouraged them from taking leave. These mutually reinforcing stereotypes created a selffulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver, and fostered employers’ stereotypical views about women’s commitment to work and their value as employees. Those perceptions, in turn, Congress reasoned, lead to subtle discrimination that may be difficult to detect on a case-by-case basis.


By creating an across-the-board, routine employment benefit for all eligible employees, Congress sought to ensure that family-care leave would no longer be stigmatized as an inordinate drain on the workplace caused by female employees, and that employers could not evade leave obligations simply by hiring men. By setting a minimum standard of family leave for all eligible employees, irrespective of gender, the FMLA attacks the formerly statesanctioned stereotype that only women are responsible for family care-giving, thereby reducing employers’ incentives to engage in discrimination by basing hiring and promotion decisions on stereotypes.


Now, who do you think wrote that language? The answer is, Chief Justice Rehnquist. Rehnquist!
Now that is the emerging social consensus at work thirty years from non-pregnant persons to
this language about gender stereotypes. A pretty amazing transformation, isn’t it?


What accounts for this change? Personal history has a role. So does the rise of the two-parent working family. Whatever the source, there is a social consensus that women belong in the workplace, including the scientific workplace, and an emerging societal consensus that workplace practices that hinder women’s advancement should be altered to accommodate their life circumstances. This is good news! It is true that we have a long way to go in terms of flexibility and social support for working families, but the Hibbs case is an example of how
once radical ideas can gain acceptance over time.


Debunking Myths


So what stands in the way of women’s full equality as scientists in the academic workforce?
In order to answer this question in a meaningful way, we are going to have to debunk a few myths.


Myth number one: It’s a pipeline problem.

One familiar myth, which we heard a lot about today, is that the dearth of women faculty
in the hard sciences is a function of the lack of scientifically trained women, which is a function
of the bad old past when people (not us!) thought women couldn’t be scientists. That myth surfaced
about thirty years ago to explain the lack of women in science, and the “fix” was simply:
put them in one end of the pipeline (i.e., admit them into science education programs leading
to a Ph.D., then hire them into tenure-track positions), wait a few years and, voila! They will
come out the other end as tenured professors, and heads of national laboratories. Everything
will be fine; it is just a question of time! Well it has been 30 years, and 30 years is enough time
to tell you that it is a myth! The theory didn’t work: Just providing women scientists for the
labor market did not mean that women scientists would succeed in that market. Of course some
did, but women scientists have not risen to the top in the same proportion as similarly situated
male scientists did. What is left of that myth is the image of a “leaky” pipeline, and new
questions about how to stem the leak.


Myth Number two: Knowledge is power.


This is a follow-up to the leaky pipeline myth. The idea behind this myth is, OK, we were
wrong about the pipeline, but we’re all people of good will here, and if you make people of
good will aware of the existence of a problem, and particularly if you educate them about what
their institution can do to address the problem, they will make the necessary changes. Now
whether this not on (which I heard expressed at various points in this meeting), is really a myth,
or whether is it is simply an example of wishful thinking, it is nonetheless very hard to shake off
its power. In this respect, you may even be at a bit of a disadvantage because of your scientific
training, but I will tell you a true story that I hope will loosen its hold on the imagination.

When I first took the job as director of Equal Rights Advocates’ Higher Education Legal
Advocacy Project, I went to see a law professor who had been working on gender equity issues for
approximately thirty years. I asked her to help me figure out how the project could help overcome
gender bias in academia. I had lots of ideas of things we could do. Well, she reached into a file
cabinet and pulled out a document that was 30 years old. It was yellow. It was crumbling around
the edges. It was typewritten. It was duplicated using carbon paper or a mimeograph machine.
What it contained was the anecdotal stories of women faculty of that university from 30 years
ago—their stories of discrimination, and their stories of unequal treatment, and their stories
of lack of mentoring. They had gotten together, they had written it, they had self-published it and
they had sent it around to the powers that be. Let me tell you, seeing that document was a shock.
Because despite the knowledge, the analysis and the dissemination of that information 30 years
ago, the women at that institution are still complaining about exactly the same things today
and they have reason to do so!


So, as in the case of the pipeline myth, if education and awareness were going to lead
inexorably to change, it would have happened already. This is not to say that knowledge is
useless—far from it! But the idea that knowledge alone will lead to change is a myth. In order to
create change, you need to think of knowledge not as power, but as ammunition. In order to
change your institutions you also need the right weapons and you have to pick the right battles.


Myth number three: Lawyers are bad.


I am sure you have all heard variants on that one. Lawyers are bad. Lawyers are greedy.
Lawsuits do not benefit anyone but lawyers. Well, let me tell you why an academic might need a
lawyer, and why subscribing to this particular myth might impede your scientific career.


First of all, universities are big, successful, elite institutions, and as a result they are worlds
unto themselves. In addition, they are the favored institutions. They routinely receive special
treatment from state legislatures, and as employers their decisions are treated with special deference
by the courts. Thus, to some extent, they operate outside the boundaries of the law that applies
to others. And, not to put too fine a point on it, sometimes they behave like outlaws! There are
university faculty members and administrators who truly believe that the law just does not apply
to them, and act accordingly. I have observed this sort of thinking in action, and let me tell you, it is
one really interesting phenomenon! Why does this happen? I think it has to do with the fact that everybody on the university faculty and in the university administration thinks of himself or herself as smart. And in fact, many also think that they are smarter than everybody else. So, the thinking goes, “If we’re smart, we can figure it out, whatever the subject.” You may be an astronomer, but you think you can handle personnel policies too—after all, it’s not rocket science! But of course, as some of you noted in the breakout sessions at this meeting, the Chair of the astronomy department may know nothing about the requirements of the Family Medical Leave Act, or the Pregnancy Discrimination Act, or his own university’s family friendly policies. Worse, he may think it has nothing to do with his authority over the young women in his department, over whose lives he holds considerable power.


So, how do lawyers come into this? First, one role that lawyers, legal organizations, and
professional associations employing lawyers play is to be credible sources of information about your
rights. For example, Equal Rights Advocates, has a website (www.equalrights.org) and an advice
and counseling hotline that responds to inquiries from all over the country. Other organizations
with websites containing legal information helpful to academics are the American Association of
University Women (www.aauw.org) and the American Association of University Professors
(www.aaup.org). Let’s say you need to negotiate a family leave with the dean of your college or
the Chair of your department. There is a world of difference between going in as a supplicant who
needs a favor, and as an advocate for yourself saying, “I am entitled to this, how are you going
to arrange it?” backed up with information about what you are entitled to under the law, under
university rules, or in accordance with statements of principle from organizations recognized by
your institution. You will make a better deal if you obtain independent information from a
legally knowledgeable source.


Second, although much has been said about the well-disposed Chair or other authority figure who
has your best interests at heart, there also seems to be no shortage of curmudgeonly characters who
are out to sidetrack the careers of young women scientists, even today. If you should happen to
run into one of those, and the leadership of your institution fails to come to your aid, you have a
problem that a lawyer can help you solve. This is lawyer as “ghostbuster” for discrimination—i.e.,
when the pipeline leaks, “Who you gonna call??!” What does a lawyer do in this role? Well, first and
foremost, lawyers are strategic thinkers. A good lawyer can help you sort through the situation,
identify the strengths and weaknesses of your position, and help you devise a strategy that will maximize your chances of obtaining the result you wish without a lawsuit.


I have found in both my private practice and my current position, that if you get a strategic
thinker in on your case early, you are much more likely to be successful. You are much more likely
not to need a lawsuit. Why would this be true? Well, short of riding into town with a shotgun,
the key to bringing The Law into the Wild West of a recalcitrant department is the gathering and
presentation of comparative data. A lawyer can help you figure out what kind of information
you need and how to get it. I am not just talking about numbers. I am talking about anecdotes.
I am talking about policies and practices. I am talking about university reports on the underrepresentation
of women. I am talking about identifying micro-inequities in the treatment of
male scientists versus female scientists. Who gets the bigger lab? The summer money? The research
grant? The plum assignments? You get the idea.


Lawyers help frame the issues and identify biases that you may have overlooked. It has been
my experience that frequently academics do not appreciate the importance of the information
they have. For example, at one of the breakout sessions, a young women was talking about office
space. When she joined her department, all the young scientists were given offices and she thought
hers was just fine. Then all of a sudden, she noticed that all the men who had joined the same
year had better offices. Her reaction was, “I was really happy with my office, and so I didn’t care
that I didn’t get a better office, I was just happy doing my science.” My reaction was “Something
is wrong here. Something is very wrong here. If all the men have found better offices, they know
something that this young woman doesn’t know. And what this young woman doesn’t know will
hurt her.” My advice to you is, you have eyes, you have ears, you have to watch and listen! This is
not a question of mentoring; this is a question of observing, of getting together with other women,
sharing information within a department, across department lines, across institutional lines. And
of course, where disparate treatment exists, record what you observe, because you may need
it later, and memories fade with time.


Lawyers can also help you figure out when and where to pursue your complaint to maximize
your chances of success. With a good record of discrimination, a well-organized group of women,
and a legally informed presentation to the right people on the right issue, it is possible to win
without filing a formal discrimination complaint. This doesn’t always happen, but sometimes it
does. If you go to the dean or the provost and you say, “You know, in this institution, we’ve noticed
that the women faculty’s salaries are lower than the male faculty salaries. You have explained this
by telling us that the way faculty members get raises in this institution is to get an outside offer,
and women tend not to seek outside offers. Well, we’ve noticed that in our department women do
seek outside offers, but the Chair only matches outside offers obtained by the men; here are
the data for the last five years. I have an outside offer from X university and the Chair says there’s
no money in the budget—what are you going to do about it?” You may not get immediate
satisfaction, but change is more likely to happen when you collect the relevant data and present it
in a legally informed way.


Another example from the breakout sessions concerns rules. Many of the young women
graduate students were focused on learning the unwritten rules of their department. But here is
something especially for young faculty members: the typical woman who come to see me after
she has been denied tenure, or something else bad has happened to her, does not know the
written rules of her institution! Think about that, they don’t know the written rules. They
come in, and something has happened to them in the tenure review process, and I say, “What
are the official criteria for tenure? Where is the university’s procedure manual?” At the University
of California it is called the APM. Lots of times the answer is, “What’s the APM?” So their first
assignment is to get the APM, to sit down and read it, and to make a note of everything that
happened that does not seem to be in accordance with these rules. If I had my way, every faculty
member would be given the institution’s published criteria for tenure, and the whole Academic
Personnel Manual or whatever its equivalent is, the minute they walk in the door. And what’s
more, they would read it, and take it to heart. Because often the university-published criteria
are different from the department’s unwritten criteria, and this may help you early on to rein in
a runaway department before it does too much damage to your career. But most women do not
learn this until they are already in trouble.

Finally, lawyers are an alternative power source. While no one wants a lawsuit if they can
avoid one, sometimes there is only the choice between suing and leaving. I will discuss this
aspect of lawyering under the headings, the “D” word and the “P” word.


The “D” Word


The “D” word, “discrimination,” is a dirty word in academia. It is not supposed to exist
in the academy. When pressed to explain the failure of the pipeline theory, and the continuous
flow of white males to the top of the university pile, universities prefer to attribute the current
situation to “unconscious bias” or “cultural attitudes” or “chilly climates.” Granted, these things
play a part in the relative absence of women in the top echelons of science, but there is such a
thing as intentional discrimination, and it exists too. Despite the emerging social consensus that
women belong in the scientific workforce, there are still people who do not want you in their
club. I am sure the older women know this, and the younger women need to know this too. If you
don’t believe that men will fight to keep women out of their club, just look at Martha Burke and
the Augusta National Golf Tournament!


So the bad news is that there are still people on university faculties and in university
administrations that do not want you in the club, and while they are not part of the emerging
societal consensus, they are part of the power structure. Now some discrimination is subtle,
and some discrimination is not subtle. You will probably have to deal with both kinds in your
professional lifetime. How are you going to handle it? Sometimes you really need a lawyer.
Sometimes there really is no other way.

Here are two examples from my private practice where the lawyer wears the white hat
and vindicates the victim of discrimination. Not everyone gets burned by the legal system.
Sometimes a lawsuit, or the credible threat of a lawsuit, can have beneficial results for
all concerned. The first example is the case of Professor Eleanor Swift, law professor at
University of California, Berkeley (Boalt Hall). Professor Swift came to me and Mary Dunlap,
one of the founders of Equal Rights Advocates, now deceased, to help her decide what to do. She
had been denied tenure at the law school, but being the brilliant and politically savvy woman
that she was, she had already taken her case to the university’s Privilege and Tenure Committee,
and had received a prima facie finding that discrimination had occurred in her case. This was
already an unprecedented victory, but it was clear that the law school was not going to back down.


What to do? Well, nobody wants a lawsuit! They are terrible and horrible and you would
prefer almost any other approach. But sometimes you don’t have a choice. Was Prof. Swift going
to fight for tenure, or was she going to walk away branded as someone who couldn’t cut the
mustard? Well, Boalt Hall had not tenured a women in fifteen years. She decided that this was
a battle she needed to fight. Since the essence of a discrimination case is comparative data,
we demanded the tenure files of the men. We said, “You’re saying she’s not qualified, that
she doesn’t meet the standard for tenure at this university. Okay, let’s look at the files of the men
who did.” Of course they did not want to give us these data. They argued privacy. They argued
that people do not receive tenure because they are as good as other people; they get tenure if they
match some platonic ideal. But we pushed and pushed and pushed. And that pushing for data
caused them to settle rather than go through a big, brutal trial.


The settlement was not one of these we’ll give- you umpty-ump-million-dollars-to-go-away situations. Rather, the settlement involved crafting a level playing field for her tenure review.
The settlement was achieved because we were able to show that her tenure process had been
tainted by gender bias through the introduction of material that should not have been there and
through other procedural irregularities. As a result we were able to obtain a new review in
which a sanitized version of her file (with all the taint removed) was provided to a “virtual”
department (experts in the field outside the university with no prior knowledge of the case).
This virtual department also got versions of the male tenure files during the appropriate time
period, and a copy of the university criteria for tenure. The committee was then asked to do the
following: “Looking at the standard for tenure as it was actually applied in the law school to the
other candidates, was she qualified for tenure?” That was it! The virtual department derived the
actual standard by looking at who got tenure, then evaluated her file using that standard and
made an appropriate recommendation to the Chancellor. The result of this process was that
Prof. Swift was awarded tenure. And not only did she win tenure, she won acceptance. And
not only did she win acceptance, she became Associate Dean of the Law School for a time.
She became a valuable and valued colleague. What’s more, she has helped literally hundreds,
if not thousands of women all over the country, both through her own efforts, and because the
settlement document was not made confidential. Once the settlement became public it was used
by other women to get tenure—it is a powerful technique—and I recommend it should you find
yourself in a similar situation.


The second example I want to share with you is the case of Professor Lynn Ponton, a professor
of psychiatry at UCSF. When she came to my office she had held for many years an adjunct
position that was part teaching, part clinical service. It was in the middle of the semester, and
she was about to lose her job. She was told she would be laid off, that there would be no more
funds for the adolescent inpatient clinic, we’re sorry. Without going into great detail, through
the framing of appropriate questions and the gathering of comparative data, we discovered a number of gender-based discrepancies. For example, while both men and women were hired as adjunct faculty, men were given regular tenure-track appointments and women were not. Also, we discovered that when the budget crisis forced the closing of programs, similarly situated men did not lose their positions. We filed an EEOC charge using these comparative data, and the EEOC issued an unprecedented finding of class-wide discrimination against women in the UCSF psychiatry department. Once this was established, we were then able to demonstrate that the budget crisis had been a pretext to get rid of Prof. Ponton. This is how: If there is a budget crisis, and the reason that you are being laid off in the middle of an academic year is that
there is no money to continue the program that employed you, then if you go out and develop a
self-sustaining equivalent program you would not expect the department Chair to say (in effect),
“No thanks, we’re not interested.”


For the Ponton case we went through a university hearing procedure with an outside
arbitrator. The arbitrator issued a thirty-page decision detailing really duplicitous behavior on
the part of the Chair. But, as is typical in these situations, the arbitrator’s decision was only
advisory to the Chancellor. Since the Chancellor would not overturn the Chair, we had to sue the
University for the Chancellor’s abuse of discretion, and we won.(4) Not only did we win the lawsuit,
but Prof. Ponton returned to her department as a Full Professor in Residence, a position of
much greater prestige and security than the adjunct status she held when she first came into
my office. Science and strategy—sometimes you need both to succeed.


The “P” Word—Understanding Power


“P” stands for power. It is a great word, and has been implicit in everything I have said so far,
but now I want to be a bit more explicit. It is important for women to understand power in all
its variety. There is a lot of self-help literature out there that focuses on personal power—the ability
to get what you want, the ability to stand up under adversity—and that is important for success in
life. There is intellectual power—the power of a good idea, the power of an analytical mind—and
that is essential for success in a scientific career. Within an institution, however, power seems to
come primarily in one of two forms—entrenched, or structural power, and insurgent power. Women
scientists need both. You need women who will take the leadership training and put themselves
forward for chairs, deanships and other high administrative positions, so that, having taken
the reins, they can use that institutional power to help others. You also need women who fight
in the trenches, who network and organize and through collective action raise a “great, big, noisy
fuss,” as Beverly Cleary’s Ramona would say, in order to push a large, slow-moving institution to
take seriously its obligation to level the playing field for women.


But power is also found outside the university, and this is another way in which lawyers,
particularly lawyers in the corridors of power, can help. In order to fix a leaky pipeline, you have
to crawl under the sink and shine a powerful light on it from the outside. In California, we have
the wonderful example of State Senator Jackie Speier, who did just that. Senator Jackie Speier
is the Chair of the California Senate Committee on Governmental Relations. In that capacity,
she exercises oversight over the University of California and the California State University
system. Senator Speier became concerned that after Proposition 209 passed in California, there
was a dramatic drop in the hiring of women into the University of California tenure-track faculty.
Well, talk about power! Her concern translated into an audit of the entire university system. The
Legislative Analyst collected data and issued a report containing appalling statistics about the
under-representation of women in tenure-track and tenured appointments.


Senator Speier held three hearings over a two-year period. She invited people from all the
campuses of the University to testify about the problem. How serious was it? What caused it?
What was being done to fix it? She heard from faculty and administrators. She demanded that
the President of the University appear before her, and he did. She told him, “This data is terrible!
What power do you have to affect the hiring decisions of the people beneath you?” Now
that was a powerful moment! What’s more, the result of those hearings was real institutional
change. Because of Jackie Speier’s legislative oversight, the following things happened: The
President held a summit of senior women faculty to discuss their perspectives on the problem. The
University conducted a survey of faculty and adopted a number of family-friendly policies with
centralized funding. The statistics on the hiring of women are improving, at least in some parts of
the university. Talk about power!

Having said this, I would be remiss if I did not credit the insurgent power of the women
who collected the initial statistics that showed the precipitous drop in hiring, who organized an
informal statewide network of faculty to work on the issue, and who courageously came forward
to testify at the hearings about the problems women faced. But without that political forum,
without that light shining from without into that cobwebby and disgusting area under the sink,
I think it would have taken a lot longer to plug those particular leaks in the pipeline.


Looking Toward the Future: A New Social Consensus on Cognitive Bias


If we hire women into tenure-track positions, and we adopt family friendly policies, will that fix
the leaky pipeline problem? The bad news is, not necessarily. Not all disadvantages experienced
by women scientists come from garden-variety, old-fashioned “keep women out of the club”
thinking of the type challenged by Martha Burke when she attempted to penetrate the Augusta
National Golf Tournament. Over the past 30 years, social psychologists have learned a lot
about how unconscious bias and stereotypes affect how people perceive, explain, remember
and evaluate the behavior of others. This new knowledge is useful in understanding the failure
of the pipeline theory and the persistence of the glass ceiling for women in academia. It has
particular relevance to women in the sciences, where, despite the explosion of Ph.D.s granted
to women in science, technology, engineering and math, the idea of a woman scientist is still
culturally anomalous.

One of the effects of being a cultural anomaly is that you are “damned if you do and damned
if you don’t”—that is, if you exhibit certain culturally stereotyped “feminine” characteristics,
you may be liked as a colleague or a teacher but your science may not be taken seriously; if you
exhibit certain culturally stereotyped “masculine” characteristics associated with being a good
scientist (e.g., assertiveness in pursuit of your scientific research) then you may be disliked as a
colleague. This point is illustrated by two recent lawsuits brought and lost by women scientists who
had been denied tenure. In the first, Weinstock v. Columbia University(5), a female Barnard College
chemistry professor was denied tenure by Columbia University despite positive recommendations for
tenure by (1) the Barnard Chemistry Department, (2) the Columbia Chemistry Department, (3) the
Barnard College President, and (4) the Columbia University ad hoc committee convened to consider
her tenure application.


The Second Circuit Court of Appeals’ majority and dissenting opinions in this case provide sharply
contrasting views about gender stereotyping as evidence of employment discrimination. The
majority was actively hostile to the idea that gender stereotyping could be inferred from describing a
scientist as “nice” and “nurturing,” a “pushover” rather than a hard-driving scientist. Said the
majority, “‘Nice’ and ‘nurturing’ are simply not qualities that are stereotypically female. Any
reasonable person of either sex would like to be considered ‘nice’.”(6) Meanwhile, the dissent
pointed out that Weinstock’s case was the“mirror image” of Price Waterhouse v. Hopkins(7),
in which a wildly successful female broker was denied partnership because of her supposedly
abrasive “masculine” qualities. Weinstock, on the other hand, was denied tenure because “a
stereotypically ‘feminine’ person is not viewed in a male dominated field as a driven, scientificallyminded,
competitive academic researcher.(8)”


In the second case, University of Nevada Las Vegas biology professor Marcella McClure
was denied tenure despite the fact that she had developed a new field and brought in $1.4 million
in grants for her research on viral evolution. Her assertiveness while overcoming obstacles placed in
the path of her bio-informatics research resulted in her being deemed insufficiently “collegial”
to be granted tenure. Examples of the supposed“uncollegiality” included losing her temper at
technical support workers who, six months into her employment, still had not provided adequate
electricity or computing capacity to her research facilities, and requesting that the smashing of
rock samples, an activity that was taking place in a lab directly overhead, be moved to another
location. The Nevada Supreme Court upheld the use of “collegiality” in addition to the traditional
university criteria of teaching, research and service criteria in her case.(9) Professor McClure left UNLV
to become an associate professor of microbiology at Montana State University at Bozeman.


Explicit gender stereotyping is only one form of cognitive bias. Others include in-group
favoritism and polarized evaluations. Perhaps you have noticed that men tend to be evaluated on
their “potential” as much as their performance, whereas strict adherence to the rules is reserved
for women and minorities. Perhaps you have noticed that women and minority teachers either
get stellar evaluations or really bad ones—there is no middle ground for academics who are
perceived as “different.” Everyone in universities, from graduate students to young women starting
out in their first jobs, to tenured faculty, to administration, needs to become more conscious
of how cognitive bias can adversely affect the careers of women and others of minority status,
and to take affirmative steps to ensure that decision making is not infected by it. The literature in this
area is expanding, and extremely instructive. I especially recommend an article discussing the
legal implications of the psychological research: UC Berkeley Law Professor Linda Krieger’s
“The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal
Employment Opportunity.”

Returning to the point with which I began, i.e., Justice Sandra Day O’Connor’s notion that law reflects an emerging social consensus, I suggest that institutions that ignore the effect of cognitive bias on their faculty’s decision making do so at their peril, because today’s ignorance and unconscious bias is tomorrow’s invidious and intentional discrimination. Academic institutions, especially research universities, have no excuse for ignoring the latest scientific thinking on how women and minorities are disadvantaged. If they do, I predict they will be held legally responsible for failing to take the necessary steps to prevent
discrimination from occurring. Worse, they will have failed this wonderful generation of
women scientists and impeded the advancement of science by failing to fully utilize their talents
and abilities.


So using your eyes and your ears, your powers of observation and your terrific scientific minds,
let’s work together to insure that that does not happen!

REFERENCES

(1) “Context and the Court,” NYT, 6/25/03
(2) The guidelines are codified in the Code of Federal Regulations at 29 C.F. R. section 1604.10.
(3) In 2003, Martha Burke, Chair of the National Council of Women’s Organizations, challenged the Augusta National Golf Club’s exclusion of women from membership, resulting in a highly acrimonious public dispute with club Chair Hootie Johnson during the Club’s annual Masters Tournament.
(4) Ponton v. Regents, San Francisco Superior Court No.700565-3 (unpublished Order granting petitioner’s writ, 10/2/92).
(5) Citation to federal appeals court and supreme court opinions are set out in footnotes. The Weinstock opinion, issued in 2000, begins on page 33 in Volume 224 of the Federal Reporter, Third Series, i.e., 224 F.3d 33 (2000).
(6) 224 F.3d at 44
(7) 490 U.S. 228 (1989)
(8) 224 F. 3d at 57
(9) McClure v. State of Nevada (Nevada Supreme Court Docket No. 36435 unpublished Order of Affirmance, March 29, 2002).
(10) 47 Stanford Law Review 1161 (1995).

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