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37 Rutgers L. Rev. 825 (1984-1985)
Will Equality Require More Than Assimilation, Accommodation or Separation from the Existing Social Structure

handle is hein.journals/rutlr37 and id is 839 raw text is: WILL EQUALITY REQUIRE MORE THAN ASSIMILA- TION, ACCOMMODATION OR SEPARATION FROM THE EXISTING SOCIAL STRUCTURE? Nadine Taub Wendy W. Williams* Congress has now provided that tests or criteria for employment or pro- motion may not provide equality of opportunity merely in the sense of the fabled offer of milk to the stork and the fox. On the contrary, Con- gress has now required that the posture and condition of the jobseeker be taken into account. It has-to resort again to the fable-provided that the vessel in which the milk is proffered be one all seekers can use. The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. Griggs v. Duke Power Co.' Will equality require more than assimilation, accommodation or separation from the existing social structure? From our prospective as lawyers who have worked on gender equality issues, the answer is an emphatic yes. When we became lawyers and went to work for the women's move- ment in the early 1970's, we came in on the heels of the Civil Rights Movement, and, in important ways, lacked the more sophisticated comprehension of our status that blacks and others already possessed. We, and women in general, were struck-seemingly for the first time'-by women's bald exclusion from opportunities open to men, and we tended to view the complex of law and practice that treated women differently from men as simple miscalculations of what women's real capacities were and are. The treatment of women under a different set of rules than men seemed merely arbitrary and irra- tional; the approach was simply to explain, with the use of statistics and examples, that an error had been made. While we spoke of the role-typing society had long imposed,3 we had not yet fully com- * Nadine Taub is Professor of Law at Rutgers Law School in Newark; Wendy W. Williams is Associate Professor of Law at the Georgetown University Law Center. The authors thank Clifford Zimmerman, Rutgers Law School, Class of 1985, for his research assistance. I. 401 U.S. 424, 431 (1971). 2. We had, as a group, almost no knowledge of the women's movement, a movement whose life extended for more than three quarters of a century during the century that directly preceded our own. Since then, a women's history movement has blossomed and our past is being steadily recaptured. 3. Finally picked up by Justice Blackmun in Stanton v. Stanton, 421 U.S. 7, 15 (1975), this phrase, and variations on it, appeared regularly in women's rights briefs in the late 1960's and early 1970's. See, e.g., Brief for Appellants, at 4, 5, 10, 15, 25, Kahn v. Shevin, 416 U.S. 351 (1974); American Civil Liberties Union at 7, 18, 24, 29, 40, Frontiero v. Richardson, 411 U.S. 677 (1973); Brief for Appellants, at 21, 46, Reed v. Reed, 404 U.S. 71 (1971). 825