STILL NOT ONE OF THE BOYS
Adapted from a talk at Harvard Law School’s Bicentennial — September 16, 2017
Last month, as part of the 2017 HLS Bicentennial weekend celebration, I was asked to give a talk taking off from my book, NOT ONE OF THE BOYS: LIVING LIFE AS A FEMINIST, published by Alfred A. Knopf in 2000. I used that talk not only to describe some of my experiences in the early days of the second wave of feminism but also to ask where we are today and where we go from here. This article is adapted from that speech.
As I describe in my book, I became a conscious feminist 50 years ago in February 1967, on the day in Constitutional Law when eminent professor, Paul Freund, jokingly approved of the 1947 Supreme Court decision, Goesaert v. Cleary, that let stand a clearly unconstitutional Michigan law (women barmaids could not work unless their husbands or fathers were present in the bar.) I objected furiously. The class laughed; there were so few women, 32 out of 565 in our entire class, that I couldn’t see any others in that Con Law section.
Outrageous other issues at HLS included: Lincoln’s Inn — the only law school eating club, and it that prohibited women from joining; the school’s squash courts — no women. (When I tried to play, my hair hidden under a cap, the superintendent literally chased me out shouting at me.) Ladies Days, the only day in criminal law class when women were invited to speak; the subject — how much penetration constitutes rape; property law — who owns an engagement ring if the engagement is broken. The interview process — it was either: “We don’t interview women” or “We’ve just hired our one woman for the year.”
Before graduation, I became National Vice President of NOW and was launched into a leadership role in the fight for the ERA, which passed out of Congress in 1971 but failed by one state to received ratification by the mandated deadline — even with an extension.
Another “joke” that had become serious in 1965 was the passage of Title VII of the Civil Rights Act. Congressmen, who opposed blacks gaining equal rights in employment, voted to tack onto the bill an amendment that would prohibit sex discrimination, figuring no one would vote to require equal treatment of women and the bill would fail. They were very wrong. One of the strongest tools we have to fight employment discrimination today is, in fact, Title VII.
When I visited Harvard Law School five years after I graduated and found myself talking over cocktails with my administrative law professor, Paul Bator, he smirked when I asked him why he hadn’t taught us about the administrative agencies that implement Title VII, the Equal Employment Opportunity Commission and the Office of Federal Contract Compliance. He had never heard of them, he smugly replied.
The Women’s Movement was gaining a head of steam by 1972. Right after Gloria Steinem and I and some others started Ms. Magazine at the end of 1971, I was asked to direct the ACLU’s newly formed Women’s Rights Project with Professor Ruth Bader Ginsburg. Gloria agreed I should take the offer since there did not seem to be any other feminist lawyers, but there were women who could take over at Ms. So Ruth and I started our project at the ACLU’s national offices on E. 20th street in Manhattan in January 1972.
Holding that there is no legitimate government interest in preferring fathers over mothers to administer their deceased son’s estate, the first in a line of Supreme Court cases overturning sexist statutes was Reed v. Reed. Almost all of these cases were handled by the Women’s Rights Project. We started 1973 with a big Supreme Court case, Frontiero v. Richardson. A woman air force officer was unable to obtain medical and housing benefits for her husband because he was not more than half dependent on her for his support. Every male officer got those benefits for their wives regardless of how much support they earned or needed. The Court ruled in our favor but we didn’t get what we really wanted; sex discrimination was not yet to be scrutinized as harshly as race discrimination. It was not a “suspect” classification. We persevered. Next up was the Wiesenfeld case in 1975 in which the Court agreed with us that widowers should get the same Social Security benefits as widows. Ruth really liked cases that highlighted the gender discrimination by bringing cases to the Court on behalf of men.
In Craig v. Boren, the Court decided that males were entitled to purchase the same higher percentage beer as females at the same (young) age. In that case, it was established that in sex discrimination cases there had to be an important relationship between the discrimination and the government’s interest for the inequity to survive.
Importantly, in 1972, Title IX passed, requiring that resources in federally funded universities (much of the focus was on sports programs) be allotted equally to women and to men. I worked on that legislation alongside my friend, Olympic Gold Medal winner, Donna DeVarona. And incidentally, in the 1970s, the Democratic Party passed rules that mandated a 50/50 (women/men) division of delegates to its national Conventions. That seems to have worked. Query whether that could be applied as a template to other decision-making groups?
Meanwhile, on the other big feminist front Roe v. Wade (the right to choose abortions with some limitations) was decided in 1973. That same year I had two important cases in North Carolina challenging the practice of sterilizing poor, usually young and black, women in the South. Unfortunately, those cases were thrown out of court because the statute of limitations had run — even though the women filed charges as soon as they realized what had happened to them. A bit of justice came finally in 2015 (42 years later) when each person affected received a settlement of $50,000.
In 1978 Congress passed the Pregnancy Discrimination Act (pregnancy discrimination is sex discrimination.) It was followed by a host of cases interpreting its scope. And, as of very recently, I am co-counseling with the ACLU a huge case involving pregnant and breast-feeding dockworkers on the west coast.
Moving to the 1980s and ’90s. We saw more important legal events unfold:
1986 — Meritor Savings Bank v. Vinson — Sexual Harassment is sex discrimination. Conduct becomes illegal harassment at the point that a “reasonable person” would find it abusive.
1991 — the Senate Judiciary committee hearings in which Anita Hill charged Clarence Thomas with sexual harassment ended badly. Many of us blame Joe Biden for disallowing other women from coming forward in those hearings with their own stories about Justice Thomas and his harassment of them. (But note where we are today what with Bill Cosby, Bill O’Reilly, Roger Aisles, Harvey Weinstein, Roy Price and more unfolding every day.)
1993 — Harris v. Forklift established that a hostile work environment is illegal.
1993 — the Family Medical Leave Act (FMLA) passed.
1994 — the Violence Against Women Act passed.
1996 — the Virginia Military Institute case was decided by the Court with (now) Justice Ginsburg writing for the majority and setting a new standard for gender discrimination cases. There has to be an exceedingly persuasive justification for sex discrimination to stand. In that case, VMI’s not admitting any women, was deemed unconstitutional; an alternate school for women would not pass muster.
Also in the 1990s, a class action case against Smith Barney was brought by 23 women, charging rampant harassment and gender discrimination. That case settled for $150 million with 2000 women joining the suit.
Those are as the legal highlights from the late 1960s up to the election of Donald Trump. Do we need more Supreme Court litigation today? It helps, but complaining publicly, as well as bringing lawsuits against discrimination at the trial court level, is even more important. I, personally, have 3 big cases outstanding on behalf of Teamster women against the union and the companies for sexual harassment; a stuntwoman (her job given to a man in a wig because the boss that day decided that particular stunt was too dangerous for a woman) is claiming sex discrimination by the companies and the union; dockworker women who are given no credit for time off due to pregnancy while other workers out with other disabilities do get credit, and no safe, sanitary, private places, as required by law, were afforded to lactating mothers who are working. The ACLU, as I said above, is my co-counsel on this case, and they also have a group of lactating pilot plaintiffs, as well as a class action against movie studios brought by women directors.
It has become abundantly clear that calling out actual harassment as it happens or even as it happened in the past is extremely effective. Women are not worrying about whether statutes of limitation have run. They can embarrass their harassers just by telling the stories. Harvey Weinstein, Bill Cosby, Roger Aisles, Bill O’Reilly, Roy Price (head of Amazon), a big-time APA talent agent, New Orleans top chef John Besh and even some marines are all out of jobs, in many cases with earlier associations and awards retracted, because women have spoken out against not only these men but also against the confidentiality clauses that were demanded before the claims were settled. To the extent that some of the allegations are about actual rape, there, generally, is no statute of limitations. Rapists will pay a very high price — in prison. I am waiting for Trump’s “just locker room talk” to catch up to him, not to mention his infamous statement that he likes to “grab women by the pussy,” starting the now worldwide fashion accouterment, pink pussy hats.
Photos from the extraordinary Women’s March on January 21, 2017, show women (and many men) around the world, from all walks of life, of all colors and races, nationalities and sexual orientations. They were all walking with a similar purpose: to oppose and resist Trump and to end the world-wide oppression of women and advance feminism as a unifying cause, millions of people saying that we do act together for all different goals but one unifying theme:
More than 5 million people marched on all 7 continents, in 82 countries. From Alaska to Antartica, from Austria to Ghana, from Kosova to New Zealand, from India to Israel, from Poland to Macau. And the signs were wonderful, with slogans like: “Not My President” to “My Dignity is Not Up for Grabs and Neither Are We” to “I am no Longer Accepting the Things I Cannot Change; I am Changing the Things I Cannot Accept.” From “Strong Women Unite” to “My Body Not Yours” to “A Lie Told Often Enough Becomes the Truth” to “Sexual Assault is not Locker Room Talk.” From “I Lived in the ’50s; I Don’t Want to Go Back” to “The Female Force Awakens” to “Your Racism is Not Okay” to “The Future is Female; Rise Up” to “Babies for Paid Family Leave” to “Grandma Didn’t Cross the Border so I Could be Grabbed”. From “I am Queer; I will not Disappear” to “Real Men are Feminists” to “I’ve seen Better Cabinets at Ikea” to “Build Bridges Not Walls” to “Power to the Peaceful” to “Girls just want to have Fun-damental Rights”. From “Make America Kind Again” to “They Tried to Bury Us but They Didn’t Know We Were Seeds”. From “There is No Planet B” to “My America Welcomes Refugees” to “As a Woman My Country is the World” to “Make Facts Great Again.” From “If I do not Act, I am Guilty of Complicity” to “If You’re Not Outraged, You’re Not Paying Attention” to “Penguins For Peace.”
We should hold these slogans in mind as we think about some current statistics published in The Los Angeles Times & the New York Times just since June, headline stories about the sorry state of women’s inequality:
News coverage of Harvey Weinstein’s abuse of more than forty women (sexual harassment that in some cases morphed into rape charges) has dominated the news for weeks, no doubt helped by the fact that some of the women are major Hollywood stars whose courage in speaking out so forcefully must be praised. It has served as a wake-up call to men in power and a reminder to other women to speak up and fear not. Weinstein has disgraced himself so thoroughly that he’s been run out of the Motion Picture Academy, as well as the Producers’ Guild. Awards have been rescinded and his wife has left him.
The day after it was announced that writer/director James Toback used his position to abuse 38 women 200 more came forward with similar allegations against him. Meanwhile, in 2016, only 7% of films were directed by women while17% of episodes on broadcast, cable & streaming networks were female-directed (with only 3% minority women.)
In a new USC study on the film industry, using sophisticated software: 4900 men vs. 2000 women were doing the on-screen talking. There were seven times as many male screenwriters and twelve times as many male directors. As for casting directors, there were twice as many men. But if female writers were involved, female representation in the story was 50% higher.
These statistics should not be surprising in an industry where the top executives at film studios, according to a 2016 study are on average, 80% male. This, according to the ACLU which successfully brought the matter to the EEOC, results in rampant discrimination in behind-the camera hiring decisions.
The sexual abuse scandal that has engulfed Hollywood has prompted hundreds of women in the animation industry to speak out about sexism in their industry. They have been subjected to crude sexual remarks and unwanted sexual advances.
Women are accusing other executives, producers, directors and talent agents on a daily basis now. At least one talent agent has been fired over sex allegations involving teenage male actors, another powerless group. Clearly the Hollywood guilds, the WGA, the DGA and SAG are overdue for an investigation into abuse of their members by powerful men and censuring those men.
By now, it’s common knowledge that Hollywood treats women horribly and that sex discrimination is pervasive. My own story of producing NAVY SEALS is detailed in my book, “Not one of the Boys: Living Life as a Feminist” (Alfred A. Knopf 2000), and includes the studio boss telling me they would not hire a woman to direct an action picture and the director, Lewis Teague, forbidding me from going on location. He didn’t want any women around, except the one female co-star. I was even prevented from going to a meeting in the Orion offices that included all the key men on my movie, but not me. The studio’s president got angry about that when he saw me alone in my office.
Another eye-opening experience on another potential producing project occurred for me as Jane Fonda, Jane Wagner and I pitched a story idea about flight attendants to Frank Price then head of Columbia Studios. It was clear that we intended Fonda to star in the movie, but at the end of our presentation, Price asked if we could get Melanie Griffiths to star. She is twenty years younger than Fonda, who got so angry when Price raised the subject, clearly implying that Fonda was too old, that she stormed out of the meeting. (I wonder who now believes Melanie Griffiths to be a bigger star than Fonda!) The movie did not get made. Frank Price is the father of Roy Price, head of Amazon Studios, who left Amazon Studios in disgrace just days after a producer publicly accused him of sexual harassment. The producer said that Price had lewdly and repeatedly propositioned her in 2015. In another instance involving Roy Price, an actress said she had told him that Harvey Weinstein had raped her but that instead of hearing her he went ahead and made a deal with Weinstein.
Earlier, when I was an agent at William Morris in New York, I had to run a gauntlet of catcalling construction workers every single day on the block between the bus stop and the office. One day, shortly after I arrived at work, the only woman in the TV department came to me and told me that she’d been raped by the top-earning male TV agent, a really obnoxious guy. After reporting this to the president of the agency, he offered her a cruise around the world to buy her silence. In 2014, the rapist made news in the Hollywood Reporter having conceived an idea of writing a musical about biblical lovers and taking three decades to write it. Those are thirty years her rapist would have been in jail if my colleague had declined that world cruise.
Harvey Weinstein, having turned to the fashion business, took to assaulting models, promising them access to movie roles they aspired to when they left their usually small towns for a better life. Lawsuits are in the works, and only now the fashion industry is pondering how women are treated and whether they have done enough to protect vulnerable participants.
In theatre women are at a gross disadvantage as designers, directors, artistic directors and producers.
While Trump works to eliminate a rule aimed at equalizing pay, the gap between women and men persists with white women at 82% of white men’s wages, Asians at 87%, black women at 65% and Hispanic women at 58%.
WOMEN IN THE LEGAL PROFESSION
Women are 50.3% of current law school graduates, yet they still make up just less than 35% of lawyers at law firms; their share of equity partnerships remains at 20% and has not changed in recent years.
WOMEN IN TECH
Women in tech under 25 earn 29% less than their male counterparts; women of all ages received lower salary offers for the same job at the same company 63% of time. Women hold 11% of executive positions in Silicon Valley companies and own only 5% of tech start-ups.
At Amazon, there are 16 executives, known as the S team, who report directly to Jeff Bezos. Only one of them, a senior vice president for human resources, is female. Of the group who report to members of the S team there are 90 people, 75 of whom are men. At Microsoft, of the 15 people who report directly to the CEO, 3 are female.
The rate of women quitting tech jobs was more than twice as high as rate for men.
You may remember the Google memo from the male employee stating that men have “higher drive than women” as he pointed out that there are innate differences between men and women. Google’s overall workforce is 69% male; tech staff is 80% male; corporate leadership is 75% male.
The company has been exposed this year as having a workplace culture that included sexual harassment and discrimination, and it has pushed the envelope in dealing with law enforcement. Founder Travis Kalanick was forced out of his position as C.E.O. in June because of allegations of serious sexual harassment. That followed the firing by Uber of a senior executive who illegally obtained the medical records of a woman who was raped by an Uber driver in India. Uber also announced at a staff meeting that it had fired twenty other employees in recent months over issues of harassment, discrimination and inappropriate behavior that were raised in another investigation, while dozens of additional employees remain on notice or in training “programs.”
Two noted female scientists, Drs. Jones and Lundblad, at the Salk Institute filed suit recently, saying it’s an old boys club, a “culture where women are paid less, not promoted and are denied opportunities.” Another woman, Beverly Emerson, just joined in the suit. All are full professors whose science has been widely lauded.
The percentage of CEOs of Fortune 500 companies that are women is just over 6%. In 2016, of 132 companies and 34,000 employees women who negotiated for promotions were 30% more likely than men to be labeled intimidating, bossy or aggressive. One-half or more of women who earn MBAs this year will drop out of the full-time work force within decade, not unlike in the tech industry. Could that be due to the fact that they’re treated badly?
Overlooked are female-led firms that do better with an annualized return since 2009 of 25% vs. 11% for the broader market.
Meanwhile, only 7% of the partners at the top 100 venture capital firms are women.
Companies with at least one woman on the board out-performed those with none by 26%. Having even one woman on the board reduces a firm’s chances of bankruptcy by 20%. I just read that 20th Century Fox, under fire for the rampant sexual harassment charges leveled against its various execs, is thinking of adding another woman to its Board where there is now only one woman.
According to USMC Life, in April 2017 Marine Corps prosecutor Major Babu Kaza submitted two Washington Post articles into evidence, saying Major Mark Thompson used the newspaper to spread lies about the female cadets with whom he had inappropriate sexual relations. Kaza argued that Thompson should be imprisoned for 32 months, expelled from the Marines and fined $200,000.
Mitch McConnell, referring to the Republican working senators group and the health care bill, declared: “Everybody’s at the table.” But, in fact, three Republican women Senators Collins, Capito and Murkowski, who should have been included, were not.
WOMEN IN CITY GOVERNMENT
City council representation: In New York City — 12 of 51 council members are women; in Chicago — 13 of 50; Houston — 4 of 16; Philadelphia — 6 of 17; Los Angeles — 2 of 15. California has 482 cities. Only 72 have a majority of women on their city councils.
One big exception:
In Blue Lake, CA, in Humboldt County (a 5-hour drive north from San Francisco,) there is an all female City Council one of whom said: “Women just know how to work together in a way that men probably don’t.”
STATUES AND PARKS in the U.S.
Only 8 % of publicly viewed statues are women; eight of 410 national public park sites commemorate women even though we make up more than half of the population.
ATTITUDES ABOUT WOMEN
One million Posts were mined by computer from an anonymous message board about women. Adjectives describing them: hotter, lesbian, baby, sexism, tits, anal, marrying, feminazi, slut, hot, vagina, looks, pregnant, pregnancy, cute, marry, gorgeous, horny, crush, beautiful, secretary, cunt, shopping, date, sexy, dated and prostitute.
About men — there was no hostility, with descriptive words: adviser, mathematician, pricing, textbook and Wharton.
WHAT DOES THE FUTURE HOLD?
There will, no doubt, be more Supreme Court litigation, but, meanwhile, we need to focus on the problem of why women have ceded so much power to men? Why are we still discriminated against in almost every walk of life, every profession? Why do we let this happen?
After the horror of Hillary’s defeat and the election of Trump, in the Women’s March, around the world, we acted together without definitions or boundaries, without emphasizing the various isms or as one New York Times review put it: without a focus on “identity politics.” That phrase, to me, is distracting; it’s divides more than it unites and invites people to think about how different they are from others. As for men, it is not very interesting, despite the Google man, to divine our differences with them. Rational men like the ones in the Women’s March are on our side, although how much support they are giving remains to be seen. It is possible that the huge amount of publicity over Harvey Weinstein’s behavior may force other men to try to distinguish themselves from him and their values, from his. A few have come forward so far.
We had identified almost all the challenges women faced before 2016 when the disaster of the election happened; now we need to double-down and fight harder. For example, issues that have not been resolved and that are key to a feminist agenda (but may not be obviously part of that agenda) include: 24-hour child-care, addressing climate change, voting rights, an end to Citizens United, immigration reform, including DACA, putting an end to racism by police and others and, of course, fighting sexual harassment and abuse and sex discrimination wherever and whenever it occurs. Resolution of these issues is essential to all our lives so we are able to ensure for our daughters and granddaughters the democratic ideals on which our nation is based.
It helps me to think of feminism as the engine, with wheels. Each wheel is made up of spokes. Every spoke is a cause that is important to some or all of us. We need to hold on to the notion that feminism is like a big wheel. Keep in mind that one good reason feminism is all-encompassing is that every one of us is either a woman or has been in an intimate relationship with one (e.g. our mother). This is not true of other isms. And the word “feminism,” itself, has morphed from a term of derision by some who deemed us man-hating feminazis to one that allows everyone now to emphasize that she/he is, indeed, a feminist. No doubt, Hillary Clinton’s continuing reference to herself as a feminist helped propel the label forward as did her slogan: “Women’s Rights are Human Rights.” In addition, I believe that people, especially women, shocked to their cores that Hillary lost, have realized the profound misogyny that was the primary cause of her political demise and want to cleanse our country of it.
Feminism encompasses the need to rid the world of racism, to keep DACA, to dump Trump, to assert that black lives matter, that we have a right to control our own bodies, a right to equal pay, a right to be free of sex discrimination and harassment, as well as criminal assault. These all work together, just as we all marched together. We had different signs, naming our particular issues, but they complemented each other. These spokes need each other to make up a whole wheel; they do not conflict. And that wheel needs to keep spinning.
A recent op-ed in the New York Times, written by four religious leaders, advises us to protest as issues arise and not wait for a perfect moment. This includes women who are now coming forward about past experiences of sexual harassment and discrimination — as well as assault. In fact, since October 5th the consciousness of the nation, it seems, has been raised by the many women complaining about Harvey Weinstein. The lawyer who was “advising” him has been disgraced for her association with him.
As for men, a recent report by Gillian Thomas, Senior Staff Attorney of the ACLU says: “Men: Be allies in deed, not just in word. More than 80% of sexual harassment charges filed with the EEOC are brought by women…. Not much will change if only women monitor our work environments. Along with vocal male leadership, it is also critical that every male ally in the rank and file be, in the words of a recent Harvard Business Review report, ‘an intentional exemplar and fierce watchdog for the behavior of other men.’”
It has become clear that we must encourage women to come forward with complaints about sexual harassment, molestation and other kinds of abuse, as well as discrimination when it happens. Now is the time to call out or help other women call out sexual predators and sexist bosses, bring lawsuits, draft bills, run for office, advance to leadership positions in corporations, in government, in law firms. This is the time, while everyone is alerted to what’s really been happening, to speak out. I even advised the Harvard Law students not to take their future husband’s name without careful thought, not to let their husband or boyfriend be the boss, just because he’s male. Those seemingly benign practices lay the groundwork for men thinking they’re superior.
I reminded my audience that they are among the most enlightened and most privileged people and most likely to lead, going forward, in both the private and public sectors. I advised them not just to serve their future clients, usually by cautiously addressing individuals personal problems. I asked them to make change themselves considering that they will be graduates of the most elite law school in the world, best suited to decide how to influence society for the better and that there is no magic formula set to arrive in the future.
Of course, it is not just Harvard Law students who face this challenge. We must all gear up and use the influence we have to make real change. The images from the Jan. 21st Women’s March are our mandate. We must keep fighting for our rights as women. We must just do it!
© Brenda Feigen 2017