Neutralizing the Current Effect of Gender Classifications

Through Encouragement of a New Economic Perspective

 

by Michaelbrent Collings

 

            Feminism represents a wide spectrum of disparate beliefs to a just-as-wide spectrum of different people.  Interestingly enough, these disparate views are not merely those of the “outsiders” looking in, but are in fact shared by those “insiders” who would call themselves “feminists,” among whom the only characteristic all apparently share is that some injustice is meted out based on sex.[1]  Even those views are so radically different from one another as to appear at times utterly disconnected.[2]

            However, there are some larger factions among feminism.  Among these is a group that sees feminism as a vehicle for achieving gender neutrality.[3]  That is to say, the set of people who work constantly to blur the distinctions between the public sphere of life – the sphere in which males have traditionally held the vast majority of power and vertical mobility, with females often marginalized or normalized or otherwise confined to mere horizontal mobility – and the private sphere – the sphere women have traditionally occupied, comprised largely of domestic responsibilities, including child-bearing and –rearing, care for the internal workings of the homestead, and other similar activities.

            This group seeks to create equality of the sexes by creating an environment where there is free movement between the public and the private sphere.  Interestingly enough, they often do so by advancing the interests of males.[4]  These actions are taken because, under this theory of feminism, any legal distinctions between male and female, whether they benefit the former or the flatter, inherently shore up the wall separating those private and public spheres by highlighting that there is any difference between males and females.   

            It can be argued that the effect of this type of case is exactly the opposite of what most feminists would wish to achieve: by advocating a change in the law, females come to be adversely affected.[5]  Thus, in holding females thereafter to the standard of males, legislation creates a situation which is arguably still incredibly discriminatory in not allowing females to comport themselves to the limit of their already-demonstrated ability.[6]

            And yet some feminists hail this kind of result as a victory.  Why?  Because though women arguably become the “losers” in some senses, the wall of inequality perhaps loses a brick or two here and there as both sexes are held to the same exact standard.  Here, again, we see that same preoccupation with equality between the genders.  However, is this grail really worth seeking? 

            Perhaps what is missing is not an increased effort to achieve gender neutrality in the legal world.  Because the fact is that, like it or not, the lines have already been drawn between males and females.  And an unfortunate effect of seeking to erase those lines is that the very act of doing so draws attention to them, highlights them in the public mind, and so calls the action to the attention of those who would thwart such movements.

            Perhaps what is needed, therefore, is a refocusing.  Rather than seeking “gender neutrality,” perhaps it would be more fruitful and beneficial to humanity as a whole to seek after “personal parity.”

            To explain:

            Currently, gender discrimination cases are cast, necessarily and definitionally, in terms of gender.  What does this accomplish?  First of all, it throws the entire question at issue into a volatile environment: one in which even all self-proclaimed “feminists” will have different and often diametrically-opposed goals to achieve.[7]

            Second of all, if such a question survives this first threshold of chaotic discussion to the point where some kind of a specific goal is enunciated and there are enough supporting that particular iteration to force the question into the bivouac of judicial review, what happens then?  The question is necessarily propelled into the public sphere: i.e., into a male-dominated world in which the issues presented are viewed largely through a male-oriented lens or worldview. 

            Then, even should the question be answered in some way that even remotely approximates the hoped-for conclusion, it may well serve thereafter as cannon-fodder for those opposing that idea, drawing opposing attention to the issue at hand and focusing attempts to contravene or circumvent whatever goals have been attained therein, with varying degrees of success.[8]

            What, then, can be done?  Can the gains only become losses, time and again?  The answer is, of course, yes… as long as the strategies adopted for these gains remain the same.  And so a change is necessitated.  And not just in baseline strategy: for the gains of feminism to be reached, the world must be changed through inculcation of a new focus toward gender issues.

            How can this be achieved? 

            One way to win a game is to alter the rules to create victory.[9]  Currently, “victory” is seen largely as acquisition of external criteria of success: money, power, capital gain.  There are two problems with this focus:

            First, such focus alienates those who would seek for equality on different terms.  There are those, for instance, who see equality, not in terms of how much money is taken home at the end of the day, but rather how much personally satisfaction is achieved by the day’s work, whatever it may be.  Thus, people must choose which ideology they will adhere to in order to achieve “equality.”  This choice of necessity creates division, thus diffusing and diluting the total power otherwise available to effectuate change.

            Second, that focus implicitly bolsters the values of the “public” sphere, and consequently degrades the values of the “private” sphere.  What does this say?  Again, it creates a world where the things that males already control are the only things that are vied for.

            On the other hand, what is the alternative?  To tout the values of the private sphere?  This runs into many of the same problems.  And again, the melding of the two spheres is currently (and perhaps forever) forbidden by prevailing attitudes, which accept current standards as the only ones that may be sought for.

            Therefore, neither option is acceptable.  A new alternative must be found.  And perhaps that alternative is to do away with the classifications of gender and equality in favor of classifications of personal fulfillment.

            Rather than discussing equality in terms of the above-elucidated quantitative values, would it not be more profitable to humanity as a whole and to each individual in particular to address the question in terms of “what does each person need?”

            Unfortunately, this is a question our system of law is not particularly well-suited to answer.  The law as it has developed is as a matter of course a system of general rules.  Case-by-case determination is not advised under our system, and indeed such scrutiny would undermine the goal of certainty of outcome that our legal ideology holds as central.

            Therefore, it is unlikely that such a system will be adopted at law anytime soon.  It is more likely that we will go on in our struggle for parity, defining parity as “equality” and using those same public, quantitative definitions of success to determine if equality has been achieved.  And as long as we do that in our present economic structure, women will likely come out the worse.

            However, in the very core of this problem lies the solution: legal influences may be brought to bear on the public world of business economics.  The public sphere indicators are intertwined and interdependent with the work world, and so changing the latter will necessarily change the former.  And this public/work world, as it has evolved to be in the present, is an economic one whose success or failure largely hinges on the main movers and shakers of economic power: corporations.

            Gone are the days of “Mom and Pop” shops.  Though such shops still exist, today they are an oddity.  The norm is the corporation.  And the corporation is a structure which, to live, must grow.  And growth is defined primarily as achieved through the generation of stockholder wealth.[10] 

            Emphasis is placed upon two kinds of growth: long-term and short-term.  Immediate growth is necessary to produce the continued revenues upon which future survival will depend.  And long-term growth is a system wherein the corporation must continue to compete and remain active in whatever markets tomorrow’s world will bring. 

            Because of these needs, strict utilitarianism is what will emerge as definitions of preference are outlined in a “perfect” corporate world. 

            We will discuss this need further in a moment, but first it is important to understand why this paper treats with the idea of a “perfect” corporate world.  Surely, there are gender-based biases and bars in the imperfect corporate world in which we function.  But to understand the point of this paper (legal encouragement of a new kind of economic structure and new ideals in measuring corporate success), we must first see that even in a world where there is true objectivity in selection of workers and promotional activities, females would still likely be disadvantaged in the workplace.

            In the “perfect” corporate world, the emphasis, as above, would be on return on investment over long and short terms, with more emphasis often on immediate growth.[11]  This utilitarian concept would of course extend to human resources as well: to the employees of each company.  And so what would happen?  The company would be forced to look at measurable criteria in hiring workers and making internal structural changes (e.g., promotions, raises, etc.) in order to determine return on investments.

            Measurable criteria would include education, previous performance, prior experience, and a host of other measurements of already-demonstrated abilities.  However, because return-on-investment is an inherently forward-looking projection, such past experiences would necessarily be looked at primarily as indicators of future performance.  And it is probable that many of these indicators of future performance might disfavor females.

            Example: an executive has two equally-suited applicants for a job.  One is a male, one is a female.  Both have exactly the same previous work experience, both are recommended equally highly by their peers.  Both are completely healthy.  Both, in sum, are exactly the same, with the sole exception of their genders.

            Which must the executive choose to hire?

            Because of the greater need for immediate growth that corporate America operates under, the executive, shackled by a need to choose the best candidate under measurably defendable criteria, will choose the male every time. 

            Why?

            For the simple reason that the male is less likely to leave immediately.  All other things being equal, the male is more likely to stay on for the entire short-range period (say, three to five years) necessary to create the greatest immediate return on investment possible.  Again, why?  For the simple fact that he cannot become pregnant.

            The biological changes that occur in a woman dictate that many of them will miss days or even months of time if impregnation occurs.  The difference in work performance may be small, but those small differences, in our hypothetical “perfect” corporate world, will still translate to short-term profit loss and so will be unacceptable to the corporate entity.

            Of course, the executive cannot know that the woman will become pregnant.  Perhaps she will not.  But the safe bet for the job, the bet that the ravenous corporate entity demands, will be the male. 

            What now?  Where can we go?  As stated above, it is unlikely that any personalized change may be effectuated at law.  That leaves, of course, social change and change dictated by the economic policy environment we choose to foster, legally or otherwise.

            And obviously, to change the economic policy environment, America’s corporate philosophy must evolve.   Rather than perpetuating an environment where fiscal growth is the only goal sought after, what of an environment where the only goals are a content workforce and satisfied customers?[12] 

            Japan provides the foundation for a model that might provide such an environment.  In that corporate model, there is a place of respect for money-losing companies.  Companies that are not economically “sound” are nonetheless successful if they meet certain other criteria: among them, long-term employee retention and satisfaction.

            This model is much more familial than the prevailing, free-flowing American model.  In the Japanese model, corporations hire workers for far longer periods than is normal in the United States.  Child care is provided, as are (very often) college educations, health care for the families, and even housing in company towns.  The corporation tries to provide, not just a job, but an entire life for its employees.

            But how can all this bear on gender discrimination in the United States?  Quite simply, it is ideal for creating a society less concerned with economic utilitarianism, allowing for a corresponding freedom of movement of women from the private to the public spheres… and back again at their desire.

            Currently, in corporate America, a woman entering the workplace may be seen by many as automatically functioning under several handicaps.  She may enter a law firm, for example, as an associate.  But many women then find themselves under the dilemma: family or career?  Because to the contrary of the stated claims of some in corporate Americana, there is virtually no “mommy track” to being a partner (or upper level manager or its equivalent).

Women find that if they decide to take the time off from full-time work that many feel is necessary and/or personally desirable to raise a family, there is virtually no chance for them to return to the job force on anything resembling an easy or equal footing.  Why?  Again, because they have, under the rules of our corporate return-on-investment game, “lost” the match.  They have given up precious return-on-investment time and so are correspondingly – and permanently – disadvantaged.  Recovery is virtually impossible.

            Under a Japanese-like system, however, it may be far more likely and possible for a woman to be recruited out of law school.[13]  The law firm, a company which values both profit and employee satisfaction and long-term relationship with the company, will be much more willing to make specific deals with the woman who “wants it all.”  They will be far more likely to work with her to create a personal business plan.  For instance, she could agree to work for the company for three years as an associate, then work only part-time for five or seven years, during which time she desires to spend the rest of her time at home, having children and nurturing her family.  Thereafter, she may agree to return to work full-time.

            The company will have regained a strong, knowledgeable employee with experience and current knowledge.  The woman will be able continue on the “partnership track.”  Though it might take her ten years when it only took her male compatriots seven years, it will constitute her choice.  She will be able to continue on the road to her goals, the child-bearing period not viewed as a setback or an obstacle to be overcome, but as a pre-determined intention to focus on other priorities for a time before returning to the “partnership pool.”

            Again, some may point out that there is still gender inequality if the woman’s male peers make partner in seven years and it takes her ten.  But what must be remembered at this juncture is that such may well be a step in the right direction.  The point of gender equality should not be to create a world where women and men are completely the same.  This is entropy: a state of complete homogeneity through utter disorganization and consequent disintegration.  Entropy at its perfect form is what scientists call “heat death”: the place at which there is no movement on even a molecular level. 

            Humanity is not designed to be entropic.  Indeed, those things that most people consider of greatest beauty and worth in life are largely a result of the splendid diversity of background, histrionics, viewpoints, cultures, etc., that differences create.  So difference – diversity – in and of itself is not a detrimental state of affairs.

            What is detrimental is locking people into one set of possibilities in life, without letting those people have a hand in locking in that course.  Is there anything inherently wrong with a woman deciding to spend her whole life at home, raising children and cooking meals?  No.  Not if that is her desire.  But is there anything wrong with that same scenario if the woman is there because she had no choice in the matter, or because market and discriminatory pressures forced her into that role, for which she was ill-prepared and within which she was discontent.  Yes.

            So in the proposed model, a situation is created where people are granted the ability to make those choices.  There will be consequences to all of the choices, of course.  Life is action and consequence.  Those who advocate for “complete freedom” often mean “I want to be able to do anything and not have to suffer anything but good consequences.”  This is at best an attitude of hedonism, a state of mind that precludes social functioning to the extent that it recognizes no good greater than the pleasure of the individual, even at the cost of the surrounding community.  At worst it is clinical insanity: an attempt to cognitively sever action from necessary results, to cleave effect and cause asunder.

            Additionally, under the proposed model, the gender lines may be further blurred in that men, too, will be able to make those choices: to negotiate a long-term contract in which they decide to take five years off or only work part time in order to raise the children or otherwise search out goals that will take them away from their workplaces.  The list of possible futures will be expanded for both male and female. 

Thus, under such a system the likelihood that people will achieve their desired potential is increased.  And the list of acceptable desires will expand to include, not just immediate return on fiscal investments, but the entire gamut of human – not merely male or female – existence.  Each opportunity will have to be purchased at a price.  Sacrifice and decision-making will still be required.  But the opportunity will be there.  And the presence of the opportunity alone is worth pursuing.  For in choosing which opportunities to follow and which to leave behind, the greatest empowerment – that of defining one’s self – is a necessary corollary.  If this opportunity for self-definition is extended equally to all, equality of extrinsic (unfair) criteria will be moot, for what will have been achieved will be equality of opportunity for satisfaction and happiness.

Of course, the base structure for the new business model – the Japanese version – may be criticized by many.  Especially as the model was shown to be fiscally unsuccessful and has largely disappeared.  This, however, is not necessarily fatal to the idea that a similar structure in the United States may be beneficial and even successful if certain changes are instituted.

First, it must be recognized that Japanese society has long been seen as one in which women have even less opportunity for personal and economic growth than do women in the United States.  Therefore, the businesses functioning under the actual Japanese model would be necessarily less likely to create net increases in capital growth than would a business focusing under our proposed Japanese-like model. 

How can this be?  The answer is that in the proposed model, though the point of the structure would be the same (to increase stability and maximize long-term growth potential), the pool of recipients of these benefits would be greatly expanded.  If these benefits are given, not just to males, but to all who desire them, then the corresponding employee satisfaction will of course translate to greater enthusiasm and higher efficiency as planning becomes more detailed.  Simply put, fewer surprises,[14] more happy workers, and a greater workforce translates into stability and greater efficiency in production: i.e., more and better product.  And that means (assuming that there is demand in the company market) greater overall return on investment. 

Thus, though utilizing a Japanese model in an environment of repression in order to maintain an unfair or discriminatory status quo was unsuccessful, utilizing the a similar model to achieve parity may prove quite the opposite.

And this is where the law comes in.  It will never be successful in mandating sameness of sexuality or true equality of gender.  Differences exist and will continue to exist as long as do the sexes themselves. 

But the law can encourage changes in the economic philosophy that drives corporate America.  Further, the law can make those changes while not forfeiting the corporation’s ability to make money.  Because if more women and men are not only working (which implementation of this paper’s philosophy would encourage), but are working in the ways they would like, on their own terms, they will then be happier.  And again, happiness leads to greater efficiency.  Efficiency to higher outputs.  Higher outputs to greater wealth. 

This is not advocacy of socialism.  This is advocacy a capitalistic determination that actually makes sense: make people content so that they will be better focused on the work that they enjoy. 

To reiterate, the law’s proper focus here is to encourage the development of this model, and exhort employers to utilize it.  How?  For instance, current corporation regulations may be amended to include requirement of a certain percentage of employees who have signed long-term contracts.  The government may encourage the inclusion of a certain number of part-time workers who have voluntarily decreased their work hours in order to take care of a family.  It may perhaps set up a system wherein tax breaks are not allowed to companies with too-high a turnover rate in certain age brackets. 

Again, all the point of this paper is not to detail a comprehensive plan for change.  Merely to suggest a direction of thought that may be helpful in creating a system wherein true parity may be achieved.  A system wherein contentment and achievement of individually-selected goals matter more than the externally-imposed standard of worth as measured by the amount of money in a bank account. 

A system wherein people are free, not to do whatever others have determined they ought to do in order to be “successful,” but rather to do what they have chosen to do themselves, and to feel successful in the doing.