Women’s historians and Dukes v. Wal-mart, or what we learned from the Sears case

image courtesy of @ACLU via twitpic

via New Deal 2.0. which in honor of women’s history month, has a series of posts on “the surprising story of how women became citizens — and how their economic lives have evolved along with their rights.” Yesterday’s post considers the oral arguments that will be made before the U.S. Supreme Court  in the Dukes v. Wal-mart Stores, Inc. case “that will determine the power of women — and all Americans — to stand up to employer abuses.

While I wait to see what the SCOTUS says in this case, I’ll reflect on another case involving a retail giant — Sears — that happened 25 years ago when I was just a wee Clio graduate student at Cornell.  In the Fall of 1986, the hot topic among those of use studying women’s history was the recently decided district court case, EEOC v. Sears, in which two prominent women’s historians, Rosalind Rosenberg  and Alice Kessler-Harris served as expert witnesses.  Rosenberg, testifying on behalf of Sears, argued  “Men and women differ in their expectations
concerning work, in their interests as to the types of jobs they prefer or the types of products they prefer to sell. . It iss naive to believe that the natural effect of these differences is evidence of discrimination by Sears.” In other words, the reason that men were in high paying commission sales jobs (e.g. automotive, appliances) was because women chose other areas to work.

Kessler-Harris countered, “What appear to be women’s choices, and what are characterized as women’s ‘interests’ are, in fact, heavily influenced by the opportunities for work made available to them . . . Where opportunity has existed, women have never failed to take the jobs offered. . . . Failure to find women in so-called non-traditionall jobs can thus only be interpreted as a consequence of employers’ unexamined attitudes or preferences, which phenomenon is the essence of discrimination.”

Unfortunately for the EEOC who filed on behalf of female employees, the court believed Rosenberg and declared that Sears did not discriminate based on sex.  As Ruth Milkman observed in her analysis of the case in Feminist Studies in 1986, “Historians, even feminist historians, frequently disagree with one another. But it is difficult to imagine a forum less tolerant of the nuanced, careful arguments in which historians delight than a courtroom.”

This may explain why, to my knowledge at least, there haven’t been any women’s historians speaking about the Dukes case.  Then again, maybe like me, they’re waiting to hear what happens with the Supremes.  Based on early reports, things don’t look encouraging.

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