+(,121/,1(

Citation: 14 J.L. & Soc'y 411 1987

Content downloaded/printed from
HeinOnline (http://heinonline.org)
Tue Sep 25 05:26:35 2012
-- Your use of this HeinOnline PDF indicates your acceptance
of HeinOnline's Terms and Conditions of the license
agreement available at http://heinonline.org/HOL/License
-- The search text of this PDF is generated from
uncorrected OCR text.
-- To obtain permission to use this article beyond the scope
of your HeinOnline license, please use:
https://www.copyright.com/ccc/basicSearch.do?
&operation=go&searchType=0
&lastSearch=simple&all=on&titleOrStdNo=0263-323X

JOURNAL OF LAW AND SOCIETY

VOLUME 14, NUMBER 4, WINTER 1987

0263-323X $3.00

Legislation Against Sex Discrimination:

Questions from a Feminist Perspective

NICOLA LACEY*
Since the Equal Pay Act was enacted in 1970, Britain has gradually formulated
a legislative scheme explicitly aimed at the elimination of certain forms of
discrimination. 1 The Sex Discrimination Acts 1975 and 1986 and the Race
Relations Act 1986 have resulted. Accession to the European Community has
intr6duced the European standard of equal treatment, prompting developments such as the Equal Pay (Amendment) Regulations 1983, which
introduced the concept of equal pay for work of equal value. Indeed, it seems
fair to say that protection from unjust discrimination on grounds of sex or
race is the area of.civil rights which has received the most systematic and
innovative legislative attention in Britain over the past two decades.
Correspondingly, the technical and strategic problems thrown up by theantidiscrimination legislation and questions about its reform have received much
2
attention.
In this paper, by contrast, I want to raise some more general questions
about the underlying basis of principle of the Sex Discrimination Act 1975,
specifically from a feminist point of view. For these general questions have, as
I shall argue, important implications in terms both of difficulties in using and
enforcing the legislation and of our thinking about the proper direction of
reform. In arguing from a feminist perspective, I shall not give any detailed
account of a particular version of feminist theory. It should be sufficient to my
argument to characterise such a theory as one which takes as its starting point
the fact of women's subordination and oppression and which thus evaluates
anti-discrimination legislation in terms of its actual and potential contribution
to the dismantling of such oppression. This is not to say that the project of
constructing a detailed theory and working towards a full understanding of
the nature of women's oppression is not of fundamental importance. Rather,
*New College, Oxford OX1 3BN, England.
Earlier versions of this paper were delivered at a meeting of the Industrial Law Society in the
autumn of 1986 and at seminars at the universities of Kent, Oxford, and New South Wales, and at
Macquarie University and Monash University in the spring of 1987. 1 should like to thank the
participants at all these seminars for their helpful bomments.

HeinOnline -- 14 J.L. & Soc'y 411 1987

it is to acknowledge that it is beyond the scope of this article and to affirm that
useful feminist critique does not have to await the production of an ultimate
'grand theory'. It will be clear from what I have to say, however, that my own
perspective goes beyond that which might be espoused by a liberal feminist
whilst falling short of a radical feminist viewpoint, and at many points the
argument will doubtless imply or presuppose a particular view of the nature of
women's oppression - a view which might be characterised as a socialist
feminist approach.

GENERAL DIFFICULTIES WITH BRITISH

ANTI-DISCRIMINATION LAW
It will be useful to begin with a concise statement of some of the problems
which litigants under the current legislation are generally acknowledged to
face - problems which I shall argue look deeper and more intractable from a
feminist perspective. First of all, it is widely accepted that plaintiffs bringing
discrimination cases encounter grave difficulties of proof. In cases argued
under s.i(l)(a) of the Sex Discrimination Act 1975, which allege less
favourable treatment on grounds of sex - 'direct' discrimination - it is
notoriously difficult to prove the 'ground' of the defendant's action. In many
cases it will be possible for the defendant to offer a plausible account of the
basis for their treatment of the plaintiff which does not depend on sex or sexrelated factors. 3 In cases argued under s. I(l)(b) of the 1975 Act, which allege a
requirement or condition which, although applied to members of both sexes,
disproportionately and unjustifiably excludes members of one sex to their
detriment - 'indirect' discrimination - the plaintiffs face technical difficulties
in terms of the identification of relevant pools for comparison, gathering
adequate statistics and proving detriment. 4 These difficulties of proof are
believed to explain, at least in part, both the small total number of
discrimination cases and their low success rate.
Secondly, it is almost universally accepted that the remedies offered to
successful plaintiffs under the Sex Discrimination Acts are grievously
inadequate. Awards of damages are low, industrial tribunals have no
injunctive powers nor any power to award 'front pay' in employment cases,
and in cases where indirect discrimination cannot be shown to have been
intentional, plaintiffs cannot even claim any damages.5 Thirdly, it is now
recognised that the Equal Opportunities Commission - the administrative
agency set up under the 1975 Act with a mixture of investigative, enforcement,
advisory, and educational powers - is under-resourced and has inadequate
powers properly to fulfil its statutory responsibilities. It is also vulnerable to
legal challenge in exercising its investigative powers. Traditional principles of
British administrative law tend to be hostile to the Equal Opportunities
Commission's combination of functions. 6 Fourthly, doubts are growing
About the adequacy of industrial tribunals and county courts as forums for
hearing the rare sex discrimination case. Even in the employment area, the

HeinOnline -- 14 J.L. & Soc'y 412 1987

number of cases brought is comparatively small, and there is growing evidence

of tribunal incompetence in the face of complex and unfamiliar legal
provisions. 7 Finally, the unavailability of legal aid for representation before
the industrial tribunals, where the vast majority of cases is heard, gives serious
law and the correlation
cause for concern in view of the complexity of the
8
between legal representation and plaintiff success.

FEMINIST CRITIQUE OF ANTI-DISCRIMINATION LAW

From this brief survey of the most salient problems posed by the current
legislation, I now turn to some more general concerns which emerge from a
specifically feminist perspective.
1. The Ideal of Equality
Starting at the most fundamental level, one obvious set of questions has to do
with just what the Sex Discrimination Act 1975 sets out to achieve and the
nature of the political commitment from which it proceeded. One way of
looking at this question is to understand anti-discrimination law as proceeding from a commitment to the value of equality, which rules out discrimination on certain grounds. Equality, however, is a deeply-contested notion, and
several conceptions of equality present themselves as possible candidates to be
bases for anti-discrimination law. Perhaps most obviously there is the ideal of
formal equality; after all, equality before the law and equal rights particularly in terms of women's position in the public sphere of paid
employment, market transactions, and education - have long been cherished
goals of liberal feminism. But the limitations of formal equality as a feminist
goal are now widely recognised: it has little bite in view of the disadvantages
which women suffer in 'private' areas such as family life, untouched by the sex
discrimination legislation. No concept of discrimination which is based
exclusively on formal equality can take proper account of aspects of women's
different position resulting from prior discrimination and disadvantage in
spheres which fall outside the relatively limited ambit of the legislation. 9
Similar limitations surround a second candidate: equality of treatment
exclusively on the basis of'relevant' reasons.10 Given the history and structure
of sex discrimination, merely ruling out sex as a relevant reason for action in
certain areas promises little progress in terms of dismantling women's
disadvantage. It may even be counter-productive in ruling out sex as a
remedially relevant reason in the context, for example, of affirmative action
programmes.
It is clear from the content of the Sex Discrimination Act 1975 that neither
formal nor relevant reasons for equality formed its exclusive underlying ideal.
The concept of indirect discrimination takes on board the idea that women's
disadvantage is not solely or even principally the result of individual acts of
prejudiced discrimination but of structural discrimination embedded in the

HeinOnline -- 14 J.L. & Soc'y 413 1987

practices of social institutions. Practical problems still arise, in that the

operation of the test of what prima facie indirect discrimination isjustifiable is
inherently vulnerable to the prejudices of the tribunal and the (often low)
importance it gives to sexual equality as a social goal. But it is clear that
indirect discrimination moves beyond formal or 'relevant reasons' equality. It
aspires towards a more programmatic vision of equality of opportunity - an
ideal which is stated in the preamble to the 1975 Act and reflected in the name
of the administrative agency which it set up. In effect, the Act uses inequalities
of results in certain circumstances as raising prima facie cases of unjust
inequality of opportunity, which then have to be justified by the defendant.
But what exactly does equality of opportunity mean, how thoroughly is it
embedded as the organising principle of the legislation, and does it offer an
acceptable goal for feminism?
2. Equality of Opportunity
Equality of opportunity represents only one among many of the more
programmatic conceptions of equality described and defended in modern
political theory. Equality of welfare, results, resources, and consideration of
interests, to name but a few, have been energetically and ably defended. Any of
these conceptions might be easier to extend beyond'a liberal world-view or
more susceptible of being given a distinctively feminist content than is equality
of opportunity. II But it is important to analyse the idea of equality of
opportunity and to reflect on its status as the chosen stated ideal for current
anti-discrimination legislation. And what emerges from such reflection is the
clear fact that the idea provided a crucially important campaigning slogan for
the legislation, but that, by the same token, it was not discussed or analysed in
any open or rigorous way. Had it been, it seems likely that both its ambiguity
and its potentially radical implications would have come to the surface and it
would have lost its capacity to unite diverse political groups. How many
liberal supporters of the current legislation, for example, would have been
content to reflect on the implications of a thorough-going commitment to
equality of opportunity in terms of socialisation of child-rearing or even
genetic engineering? Thus, we should not expect to find that the legislation
conforms to a coherent or unitary ideal of equality. We should rather
recognise equality of opportunity as a crucial piece of political rhetoric which
also provides guiding and limiting principles. These combine in the legislation
with an underlying commitment to formal and 'relevant reasons' equality
within the public spheres of community activity which form the appropriate
focus for political intervention according to liberal theory.
But does equality of opportunity represent an attractive organising ideal for
feminists concerned to argue for the reform of anti-discrimination legislation?
As we have seen, indirect discrimination uses inequality of impact in certain
very limited circumstances as a test of prima facie inequality of opportunity.
This, of course, implies that in other spheres inequality of impact is not an
instance of unjust inequality. This is consistent with an equal-opportunity

HeinOnline -- 14 J.L. & Soc'y 414 1987

world-view, because the discourse of equality of opportunity presupposes a

world inhabited by autonomous individuals making choices. These choices
may differ along gender lines, resulting in a very different distribution of jobs
or other goods as between women and men. At this point the critical edge of
the ideal of equal opportunity is, quite simply, blunt. An equal opportunity
principle is inadequate to criticise and transform a world in which the
distribution of goods is structured along gender lines. And this relates back to
practical problems faced by litigants. Differential treatment and unequal
impact, even within the ambit of prima facie discrimination, may be
legitimated subconsciously by industrial tribunal members who believe
women and men just do typically make different choices. Different finishing
points are not seen as problematic. In this way the very stereotypes which the
legislation is presumably meant to undermine inevitably and invisibly affect
the tribunal's reading of legal issues, such as what counts as less favourable or
detrimental treatment, or justifiable requirements or conditions.
These difficulties with the ideology underlying the legislation are
compounded by its limited scope. Prohibition of differential treatment and
unequal impact in a small selection of spheres, all of them within the 'public
realm', is unlikely to have any real effect on women's oppression. Attempts to
extend the formal market conditions for equal competition between the sexes
within an ideology of equal opportunity hardly seems an adequate goal for
any really critical feminism. Rather, we must look for a normative basis which
provides a real cutting edge against the widespread inequality and injustice
which flows from action based on stereotyped assumptions and from the
genuinely different socialisation and expectations which still exist between the
sexes. For however deplorable we find the fact that gender is still an important
factor in the creation and structure of social practices, we cannot ignore it if we
are to secure real progress for women.
3. The Symmetry of Equality Principles
The logic of the ideal of equal treatment and formal equality which underlies
much of the legislation creates another difficulty. Part of this logic is a
symmetry - a conception of sex discrimination which encompasses treatment
of both men and women - which clearly does not match the nature of the social
problem to which, from a feminist perspective, sex discrimination legislation
should be addressed. This is the problem of discrimination against and
disadvantage of women. An interesting disanalogy is presented by the
provisions about sex discrimination on grounds of marital status under s.3 of
the 1975 Act. These cover only discrimination against married people. Clearly,
the social problem which was seen to exist was one of discrimination by
employers against married women. Significantly, the government is now
under European pressure to change this provision to make it symmetrical and
bring it into line with the principle of equal treatment. If we look at the 1975
Act as a response to a specific set of social problems, we can see that by
conceptualising the problem as sex discriminationrather than discrimination

HeinOnline -- 14 J.L. & Soc'y 415 1987

against women, the legislation renders invisible the real social problem and
deflects away a social ideal or goal which would identify and address it. And
this may have been because the only sources of women's disadvantaged social
position that were (and quite probably still are) recognised as a 'social
problem' worthy of legal response are those which come within the concept of
sex discrimination.
What is more, the result of the compelling logic of the symmetrical principle
proscribing direct discrimination is to outlaw any form of reverse discrimination or affirmative action. Even the very moderate practice of
choosing the women from a number of equally suitable applicants would be
ruled out on a strict approach. Thus, the possibility of determinate, concrete
practices designed to secure tangible advances for at least some women are
ruled out in favour of an unhappy combination of commitments to rigid equal
treatment in a limited sphere and the fluid and intangible goal of equal
opportunity. And this ideological framework also renders problematic the
accommodation of even the limited provisions which we may currently want
to make in recognition of gender difference. For even though issues such -as
protective legislation of various kinds are recognised as very difficult by
feminists and anti-feminists alike, debates about issues such as whether premenstrual tension should act as a mitigating principle in criminal law are
rendered much more dangerous to women's interests within the context of
subscription to an ideal of formal equality because any accommodation of
difference can be represented as 'special pleading'. Such accommodations
tend to be seen as acknowledgments of women's special needs and weaknesses,
represented principally as questions of sex as a biological category rather than
as questions of the socially constructed, mutable category of gender. Such
dangers are well illustrated by the fact that 'special features' such as childto deny women even their formal
bearing capacity have on occasion been used
2
rights under the Sex Discrimination Act.'
4. The Comparative Aspect
Further problems from a feminist perspective arise from the fact that the
concept of discrimination imports the notion of comparison - of less
favourable treatment as opposed to purely unfavourable treatment. Perhaps
the most spectacular example of such problems is the history of cases about
discrimination on grounds of pregnancy under the British legislation. In the
early case of Turley v. Alders Department Stores Ltd.' 3 the Employment the
Appeal Tribunal decided that the logic of comparison ruled out pregnancy
discrimination - the reasoning would also pose problems for other 'sex-plus'
cases - as direct discrimination under the Sex Discrimination Act. Since men
cannot become pregnant, dismissal could not be said to constitute less
favourable treatment than would have been accorded to a similarly situated
man. It is tempting to dismiss this as the kind of argument that has prompted
gome feminists to say that if this is 'male' logic then men are welcome to it. But
the fact is that the commonsense reasoning behind the later reversal by the

HeinOnline -- 14 J.L. & Soc'y 416 1987

Employment Appeal Tribunal in Hayes v. Malleable Working Men's Club and

Institute1 4 is also threatening to genuine sex equality. In that case it was held
that pregnancy discrimination could constitute sex discrimination where the
treatment accorded a pregnant woman was less favourable than that accorded
a man who, for example, was in a 'similar' position because of ill health. This
reasoning reinforces the sexist idea of women as the victims of their hormones
and presents an inaccurate and damaging image of pregnant women as
genuinely comparable with sick or other abnormally-situated men. Cases like
these can sometimes be resolved by being dealt with as cases of indirect
discrimination. Then the problem would shift to the issue ofjustifiability - but
this option only exists where the sex-related feature acts as an absolute
requirement or condition. The comparative approach also has difficulty in
accommodating the notion of sexual harassment - genuinely sexist and
disadvantaging behaviour, much of which lacks any truly analogous
counterpart in terms of behaviour towards men.
But a deeper problem with the comparative approach underlies these
obvious examples. This is that it presupposes (yet suppresses) the idea of a
norm with which the scrutinised behaviour is compared. 1 S In the case of claims
brought by women, that norm is the treatment usually accorded to men: thus,
in so far as the sex discrimination legislation prescribes equality, it is equality in
terms of a norm set by and for men - the logic of discrimination allows no
challenge to the generalpractices in any area. By definition, sex discrimination
cases do not provide a jumping-off point for criticism of general social
practices or real debate about what kind of equality is worth having, and with
whom. At best, the legislation promises some dismantling of practices
restrictive of access to goods and resources which present (that is, maledominated) culture has determined as valuable. It may go some way towards
reducing the overt significance of sex in the allocation of certain goods, but it
has no cutting edge against the significance of gender in setting them up as
goods in the first place.
5. Emphasis on Individual Cases and Suitability of the Legal Forum
Despite the idea of agency enforcement which was introduced in the 1975 Act,
the emphasis remains on individual cases as a means of enforcing antidiscrimination law in this country. Quite apart from the problems of proof
already discussed, this poses some particularly acute problems from a feminist
viewpoint. In the first place, it entails a diversion of attention away from the
idea of sexism as a structure or institution - an idea which is crucial to a
feminist vision. Indirect discrimination goes some way towards this
recognition but it, too, is fitted into the individual framework unmitigated
even by the possibility of class actions. Secondly, it seems likely that the
general psychological and material barriers to litigation which exist for all
those not familiar with the workings of the legal system are, for a number of
reasons, particularly strong for women. More subtly, it is also inherent in the
approach based on individual cases that the claimant has to prove something

HeinOnline -- 14 J.L. & Soc'y 417 1987

special or abnormal,whereas much institutional discrimination is or is seen as

normal, usual behaviour, This may well inhibit tribunals from making
findings of discrimination, particularly where they feel there was nothing
'wrong' with the behaviour and hesitate to stigmatise it by finding for the
plaintiff.
In view of these and several other more specific features, doubts must arise
as to whether the legal forum really represents a useful place in which to
attempt to advance arguments for women's liberation, or to seek concrete
improvements in the treatment of women in our society. The more specific
features relevant to these doubts would include the male domination of the
legal forum in terms of its personnel; the male domination of the legal system
in terms of the composition of the legislature and powerful interest groups;
and the .construction of disputes in individual terms and their resolution
through a closed system of reasoning. It is hardly surprising that many
feminists see the 'equality' legislation as a sop intended to promote false
consciousness; it makes women feel things are getting better or enables men to
resist women's further claims, whilst actually making no real contribution to
the dismantling of sexism in our society. Can such legislation offer more than
merely access to male-defined goods for a few relatively privileged women?
Such doubts, of course, raise general questions about the efficacy of using law
to promote social change against a backcloth of lack of social consensus: is
such legislation inevitably ineffective or fraught with hidden agendas? Does
persuasive social theory simply rule it out, like genuinely non-racist or anticapitalist legislation in a racist or capitalist society? 16 Given these general
problems and the specific concerns I have identified with respect to the existing
legislation, doubts can be cast on whether any committed feminist should
spend a significant amount of her political energies campaigning for reforms
of anti-discrimination legislation.

A FUTURE FOR ANTI-DISCRIMINATION LEGISLATION?

What lessons, if any, can be learnt from the problems which have been
identified by looking at the Sex Discrimination Act 1975 from a feminist
perspective? First and foremost, the approach suggests that we should
acknowledge the limitations of legislation designed to give individual
remedies. 17 From a feminist point of view, primacy should rather be given to
action at the policy level such as contract compliance; changes in the practice
of education; adequate provision of child care facilities and parental leave;
dismantling- sexism in rules of property between cohabitees - particularly in
terms of proper acknowledgment of women's contributions; revaluation of
'women's' work; refraining of salient aspects of the criminal law- for example,
the law of rape; and regulation of enforcement practices in areas such as
domestic violence. In other words, the issues basic to the women's movement
must take their place at the centre of reform strategy concerning law and its
enforcement. We must continue to struggle for a proper emphasis on changes

HeinOnline -- 14 J.L. & Soc'y 418 1987

to material conditions which both reflect and consolidate sexism and women's
disadvantage by mechanisms we are slowly beginning to understand. And we
must campaign for policies which reach a much broader range of women particularly those such as black women, working-class women, and single
mothers - who suffer specific disadvantages and discriminations.
This kind of conclusion re-orders, rather than denies, the value of antidiscrimination legislation. From this point of view, there might still be
something to be said for political affirmation of the ideal of gender equality
even at a relatively formal level. But, in terms of feminist political principle as a
whole, if we are to exploit the ideal of equality our focus must be equality not
in terms of opportunity within the liberal model but in terms of welfare,
power, resources and goods - including the power to determine what goods
are valued. Only by reconstructing the notion of equality can we gradually
escape the problem of equality as comparative with a male-defined norm. This
project of recapturing normative concepts and reworking them from a
feminist perspective has always been one of the most important projects facing
feminism. And,, given the success of the women's movement in investing
concepts such as 'oppression' and 'liberation' with specifically feminist
meanings, it would seem unduly pessimistic to abandon the concept of
equality, which might offer a powerful, positive feminist ideal. Meanwhile, in
liberal societies, there are important strategic advantages to recognising
gender equality in general terms as a basic political value.
But is a mere reassessment of the relative importance to be attached to antidiscrimination legislation sufficient? Is the real danger attaching to such
legislation simply that it diverts a disproportionate amount of political energy,
given its inherent limitations as this response suggests, or does its power to
disguise the continuing oppression of women call for some more radical
approach? Even those most pessimistic about the status of the current
legislation as a reformist sop would, I think, be hard put to argue that it should
be dismantled, given the negative symbolic and material effects of doing so.
But it does seem worth considering whether we should struggle to reform it in
such a way that it at least comes closer to acknowledging the asymmetry of the
social phenomenon of sexism. A very modest approach to doing so would be
to add exceptions facilitating and indeed requiring affirmative action
programmes for women, particularly where, for example, their number in the
relevant area is small compared with that in the population or other qualified
pool. More radically, we could argue for the abandonment offormal equality
legislation and the adoption of a specific Act of Parliament prohibiting
discrimination against women, thus directly reflecting the social problem
which we are addressing. This would be aimed at attaining equality in terms of
some more substantive measure, such as resources, in the longer term. This
would not, of course, be to imply that discrimination against men on grounds
of sex is morally unproblematic, although it certainly does imply that nondiscrimination on grounds of sex conceived in formal eqluality terms is not a
moral absolute. But the main thrust of such a strategy would be to
acknowledge that sex discrimination against men is not a social phenomenon

HeinOnline -- 14 J.L. & Soc'y 419 1987

of the same order, does not involve comparably damaging and oppressive
effects as does sex discrimination against women, and that this clear social
difference justifies and, indeed, calls for a totally different legal response. The
second option is, of course, ruled out in a real world in which Britain belongs
to the European Community. Implementation of at least the first option is, I
would argue, absolutely necessary if the legislation is to secure any real gains
for women.
Furthermore, if we are to minimise both the dangers attaching to the
legislation and its limitations, I would argue that we must abandon equality of
opportunity as an important underlying principle. The images it conjures up
in political and legal discourse are closely associated with a minimal and
atomistic libertarian vision which fails to address the factors implicated in
women's oppression. The opportunity ideal's presupposition of a world of
autonomous individuals starting a race or making free choices has no cutting
edge against the argument that men and women are simply running different
races. And it poses the real danger of actually serving to legitimate existing
differences: inequality of impact or results can just be defined as to do with
different 'free' choice - or natural sex difference! Such an approach either
forecloses the possibility of changing the social meaning of gender or else is
simply unrealisable in a society structured by gender. In the present social
context, in so far as we espouse the concept of equality as a valued goal, we
would be better advised to aim for a determinate measure of equality of results
(as through affirmative action programmes) than to run the risks presented by
the manipulable notion of equality of opportunity.
The point of view which I have defended does not address or overcome the
problem of society's valuation of goods being male-defined. This problem
cannot be resolved until some major feminist victories have been won so that
women are at least nearer to having an equal voice and equal power in the
process of determining social and political value. The project which I have
been engaged in has the limited but important goal of pointing out some
problems with existing legislation by employing a feminist perspective and
using those problems to argue that anti-discrimination law should be seen as
simply one symbolic and moderately functional thread in a web of measures
aimed at securing more power for women. This power is a matter of
fundamental justice and a means of empowering women ourselves to
contribute to the sorts of changes whichwe as feminists would want to see. I
have suggested that we should not abandon the legal arena: in the world as it
currently is, citizens sometimes find themselves in courts and other legal
forums irrespective of choice, and sometimes legal remedies or defences are
their only available weapon. We should neither abandon anti-discrimination
legislation just because of its inherent limitations nor regard it as the only
appropriate legal response to women's oppression. Problems such as sexual
harassment, property entitlements, and so on, need to be dealt with
independently and explicitly. My arguments aim to ensure at least that antidiscrimination legislation fulfils a symbolic role and does not generate
damaging side-effects in terms of rendering invisible the problems and

HeinOnline -- 14 J.L. & Soc'y 420 1987

injustices which are the central concern of feminist theory and practice. The
reform of anti-discrimination law can form part of a genuinely feminist

political strategy, but it cannot be more than a minor part.

NOTES AND REFERENCES

5
6

a
9

10
"

22
13
14

is

16

17

Many of the problems which I refer to in this article are also of relevance to the operation of
and principles underlying the Race Relations Act 1976. 1 shall address only the law relating
to sex discrimination, since this raises some particular questions for feminists. The further
project of considering how sexism and racism relate to each other along with the question of
appropriate legal responses is clearly one of central importance to progressive social theory.
See, for example, S. Atkins and B. Hoggett, Women and Law (1984) pp. 1-62; L. Lustgarten,
Legal Control of Racial Discrimination (1980); D. Pannick, Sex Discrimination Law (1985).
For a discussion of some of the technical problems involved in bringing a case of direct sex
discrimination, see Pannick, op. cit., n. 2, pp. 25-39.
Id., pp. 41-56.
Id., pp. 88-90. See also Equal Opportunities Commission, Legislatingfor Change? pp. 25-35.
Id., pp. 272-84; see in particular Commission for Racial Equality v. Amari Plastic Ltd. [ 19821
I.C.R. 304; R. v. Commission for Racial Equality exparte Hillingdon L.B.C. [1982] Q.B. 276.
See A. Leonard, Pyrrhic Victories: Successful Sex Discrimination and Equal Pay Cases in the
Industrial Tribunals 1980-1984 (H.M.S.O. 1987).
Id.
See, for example, Atkins and Hoggett, op. cit., n. 2, pp. 47-62; K. O'Donovan, Sexual
Divisions in Law (1985) pp. 1-20, 160-80; F. Olsen, "The Family and the Market: A Study of
Ideology and Legal Reform" (1983) 96 Harvard Law Rev. p. 1497; F. Olsen, "Statutory
Rape: A Feminist Critique of Rights Analysis" (1984) 63 Texas Law Rev. p. 387.
B. Williams, "The Idea of Equality" in P. Laslett and W. G. Runciman (eds.), Philosophy,
Politics and Society (1962) p. 110.
See, for example, R. Dworkin, "What is Equality? Part 1: Equality of Welfare; Part 2:
Equality of Resources" (198 1) 10 Philosophy and Public Affairs p. 185, p. 283; P. Singer,
Practical Ethics (1979) pp. 14-47.
See, for example, Page v. Freight Hire (Tank Haulage) Ltd. [1981]I.C.R. 299, at p. 303.
[1980] I.R.L.R. 4.
(1985] I.R.L.R. 367.
For critical discussion of this aspect of arguments for equality from a feminist perspective
see J. Conaghan and L. Chudleigh, "Women in Confinement: Can Labour Law Deliver the
Goods?" (1987) 14 J. Law and Society p. 133 at pp. 139-140; K. O'Donovan, op. cit., n. 9, pp.
160-80.
Cf. Peter Fitzpatrick's discussion-of law and racism: "Racism and the Innocence of Law"
(1987) 14J. Law and Society p. 119.
See L. Lustgarten, "Racial Inequality and the Limits of Law" (1986) 49 Modern Law Rev.
p. 68.

HeinOnline -- 14 J.L. & Soc'y 421 1987