Sex, Culture, and Justice: The Limits of Choice (20 page)

1. Barry,
   Culture and Equality
   , 138.
   

   such pressures is impossible within the limits of what may be done by liberal institutions, those institutions should ensure that one group is not hugely and enduringly dependent on others, and that the burdens faced by one group do not contrast markedly with the benefits enjoyed by others who do not face the same pressures to connive in their own disadvantage. If all of this means interfering with the discriminatory practices of cultural groups, so be it.
   

   One response to my argument thus far, and the response that Barry favors,
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   concerns the practical implications of intervening in cultural norms of inequality. Because these are essentially private concerns, so this response goes, it would be an intolerable invasion of privacy to intervene in them. We are invited to imagine the ‘‘nightmarish’’ sce- nario of police raids on rabbinical divorce courts, internal informants, and heavy-handed totalitarian state enforcement. Moreover, such a re- spondent might continue, because the discriminatory religious divorce laws are not supported by state law, it is not necessary for the state to concern itself with those laws’ conclusions. If women are unhappy with their treatment under religious divorce law, they can choose not to remain within the religious group which sanctions those laws. In wider society, such women can gain a legal divorce on equal footing with their husbands. If they prefer to stay within their cultural group rather than to utilize the secular divorce laws of the wider society, then that is their free choice. The liberal state should not interfere, even if the practical problems of such interference could be overcome.
   

   Such a response is convincing only if one accepts a rigid separation of public and private spheres, with state intervention limited to the former. Such a distinction has long been criticized by feminists and rejected by many egalitarian liberals.
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   It is often precisely those op- pressions which occur in the private sphere that are the most damaging to the freedom and autonomy of the individuals who suffer them. If
   

2. Barry made this response at a roundtable discussion of
   Culture and Equality,
   held at Birkbeck College, University of London, on 17 November 2000. He makes a similar point in
   Justice as Impartiality:
   ‘‘It would not be easy to devise a practical policy that would discrimi- nate against the pursuit of conceptions of the good that had not been autonomously arrived at . . . [E]ven if one could conceive of such a policy being carried out accurately by an ideally conscientious dictator, it would be impossible to frame an institution for implementing a policy that would not be open to abuse, since it would entail handing wide discretion to some body to act on ill-defined criteria’’ (
   Justice as Impartiality
   , 132).
   

3. See, for example, Okin,
   Justice, Gender and the Family,
   and Elizabeth Frazer and Nicola Lacey, ‘‘Politics and the Public in Rawls’ Political Liberalism.’’
   

   private sphere oppressions cannot be rectified by state action, then those oppressions will be peculiarly pervasive, and those who suffer from them will have little recourse. It will often be much harder for an individual to argue, on her own terms and against her own parents or community leaders, against a private sphere practice than it will be for her to enjoy the benefits that a law concerning that sphere confers on her by default. A woman who enjoys the protection of the law against an oppressive cultural practice is not thereby implicated in cultural treachery in the way that she might be if she had no option but to argue on a personal level against cultural norms. Katha Pollitt recounts a story about a woman who changed her view of the French dispute on Muslim girls’ wearing of headscarves in schools, in favor of a ban. As Pollitt tells it, ‘‘She came across a television debate in which a Muslim girl said she wanted the ban to stay because without it, her family would force her to wear a scarf.’’
   24
   If women want to take advantage of the equal freedoms that liberalism offers them, it will be much easier for them to do so if those freedoms are ‘‘imposed’’ on them by the state than it would be for individual women to reject the norms pressed on them by those to whom they are close and on whom they may be dependent.
   

   The Equality Tribunal
   

   The practical implications of intervention with cultural discriminatory norms would not be different in character from current state interven- tion in employment practices. Barry is very strict about discrimination in employment. He argues that the merits of each individual applicant for a job must be considered: employers may not exclude categories of applicants who are merely statistically unlikely to have a relevant qualification.
   25
   Women cannot be excluded from a particular job, then, even if most of them lack the ability, perhaps the physical strength, to do it. As long as some women could possibly perform any one job, employers must consider all women applying for it. Moreover, Barry places strict restrictions on what may legitimately constitute an individ- ual’s merit. As he puts it:
   

4. Katha Pollitt, ‘‘Whose Culture?’’ 29–30.
   

5. Barry,
   Culture and Equality
   , 55.
   

   Employers cannot cite pure prejudice on the part of fellow workers or customers in justification of a refusal to employ members of certain ascriptive groups. Even if it is true that many customers in some area prefer to be served by white shop assistants, and that some will choose a shop catering to their prejudices over one that does not, permitting firms to base employment criteria on these facts would clearly subvert any notion of equal opportunity. For it would mean that people could be denied a job simply on the basis of ascriptive charac- teristics. Hence, the notion of a relevant qualification must be construed in terms of relevant behavior, as distinct from iden- tity as such.
   26
   

   Presumably these criteria also apply to practices within an organiza- tion once people have been employed. It would not be acceptable for a manager at an investment bank, for example, to promote only men, on the grounds that he and other senior staff trusted only men, or that he liked his senior staff to bond in a bar after work and felt that women would not fit in to that environment. In such cases, the employer could be taken to an industrial tribunal and found guilty of sexual discrimina- tion in employment practices. There would be no police raids on his evenings in the bar, or police observers at his promotion interviews. Instead, women from inside the organization who had been discrimi- nated against would take their case to the tribunal and give evidence. They would argue that their job performance was as good as or better than that of their male colleagues, and that, in consequence, they would have been promoted had they been male. Similarly, under the proposed regime of interference in discriminatory cultural norms, women would be able to take their complaints to court and demon-
   

6. Ibid., 55–56. It is worth noting that this excerpt directly contradicts the response to my argument that Barry makes in ‘‘Second Thoughts,’’ where he states that ‘‘all anti-discrimina- tion employment law has built into it the proviso that otherwise illegal stipulations of qualifi- cations for jobs become acceptable if the organization can show that the special qualifications it imposes are necessary to the conduct of the enterprise, whatever it is’’ (225). This cannot be the case, for it seems that being white
   is
   a necessary ‘‘qualification’’ for employees for the enterprise of a shop in a white supremacist area, since, in Barry’s example, being white is necessary to securing sales, which is the main purpose of the shop. We need to have a more substantive set of criteria for determining which qualifications are legitimate. One suggestion (made by Iris Marion Young in
   Justice and the Politics of Difference
   ) is that qualifications are illegitimate if they result from or perpetuate
   oppression;
   this criterion would rule out racism in the shop example but would surely also rule out sexism in religious employment.
   

   strate that, had they been male, the religious court would have granted them a divorce, for example. An employment tribunal would compel a discriminatory employer to change his promotion procedures and pro- vide compensation, even if it were true that, for reasons to do with his ‘‘culture,’’ the employer really did work better with single men who bonded well in the bar. So too, a religious divorce court could be com- pelled to change its procedures even if it were true that there were cultural reasons for treating women differently.
   27
   

   There are a number of options for such compulsion, as there are in cases of employment discrimination. British employment tribunals may currently employ three remedies in cases of sex discrimination: compensation, for lost earnings and/or for ‘‘damage to feelings’’; a sim- ple declaration of the rights of the relevant parties; or a recommenda- tion, calling on the employer to take action remedying the discrimina- tion or face further penalties.
   28
   A declaration of rights has little concrete effect on its own, and would not be enough to remedy religious sex discrimination. Compensation could be applied fairly simply to the case of religious sex discrimination: the relevant religious body could be compelled to compensate a woman who was unfairly denied a di- vorce, for example. As with employment cases, compensation awards would discourage the religious body from continuing to discriminate, and so would go some way toward changing the religious laws.
   

   A recommendation (enforced with penalties for noncompliance) that the religion change its rulings and grant an individual woman a religious divorce is the most complex option, and recommendations have rarely been used in employment tribunals. However, the main
   

7. Barry’s response to this part of my argument is to say that religions and companies have different functions: whereas religious ‘‘communities exist for the sake of their own members’’; ‘‘profit-making enterprises[’] . . . rationale is ultimately that they satisfy the wants of consumers and clients’’ (‘‘Second Thoughts,’’ 224). I find both sides of this distinction puzzling. On the side of religious communities, saying that they exist ‘‘for the sake of their members’’ would justify sex discrimination only if women are not counted as being among those members (which would be profoundly inegalitarian) or if it could be argued that being discriminated against actually works in favor of the women members (an argument that would require some serious elaboration that Barry does not provide). On the side of profit- making enterprises, as the name suggests, surely a fundamental part of their rationale is to make a profit for the owners and shareholders, with the satisfaction of consumers and clients being only a means to this goal? Insofar as this is true, we might describe profit-making enterprises also as existing ‘‘for the sake of their members.’’ But even if we reject this idea, the customers and clients of the shop in the white supremacist area are satisfied if its employ- ees are white, and yet Barry does not allow these preferences to count (see previous footnote).
   

8. Simon Deakin and Gillian S. Morris,
   Labour Law
   , 611–16.
   

legal problem with making a recommendation in the employment con- text is
not
that it would interfere with the practices or culture of the firm, or that it would be awkward for the individual concerned to be forcibly reinstated or promoted. Instead, recommendations have been overturned on appeal on the grounds that, in one case, automatically appointing the wronged individual to a particular job would violate the statutory regulations for making appointments to the job in question (a consultant microbiologist) and, in another, that automatic promotion would be ‘‘akin to positive or reverse discrimination in favor of a person on racial grounds.’’
29
Two leading textbooks in British law agree that the latter argument is ‘‘peculiar’’ or not ‘‘supportable’’;
30
in any case, neither consideration applies to religious sex discrimination. Gwyneth Pitt goes so far as to say that, if discrimination is to be remedied, ‘‘it is essential that such orders should be able to be made’’
31
—despite the fact that such rulings would have significant implications for the inter- nal culture of the employer. There would, of course, be difficulties with requiring religious courts to make particular rulings so that, in prac- tice, imposing a recommendation on the religious group might revert to imposing a financial penalty for noncompliance. But heavy financial penalties will strongly encourage religions and employers to change their internal culture in a way that provides for greater gender equality, and such change will be for the better.

The tribunal approach can be understood, in Albert Hirschmann’s terms, as a shift from exit to voice. Hirschmann considers both exit and voice as mechanisms to remedy a deteriorating organization or group, since both alert the leadership of the group to their own failings and provide an impetus for change. He argues that the role of voice must increase as the possibility for exit decreases, and notes that the exit option is ‘‘very nearly’’ unavailable ‘‘in such basic social organiza- tions as the family, the state, or the church.’’
32
Although loyalty, of the sort that people feel for their cultures or religions, tends to activate voice,
33
there is no guarantee that voice will be successful. Hirschmann argues that for voice to be effective, exit must be possible but not
too
easy. If exit is too easy, then members of the relevant group will simply

29. Ibid., 615.

1. Ibid.; Gwyneth Pitt,
   Employment Law
   , 63.
   

2. Pitt,
   Employment Law
   , 63.
   

3. Albert Hirschmann,
   Exit, Voice, and Loyalty
   , 33.
   

33. Ibid., 78.

leave rather than engage in voice; however, if exit is impossible, there is no reason for the leaders of the group to listen to the voice of its members.
34
The problem with cultural groups is that exit is inevitably extremely costly and difficult, and that the difficulty of exit could not really be lessened without undermining the very concept of a cultural or religious group to which people develop strong attachments. In- stead, we need a way of enhancing the group’s leaders’ responsiveness to voice. The equality tribunal is one such method.