| Laura M. Padilla
excerpted from: Laura M. Padilla, Intersectionality
And Positionality: Situating Women of Color in The Affirmative Action
Dialogue, 66 Fordham Law Review 843, 853-885 (December, 1997)(432
footnotes omitted)
A common myth is that women of color receive a "double
affirmative action benefit" because of their "double
outsider" status. A widespread perception is that women of color
receive enhanced consideration because of the underrepresentation of
both women and people of color in higher education, government
contracts, and positions of power generally. For example, "[p]
opular belief is that affirmative action is alive and well and that
multicultural women attorneys have a double advantage: race and
gender." The reality is that while affirmative action has benefited
women of color, sometimes helping them with college admissions and other
times allowing them to enter and advance in professions previously
closed to them, the barriers for women of color remain strong even with
affirmative action. "The combination of being an attorney of color
and a woman is a double negative in the legal marketplace, regardless of
the type of practice or geographic region involved."
In spite of remaining barriers, there is a fight to terminate
affirmative action because of the misconception that it is not working.
Some critics argue that affirmative action does not help minorities or
women (they are usually silent on women of color), and thus should be
terminated. The statistics say otherwise. "As a general matter,
increases in the numbers of employees, or students or entrepreneurs from
historically underrepresented groups are a measure of increased
opportunity." This increased opportunity is not coincidental--over
6 million women have obtained employment opportunities because of
affirmative action. Affirmative action's effectiveness becomes clearer
when comparing women's membership in various professions before and
after its implementation. In the medical profession, women made up 7.6%
of all physicians in the United States in 1970, but had increased to
16.9% in 1990. In the legal profession, women made up approximately 3%
of all lawyers in the late 1960s, but had increased to 23% in 1994.
Furthermore, over the course of a single decade, the number of female
attorneys of color went from approximately 7,300 to 23,000. These
increases are encouraging, and they demonstrate that affirmative action
has been effective for women of color and should continue in effect.
These successes, however, must be tempered with sobering statistics
which show that women generally, and women of color especially, have a
long way to go. The double-dip myth becomes ever more mythical when
considering current statistics. An analysis of women in major New York
law firms indicates that while the number of women partners increased
steadily throughout the 1980's, "there was a sharp drop-off in new
women partners after 1990." In 1995, while 13.43% of the partners
in this country's major law firms were women, only 2.79% were
minorities. There were no statistics on what percentage of those
minority partners were women, but I can safely state that it was fewer
than 2.79%. In fact, there are so few partners who are women of color,
they are statistically insignificant. In a hearing regarding the glass
ceiling, one woman testified that she "found no statistical data
concerning promotion of minority women to partnership. They are indeed
the invisible minority." One newspaper article explained:
"Minority women fare the worst. They have the lowest percentage of
entry level jobs in law firms, following white men, white women and
minority men." In fact, fewer than 3% of all lawyers and judges are
minority women. Note also the dearth of statistics on women of color.
They are hard to find because until recently, women of color's
existence, much less their particular issues and concerns, had not been
discretely considered, and certainly was not doubly celebrated.
Not only are there few attorneys who are women of color, but those
who have entered the profession face greater obstacles than either men
of color or white women. An ABA committee summarized the reasons as
follows: "(1) stereotypes that limit job opportunities, (2) failure
to be recognized as competent, (3) failure to advance as rapidly as
others, (4) undue difficulties in attaining partnership status, (5) pay
inequities, (6) insufficient mentoring, and, (7) heightened scrutiny of
hours, work product and performance." The ABA also established a
joint project, called the Multicultural Women Attorneys Network ("MWAN"),
to study issues of concern to female attorneys of color. It conducted
hearings across the country and made the following findings:
The combination of being an attorney of color and a woman is a double
negative in the legal marketplace, regardless of the type of practice or
geographic region involved; Multicultural women attorneys perceive they
are "ghettoized" into certain practice areas and other options
are closed or implicitly unavailable; Multicultural women attorneys must
repeatedly establish their competence to professors, peers and judges;
As evidenced by continuing attitudes and negative stereotypes,
multicultural women attorneys are invisible to the profession and have
more difficulty achieving prominence and rewards within the legal field;
To succeed, multicultural women attorneys must choose between race and
gender; and, Minority women lawyers face barriers of gender
discrimination in minority bar associations and race discrimination in
majority bar associations.
Affirmative action has done a credible job of getting women of color
into some power or prestige professions, such as law. It would seem to
follow logically that as women entered these fields, they would change
their structure and dynamics, making them more hospitable for women
generally and women of color specifically. This is not happening,
however. While a significant number of women have entered the legal
profession over the last twenty years, they have not made as much
progress in promotion. Nor are they represented in positions of power in
the legal profession. The situation for women of color is obviously
worse. Not only do they have to contend with gender bias, they deal with
racial bias from majority men and women. Thus, instead of seeing a
double advantage, one frequently sees a double negative. "Often,
white women attorneys are uncomfortable or unconcerned about addressing
race or ethnicity issues. Generally, multicultural women feel ostracized
by white women and believe they carry the responsibility of rectifying
their own outsider status." Thus, discrimination as well as other
barriers continue to haunt the small percentage of women of color who
actually enter the legal profession. Until these barriers are
eliminated, affirmative measures are still necessary to enable women of
color a chance to succeed in the law.
The situation is not much different for female law students of color.
They also suffer from relative invisibility, especially compared to
white students who are considered the "norm." In describing
the atmosphere at Yale Law School, former students noted that:
Entirely absent were images of women and men of color. These
surroundings kept us distrustful, reminding us that the institution that
admitted us had traditionally denied entrance to women and people of
color. The pictures, the furniture, the male professors--all indicated
that the place had always belonged to white men.
One report described the grim experiences of women law students of
color "primarily in terms of their battle against the credibility
problem, which encompasses both the phenomenon of invisibility and the
presumption of incompetence." The process of fading women of color
into invisibility occurs on many levels. For example, while they may
consider themselves as healthy, whole persons comprised of multiple
identities, female students of color are often asked to excise portions
of their identity by being forced to choose between outsider status on
the basis of either gender or race. Thus, their wholeness vanishes.
Their classmates, law professors, and law school administrators also
contribute to this fading and fracturing process. Classmates may exclude
them from study groups, clubs, moot court, and advocacy, negotiation, or
other competitions, as well as social activities. Law professors are
notorious for disproportionately calling upon white males. This is even
worse for the female of color who gets the nerve to raise her hand, only
to be ignored repeatedly. Even if she is called on, her comments are
often overlooked or attributed to someone else. Administrators also
contribute to the invisibility of women of color, even if
unintentionally. For example, they do not include as many of these
students as school spokespersons, as tutors, as advisors, or in other
representative capacities. Once again, intersectionality that could be
celebrated is instead used against women of color.
The dual burden on women law students of color both perpetuates some
patterns that commenced earlier, such as the breeding of self-doubt, and
results in new and different forms of silencing. These are the
experiences of women law students of color with affirmative action. This
speaks of the need to strengthen affirmative action for women of color
and to institutionalize multiculturalism so that the entry benefits of
affirmative action are not lost in outdated but deeply ingrained
institutional racism. Without affirmative action, future generations of
attorneys will lack the richness and diversity that women of color bring
to the practice, academy, and judiciary, and women of color, the legal
system at large, and society as impacted by law will suffer.
Women of color are also noticeably absent in leadership roles in
higher education. A study on the status of California's higher education
pointed out that of its thirty-seven top executives, 70% are white, 14%
are African- American, 8% are Latino, and 3% are Asian. While 22% of the
executives were women, each chief executive officer was a white male,
prompting an analyst to point out that "this group is less diverse
than it was a decade ago." The University of California's team of
top executives, the most prestigious of California's higher education
leadership, was the least diverse, with "no Asians, Latinos, or
women [who] serve at the vice president level or above."
In other professions, the doors have barely opened for women, much
less women of color. For example, only 3% of firefighters, 8% of police
officers, and just over 2% of construction and trades workers are women.
The doors to these professions have opened only a crack with affirmative
action. Imagine how tightly shut they will be if affirmative action
becomes illegal.
It is clear from the information in this section that women of color
are not doubly benefiting from affirmative action. While affirmative
action has resulted in increased opportunities for women of color, they
are still underrepresented in higher education, government contracting,
and positions of power across the board. On the same day that I am
writing this, I read that women currently hold only "500 of the
7,213 directors' seats of the Fortune 500, or 6.9%, and minorities hold
244 directors' seats, or 3.4%." While this is concededly better
than the 0% figure which I would have read about not so long ago, it
remains a challenge to get into those positions, and once there, the
work has just begun. Many women of color are struggling even with the
benefits that affirmative action offers. If affirmative action
disappears, opportunities for women of color will decline. Furthermore,
women of color who have advanced partly because of affirmative action
will need to tread cautiously because protective measures designed to
prevent discriminatory behavior may well disappear.
In sum, the information in this section not only exposes the double-
benefits myth for what it is--a myth--but more importantly, it magnifies
the need for affirmative action for women of color. Affirmative action
has improved lives for many women of color, but it is just beginning to
do so. It is pivotal at this stage to continue affirmative action
programs in order both to allow the women who have entered schools and
professions the chance to progress in environments that are not hostile
and discriminatory, and to make equal entry opportunities available to
more women of color. |
