1. Societal reflections on a working woman’s maternity needs
Submitted by,
Erum Khatoon
For,
Legal Theory in Context, LLM (Masters of Laws)
Child rearing has always been the mother’s job, but is the women’s employability reduced
due to it? Is the society inherently insensitive to women issues? Do books have a role in
promoting insensitivity? What about law and what about the legal textbooks?
Giving a description of the modern laws, I would prefer to take the social ideas on my
subject from comments on case books because cases are the reflection of the major
disputed events in a country and case books though preserving the events, holds the ideas
of the editors as what cases are more important than others. Case selection, editorial
comments and silences say a lot about the stance of a case book.
Introduction
Through centuries of social arrangements and attitude formations the human sexes are
transformed into two genders.1 The passage of time has assigned such rigid characteristics
to these two identities of the same organism that one can tell the sex of a fully clad and
covered human being from a far distance and this adds to the uniqueness of this specie.
Nature has kept the facial features and built of males and females distinct, but all human
societies have customarily kept the treatment of the two as separate and distinct and the
distinctions as visibly obvious as possible from the early years of their upbringing. By the
time the children of opposite sexes grow up in the same household, they have somewhat
different mind sets and outlooks towards life. But it is only when they are fully capable of
living independently and making a living for themselves through contributing in the
professional arenas, that the differences truly start echoing. Today, women are a part of
what once used to be the man’s world but women had lived through a history of being
locked-out of the professional world and their lives had been confined to the kitchen and
house-hold ever since before this century. According to the popular concept of the 19th
century, women only being capable of dealing with delicate or intricate things should be
assigned with tasks of their aptitude.2 Different societies had also used tools of oppression
to safeguard the submissive state of mind of women in the name of welfare of the society,
from the chastity belts of 12th century3, the allegations of the church on the impure state of
women4, even in the law making such as the Napoleonic Code being an example of
misogynistic law taking away their liberty5, rights of inheritance, property and child custody,
1 PATRICK S. BERNARD (2005) Mappingthe Woman's Body: Race, Sex, and Gender in Mariama Bâ’s Scarlet
Song, Women's Studies, 34:7, 575-609,DOI: 10.1080/00497870500359217
2 ibid
3 Albrecht Classen,‘Medieval Chastity Belt : A Myth-making Process’December 2006 PalgraveMacmillan
4 Eleanor Nesbitt, "Religion:Pure enough for Priesthood? LingeringBeliefs that Women areBiologically Impure
Prevent them from Becoming Leaders in Many Religions."The Guardian (pre-1997 Fulltext):NOPGCIT. 1992.
Web. http://search.proquest.com/docview/293329488?pq-origsite=summon
5 Bonnie C. Smith, ChangingLives: Women in European History Since1700, 1989 D.C. Heath and Co pp. 120 —
122.

2. right to bring court actions, commercial contracting, and even the right to control their own
assets. The double standards of law relating to prostitution6; last but not least, in the
classifications that the society assigned to them such as a housewife and a whore.7 These
classifications, unique roles and the laws governing rights of women from the old times
have unfortunately seeped into the 21st century as well and they have their impacts.
All these and other customs that focused on the derogatory treatment of women have given
birth to the concept of discrimination. It was not necessarily based on the sexual differences
but also on the gender differences that have nothing to do with physical capabilities of
women as humans. There have been (feminist) women and their like-minded men who have
tried to tackle the issues of women in the society. Currently, feminism is in its third wave8,
the first wave being in the 19th century9 and starting not through action but through a
realization of women's rights in the minds of feminists.10 The base of feminism, upon which
the whole empirical building of this movement was found, is the presence of elements of
unfairness (with regard to the treatment of women) in our laws. Now, unfairness in law
could be of two types. Prima facie, it would be legislation that openly refuses to recognize
the rights or the encroachment upon the rights of women or on the non-apparent side it
would be the silence of law (and appreciation of the society) where a right is being
infringed.
Women face numerous challenges in the workplace even today and whether these are due
to their incapability as human beings or a result of social gender stereotypes is something to
be decided yet.
In this essay, the author aims to discuss the thought provoking writings of different feminist
authors specifically in tort cases (e.g. sexual assaults) and sexual issues (pregnancy for
instance) to conclude,
If the industry standards of how women should be rewarded, are influenced by the
concepts prevailing in the society?
‘How much should these concepts be allowed to control the employability of women or, to
judge their possible future performance? And to what degree should/ could the law interfere
with the industry standards of women’s rights at work’ shall be the other questions that
would be dealt with in this essay.
The woman question
6 Self, Helen J. Prostitution,women and misuseof the law:The fallen daughters of Eve, Frank Cass,London
2003 viii 318
7 G. Hunt, J. Mellor and J. Turner, ‘Wretched, Hatless and Miserably Clad:Women and the Inebriate
Reformatories from 1900-1913’,The British Journal of Sociology,Vol.40, No. 2 (Jun., 1989),pp. 244-270
8 Jennifer Gilley,‘Writings of the third wave, Young feminists in conversation’2005 The Alert Collector.Vol.44
No.3 Spring2005
9 Padma Anagol (2010) FeministInheritances and Foremothers: the beginnings of feminism in modern India,
Women's History Review, 19:4, 523-546
10 Hel Gurney, XVI.From the beginning, Feminism& Psychology 2015,Vol. 25(1) 90–94

3. Woman question11 includes everything that is specific to women but which has remained
unanswered by the law for long periods in history.12 It discusses the impacts of common
rules (made by men for all) when these rules are imposed on women e.g. though the
company policies for sickness could be the same for both men and women, their impacts
would vary for women expecting children or taking care of them.
A difference in the perception of people has occurred through the efforts of feminists. As it
was a much bigger task for the feminists13 of 18th and 19th centuries to expect the grant of
the voting rights, contractual rights and ownership rights when the rest of the population
had accepted the inequality as ordinary nature of things in the systemof God. Todays
feminists are far lesser unique and no more different from the society in the demands they
make regarding the better conditions for women.
The woman question (and its answers) are subject to development and refinement over
time. A few of the examples given by Bartlett14 were, i) are women disadvantaged by the
restrictions they face during pregnancy? The reason she gives for agreeing to this question is
that only women could become pregnant and hence they would be disadvantaged. Ii) Why
would the employers single out pregnant women only? She thinks that the main reason
behind singling out pregnant women is due to the high costs that would incur because of
accommodating to the needs of expecting women. Iii) is this the only expensive disability or
are there other costly disabilities as well? She thinks that all disabilities are costly. Iv) Are
there other disabilities that are covered by policies but could be voluntary? She thinks yes
and gives the examples of cosmetic surgeries and sterilization. v) Are there any other
reasons why pregnant women are treated differently? To her the other main reason is that
the society expects the expecting woman to be at home and rest.
Popular opinions and the law on the relationship of pregnant women with their work
“The women’s physical structure and the performance of maternal functions place her at a
disadvantage in the struggle for subsistence is obvious”- The court upheld an Oregon
Statute restricting women from working more than 10 hours a day.15
Above is a judicial opinion of the beginning of the last century. While a study done in 2006
by ABA Commission found that three out of every four women in America were questioned
on the level of commitment they had for their career once they gave birth or when they had
signed up for adopting a child while only 9 percent of their colleague men were asked the
same thing.16 Although they present at least the same level of credentials, women struggle
more with developing clients and proving their commitment in terms of working hours, this
11 Sarah Grand and Ouida, "War on the Woman Question: It Will Bethe Leading One Before the Methodist
Episcopal Conference." The New York Times. 1896-05-01
12 KatharineT. Bartlett, ‘FeministLegal Methods’ Feb 1990 Harvard Law Review <
http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1119&context=faculty_scholarship>
13 Minow, ‘Rights of ones own’ 98 Harv. L. Rev. 1084 (1985)
14 Bartlett, ‘Pregnancy and the Constitution:The Uniqueness trap’ 62 Calif.L. Rev. 1532 (1974)
15 Muller v. Oregon 208 U.S. 412 (1908)
16 ABA Commission,‘Women in the Profession, Visible Invisibility: Women of Color in Law Firms’, AM. BAR
Association 28 (2006)

4. is what Deborah L. Rhode has said in her article17 the reason for which, she thinks, is their
unequally large number of responsibilities at home that result in their comparatively lesser
availability than men at work and hence lesser dependability.
In the industrialised world, the United States is one of the two countries that do not have a
compulsory maternity leave pay.18 The Family and Medical leave Act (FMLA) gives the right
to the employees to have a maximum of 12 weeks of unpaid leave in a 12 month period
during which their job will be protected but they will have to show the presence of one of
the four reasons,
I) child birth or child care.
II) placement of a child for adoption/ foster care.
III) care for an immediate family member (partner, child parent) suffering from a serious
illness.
IV) care for one’s own health condition e.g. Medically complicated pregnancy.
But, in order to claimthis protection, the employee has to show that it s/he is working for
the employer for the last one year and at least 1250 hours and that the employer hires at
least 50 people all of whom are working within a 75-mile radius of one another.
This law is criticised19 for not covering at least 50% of the employees in the country.
Moreover, as the leave is unpaid, only those employees can take advantage of it who could
afford to take time off without pay.
Discrimination and its recognition
There have been reported instances of carelessness of the employment systemin cases of
pregnant women20 and legal solutions have also been provided by law. The traditional law
that upheld the rights of working women in times of “pregnancy, childbirth or related
medical conditions” was the Pregnancy Discrimination Act 1978 that served as an
amendment to Title VII. It has a history of being legislated after the Supreme Court of USA21
had held that, according to the Civil Rights Act of 1964, discrimination against pregnant
women does not amount to sex discrimination.
It was in 1973 when McDonnell Douglas22 case had set a test for employment cases of
Pregnancy Discrimination Act in which compensation for discrimination was pleaded by a
protected person23 but where no direct evidence of the event was found. The purpose was
17 Deborah L. Rhode, ‘Diversity and Gender Equity in Legal Practice’ 82 U. Cin. L. Rev. 871 2013-2014
18 Australia provides 52 weeks’ unpaid leave,USA provides 12 weeks Guide to Pregnancy Discrimination in
Employment, New York <http://advocatesforpregnantwomen.org/06CFinalDraft.pdf>
19 ibid
20 Emily Dugan, ‘More than half of women arediscriminated againstatwork’ 29th December 2013,The
Independent < http://www.independent.co.uk/news/uk/home-news/more-than-half-of-women-are-
discriminated-against-at-work-9029535.html >
21 General Electric Company v. Gilbert
22 McDonnell Douglas Corporation v.Green 411 U.S. 792 (1973)
23 Employee belongs to a protected class of persons which cannotbe discriminated againstin the United
States as per the Civil Rights Act of 1964

5. to let the plaintiff a chance to prove the validity of his claimat the summary judgment level
and to let it proceed to the trial level.24
Starting from establishing, ‘a prima-facie case that discrimination took place, it proceeds to
inquiring four questions,
I) Does the plaintiff belong to a protected class?
II) Does s/he hold the qualification for the position?
III) Did s/he still suffer from some adversity (because of the defendant)?
IV) Did the defendant treat him/ her differently than others present in similar situation as
him/ her who were not a part of the protected class?’25
In practice, there are times when pregnant women are given rights even lesser than the
disabled. In the case of Young v. United Parcel Service (2015)26, an employee gave the
testimony that “requests for light duties” would become issues only when they are made by
a pregnant woman while equally or more seriously disabled employees would be
accommodated easily. It was only the employers lack of recognition of “pregnant” as
“disabled.” For surviving the summary judgment stage, the plaintiff had to show that
majority of non pregnant workers are accommodated by the employer and for establishing
a prima facie case she had to give proof that she is in the protected class, she asked the
employer for accommodation and it was denied to her. Justice Stephen Breyers (who wrote
majority opinion for the case) said that the court has to find if the employers policy and the
manner in which it places a burden on pregnant women amounts to intentional
discrimination. While Justice Scalia27 dissented and opined that the Act prohibited an
employer from discriminating only between employees of similar abilities or inabilities
because of pregnancy; a different treatment for any other reason would not be permitted
under it, if a broader meaning is given to the Act then pregnant employees would get
entitlement for all sorts of accommodations. Another dissent was written by Justice
Anthony Kennedy28 who suggested that in the long run this majority judgment will bring
together distinct situations and fuse them into the pregnancy discrimination cases.
Foetal protection regulations29
While the other end of the same string is where the State would do all things possible to
save the foetus30. Lynn Paltrow31 has pointed out the contemporary sanctions (typically
targeted at African American pregnant women) that punish women refusing to undergo
caesarean sections or forced bed rests. The purpose of such rules, as pointed out by
24 Jon Hyman, ‘Is it time to do away with McDonnell Douglas?’18th Jan,2012 LexisNexis <
https://www.lexisnexis.com/legalnewsroom/labor-employment/b/labor-employment-top-
blogs/archive/2012/01/18/is-it-time-to-do-away-with-mcdonnell-douglas.aspx>accessed 18th Aug 2016
25 McDonnell v Green (n. )
26 Peggy Young v. United Parcel Service575 US 2015
27 Young v. United Parcel Inc.casesummary by Body Politic OyezIITChicago- Kent Collegeof Law <
https://www.oyez.org/cases/2014/12-1226>
28 ibid
29 Feticidal Laws like, ALA. CODE § 13A-6-1 (2006)
30 MichelleGoldberg, PolicingPregnancy,THE NATION, May 9, 2011,
<http://www.thenation.com/article/160092/policing-pregnancy>
31 Lynn Paltrow, ‘Criminal Prosecutionsagainstpregnantwomen: National updateand overview’ (1992)

6. Dorothy Roberts,32 is to let child abuse apply to foetuses as well. She states that the low
income and drug addict women are the most vulnerable to hard foetal protection laws.
They are already in the least providence of prenatal care and being monitored by the
government is much harsh to them. The issue with the foetal protection efforts, as pointed
out by Professor April Cherry, is that they lack any consideration for the parents themselves,
she posits that they let the position of the woman as a mere “foetal container” or the
provider of “maternal environment” and not a person or a mother deciding for her child.33
In the Alabama Statute34 it has been made illegal for a person to knowingly, recklessly or
intentionally expose a child to a control substance, chemical substance or a drug
paraphernalia and the definition of child has been held35 to include viable and nonviable
foetuses, the mother could not only be held responsible if she ingests harmful substances
but also if she enters an environment where such a substance is either manufactured or
sold.
All this said, I now intend to discover if the popular opinions have their impact on how
women are generally perceived in the society.
Social perceptions about women as reflected in legal texts
Books have always offered an insight into the society. How a culture defines concepts
mostly depends on how their intellectuals have discussed those in their writings. Even the
most illiterate society would attach a sense of sacredness to its authors and their
manuscripts. This power of an author has been used over the years by history writers,
scientists, newspaper publishers, fiction makers, textbook editors and case compilers who
would have an ultimate monopoly on what should be documented for the generations to
keep and they exercise it with their might. But it is not necessary to actively modify the
facts, a mere ignoring of a selective set of facts could be sufficient to cause the damage.
An example of writer who had commented on the gendered nature of a text is Mary Joe
Frug36 who served as a professor at New England School of Law. She is known as a
forerunner of Legal Postmodern Feminist Theory. She was murdered in 1991.37 While
commenting on Dawson, Harvey, and Henderson38 in her article,39 she said that “editorial
silence” has been adhered to in regard to a specific set of subjects (women’s issues)
throughout the book. For instance, where the book mentions the case of Crenshaw v.
32 Dorothy Roberts, ‘PunishingDrugAddicts who have babies,women of color,equality and the right of
privacy’104 HARV. L. Rev., 1419, 1420-21 (1991) Jennifer Clarison Johnson case
33 April L. Cherry, The Detention, Confinement, and Incarceration of Pregnant Women for the Benefit of Fetal
Health, 16 COLUM. J. GENDER & L. 147 (2007)
34 ALA. CODE § 26-15-3.2 (2006)
35 State v. Osmus,276 P.2d 469,476 Alabama (Jan. 2013)
36 Mary Joe Frug, ‘Re-reading contracts:a feminist analysisof a contracts casebook’The American University
Law review Vol.34:1065
37 Stephen Saperstein Frug, ‘Mary Joe Frug, 1941 – 1991’Monday, April 04,2011 <
http://stephenfrug.blogspot.co.uk/2011/04/mary-joe-frug-1941-1991.html >
38 John Dawson, WilliamHarvey,and Stanley Henderson, ‘Contracts: Cases and Comment’, Foundation Press
10th Edition ISBN-13: 978-1609302115
39 frug (n 35)

7. Williams40 where the husband was the main party to the sale of a land inherited by the wife
from her father, the editor fails to mention the impact of the law41 which prohibited women
from carrying out transactions and what could have been the outcome had the case not
been decided in 1921 but rather after 1942 amendments to the Married Women’s Property
Act. There have also been cases where the husband would not only formally bring lawsuit
with wife but also be her spokesman.42 All these cases, in her view, project the subordinate
status of woman in the society and where the editor was giving broad descriptions of other
overridden statutes as well, leaving this one out does not make much sense.
An important issue which Frug43 has raised is related to the formation of a new type of
contract due to the medical advancement of reproductive techniques (sperm donation). The
reason why these contracts have to be in writing (and are recognized by law44) is for
providing proof in context of consideration, and assent which may arise in cases of support
or paternity etc.45 Why the authors have failed to add this type of contract in Contract Law
books (and also cohabitation or separation agreements) is a question posed by Frug46 and
while answering the same she had said that it may be due to a belief that only women are
concerned in these sort of questions and also because (the editors might have thought) that
family law literature would be a more suitable place for these topics. Whatever their reason
is, there is a barrier between the acceptable and unacceptable standards of speech in the
society and this is an example of how the discussion of maternity problems is avoided in the
public setup.
Concluding, she said47 that there is no way to avoid “gender” in classroom. If the editors of
the book, for their discussion, choose masculine characters only, the readers will not be able
to perceive people as they are and their approach to law would also be divided and limited.
Another example of a casebook is Prosser, Wade and Schwartz48 that has been a subject of
criticismby other authors including Tobias49 who has criticized this casebook in his article on
dealing with women as a stereotype50 and looking at their issues in a biased manner, I
intend to look closely on the negative elements that might be found in the published
material and how Tobias thought it showed the popular conceptions of women in the
society.
40 Crenshawv. Williams 191 Ky.559,231 S.W. 45 (1921)
41 Married women’s property Act
42 Reigartv. Fisher 149 Md. 336,131 A568 (1925)
43 Frug (n 35)
44 WASH. Rev. CODE ANN. § 26.26.050(2) (Supp. 1986).
45 A Surrogate Mother Contract to Bear a Child,20J.FAM. L. 263 (1981- 82)
46 Frug (n 35)
47 Frug (n 35)
48 Prosser,Wadeand Schwartz, 'Torts cases and materials' (12th edition, Foundation press,2010)
The strength of this particular book is also in the factthat it was introduced in the curriculumof the law
schools of United States from 1988 onwards.
49 Carl Tobias,Gender issues and Prosser,Wadeand Schwartz Torts Casebook 2010 Vol.18 Issue3 Women's
Law Forum 495
50 Tobias (n 48) pg 498

8. The first allegation imposed on the cases mentioned in the book is that it treats 'women'
(where by chance it does) as less reasonable human beings51 who could not deal as smartly
on the road as men could. Secondly, it is accused of missing out on the instances of
mistreatment of women (domestic violence)52 in the houses and at the workplaces (sexual
harassment) and how the society overlooks on such instances. It is important to be
informed here that at the times of early editions of the book, women were not capable of
bringing a law suit on their own, only their husbands/ fathers could sue on their behalf. But
it seems like the same old case law examples have been kept repeating throughout the later
editions. To take the example of Western Union Telegraph Co. v. Hill,53 where a man had
sued on behalf of his wife who had suffered sexual assault at work, the law is criticized here
for limiting the rights of women to sue54 (which right they have only recently achieved in
many States) and the case book has been criticized for dealing with the case without
specifically mentioning in commentary how women issues were legally dealt with at the
time, hence keeping such and similar information hidden from public domain. The author
has said that omitting such information results in the development of a generation that is
unaware and which possesses insensitivity to such issues of inequality present in our laws.
Laws such as these55 if they can be mentioned they should also be open to discussion in the
case books on the gender sensitive issues. Such issues were frequently found in the laws of
the last century and it could be no coincidence for the books to skip mentioning those or to
avoid giving reasons for the logic behind them. It may be said that women of the past era as
a cultural norm, avoided from frequenting to judicial institutions and hence to provide a
convenience to them it was made lawful for the male in their family to take care of their
legal matters but even this broad reasoning would be insufficient to support the laws
through which men were made capable of taking the full earnings of their wives, it is clearly
how patriarchy had caused the concept of marriage to make the identity of the two sexes
emerge into one, but it was only the male who could take advantage of the new identity.
A case was mentioned in Prosser to discuss the issue of product liability, (for products
consumed by women). It was Sindell v. Abbott Laboratories.56 In that case some women had
developed cervical cancer because their mothers had taken a specific pill to avoid
miscarriage. The author has been criticized by Tobias57 for this historical book for narrating
the case without regard to the seriousness of the issue of exchange of harmful goods on the
consumer market. There is a huge market of products targeted specifically to women most
of the goods are either cosmetic,58 medicinal, birth control, weight control, complexion
adjusting, or hygiene related (though a new area of concern among mothers is the
advertisement of bikinis for girls as young as seven years old and the Disney hosted beauty
pageants for small girls). Till date there is a wide area of unregulated products aimed at
51 Tobias (n 48) pg 503
52 Tobias (n 48) pg 526
53 25 Ala.App 540, 150 So. 709, Court of Appeals of Alabama,1933
54 Married Women's property Act had imposed many disabilities on women one of those being a right to sue.
55 Married women's earnings Act had made itlegal for the husband to be the legal owner for everything that
the wife earns.
56 26 Cal.3d 588 (1980)
57 Tobias (n 48) pg 500
58 Jane Kay, ‘U.S. Government Has Little Authority to Stop Unsafe Cosmetics’18th Oct, 2012 Scientific
American < http://www.scientificamerican.com/article/us-government-has-little-authority-to-stop-unsafe-
cosmetics/>

9. women and the curse of the beauty market is that the dangers involved in those goods
could not be discovered until the damage has been done.
The book was also blamed for using the outdated cliché of reasonable man59 and
extensively using the pronouns referring to the male sex as a generic term to include
females, but so is almost every book written in the 20th century. Though the issue of
skipping the feminine pronoun is pointed out by all feminists at some point in their writings
only to remind the reader of the individuality of women, I think this issue should be let now
especially with regard to the books which are already historical. But one instance where the
female gender is specially mentioned is that in Campbell v. Weathers60 though the parties to
the case were male, the judge had made a special comment on the way females do their
shopping, according to him, women can sometimes shop all day without buying anything.61
To the author, this comment is equivalent of saying that women as purchasers do not have
a reasoning mind. It would seemderogatory to women mostly because they have
experienced it in their lives and it is true that a lot of women can go to the market just for
window shopping, but to think of it as an insulting remark is not fair to me. I see it as a
capability to compare prices and qualities before deciding on the best deal.
A problem with the editing of the textbook as mentioned by Tobias62 is that they have
chosen all legal opinions and materials that were written by male judges, 61 to count.63 The
presentation of the legal heroes of tort was also limited to men only. The issue with this
type of representation is that it does not treat the contributions of women as noteworthy
and the idea of men having monopoly over Tort law scholarship is unacceptable to the
society because the subject deals with a lot of women specific issues which cannot be fully
realized by men mainly for the reason that they would never have an experience of it. Also,
due to the amount of insight needed for judiciously reasoning for a judgment, I do not think
that a man can write a better, sound and reasoned judgment of women's issue than a
woman can and to rely on men to decide women related issues (by excluding women totally
from legislative contribution) would cause not just a book but the whole field of Torts to be
rendered incomplete.
Two issues dealt with in the case book under discipline section were intra-spousal
immunity64 and parent-child immunity. Tobias has criticized these for treating women as
lesser in their social status to men. Traditionally, the courts had abstained from dealing with
either of these because of the belief that doing so can destroy relationships people have
with their families. Thinking with today's perspective one would see the relationships
already dead but in the historic setup things different. Where there was only one
breadwinner per house and the rest would be totally dependent on him it would be
practically impossible for the rest to go against his wishes. In such a situation there was
literally very less a court could do. But where the issues are as serious as in Roller v. Roller
65(a case where father was alleged to have raped his daughter but it was not allowed to be
59 Tobias (n 48) pg 501
60 Tobias (n 48) 502
61 108 S.C. 151, 93 S.E. 714 (1917) pg. 498
62 Tobias (n 48) 503
63 Counted by, Roberts, in, Negligence: Blackstone to Shaw to ?, An Intellectual Escapade in a Tory Vein, 50
CORNELL L.Q. 191 (1961).
64 Tobias,Interspousal Tort Immunity In America, 22 GA. L. REV. No.2 (unpublished manuscript;forthcoming
Spring,1988)
65 37 Wash.242, 79 P. 188 (1905)

10. proceeded), then it is questionable on the justice system to keep its eyes shut for harmony
in the society. This and other such "Intentional Tort Cases" where a mental distress was the
main cause of action, females were more likely to succeed than male applicants because of
the popular conception of women as more susceptible to emotional harm than men. This is
a matter of criticism on the ground of being a sexist rule. This is typical of an old male
dominated society to suppress the emotions as those are less manly, but in reality the
mental pain and agony cannot be limited to any one sex, it is natural for both to equal
degrees.
It is expected of a case book to give historical facts with a bit of discussion on how the
history changed and why was the change needed. Prosser, Wade and Schwartz, though it
gives other bits of information on the history of torts, is blamed for missing out on how
Married Women's Property Act (1870) came in force and what circumstances had led to
women's empowerment to file suits on their own behalf.66
The book, Prosser, Wade and Schwartz's had a chapter titled "Causes of Action" in which
intent, battery, assault, false imprisonment and mental distress were discussed. Tobias has
analyzed each of the heads to find markers that point to the sexist characters in the text.
One distinguished thing about the analysis of the original chapter is that it discusses how
every category of action can actually have cases that are in their nature specific to what
women experience due to their feminine characters.
Dealing with the first category intent in which many cases are presented in which actual
physical attack on the woman is disguised with gestures such as friendly teasing/ hugs.
(Spivey v. Ballaglia67 is one of those) In each case, the friendly advancements had resulted in
the woman getting seriously injured. This is straightaway exercise of physical strength,
especially where the woman had resisted but resistance/ protest could not be the deciding
factor here as many women could possibly meekly agree to such advancements in order to
avoid further hurt/ injury. To show the mindlessness of women, as Tobias has pointed out,
cases such as injured women suing six years olds (Garrett v. Dailey68) or insane persons
(McGuire v. Almy69) are presented. There must be a great deal of other cases involving
women parties but picking and choosing only these from a wide lot speaks about the mental
attitude of the authors' and editors' of this case book.
One can find chronic cases of battery for marital rape and wife battering even in the 20th
century because of the exception to the general rule of 'husband pleading on his wife's
behalf' in the cases where the 'wife had to sue her husband, she will sue in her own name'
but such cases were not found in this textbook. The only two given, as narrated by Tobias,
are Cole v. Turner70 where the rule of battery was laid down that was, 'to touch with anger
is to cause battery, though a gentle touch in an enclosed space without bad intent will not
be a battery, but touching forcefully or in a reckless manner in the same enclosure shall be
seen to constitute battery and the other case is Fissher v. Carrousel Motor Hotel, Inc. where
the court had rejected the previous verdict that had awarded a total $900 in damages for
battery to the plaintiff, a black man, because no actual physical contact had taken place. To
66 Chused, Married Women's Property Law: 1800-1850,71 GEO. L.J. 1359 (1983).This lawhas a great rolein
doctrinal development and hence should not be missed out by the Text books.
67 Tobias (n 48) 510
68 Tobias (n 48) 510
69 Tobias (n 48) 510
70 Tobias (n 48) 513

11. Tobias, it is more important that the author mentions cases in which tort has occurred
before discussing those in which no battery had occurred.
A case of false imprisonment in which damages were denied to a woman was Faniel v.
Cheapeake & Potomac Telephone co71. The facts did point out at the misconduct of the
plaintiff lady herself as a result of which damages were refused to her. When the office
team pressurized her to admit that she has an unauthorized telephone set belonging to the
company at her home, she admitted and accompanied them to her house where it was
found. Due to this she was suspended for 30 days but later on she was promoted. She
brought the law suit. The key elements of false imprisonment are intent, actual
confinement, a casual link between the two and an awareness of the confinement, but here,
the judge had pointed out at the undue pressure that was put to the lady but he refused to
let it influence his decision. According to Tobias72 the emphasis on the key elements of false
imprisonment which are submission and the unique way of applying the confinement law to
workplace situations are missing from the judgment and the judges remarks in which he had
refused to accept that the woman might be under pressure to lose her job when she
acquiesced to accompany them to her house. To Tobias it is not more than a white male
judge deciding against a black female party to the case.
An important area, the mental distress includes a huge number of cases dealing with the
sexual harassment of women in work places. But to the editors of this book, as Tobias has
shown by pointing out at the editor's case notes, only asking a woman for sexual
gratification shall not be a sufficient cause for making a case of mental distress. Tobias73
here has rightly drawn an illustration to show why it would be. To him, female student/
employee being asked for such a favor by supervisor/ employer should constitute a
sufficient cause of action because it is sure to cause a lot of mental distress to anybody in a
similar position.
Solution, as seen by feminists
“Her solution is to free the women from the tyranny of their reproductive biology by every
means available, and the diffusion of child bearing and child rearing role to the society as a
whole, men as well as women”74
Bender75 has debated in her article that the importance of Tort Law in respect of its impact
on the female gender specifically is too great. This is due to the nature of issues dealt with in
this field of law. Often, women in the society are ridiculed for complaining about their
sufferings that are a result of the personal wrongs done to them. Tort Law being the right
forum to deal with interpersonal wrongs, has a great impact on the lives of women. But the
problem is not always of inequality. Many a times it is also related to the ignoring of issues
that are unique to women (pregnancy and abortion being most obvious examples). But does
feminism have something to do with the female psychology and behavioral differences in
71 404 A.2d 147 (1979) Districtof Columbia
72 Tobias (n 48) pg. 514
73 Tobias (n 348) pg. 506
74 Simone de Beauvoir,‘The dialectic of sex:the casefor feministrevolution’, New York: WilliamMorrowand
Co., 1972,p.3
75 LeslieBender, 'A lawyer's primer on feminist theory and tort' 1988 38 J. Legal Education 3

12. women? she76 believe, that historically a long time of being exploited, oppressed and
excluded has impacted and brought about changes to the thinking patterns of women to a
great extent and this is why since feminist debates have increased it has had its shifting
impacts upon the politics, methodologies and philosophies of the social setup that men had
created for themselves.
As far as Tort Law is concerned, it is a vast area of personal law other than contracts, and it
has been missing in simplest female issues which make it a vivid example of contrast
between male and female perspectives and problems and a comparative male insensitivity
to the exclusive stress and pain experiences of women that are unique to their sex e.g. child
birth, child rearing etc. This insensitivity could be a result of the absolute authority of men in
the public spheres of government and the state (men have dominated the ruling seats
namely the legislation, the church and all the means of production since always) as well as
the private spheres of the family's home (major decisions like the number of children the
family should have or assigning tasks to each family member being taken by the male head
of the family). For very long, women made failed attempts to enter men's world. In a 19th
Century case77 the social perception regarding women of that time was evident. A lady who
had just passed a legal studies examwanted to practice law as a profession but was denied
by the U.S.A. Court of Illinois the Honorable Judge of the Court having declared the women
as being too "timid" and "delicate" are rendered unfit for civil occupations and that their
"womanhood" fits them ideally in the domestic domain only. The first woman Justice was
elected in 1981 in the Supreme Court of U.S.A.
A feminist whose writings have been discussed by other feminists78 with vivid descriptions
and profound examples is Catharine MacKinnon79. Over and above the popular movements
of feminists namely, "equal treatment to men" and "special treatment than men"
MacKinnon at that time presented a completely unique and unprecedented view of
feminism. Away from the debates against low pay-scale for women, the glass ceilings of
corporate structure made to keep the top business places woman-free, MacKinnon (though
she does not totally oppose such feminists) focused her efforts on stressing the social issues
that women faced due to sexual differences. They could be public issues like the use of
women for pornographic publishing80, a cultural acceptance of prostitution, harassment
that women face on sexual grounds, rape and the purpose behind it or private affairs. Her
view was that the neutral-looking laws of the time were actually in favor of men and were
serving their interests only. She challenged the male domination as a political affair and
which has nothing to do with "nature" she called female subordination "a tool to invisibly
get hold of women's lives in a world that operates on man's rules. Women, in her view,
could be one of the two types; they are either those who want to change our current social
76 Ibid
77 Bradwell v. Illinois,83 U.S. (16 Wall.) 130,(1876)
78 KatharineT. Bartlett, 'Crackingfoundations as a feministmethod' (2000)8 A.M. U. J. Gender Soc. Pol'y & L.
31
79 Catharine A. MacKinnon, ‘Feminism, Marxism,Method, and the State: An Agenda for Theory’ Signs, Vol.
7, No. 3, Feminist Theory, (Spring, 1982), pp. 515-544 <
http://www2.law.columbia.edu/faculty_franke/Certification%20Readings/catherine-mackinnon-
feminism-marxism-method-and-the-state-an-agenda-for-theory1.pdf>
80 ‘Mackinnon:Pornography is Oppression’Theethical spectacle– Nov. 1995 <
http://www.spectacle.org/1195/mack.html>

13. male dominated setup or those who want to work under it. This concept is actually based
on a strong conviction that the society we are living in is made up of anti-women rules and
there is no way that women's progress could sustain under it, women have to suffer until
they change it.
An important legal aspect discussed by Bartlett81 is that the Law of evidence puts burden of
proof on parties in order for the legal systemto reach particular conclusions. Feminists over
the century have been fighting to change the laws that place undue burdens on women that
were created by precedents based on social stereotypes e.g. Women are less business-
minded hence, men are more entitled to administer the estates for the hiers.82 A women
who is claiming the role of an administrator against a male will have to show how she fits in
the role better. The problem with such burden arises when a case is that of an exception. As
the stereotypes were often inclined for men’s advantages in the 19th Century, women
especially those with unusual circumstances suffered a lot, e.g. although there was a large
number of women who were provided with maintenance allowance by their husbands and
hence were not in need of employment but there were also poor/ divorcees/ never married
women who had to earn a living for themselves and their families and who were more eager
to work for and serve the State but were prevented due to this male dominant culture and
legal system. This is why sexist laws had to be altered and pro-feminism litigators had to
play an active part in the elimination of gender-biased laws.
Conclusion
A hypocrisy is seen where women are generally regarded as meek but an undue and
proportionally high burden is assigned to them in child rearing. In such situations women
have to struggle with their work and family much more than men have to, and little or no
recognition is shown to their efforts while in fact they are shown as in efficient in their
working lives due to a higher number of absences. Women issues like pregnancy and several
others need further reforms in law with a focus specifically on how the women have to cope
with things. The feminist reports and writings could play a very helpful role in documenting
the women-experiences which would come handy in deciding what is best for women
according to their needs and capabilities.
81 Bartlett op. cit. 31
82 Reed v. Reed, 404 U.S. 71 (1971)

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