Vol. 4 No. 9 (September, 1994) pp. 128-132
RIGHTS AT WORK: PAY EQUITY REFORM AND THE POLITICS OF LEGAL
MOBILIZATION by Michael W. McCann. Chicago: University of Chicago
Press, 1994. 372 pp. Cloth $65.00. Paper $18.95.
Reviewed by Charles R. Epp, Department of Political Science,
Indiana University.
Legal rights, "rights talk," and liberal judicial
policymaking, according to widely-accepted criticisms, either
distract social movements from more effective strategies for
social change (Rosenberg, 1991) or, worse, shackle individuals
with an individualistic liberal legal consciousness that limits
the formation of progressive movements (Gabel and Kennedy, 1984).
Michael McCann's new book, a theoretically sophisticated,
interview-based study of the political movement for pay equity
reform, provides a devastating refutation of such skeptical views
and a guardedly optimistic alternative understanding of the role
of rights in progressive social change. While others have made
similar claims about the aspirational potential of rights (e.g,
Hartog, 1987, Williams, 1987), McCann is the first to provide
systematic empirical evidence from a contemporary social movement
to support such claims. RIGHTS AT WORK is sure to shift the terms
of the debate over the role of legal rights in social change; it
will be necessary reading for any scholar following the debates
around judicial implementation and impact, Critical Legal
Studies, Critical Race Studies, feminist legal theory, and the
mobilization of social movements.
The movement for pay equity is a response to the persistence of
wide differences in the pay accorded to workers in female- and
male-dominated job categories, differences that proponents
believe to be the result of sex discrimination and an important
source for what is called the "feminization of
poverty." Pay equity reform typically involves comparing job
skills and education required for work in female-dominated jobs
with those required in male-dominated jobs and, based on such
comparisons, mandating increases in pay for all workers in the
female- dominated jobs to bring them into parity with comparable
male jobs. The policies have been most successful in the public
sector, where some twenty states and numerous counties and
municipalities made substantial changes in pay structure in the
mid-1980s. Public sector unions, along with a few independent
activists, were the main actors in the pay equity movement.
McCann, a political scientist at the University of Washington,
structured his research around 28 case studies of pay equity
struggles in various states and municipalities chosen for their
variation on such dimensions as level of government (e.g., state
or city), degree of participatory involvement, and degree to
which proponents used litigation. McCann's methods consisted of
in-depth interviews with over 140 pay equity advocates involved
in some of the struggles, a standardized survey of 100 of the
advocates, and content-analysis of newspaper coverage. He applied
the various methods systematically and used them for
triangulation -- checking results of one method against another -
- to enhance the validity of his conclusions. The
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book is a model for future qualitative studies.
McCann proposes a theory of legal mobilization based on "a
cultural interpretation of law as a constitutive element of
social life" and "a continuously contested terrain of
relational power among citizens (pp. 282 and 283, respectively).
The framework focuses on individuals' conceptions of rights and
of the practical possibilities for change; it emphasizes that
rights and rights consciousness constitute both strategic
resources for, and limitations on, the efforts of social
movements (p. 7).
McCann divides his analysis of the role of legal rights into
several phases of the movement and the policy process --
mobilization of the movement (chapters 3 and 4); the struggle to
compel adoption of pay equity policies (chapter 5); the struggle
over the implementation of the policies (chapter 6); and the
legacy for future movements (chapter 7). Briefly, McCann
concludes that the progressive influence of legal rights and
litigation was greatest in the earliest phases of the movement,
in particular in the formation of the movement and in encouraging
the adoption of pay equity policies. By contrast, its influence
was least during the crucial implementation stage. The analysis
of each stage of the movement is rich and complex, and only a few
of McCann's conclusions may be noted here.
In analyzing the initial development of the movement (chapters 3
& 4), McCann shows that movement organizers used key court
decisions to radicalize women's consciousness of pay inequities
and the practical possibilities for reform. The result was a
dramatic growth in the number of women joining unions and the pay
equity movement. Nor did using the court cases as an organizing
tool impose significant costs: the lawyers, rather than pursuing
their particular interests, deliberately subjected their
activities to the goal of organizing the movement; and the rights
claims that emerged from the legal strategies, rather than
fragmenting the growing movement, produced a shared rights
discourse that united it.
McCann argues that litigation also proved to be a useful tool for
compelling governments and employers to adopt pay equity policies
(chapter 5). "Legal leveraging," as he aptly terms this
use of litigation, did not depend for its effectiveness on
favorable policies from the judiciary: the mere potential of
judicial intervention was often enough to encourage an opposing
party to negotiate more favorably (168-169). McCann concludes
that, contrary to critics of the use of litigation by social
movements, such use is not harmful to the other tactics of the
movement nor its broader goals. Legal leveraging almost never is
the exclusive tactic, it does not compete for resources with such
mass-based tactics as demonstrations and strikes, it sometimes
produces resources for the movement in the form of monetary
awards, its use is quickly diminished when costs come to outweigh
benefits, and it is sometimes more effective than mass- based
tactics.
McCann admits, however, that litigation proved least useful
during the crucial policy implementation stage (chapter 6), the
point at which other scholars (Evans
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and Nelson, 1989) identified significant setbacks for pay equity
reform. Such setbacks, McCann suggests, resulted from the greater
capacity of employers than unions for dealing with the complex
technical issues related to job evaluations. He documents a range
of tactics employers used to limit the substance of pay equity
reforms (pp. 200-206) and concludes that the most successful
responses by unions were to demand participation in the job
evaluation process (pp. 208-217).
In examining the legacy of the movement (chapter 7), McCann
examines a number of common criticisms of rights consciousness,
among them that an emphasis on rights is a depoliticizing,
fragmenting, ideologically moderating influence on social
movements; he concludes that in the movement for pay equity
reform, on the contrary, rights consciousness had nearly the
opposite effect on all counts (pp. 227-244, 258-279). One of the
most important legacies of the movement, he suggests, was its
radicalization of women's consciousness about inequality, the
sense of empowerment that grew through organizing a collective
solution to pay inequities, and the creation of organizations and
networks that may provide a valuable resource for similar
movements in the future.
I am impressed with McCann's framing of questions, his empirical
research to address those questions, and the breadth and depth of
his analysis. In many ways this is a model for future qualitative
studies: the author carried out a systematic case study strategy
and interview process, and he presents his results in a
systematic manner by relying for his conclusions on survey
results and multiple quotations from both union organizers and
rank and file members.
Still, some skeptics of the transformative potential of legal
rights may find weaknesses in the book. One is a matter of
substantive interpretation: McCann interprets pay equity reform
and the aspirations of activists as relatively radical attacks on
the status quo in law and in labor markets, yet some critical
legal theorists nonetheless may find his interview results to be
consistent with their theories. For example, McCann's
respondents, as he says, accepted the justice of "the
law" writ large even while they attacked particular
manifestations of it; their aspirations, then, were hardly
revolutionary (pp. 230-234). I suspect that structuralist critics
(e.g., Gabel and Kennedy, 1984) will remain unpersuaded that pay
equity activists developed a truly critical view of American law.
By contrast, I suspect that most scholars will be impressed by
the level of critique developed by McCann's respondents and will
find that the evidence undermines many of the claims of critical
legal theorists, particularly claims about the hegemony of
liberal legalism.
A more serious potential problem concerns the degree to which
McCann's discoveries are generalizable beyond the relatively
small group of activists that he interviewed. The strength of
McCann's method -- in-depth, semi-structured interviews -- is
also its weakness. McCann notes at several points that his
respondents formed a movement "subculture" (see
especially p. 314). To what extent does that subculture extend
beyond a small group of core activists?
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This is a crucial issue if the question is, as McCann has framed
it, whether legal rights have a broadly transformative potential
for social movements. Given the resources at his disposal, McCann
might have added to his variety of methods a survey of a
representative sample of union members in one site of the
struggle to determine the generalizability of his interview-based
conclusions. One such survey, conducted by Evans and Nelson
(1989), found a surprising lack of knowledge about pay equity
reform among both union members and beneficiaries of the reforms
in Minnesota. McCann identifies the Minnesota struggle as
particularly elite-dominated and non-participatory (p. 78). A
valuable test of his thesis might have consisted of a similar
survey of union members or beneficiaries in a site, like Madison
or Denver, that he identifies as particularly participatory (p.
78).
Alternatively, McCann might have addressed concerns about the
generalizability of his conclusions in a much simpler fashion,
merely by numbering his respondents and identifying quotations by
number. In the absence of such an identification system, he
identifies respondents in the text as, for example, "rank
and file activist" or "clerical staff activist."
But we have little explicit reassurance that the bulk of the
quotations from rank and file activists do not come from a small
handful of his most articulate respondents.
The depth of McCann's evidence and analysis, however, reduces
such doubts to the level of a minor concern. RIGHTS AT WORK is a
very important achievement. It is a model of systematic
qualitative research and will surely transform the debate over
the role of law in social change.
REFERENCES:
Gabel, Peter, and Duncan Kennedy (1984) "Roll Over
Beethoven" 36 STANFORD LAW REV. 1-55.
Evans, Sara M., and Barbara J. Nelson (1989) WAGE JUSTICE:
COMPARABLE WORTH AND THE PARADOX OF TECHNOCRATIC REFORM (Chicago:
University of Chicago Press.
Hartog, Hendrik (1987) "The Constitution of Aspiration and
'The Rights that Belong to Us ALL'" 74 JOURNAL OF AMERICAN
HISTORY.
Rosenberg, Gerald N. (1991) THE HOLLOW HOPE: CAN COURTS BRING
ABOUT SOCIAL CHANGE? (Chicago: University of Chicago Press).
Scheingold, Stuart (1989) "Constitutional Rights and Social
Change: Civil Rights in Perspective," in JUDGING THE
CONSTITUTION, Michael McCann and Gerald Houseman, eds. (Glenview:
Scott, Foresman).
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Williams, Patricia (1987) "Alchemical Notes: Reconstructing
Ideals from Deconstructed Rights" 22 HARVARD CIVIL
RIGHTS-CIVIL LIBERTIES LAW REV. 410-433.
Copyright 1994