Those who have stood in awe on the Island of Hawaii, watching steam rise as lava from Kilauea volcano flows into the ocean,  know how I feel…a  sense of being present at the dawn of creation.   After years of lava flowing quietly under the surface of the sea, new land will emerge.   After years of discussion and debate bubbling under the surface of academia, a new social consensus is revealed:  Women’s failure to thrive in the realm of the scientific elite cannot plausibly be explained by their lack of talent, interest or commitment.   

This emerging social consensus has significant legal implications.  As Sandra Day O’Connor observed, legal change “comes principally from attitudinal shifts in the population at large.”   So it is exciting to read in the New York Times and the Washington Post  what has been whispered among women in academia for decades:  The academic pipeline leaks because no one can thrive in an environment imbued with stereotyped beliefs.  We now know, courtesy of social psychologists, that discrimination resulting from stereotypes occurs far more frequently than previously imagined, particularly when members of an in-group evaluate “outsiders.”   So, for example,  male scientists have a tendency to perceive, interpret, store, recall and evaluate information about female scientists differently from the way they interpret the performance of male scientists.  The same behavior is ascribed differently (luck versus ability) and rewarded differentially according to gender.  Over time, the accumulation of small disadvantages can and does have a dramatic negative effect on the careers of women scientists.

Professor Nancy Hopkins, who blew the whistle on Summers’ remarks, was the catalyst who forced M.I.T., her home institution, to pay attention to the discrimination silently endured by its tenured women scientists.  In 1999,  M.I.T. issued a report that documented the cumulative deleterious effect of an endless stream of “microinequities.”    The unusual candor of the report blew the cover off academia’s “dirty little secret,” and created a small spurt of media interest, a trickle of foundation funding, and a stream of  policy conferences.  Ironically, Larry Summers triggered the current media tsunami by his clueless remarks at one such event.

What’s law got to do with it?  Reacting to advances in social science,  federal courts are increasingly receptive to claims of discrimination based upon stereotype. Employers who fire or fail to promote women because  they are “not team players,”   “not collegial,”  “difficult,” or  “have negative attitudes”  are having a harder time getting the courts to dismiss complaints of discrimination out of hand.  Recently,  the Ninth Circuit, in Stegall v. Citadel Broadcasting Company, admonished district courts to be wary of  defenses employing stereotypical descriptions of assertive women. Even Chief Justice Rehnquist has gone on record espousing the view that a workplace organized around the stereotyped assumption that men are unencumbered with domestic responsibilities, while women are mothers first and workers second, is likely to discriminate against women because  “…mutually reinforcing stereotypes create[..] a self-fulfilling cycle of discrimination”  (Nevada Department of Human Resources v. Hibbs).

Until now, specially protected elite research universities have permitted this type of discrimination to flourish.  Aided by an opaque tenure system coupled with an entrenched old boys network,  resistant science, technology, engineering and math departments (the STEM disciplines) have been able to cabin their preserve both from the presence of women and the long arm of the law.   But their day of reckoning is coming.  The more data we accumulate on how unreflective bias has tainted the way of STEM departments identify, recruit, nurture and reward their members,  the more likely it is that the legal system will step in to provide redress.  After all, employment practices that create “built in headwinds” for minority group members have run afoul of Title VII from the very beginning.

The Ivory Tower will not crumble when forced to confront the ways in which women are disadvantaged by “business as usual” among the scientific elite.  Other industries have integrated women into nontraditional careers and have survived:  construction, mining, public safety, factories, law and medicine….all were once worlds of work without women.  Initially, the women who ventured into them were expected to put up with hostile treatment ranging from verbal to physical assault, but eventually a social consensus emerged: women need not tolerate offensive behavior as a condition of their employment.  The resulting sexual harassment lawsuits proved to be very effective means of facilitating attitude adjustment.  

Highly trained women scientists are a scarce resource we can ill afford to waste.   As the pent-up anger over glass ceiling and maternal wall discrimination spills over the dam of Summers’ unfortunate rationalizations, it joins the emerging social consensus that employment decisions based on stereotype constitute discrimination.   If I were Summers, I’d take another look at that 80-hour week.   It’s time to fix the leaky pipeline, or expect the plumber’s toolkit to be replaced by a legal hammer

Charlotte Fishman (cfishman@sbcglobal.net) is Executive Director of 'Pick Up the Pace', a nonprofit organization whose mission is to identify and eliminate barriers to women's advancement in the workplace. She works as an employment attorney (HLS '79) specializing in academic tenure discrimination, and is former director of Equal Rights Advocates' Higher Education Legal Advocacy Project.