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Maine Law Review

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Almost forty years after the enactment of Title VII, women's struggle for equality in the workplace continues. Although Title VII was intended to "break[] down old patterns of segregation and hierarchy," the American workplace remains largely gender-segregated. Indeed, more than one-third of all women workers are employed in occupations in which the percentage of women exceeds 80%. Even in disciplines in which women have made gains, top status (and top paying) jobs remain male-dominated while the lower status jobs are filled by women. This pattern of gender segregation, in turn, accounts for a substantial part of the persistent wage gap between men and women. As of the end of 2001, women working full-time still earned only seventy-six cents for every dollar earned by their male counterparts. Thus, we have not only the persistence of job segregation, but job segregation with particular implications for equality-men are on top and remain there. The central question addressed by this essay is "Why?" Why has gender segregation of the work force persisted so stubbornly in the face of Title VII and myriad state antidiscrimination statutes? Part II explores the relationship between our common understanding of discrimination and the continuation of gender segregation. This Part suggests that the elimination of discrimination as it has been defined under Title VII might well leave undisturbed a significant amount of gender segregation, regarding it as a product of individual choice rather than workplace bias. Part III explores the operation of this rhetoric of choice in specific examples from Title VII doctrine. Part IV turns to feminist critiques of the concept of individual choice or agency. This Part suggests that, although feminists have called into question assumptions about women's agency under patriarchy, these critiques have been too limited in the Title VII context. The essay concludes by suggesting ways in which feminist critiques of agency might be brought to bear more effectively in a challenge to workplace segregation.