Feminist Discontentment and the Jurisprudence of Indirect Discrimination

When Facebook COO Sheryl Sandberg published her best-selling book “Lean In:Women, Work and the Will to Lead” in 2013, it was instantly hailed as a corporate-feminist manifesto. In her book, and in the personality she built for herself around it, Sandberg suggests that companies are better when women have a seat at the decision-makers table. For Sandberg, the fact that she is able to occupy the top offices of a big corporation is proof that the intention of the corporate is not to keep women out. The masculine nature of board rooms is incidental for her, and can be overcome if women start leaning into this set up instead of resisting it.

Since its release, Sandberg’s book and the politics of leaning in, have been the subject of Marxist-Feminist criticism. They argue that Sandberg forgets about the many women (usually from more marginalized backgrounds) one is leaning on when she leans into the boardroom. Nancy Fraser, for instance, notes the politics of leaning in as emblematic of the capitalist appropriation of the leftist, community-centric politics feminism. Corporate feminism is individualistic for Fraser. Marxist- Feminism views discrimination as something that is not felt only when an individual in power has the intention of discriminate- it is experienced equally when dominant structures have the effect of systematically leaving certain people out, irrespective of intention.

This disagreement between corporate and leftist feminism is mirrored in the law, in conversations about formal and substantive equality. In April 2021, the Supreme Court, in Nitisha and Others v Union of India, held the hiring practices of the Indian Army to be discriminatory against female candidates. Justice Chandrachud develops the jurisprudence of indirect discrimination to arrive at this judgement. Similar to Fraser’s view, he opines that focus on the intention of the law maker in deciding whether discrimination exists would only help us identify formal inequality. It is essential to view the effect of the law in systemic terms to be able to achieve substantive equality.

You can read a more detailed analysis of J. Chandrachud’s judgement here.