Tag Archives: Feminism

You are Harming Your Child with Your Words

Article first published as You are Harming Your Child with Your Words on Blogcritics.

Listen to the endearments parents and other adults use for children. There are two kinds: the ones they use for girls and the ones they use for boys.

Girls are sweetheart, sweetie pie, sugar, honey, dolly, princess.

Boys are champ, chief, buddy, pal, kiddo.

These differences follow the children as they grow up. Sales clerks and doormen (and doormen are nearly all men) call women “sweetheart” or “honey.” Men are “buddy,” “pal,” or “chief.” (The exceptions are ma’am and sir.)

These differences matter. As children, girls learn to be sweet and ingratiating because they have learned that cuteness and niceness make them lovable; boys learn that they can be leaders, in charge of and superior to others — even on an equal footing with adults (“buddy” and “pal”).

Perhaps even more interesting than the effects of these endearments on children is adults’ reflexive use of different endearments for girls and for boys. Whether or not you believe that the names parents and other authority figures use for their children affect those children, it is undeniable that adults instinctively think of their girls and boys differently. Do they not think their sons are sweet? Do they not think their girls are champs? Do they expect different behavior from girls than from boys? And where does the reflex to use different endearments come from?

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Men’s Jeans: The Lower the Better

Article first published as Men’s Pants: The Lower the Better on Blogcritics.

I love when men wear their pants low. The lower the better — below the butt is fabulous.

I love it because it’s funny. It’s funny that they have to grab their pants all the time so they don’t slide off. It’s funny that they can’t walk normally because their pants constrict everything between their knees and their hips. It’s funny that they think this is a good look for them.

But the real reason I love it: men are finally hobbling themselves for fashion. Women have been doing it for years, with high heels, short straight skirts, strapless dresses they have to keep tugging up lest they fall out of them. It’s about time men got a taste of it. And maybe some women will look at the stupid pants and realize how stupid they look teetering around on their stilettos.

The next milestone will be when men actually injure themselves for fashion. Confidential to high-heel wearers: how are those bunions doing? And the back pain? Maybe try some acupuncture, but definitely don’t lose the fabulous shoes.

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Turning the Other Cheek: Illegal Retaliation in the Workplace

Turning the Other Cheek: Illegal Retaliation in the Workplace

If someone went to your employer and said you were discriminating against them, wouldn’t you hold a grudge? Wouldn’t you want to get them fired, and if you couldn’t do that, at least make their lives more difficult? Of course you would (and if you honestly wouldn’t even want to, see your parish priest about nomination for sainthood and/or enjoy nirvana). That is why there is more retaliation going on in American workplaces than there is discrimination (and there is plenty of that going on too).

It is illegal under federal law (Title VII § 704) to retaliate against an employee for complaining about workplace discrimination. That applies to everyone from the employee’s supervisor all the way up the food chain to the CEO. But people being what they are, they retaliate anyway. There are many time-honored forms of illegal retaliation, among them firing, demoting, transferring, changing work schedules, cutting bonuses, assigning lame accounts or thorny clients, and general day-to-day hassling.

In the past what was and wasn’t illegal retaliation was unclear, partly because the federal appellate courts disagreed with each other about the definition, and partly because different federal courts within each circuit (i.e. group of states) agreed with each other about how to word the rule against retaliation but disagreed about what it meant. Time was that in many circuits you could get away with retaliation if you did it outside the workplace. That left the door open for prank calls, letting air out of tires, toilet papering, and any other non-work-related harassment that was short of a misdemeanor.

In some circuits, you could transfer an employee to a distant office or put the employee on the graveyard shift, as long as what you did was not a “materially adverse change in the terms and conditions” of employment. In yet other circuits the line you couldn’t cross was the “ultimate employment decision,” meaning you couldn’t fire, cut pay, demote, or take other actions of similar severity, but anything less was okay. Then there were the circuits that said illegal retaliation encompassed anything that was likely to dissuade “a reasonable worker” from complaining about discrimination. Those circuits won when the Supreme Court resolved the whole mess a few years ago in a case called Burlington Northern v. White, which closed the door to retaliation outside the workplace.

In Burlington the employee, Sheila White, filed suit against her employer, Burlington Northern, for discrimination and retaliation. The retaliation she alleged consisted of changing her job responsibilities and suspending her for 37 days without pay, though the company later paid her for those 37 days. The Supreme Court decided that even though the change in her job responsibilities was not a demotion, and even though she ultimately received all of her pay, she had still suffered illegal retaliation. The change in job responsibilities was a change from the relatively clean job of operating a forklift to the much dirtier and more arduous tasks of cleaning up railroad rights of way and carrying heavy loads back and forth. And the 37 days she didn’t receive any pay included Christmas; there was no money for gifts in the White household that year. The Supreme Court said that a reasonable employee could easily look at what Burlington Northern did to White and decide that reporting discrimination to this employer just wasn’t worth it.

So, problem solved – everyone across the country now knows that even actions unrelated to the workplace can constitute retaliation. If only.

The problem with our courts is not judicial activism, but the opposite. I don’t know if it is a question of effort, ability, or just not giving a damn, but somehow courts managed to mess up the Supreme Court’s clear ruling when they tried to apply it in their own cases. One example is Hicks v. Baines, a case in the Second Circuit (which encompasses Connecticut, New York, and Vermont).

The issue that tripped up the Hicks court had to do with what is called the prima facie case, which just means that there is a certain minimum amount of evidence or argument that a plaintiff has to provide just to stay in court. Satisfying that minimum often doesn’t take much, but a plaintiff has to know what exactly to show in order to keep a case alive.

In Burlington Northern the Supreme Court made it crystal clear that you couldn’t sidestep the rule against retaliating by doing your retaliation outside of the workplace. Even if your retaliatory acts had nothing to do with the victim’s employment, they were still illegal as long as they would dissuade a reasonable employee from complaining about discrimination. So what does the Second Circuit in Hicks say that plaintiffs have to show to satisfy the minimal prima facie case and stay in court? An “adverse employment action.”

That’s right. According to the Second Circuit, just to keep the case alive, just to satisfy the bare minimum standard, the plaintiff has to show that the retaliation involved the employer doing something nasty that was work-related. The really jaw-dropping part is that the court laid this out in its written opinion just after a long discussion about Burlington Northern and how the Supreme Court had decided that anti-retaliation protection “extends beyond workplace-related or employment-related retaliatory acts and harm.”

Fortunately for the plaintiffs in Hicks, the retaliatory actions that they alleged were all employment-related, so the Second Circuit’s bizarre mistake did not affect the outcome of their case (for the record, they won part of it and lost part of it).

The important takeaway from Burlington: any retaliation for complaining about workplace discrimination is illegal, whether it is work-related or not, as long as it would dissuade a reasonable employee from complaining about discrimination. The important takeaway from Hicks: it’s not just judges’ political inclinations that you have to watch out for. Take a look at their GPAs too.

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The Top Ten Myths and Facts About Suing Your Employer for Discrimination

If you believe that someone at work is discriminating against you, one of your options is to go the legal route and bring a case against your employer. I’m all in favor of taking action again illegal discrimination, but you need to have your eyes open when you make up your mind to fire the opening salvo in a discrimination dispute. Here are ten myths and facts about going after your employer for sex discrimination.

1. Myth: Your employer will cave quickly and you will move on with your life.
Fact: There is a good chance your case will drag on longer than you could ever expect.

You would not believe how long discrimination disputes can take to resolve. Seven years is not unheard of. One reason is that there are many steps in the process before you even get to court, including attempting to negotiate a settlement and filing an administrative charge at the Equal Employment Opportunity Commission or equivalent state agency (this is mandatory before you can file a lawsuit in court); another reason is that once you’re in court you are at the mercy of the judge, and the mercy of some judges is very slow. Some women reach an agreement with their employers relatively quickly while others will be in it for the long haul. Employers and their lawyers do their best to make it worse by dragging things out as long as possible.

2. Myth: It won’t cost too much to pursue your case.
Fact: Pursuing your case will most likely cost more than you expect.

Lawyers, especially good and experienced ones, are not cheap. When you consider that most of them charge by the hour and put that together with #1 above, it is obvious that pursuing your case will cost you. This is another reason that employers and their lawyers try to drag things out – they are hoping you will run out of money, if you don’t run out of patience first.

3. Myth: Your employer is terrified of bad publicity.
Fact: Your employer will probably not surrender when you threaten to go public.

Nearly every woman who ever came to my office to discuss suing her company for sex discrimination told me that her company was scared of bad publicity, so if we threatened to publish her accusations in the press, the company wallet would fly open. Nearly every one of them was wrong.

There are two reasons that your boss won’t wet his pants when you brandish the phone number of a Wall St. Journal reporter. First, he knows that for you, press coverage is a gun with only one bullet. Once you pull the trigger, you’re out of ammunition – in other words, once the story hits the press, it is out there, and whatever power the threat of exposure did give you is gone.

Second and more important, your employer is presumably in the press a fair amount – certainly a lot more than you are. Your story will be one bad article, but the next day or week or month there will be a good article about the business. Your story will not define the company’s public image. But your story will probably define your public image for a long time. Your employer knows this, and is counting on you having more to lose from press coverage than the company does.

4. Myth: Your colleagues – both the ones who suffered discrimination and the ones who knew it was happening – will back you up.
Fact: Your colleagues will probably wimp out.

If someone at work is discriminating against or harassing you, he is probably treating your female colleagues the same way, and other colleagues have probably witnessed his conduct. It would be nice to think that the other victims and the witnesses would tell the truth about what happened to you in the workplace.

Don’t count on it. More often than not, colleagues plead ignorance or flat-out lie when asked to step up. They fear for their jobs and will usually choose continued employment over lending you a hand or standing up for justice.

5. Myth: Your case will expose your employer for the prejudiced, backwards institution that it is.
Fact: Other people will probably not find out how evil your employer is.

Usually “success” in a discrimination case means settlement; only a very small percentage of discrimination complaints go all the way to trial. And employers have a very nasty habit of insisting that your settlement remains completely confidential. It’s the equivalent of a gag order: you are not allowed to tell anyone about the discrimination or about the settlement. This is a particularly noxious tactic because it means that other women don’t know to stay away from your woman-unfriendly workplace, and the public in general has no idea how much discrimination is really going on. Forget about getting a bucket of money from your case and then writing a book-length expose about how vile your employer is. If you settle your case, no book. If you take your case all the way to trial, then no settlement agreement and no confidentiality clause. You could write the book and tell the world, and you would have years to do it (see #1), but you would need a big advance (see #2).

6. Myth: You will be avenged against the perpetrator when he loses his job.
Fact: The bad guy will probably not get fired.

One of the fondest wishes of most discrimination victims is to see the bad guy get what’s coming to him. Sadly, he very rarely will. Employers rarely fire the perpetrators of discrimination even when they lose discrimination cases in court and have to pay the victims lots of money. Occasionally they will transfer the jerks, but usually nothing happens. If seeing your boss canned is your primary motivation for suing your employer, forget it. Talk to a lawyer about some more realistic expectations.

7. Myth: You shouldn’t tell higher-ups or human resources about the discrimination.
Fact: Making a complaint to human resources can help.

Yes, your boss may retaliate against you. Yes, human resources probably won’t do anything helpful. But if you are serious about pursuing a discrimination case against your employer, you should do everything you can to end the discrimination and to get your attempts to do so documented. It will probably mean the end of your career at that company, but it will help your case. And who knows, maybe you’ll be one of the lucky few who actually have effective HR departments, you’ll be promoted and transferred to a new department, you won’t have to bring a case, you will never have to see your repulsive boss again, and justice will prevail. It does happen. It can help to see a lawyer even at this stage so she or he can coach you through this process.

8. Myth: It is illegal for your boss to treat you unfairly.
Fact: Unfair treatment is not always illegal.

Your boss can make your life miserable without breaking the law. For instance, if he treats everybody, male and female, like crap, then it’s not discrimination when he treats you like crap. If he assigns you all the scut work because he just doesn’t like you, but he treats other women well, then it’s not sex discrimination. He can cut your pay, transfer you, demote you, or even fire you just because he thinks you looked at him funny. As long as his reason isn’t your gender, then it’s not sex discrimination. It can help to keep notes about how he treats you and your peers so that if you decide to see a lawyer, you can give her or him a good picture of how your boss treats both you and other employees, both male and female.

9. Myth: The focus in my discrimination will be on my employer’s wrongdoing, not on me.
Fact: If your case goes to court, your employer and its lawyers will do their best to invade your privacy and keep the spotlight on you and whatever wrongdoing they can dig up or make up.

If you accuse your employer of unfairly firing, demoting, disciplining, or otherwise penalizing you, your employer will almost inevitably respond by saying that whatever it did was a fair reaction to your performance: your boss fired you because you were always late, or demoted you because all your peers outsold you. Whatever it is, your employer will try to keep the focus on what you did rather than what it did.

If your case goes to court things could get even worse. One of the pre-trial stages of litigation, called “discovery,” involves exchanging relevant information with the other side. Your employer may demand that you turn over all kinds of information you consider private, such as your journals or records from all your doctors. Just because the other side requests it doesn’t mean you have to turn it over, but you and your lawyer will need to have a good legal argument not to turn it over.

10. Myth: There is nothing I can do about the discrimination I face at work.
Fact: There are many things you can do. Sex discrimination is illegal, and if it is happening to you, you should do something about it.

The first nine myths and facts might have been just a little discouraging. Don’t give up. Consider it from a dollars and cents perspective: I and thousands of other lawyers have made a living representing employees who accused their employers of discrimination. We could not have done that if we never won.

Yes, you could stay in your job and do nothing, or leave your job without reporting the discrimination to anyone. But you could also report the discrimination to a manager or to HR; negotiate an exit that involves your employer paying you to stay quiet about the discrimination; file a complaint with the federal, state, or local government; or organize other women who are also experiencing discrimination and take on your employer as a group. This last option can be the most effective (see Part I and Part II of my article about settling gender discrimination class actions). The big class actions that you read about in the newspaper happened because more than one woman stepped up to take a company to task over workplace discrimination. When you work together with your colleagues you have more power, more credibility, and more support. If you do decide to try the class action route look for a lawyer with experience bringing class action discrimination cases, as they differ in significant ways from single-plaintiff cases.

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Every case is unique; all of the above are generalizations based on seeing a lot of cases over time, and this article is not legal advice. Many women before you have gone after prejudiced employers and made them pay, and it may be that you have a strong case, a strong stomach, and a good lawyer who can make you one of those women. You have the right to be treated equally – if your boss is breaking the law, he should suffer the consequences. Don’t decide to throw in the towel without seeing a lawyer about your individual circumstances. One good place to find a plaintiff’s employment lawyer is the National Employment Lawyers’ Association.

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Settling Gender Discrimination Class Actions (Part II)

It may not seem credible that gender discrimination remains widespread and systemic in American workplaces. Women outnumber men in colleges and graduate programs; they have entered the workforce in force; women run some companies, universities, states, and departments of the federal government.

Despite all this progress, though, discrimination persists. Women are only 17% of Congress members. Women head a mere 2.6% of Fortune 500 companies. In other words, men still overwhelmingly control our most powerful political institutions and our economy.

The familiar glass ceiling argument could explain this striking disparity: women can rise up through the ranks professionally, but at some point they hit the glass ceiling and cannot go any higher. If that were the only problem, it might explain why women are so conspicuously absent from the powerful positions listed above. But the gender disparities start well below the highest levels of power.

A striking pattern emerges from statistics analyzing the numbers of women at various levels in financial services companies (which I’ve become familiar with from representing so many women in discrimination cases against them). At the entry level, there can be as many female as male employees. At the next level up, women make up a smaller percentage of employees. At the next level, even fewer of the workers are women. And on it goes, until you reach the near complete absence of women from the position of CEO. Graphically, the numbers describe a pyramid: with every promotion the percentage of women shrinks.

Social scientists like
William Bielby of the University of Illinois at Chicago
and Barbara Reskin of the University of Washington
have studied this phenomenon and traced it to its roots: unconscious bias that affects subjective decision-making.

Even the most fair-minded people are subject to unconscious biases. The Implicit Association Test is one of many studies to demonstrate that people can have strong preferences and antipathies they may not be aware of. Even people who consider themselves very fair-minded can be unconsciously prejudiced against minorities, for example. To give a very rough summary of part of the underlying theory, people tend to think in terms of “in groups” and “out groups.” My “in group” is the group of people who are like me in salient ways such as gender, race, religion, age, educational background, profession, family status, etc. I tend to attribute more positive characteristics to members of the in group and more negative characteristics to members of the out group, who are unlike me. For instance, as a native Midwesterner, I may unconsciously prefer fellow Midwesterners to people from other parts of the country, although if you ask me whether I think Midwesterners are better than other Americans in any way, I will honestly answer that I don’t. The bias is unconscious.

Unconscious biases operate in the workplace as they do in every other sphere of human interaction, with the result that the groups in power tend to stay in power. Male managers may subconsciously believe that other men are more capable than women, outperform women, or are more committed to their work than women. Again, these beliefs can be subconscious, but they still affect decision-making. When it comes to a subjective decision such as who deserves a promotion, a male manager with an unconscious bias in favor of men is more likely to promote a man than a woman. The same is true of granting raises, distributing assignments, and making opportunities like management training available. This is how unconscious bias can combine with subjective decision-making to favor men (and other groups like whites) and to create the pyramid that leaves women at the lower corporate levels while disproportionately men climb to power.

There are other factors at work here too. People tend not only to think more highly of members of their in group, but to be more comfortable with them. As a result, a male manager may invite some employees to a golf outing or to dinner – nothing formal, just being a down-to-earth supervisor. He invites the employees with whom he feels most comfortable or thinks he has the most in common. A slew of scientific studies demonstrate that he is likely to feel most comfortable with the employees who belong to his in group – in this case, men. As a result, he gets to know his male subordinates better and become friends with them. When plum assignments or opportunities for promotion arise, the manager is more likely to dole them out to the subordinates he is more comfortable working with and is friends with.

Unconscious bias is difficult if not impossible to change. Researchers including Frank Dobbin of Harvard University have shown that common techniques for combating prejudice, such as diversity training, not only do not help – they actually backfire.

The way to tackle workplace discrimination is not to try to change people’s unconscious thoughts, but to make decision-making processes less subjective and therefore less vulnerable to unconscious bias. Action must come from the top of the organization: an employer that provides clear, objective criteria to guide otherwise subjective decisions, and that enforces the use of those criteria, will make the workplace less discriminatory by diminishing the opportunity for decision-makers’ unconscious biases to affect their judgment.

The settlement of the gender discrimination class action against Novartis discussed in the first part of this post takes a stab at making these kinds of changes. It requires Novartis to clarify and systematize the criteria for evaluating employees, to train managers to evaluate employees fairly, and to “calibrate” evaluations to check that evaluators are applying performance criteria in a uniform manner.

Where bias is conscious and discrimination is intentional, decision-makers will find ways around objective criteria for decision-making. Conscious prejudice presents an entirely different set of challenges than unconscious bias. But I’d like to believe that a lot of workplace discrimination results from unconscious bias and that employers will improve their procedures to protect decision-making processes from that bias. Some employers have already done so, albeit usually under court order (demonstrating the need for more discrimination class actions). Employer initiatives to make subjective decision-making more objective will help end workplace discrimination. Please post a comment to share your workplace experience.

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The Girl Who Wasn’t One

Lisbeth Salander, the heroine of the three-volume Dragon Tattoo series, is a remarkable person by any standard: with no formal training she is a brilliant chess player, one of the top international hackers, a genius mathematician, and a cunning and effective hand-to-hand fighter.  Many commentators have debated whether the descriptions of barbaric violence against women in the books are misogynistic or a welcome examination of a real threat facing women.  But reviewers seem to agree that Salander is a feminist role model.  By my reading, however, the books’ depiction of Salander is the most sexist thing about them.

In the two books available in English so far, The Girl with the Dragon Tattoo and The Girl Who Played with Fire, Salander has a complicated relationship with femininity.  It is as though no normal woman could achieve Salander’s feats of intellectual and combat prowess, precluding Salander from being a normal woman – and perhaps even a normal human.  This smacks of the misogynistic bromide that women are not as good as men at [insert any activity here].  On the other hand, Salander may embody the feminist theory that society rejects extraordinary women like her, forcing them beyond traditional gender roles and perhaps even normal social roles into an ambiguous outsider status.

Stieg Larsson, the author of the series, constantly refers to Salander, a 24-year-old woman, as “the girl” (witness the titles of the books), which is temptation enough to conclude that he did not intend to champion feminist theory.  Further, the two books together offer evidence both that Salander is not a normal human, and not a normal woman.  Perhaps she chose her outsider status in reaction to male violence against women that she witnessed from childhood on, which explains why she risks all to avenge women wronged by men.  Or maybe the trauma of her upbringing and its aftermath rob her of femininity against her will.  After all, the only things she yearns for are bigger breasts and the love of a good man.

Salander is unsocialized, like a wild animal (her boss thinks of her as a stray cat).  Her boss considers her “an outsider” and “weird.  She’s really weird.”  Salander’s colleagues consider her “a hopeless case.”  When she was a child “[h]er classmates thought she was crazy”; when she left one middle school for another, she did not have “a single friend to say goodbye to.  An unloved girl with odd behavior.”  She appears “to have no sense of humor at all.  Or the ability to carry on a normal conversation.”  Her boss describes her as making progress in her “socialization process,” classifying her as a child – or possibly an alien – who is not fully socialized into normal adult society.  Other indications that Salander is something other than human include the observation that she is “not like any normal person” (emphasis added), and a description of her eyes as “raven black” – the color of a monster’s eyes, not a human’s.  Salander herself doesn’t feel human, wearing a t-shirt that reads “I AM ALSO AN ALIEN” and describing herself more than once as a freak.

Salander’s confused gender identity sets her strikingly apart from other people.  Larsson leaves no doubt that Salander is not feminine, even in her girlhood: “Much stronger boys in her class soon learned that it could be quite unpleasant to fight with that skinny girl.  Unlike the other girls in the class, she never backed down.”  She isn’t like other girls when she is a girl, but once she grows into womanhood, she finally becomes “girlish,” “with slender bones[,] small hands, narrow wrists, and childlike breasts.”  Others perceive her as a fifteen-year-old girl when she is twenty-four.  But at the same time she is still boyish, a “flat-chested girl[] who might be mistaken for [a] skinny boy[] at a distance.”  At every age Salander does not fit into the socially accepted parameters of femininity.

Just to look like a woman, the adult Salander must don elaborate “camouflage,” including a multi-layered outfit and make-up, while removing the usual jewelry from her facial piercings.  Only once she is costumed does she look “like any other woman.”

Salander believes that she is not womanly.  She is “convinced that her skinny body was repulsive.  Her breasts were pathetic.  She had no hips to speak of.  She did not have much to offer,” discounting entirely her remarkable intellect and courage and valuing only female sexual characteristics.  When she looks in the mirror to see the bustline she creates with fake latex breasts, this jaded, violent, unemotional woman “catch[es] her breath”; later she enthusiastically gets breast implant surgery, trying to artificially capture some of the femininity she lacks.  Salander’s womanhood is a mere technicality; practically speaking, she is without feminine attributes other than the false ones she buys to stuff her bra.

But Salander does have some traditionally masculine attributes.  Her surprisingly (given her small stature) effective violence is one of the attributes that sets Salander apart from other girls and women.  Salander is notably “violent, without a doubt.”  She tasers men, beats them with golf clubs, ties them up, rapes them, firebombs them, chops at them with an axe.  But she is violent only towards men who are violent towards women.

However just, her violence is condemned.  Violence is masculine, celebrated or at least expected in men whether justified or not, while Salander, a violent female, is ostracized and even institutionalized.  Her friend and former guardian calls her violence, even though it is limited to those who have earned it, “appalling” – this in a series brimming with descriptions of men sexually attacking and murdering women in much more gruesome, disturbing, and pathological ways.  But when men are violent they are just being men.  When one male character can’t wait to beat up a wrong-doing man, he considers it just being “pissed off.”  Others might consider him “a macho cowboy” – violence makes him all the more masculine.

Larsson’s leading female character is too impressive for her to be feminine or even female.  A male character with her abilities would be uber-masculine, an action hero.  But as a “girl” Salander is entirely abnormal.  As a child she acts like a boy, then as an adult she looks like a boy and acts like a lunatic.  Whether or not these books are feminist in some ways, their heroine is a warning to women not to over-achieve.

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