Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Tuesday, February 21, 2017

Judge Nancy Gertner on What it Means to be a Woman Judge

Judge Nancy Gertner, Keynote Speaker, Univ. of Baltimore 9th Feminist Legal Theory Conference (Mar. 2016)

I was on the bench for seventeen years, and I intend to write about that experience. The problem is that while my memoir was funny, this book—on judging—is not. In my memoir, I describe the fact that the only way I could face the discrimination I was facing was to crack jokes about it, to find the humor in horrific situations. I started writing about judging literally the minute I joined the federal bench. I recorded everything I did and why—the palpable change from who I had been on April 26, 1994, when I was an employment discrimination, civil rights, and criminal defense lawyer, and who I was supposed to be on April 27, 1994, when I was sworn in as a judge.

February 21, 2017 in Conferences, Judges | Permalink | Comments (0)

Tracking the Experience of Decriminalizing Prostitution in Rhode Island

Donna Hughes & Melanie Shapiro, Bibliography of Sources on Prostitution Decriminalization in Rhode Island

A bibliography of sources on the research we did on prostitution and sex trafficking and the advocacy work we did to end decriminalized prostitution. For 29 years prostitution was decriminalized in Rhode Island (if it occurred indoors). Sexual exploitation and violence against women and girls were integrated into economic development. The number of sex businesses grew rapidly and organized crime groups operated brothels and extorted money from adult entertainment businesses. Rhode Island became a destination for pimps, sex traffickers, and other violent criminals. The lack of laws impeded police from investigating serious crimes, including sex trafficking

February 21, 2017 in Human trafficking | Permalink | Comments (0)

The Burden of Asylum for Gender-Related Persecution

Joanna Kallinosis, Refugee Roulette: A Comparative Analysis of Gender-Related Persecution, 6 DePaul J. Women, Gender & L. (2017)

This essay examines the existing law regarding gender related persecution and the burden imposed on female asylum applicants to fit their claims within the circumscribed notion of a refugee within Immigration law of the United States of America. Such difficulties are contrasted with the Canadian Immigration system, where women enjoy greater freedom in the interpretation of requisites necessary to be granted asylum. Section I of this essay explores the problems women face in gaining asylum in the United States. Section II of this essay will analyze the conflicting claims and claimants. Section III of this essay will explore past trends in asylum law; discuss the framework for evaluating asylum claims under current US asylum law; analyze the competing judicial interpretations of asylum law and discuss the inconsistency of judicial decisions. Section IV of this essay will discuss the projection of future trends. Section V of this essay will propose an amendment to the Refugee Act to include a Sixth category of gender or sexual persecution.

February 21, 2017 in International, Violence Against Women | Permalink | Comments (0)

Monday, February 20, 2017

The Absence of Binding Norms for Gender-Based Asylum

Blaine Bookey, Gender-Based Asylum Post-Matter of A-R-C-G: Evolving Standards and Fair Application of the Law,  22 Southwestern J. Int'l Law 1 (2016)

Abstract:     

When I last studied this issue — the eligibility of domestic violence survivors for asylum in the United States — I concluded: “the absence of binding norms remains a major impediment to fair and consistent outcomes for women who fear return to countries where they confront unimaginable harms, or worse, death.” Despite a recent decision by the highest immigration tribunal in the United States accepting that women fleeing domestic violence can meet the refugee definition and qualify for protection, I could write the same words today. The 2014 ruling in a case known as Matter of A-R-C-G- marked a critical advancement in U.S. law. Notwithstanding, in the year since that decision, arbitrary and inconsistent outcomes have continued to characterize asylum adjudication in this area of the law.

I do not mean to diminish the importance of the A-R-C-G- precedent, a long-awaited and hard-fought victory. Issued by the Board of Immigration Appeals (BIA or Board), the decision constitutes binding precedent for immigration judges (and asylum officers) across the country who often have the final word in these life or death matters because adverse decisions are not often appealed, and if appealed, the vast majority are upheld. For thirteen years, from the vacating of the well-known and controversial Matter of R-A- decision denying asylum to a domestic violence survivor in 2001, to the issuance of the A-R-CG- decision in 2014, immigration judges and asylum officers adjudicated domestic violence asylum claims without the benefit of jurisprudential (or regulatory) guidance.

 

February 20, 2017 in International, Violence Against Women | Permalink | Comments (0)

Intersectionality and Anti-Discrimination Law of Gender and Race in Sweden

Eva Schomer, Sweden a Society of Covert Racism: Equal from the Outside: Everyday Racism and Ethnic Discrimination in Swedish Society, 6 Onati Socio-Legal Series (2016) 

Abstract:     Sweden is widely considered to have one of the most equal and gender-equal societies in the world. But the Swedish society is also one in which the Labour Court can find discrimination when a 60-year-old ‘Swedish’ ‘white’ woman fails to get a job interview – yet not when workers call a colleague of Gambian background ‘blackie’, ‘big black bastard’, ‘the African’, and ‘svartskalle’, or a man of Nigerian background ‘Tony Mogadishu’ and ‘Koko stupid’. In this article, I will try to explain the logic behind these positions. I will also suggest an extended jurisprudential methodology that might help to prevent laws and the legal system from reinforcing societal processes of racialization. In this article I will argue that it is necessary to develop the legal methods to make it possible to forestall and prevent racism. To prevent everyday racism in the way intended by the law in books, the courts must take into account the living law and the law in action. If the courts are allowed to continue applying the law according to their whim, without even considering their position as representatives for the power of dominant ‘white’ groups over subordinated people of colour, then it is obvious that the living law that is the dominant discourse of ‘white’ normalcy will never change.

 

February 20, 2017 in Equal Employment, International | Permalink | Comments (0)

World Bank Study Measures Legal Gender Disparities in Economies Around the World

Sarah Iqbal, Asif Mohammed Islam, Rita Ramalho, Alena Sakhonchik, Unequal Before the Law: Measuring Legal Gender Disparities Across the World

Abstract:     

Several economies have laws that treat women differently from men. This study explores the degree of such legal gender disparities across 167 economies around the world. This is achieved by constructing a simple measure of legal gender disparities to evaluate how countries perform. The average number of overall legal gender disparities across 167 economies is 17, ranging from a minimum of 2 to a maximum of 44. The maximum possible legal gender disparities is 71. The measure is found to be correlated with other measures of gender inequality, implying the measure does capture gender inequality while also differing from preexisting measures of gender inequality. A high degree of legal gender disparities is found to be negatively associated with a wide range of outcomes, including years of education of women relative to men, labor force participation rates of women relative to men, proportion of women top managers, proportion of women in parliament, percentage of women that borrowed from a financial institution relative to men, and child mortality rates. Subcategories within the legal disparities measure help to uncover specific types of legal disparities across economies.

 

February 20, 2017 in International | Permalink | Comments (0)

Friday, February 17, 2017

Exploring Why Cases of Sexual Assault against Black Women Rarely Result in a Conviction

 

Channel Fitch, Teri Platt & Michelle Wilson,  Black Women and the Criminal Justice System: The Politics of Processing Sexual Assault Cases

Abstract

According to the Rape, Abuse, and Incest National Network (RAINN), 3.7% of reported sexual assault instances are tried in court and only 2% result in a conviction. Despite evidence that most victims of sexual assault are children, multi-racial women, and black women, the majority of cases that are tried are those where the victims were white women. This paper will examine cases where black women are the victims in order to understand why these instances do not result in convictions. Our argument is that socioeconomic factors may make it more difficult for black women to navigate the process. We will explore this by analyzing each phase of the process to identify complexities in the system that may prevent these cases from concluding in court. The purpose of this paper is to provide insight into the experiences of black women in the criminal justice system and recommend procedural reforms that will result in an increase in reports and convictions.

February 17, 2017 in Violence Against Women | Permalink | Comments (0)

Victim Narratives in Sexual Assault Cases in the Age of Social Media

Erin Sheley, Victim Impact Statements and Expressive Punishment in the Age of Social Media, Wake Forest L. Rev. (forthcoming)

Abstract

Victim impact statements (VIS) are long-disfavored among legal commentators for allegedly injecting unnecessary, negative emotion into sentencing at the expense of the defendant, with ambiguous informational benefits to the sentencing body. Most traditional arguments both for and against VIS turn on purely retributive or utilitarian grounds. This essay takes up the Stanford sexual assault victim’s statement to propose an expressive framework for understanding the function of VIS, which resolves much of the theoretical confusion surrounding the traditional justifications. I show how the expressive goals of criminal punishment have long been distorted by the mediation of traditional news reporting. I then analyze the legal relevance of the particular criminological values expressed in the Stanford statement to show how unmediated victim narratives may counterbalance media distortion, particularly in the age of social media transmission. I conclude that the criminal justice system better serves its expressive function by formally incorporating VIS into sentencing.

February 17, 2017 in Violence Against Women | Permalink | Comments (0)

Examing Why Women Lawyers are Less than 20 Percent of Advocates in the US Supreme Court

Jennifer Mika, The Noteworthy Absence of Women Advocates at the US Supreme Court, 25 American J. Gender, Social Policy & Law 1 (2016)

Abstract:     

Arguing before the U.S. Supreme Court is considered one of the most prestigious accomplishments in a litigator’s career. However, during the last five terms, women consistently make up less than one fifth of this elite club. This article takes a closer look at the advocates that argued before the Supreme Court during the 2015-2016 term as well as those who appeared more than once in a given term over the past six years. It explores the possible causes of the deficit in women advocates including gender disparity in Supreme Court clerkship experience. It strives to start a dialogue about how the gender gap in Supreme Court advocacy can be closed.

 

February 17, 2017 in SCOTUS, Women lawyers | Permalink | Comments (0)

Thursday, February 16, 2017

Making Peace Negotiations Responsive to Gender

Aisling Swaine, Law and Negotiation: A Role for a Transformative ApproachGlobal Policy Volume 7, Issue 2, May 2016, 282-287

Abstract:     

Feminist critique of negotiations that aim to bring about peaceful political settlements has consistently pointed to the glaring absence of the critical analysis of and response to gender relations as part of both the modus operandi and substantive output of those processes. Just as war is a gendered phenomenon (working off gender relations that subordinate women), so too the processes that respond to it and aim to negotiate its end and create an aftermath, are inherently gendered. Where the goal is a peace that works for ‘everyone’, then negotiation needs to respond to structural gendered conditions that limit the potential that negotiation holds for women. The concept of transformation has been espoused by feminists as key to altering the structural inequalities that determine a systemic gendered order that works to deprivilege women and women’s interests. As a concept, ‘transformation’ holds great potential to regenerate processes of negotiation towards promoting women’s ability to have agency over their lives. This article begins a consideration of what transformation might mean for the practice of negotiation and how it might be advanced to make negotiations responsive to gender relations so that a peace that serves women as well as men is worked towards.

 

February 16, 2017 in Gender, International | Permalink | Comments (0)

State Trigger Laws Ready if Roe Overturned

If Trump Gets His Way, These Will be the First Places to Ban Abortion

"We thought we wouldn’t have to worry about this stuff," Feigenholtz says, "but the new administration has been a wake-up call. I had to stop and say, 'Okay, now what? How do we protect women?'"

 

She was especially concerned about an obscure 40-year-old provision in Illinois' criminal code, one of a number of measures in 10 states across the country, that anticipate a time when the Supreme Court reverses itself on abortion. They are often referred to as "trigger laws," because even though each state's provision works a bit differently, the measures are "triggered" by the reversal of Roe v. Wade. Should that occur, these states commit to making abortion illegal in all cases, except to protect a mother's life, just as it was before the Supreme Court's 1973 ruling. (In four states, the trigger law makes the switch back to illegal abortion automatic.)

 
Feigenholtz was familiar with Illinois' trigger clause from her previous work on women's health measures in the General Assembly. After the election, she contacted local pro-choice advocates, including chapters of the ACLU and Planned Parenthood, to float the idea of proposing a measure to void Illinois' trigger law, as part of a bigger bill that seeks to expand abortion access by including abortion care in Medicaid and state employee health coverage. The bill she introduced in January, HB 40, proposes cutting Illinois' trigger language and affirming the state's commitment to uphold abortion rights, no matter what happens in Washington

 

Many such laws, including the one in Illinois, go even further, saying that if Roe is overturned, the state intends to renew their so-called "policy" that life begins at conception. This approach could not only affect the legality of abortion but also common forms of birth control, such as Plan B or IUDs, which some anti-abortion advocates consider to be abortifacients despite medical consensus to the contrary.

 

"After the passage of Roe, a handful of states said, 'If we can ever go back, we want to go back,'" says Daniela Kraiem, the associate director of the women and the law program at the Washington College of Law at American University. "The point of those laws, up until now, has been largely symbolic," she says, a way for states to "allow women to exercise their constitutional rights, but under protest."

 

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If the Supreme Court did overturn Roe, the enforceability of these trigger clauses is complicated and difficult to predict, Kraiem explains. For instance, six states—Arkansas, Illinois, Kansas, Kentucky, Missouri, and Ohio—enshrine only their intention to revert back to pre-Roe policies, without requiring an automatic switch. Since a number of those legislatures tend to skew conservative, that intention could very quickly become law.

February 16, 2017 in Abortion | Permalink | Comments (0)

CFP National Association of Women Lawyers Student Writing Competition

NAWL Student Writing Competition

NAWL established the annual Selma Moidel Smith Law Student Writing Competition to encourage and reward original law student writing on issues concerning women and the law.

 

The rules for the competition are as follows:

 

Entrants should submit a paper on an issue concerning women's rights or the status of women in the law.

 

Essays will be accepted from students enrolled at any law school during the 2016-17 school year. The essays must be the law student author's own work and must not have been submitted for publication elsewhere. Papers written by students for coursework or independent study during the summer, fall, or spring semesters are eligible for submission. Notwithstanding the foregoing, students may incorporate professorial feedback as part of a course requirement or supervised writing project.

 

FORMAT: Essays must be double-spaced in 12-point, Times New Roman font. All margins must be one inch. Entries must not exceed 15 pages of text, excluding notes, with footnotes placed as endnotes. Citation style should conform to The Bluebook: A Uniform System of Citation. Essays longer than 15 pages of text, excluding notes, or that are not in the required format will not be read.

 

JUDGING: NAWL Women Lawyers Journal® designees will judge the competition. Essays will be judged based upon content, exhaustiveness of research, originality, writing style, and timeliness.

 

QUESTIONS: Questions regarding this competition should be addressed to the Chair of the Writing Competition, Professor Jennifer Martin at jmartin@stu.edu.

 

SUBMISSION AND DEADLINE: Entries must be received by May 1, 2017. Entries received after the deadline will not be considered. Entries must provide a cover letter providing the author's name, title of the essay, school affiliation, email address, phone number, and permanent mailing address. Entries must be submitted in the following format: email an electronic version (in Microsoft Word) to jmartin@stu.edu.

 

AWARD: The author of the winning essay will receive a cash prize of $500. NAWL will also publish the winning essay in the Women Lawyers Journal. The most recent winning paper was Human trafficking waivers: How the United States implicitly violates federal law and empowers ISIS to commit human trafficking crimes written by Paloma A. Kennedy, Washington University School of Law. Please view the paper by clicking here

 

February 16, 2017 in Call for Papers | Permalink | Comments (0)

Tuesday, February 14, 2017

St. Valentine's Greeting to The Lady Judge

From the archives of Judge Florence Allen.  Allen was the first woman judge elected to a state supreme court (Ohio in 1922), appointed to a US Court of Appeals (6th Circuit), and shortlisted for the US Supreme Court. She saved this card sent to her from friends. 

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February 14, 2017 in Legal History, Women lawyers | Permalink | Comments (0)

An Alternative Interpretation of America First, Circa 1924

From the archives of Judge Florence Allen's papers.  Allen was the first woman judge elected to a state supreme court, appointed to a US Court of Appeals, and shortlisted for the US Supreme Court. She saved this pamphlet from the peace movement.

This "America First" poster appears to be part of a campaign by schools, churches, and organizations to turn "the old slogan 'America First'" into a "new American Creed that voices the faith of the broader patriotism that American should be in the forefront of the movement for world cooperation." Peace, not war.  Globalism, not localism.

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   Excerpts from the poster:

    America First: not flaunting her strength as a giant, but bending in helpfulness over a sick and wounded world like a Good Samaritan.

    Not in splendid isolation, but in courageous cooperation.

    Not in pride, arrogance, and disdain of other races and peoples, but in sympathy, love, and understanding

From the explanatory pamphlet:

How the Creed Came to be Spoken

    On Sept. 7, 1924, the Rev. George Ashton Oldham, Bishop Coadjutor of the Diocese of Albany NY preached . . . the Sunday before "Defense Day." He delivered a strong peace sermon. Toward its close he spoke of the old slogan "America First," and told how he thought it should be interpreted. He was listed to with breathless interest and with evident approval.

How It Came to be Published

    Among some who heard Bishop Oldham's sermon and some who read reports of it in the papers the idea arose of giving this new interpretation of "American First" a wider circulation by issuing it in poster form. The enthusiasm of the public was immediate and great. Cards and postcards were next issued, and then, to meet an urgent demand, a poster large enough for outdoor or classroom use.

A "Baerfact"

"As a statement of principles to which every forward-looking American can subscribe, 'America First' would be hard to beat. It makes the noisy rantings of all the professional patriots sound pretty mean and cheap and silly, and recalls the noble ideas of liberty, justice, helpfulness, and cooperation in which the nation was conceived and which it must follow to attain its high destiny."--JM Baer, the "Congressman Cartoonist"

Former Supreme Court Justice Sees Possiblility of New Heaven and New Earth (John H. Clarke)

Noted Editor Counsels his Fellow Countrymen

"It does not agree with the materialistic philosophy of the cry 'My country, right or wrong!' It does not exalt any part of humanity above the whole. It does not accord with the ugly, selfish, and ignoble appeal, 'March on American, and march alone!' It does not pander to a single fear or prejudice or hatred, but it sets a task and reveals a goal for our dear country which should arouse the fervent love and increasing service of every true patriot." 

February 14, 2017 in Legal History | Permalink | Comments (0)

Gender and the Structural Constitution

Paula Monopoli, Gender and the Structural Constitution, 76 Maryland L.Rev. Endnotes 17 (2016)

Abstract:      

This paper is based on remarks delivered by the author for the Constitution Day Lectures at the University of Maryland Carey School of Law. The paper draws on the author’s prior scholarship on gender and constitutional design to explore why more than eighty-five countries have already had female prime ministers or presidents while the United States has not. The paper’s thesis is that this puzzle may be explained, in part, by what some have called the “structural constitution.” Two design choices by the Founders made it less likely that a woman would ascend to the presidency. The first of these structural features is the choice of a singular or unitary executive that combines the head of state, head of government and commander-in-chief function in one person. The impact of that choice can be amplified by executive activism and the power of the courts via judicial review to define the scope of the executive as more or less expansive. The second structural feature is the choice of direct presidential selection, filtered through the Electoral College. With Hillary Clinton as the first viable female nominee of a major American party, this paper considers these structural constitutional choices, how they construct our politics and their impact on the likelihood that Clinton will be elected.

 

February 14, 2017 in Constitutional, Gender | Permalink | Comments (0)

Monday, February 13, 2017

Reinforcing Masculine Legal Authority in the Way We Teach Moot Court

Susie Salmon, Reconstructing the Voice of Authority

Abstract:      

Notwithstanding the presence of three women on the United States Supreme Court, in terms of gender equality, surprisingly little has changed in the legal profession over the past twenty years. This stagnation is particularly apparent in the highest paying and most prestigious sectors, such as the Supreme Court bar, the top echelons of the top law firms, the judiciary, and the general-counsel’s office. Even where objective facts suggest that female lawyers should be hired, billed out, or compensated at the same or higher rate than their male peers, subjective decisions informed, in part, by bias and stereotype drive a different result. 

This Article proposes that, until we stop indoctrinating law students that a “good lawyer” looks, sounds, and presents like the Classical warrior — that is, a male — these barriers will persist. For many law students, the first place they get to model what it means to look, sound, and act like a lawyer is in moot court or other oral-argument exercises. Especially in light of an overall law-school culture that reinforces the significance of inborn abilities, it is not hard to see how moot court’s frequent emphasis on “natural” oral-advocacy talent, and its implicit connection of that talent to traits traditionally associated with men, can influence how students — and later lawyers — develop rigid conceptions of what a good lawyer looks, sounds, and acts like. And continuing to uncritically teach the values of Classical rhetoric — values inherited from a culture that silenced women’s voices in the public sphere — exacerbates the problem. This Article explores the dynamics and consequences of reinforcing the male paradigm in the way we coach and judge moot court and other oral-advocacy exercises, highlights some barriers to change, and proposes concrete steps legal educators, practitioners, and judges can take to help change what the voice of authority sounds like in the legal profession.

 

February 13, 2017 in Education, Gender, Law schools, Women lawyers | Permalink | Comments (0)

Study Shows Male Justices Interrupt Female Justices More during Oral Agument

Adam Feldman & Rebecca Gill, Echoes from a Gendered Court: Examining the Justices' Interactions during Supreme Court Oral Arguments

Abstract:      

Supreme Court oral arguments are the only publicly scheduled opportunities for the Justices and advocates to directly engage in discussions about a case. There are few rules to regulate these conversations. Within this unique setting and due to the lack of argument structure combined with the limited time allotted to each argument, the Justices vie for chances to speak, sometimes at the expense of utterances from other Justices. In this Article we examine how the Justices’ genders dictate much of the Justices’ interactions and ultimately the power structure of oral argument.

This Article shows how gender is an embedded characteristic of the oral arguments and how the Justices’ appropriations and perceptions of gender roles create disparities in the balance of authority on the Court. The Article’s analysis shows a major gap between male Justices’ interruptions of female Justices and female Justices interruptions’ of male Justices during oral arguments. After discussing why this is problematic, the Article offers suggestions for how the Court can reduce these interruptions through institutional reforms. The Article’s analyses corroborate conversational and power dynamics previously elucidated by sociolinguists, but also extend those findings to the insular environment of the United States Supreme Court.

 

February 13, 2017 in Courts, Judges, SCOTUS | Permalink | Comments (0)

Teaching Seneca Falls

Movements that Move the Teaching of History

For those of us who teach, and especially those who teach courses in women’s and gender studies, the question is key, perhaps even foundational: Is the women’s and gender movement home, and, if so, does that underscore the significance and importance of teaching about Seneca Falls? Does the ribbon of women’s movement history roll out across time and space from Seneca Falls? Is this the place where it all happened, as some like to say? Does this place teach us the function of myth and its mythmaking power for social change, as Lisa Tetrault, associate professor of history at the University of Wisconsin at Madison, ventures in her history of Seneca Falls? Or do the questions posed this way open up the history of women’s movements as a contest over meaning, ritual and re-enactments for feminist futures?

 

Surely, this is, in part, what Saturday Night Live was driving at with its recent sketch featuring millennials conjuring the ghost of Susan B. Anthony at the Susan B. Anthony House in Rochester, N.Y., only to quickly lose interest in her presence. Surely, this also means (re)considering how, just a few months earlier, on Nov. 8, 2016, people lined up for hours on end to pay tribute to this suffragist, abolitionist and women’s rights campaigner on a day they imagined would be historic in its election of the first woman president of America. The SNL millennials’ short attention span disclosed their faint and passing interest in the history of the women’s movement until Susan B. Anthony uttered her opposition to abortion.

 

The point was not lost on college students watching this clip in my class. What did they know -- really know -- of women’s history? And what difference, if any, does that knowing effect in the world today? How does millennials’ seemingly fleeting or ambivalent relation to feminist history tell us more about the failures of romanticizing the past and about our own inability to see or imagine how they take up feminist history’s possibilities to act in the world?

 

One other message in SNL’s short satire really hit home. Women’s rights legacies are not simply and only about upholding the past as some quaint object of interest: see my desk, hold a pair of my shoes and touch the stove where I cooked my meals. Rather, historical moments such as the women’s rights movement in upstate New York need to be thought about as having the capacity to stage the future over and over, a future we continue to grapple with, worry over and teach about.

February 13, 2017 in Legal History | Permalink | Comments (0)

Wednesday, February 8, 2017

A Timeline of Women's Legal History in the US

Came across this again while doing some research, and wanted to make sure to save it for future reference.  It is not complete, but quite useful.

A Timeline of Women's Legal History in the US

This webpage contains a history of significant events for women in the United States regarding their experience with the law: using it, making it, practicing it as a profession, profiting or suffering from it. It ranges from 1619 to the present, covering jury rights, voting rights, marriage rights, the right of a woman to pass on the status of free or slave to her children, the right of a woman to control her own body, the right of a woman to choose her own profession -- particularly the profession of law or lawmaker.

February 8, 2017 in Legal History | Permalink | Comments (0)

Tuesday, February 7, 2017

Comparing American and French Sexual Harassment Law

Tristin Green, American is from Venus, France is from Mars: Pinupus, Policing, & Gender Equality, Employee Rgts & Employment Policy J (forthcoming)

    Abstract:      

 

Professor Tristin Green shows in this Essay that current portrayals of differences between American and French harassment law are incomplete. They overlook important history of harassment law in the United States and miss the extent to which American law has been and continues to be shaped by concerns very similar to those articulated by the French in devising their harassment law. To reveal the common thread of concern, Professor Green uncovers the seeds of the limits placed on employer liability for harassment by the United States Supreme Court in the 1980s and 1990s, and digs beneath the doctrinal cover of “because of sex” in Title VII cases today. She shows judges in the United States relying on the “because of sex” requirement to prevent Title VII from disrupting exclusionary and subordinating work cultures for the very same reasons that French law was originally narrowly conceived. American judges in these cases see harassment as a problem of interpersonal intrusion (if not violence) first and of workplace discrimination second. Most fundamentally, they see employers as mere police officers of individuals who engage in harassment, and they resist a construction of the law that would require employers to alter male-dominated work cultures.

Seeing this similar thread of concern and how it restricts the reach of harassment law in the United States is important to understanding the equality project in both countries. France and the United States both face significant hurdles to developing a harassment law that will alter workplace cultures in ways that further integration and equality. If equality advocates cannot disrupt the pervasive sense that workplace harassment is a matter solely of interpersonal behavior to be policed, whether by employers or by the state, then the harassment laws of neither country are likely to be effective.

 

February 7, 2017 in Equal Employment, International, Workplace | Permalink | Comments (0)