Gender and the Law Prof Blog

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

Wednesday, April 18, 2018

The Deleterious Effects of the Marriage Penalty Tax on Women and Society

Dennis R. Lassila, Murphy Smith & Daqun (David) Zhang, Negative Social and Economic Effects of the Marriage Penalty Tax on Women and Society

For decades the marriage penalty tax (MPT) has been debated, reduced, increased, and muddled in the US tax system. The issue is important to individual taxpayers, as well as to policy-makers, academic researchers, and society overall. Research shows that the MPT has a negative impact on marital stability, resulting in particularly deleterious effects on women and children, as single females, especially single-parent females, are more likely to be in poverty. Consequently, the MPT is a gender issue in that women are more negatively affected by it than men are, but to varying degrees all members of society are negatively affected, women, men, and children. The purpose of this study is to review how the MPT was affected by the new tax law, the Tax Cuts and Jobs Act of 2017, and briefly review the history of the MPT and its impact on individuals and society. While the MPT was greatly reduced by the 2017 Act, notably regarding tax rates, the MPT, as connected to the earned income tax credit, continues to have a major detrimental impact on low to moderate income couples, discouraging marriage and having a particularly negative effect on their children.

April 18, 2018 in Family, Legislation | Permalink | Comments (0)

SCOTUS Denies Cert in Abortion Protest Case Leaving in Place Noise Restriction Law

Supreme Court Declines Appeal of Ruling Against Pastor Who Preaches Outside Planned Parenthood

The U.S. Supreme Court has declined to hear an appeal of a ruling that overturned a lower court decision granting a preliminary injunction to a Maine minister who asserted that he was being unlawfully targeted by police outside of a Planned Parenthood facility for his pro-life preaching.

 

The high court declined certiorari in the case of March v. Mills, et. al. without comment on Monday, allowing a First Circuit ruling against the preacher’s public proclamations to stand.

 

However, as the courts ruled solely on the merits of the law and not how it was being applied specifically to Andrew March of Cell 53 Church, his attorneys will refile and continue the fight.

 
“The case is far from over,” Kate Oliveri of the Thomas More Law Center told the Bangor Daily News. “There are several challenges that we will go back to the District Court with.”...

 

In May 2016, U.S. District Judge Nancy Torresen, appointed to the bench by Barack Obama, sided with March, opining that the “intent to interfere” portion of the law would pertain to the content of the speech, and would therefore only relate to pro-life speech, which would consequently be an unconstitutional content-based restriction.

 

“Continued enforcement of a content-based restriction on speech would result in irreparable harm to the Plaintiff,” Torreson ruled.

 

She said that there are other ways to keep order on the public sidewalk, as police “can further their interests of maintaining order and protecting individual patients through the criminal code, most obviously the disorderly conduct and harassment statutes.”

 

However, in August, the First Circuit Court of Appeals overturned Torreson’s ruling, stating that they rather found the law to be content-neutral and that it does not ban abortion opponents from conversing with others, as opposed to lifting up one’s voice to preach—if in doing so the person’s voice can be heard inside the building.

 

“[T]he requirements laid out on the face of the noise provision do not indicate that the measure would apply to speech expressed at a normal, conversational tone—or even at a louder volume—absent the speaker’s intent to disrupt the provision or receipt of medical services,” it wrote.

The First Circuit Court of Appeals case is here, March v. Mills (2017)

April 18, 2018 in Abortion, Constitutional, SCOTUS | Permalink | Comments (0)

Monday, April 16, 2018

Ninth Circuit En Banc Rules that Women's Salary Histories Cannot be Used to Justify Unequal Pay

ABA J, Salary History Doesn't Justify Paying Women Less, 9th Circuit Rules in Opinion Written by Late Judge

An en banc federal appeals court ruled Monday that salary history cannot be used to justify paying less to women in comparable jobs.

 

The San Francisco-based 9th U.S. Circuit Court of Appeals ruled that salary history is not relevant in a suit under the Equal Pay Act, report the Recorder, the Los Angeles Times and Courthouse News ServiceHow Appealing links to additional coverage and to the opinion.

 

The Equal Pay Act bars wage differences between male and female employees for comparable work—except in cases of seniority, merit, quantity or quality of production, or “any other factor other than sex.” The defendants had argued salary history was a factor “other than sex.”

 

The appeals court ruled that “a factor other than sex” is limited to legitimate, job-related factors such as experience, educational background, ability or prior job performance.

 

Prior salary, whether considered alone or with other factors, is not job-related, and relying on it perpetuates discrimination, the appeals court said.

 

Federal appeals courts are split on the issue, according to the National Law Journal. The U.S. Courts of Appeals for the Denver-based 10th Circuit and for the Atlanta-based 11th Circuit have held that prior pay can’t be considered alone as an exemption to equal pay laws. The Chicago-based 7th U.S. Circuit Court of Appeals has ruled salary history can be considered.

The decision is here at Rizo v. Yovino (9th Cir. en banc April 9, 2018)

There were three concurrences (5 judges of 11), with two of the concurrences reserving the option for businesses to use salary histories as a relevant, but not determinative, factor in pay decisions.  Three of the four women on the en banc panel joined a concurrence (only one of whom is a Republican appointee). 

For prior coverage of the earlier panel decision on this blog, see 

9th Circuit Grants En Banc Review for Decision Permitting Women to be Paid Less Than Men Due to Salary History (Sept. 2017)

EEOC Seeks Rehearing En Banc in 9th Cir Decision Finding Unequal Pay Based on Salary History Alone is not Gender Discrimination (May 2017)

Court Holds Salary Histories are Non-discriminatory Basis to Pay Women Less (May 1, 2017)

April 16, 2018 in Courts, Equal Employment | Permalink | Comments (0)

Neoliberalism and the Lost Promise of Title VII

Henry L. Chambers, Jr., Neoliberalism and the Lost Promise of Title VII, JOTWELL, reviewing Deborah Dinner, Beyond “Best Practices”: Employment-Discrimination Law in the Neoliberal Era, 92 Ind. L.J.  1059 (2017).

In Beyond “Best Practices”: Employment-Discrimination Law in the Neoliberal Era, Professor Deborah Dinner explores how neoliberalism of the late twentieth century has influenced Title VII’s interpretation and destroyed Title VII’s ability to transform the American workplace into one where employees are properly treated, fairly valued, and fully compensated. She suggests that neoliberalism’s focus on a minimal role for state intervention and on the individual worker as a completely realized market actor capable of protecting her interests through negotiation with an employer is problematic. It has led to an interpretation of Title VII that functionally expands employer prerogatives regarding terms of employment, limits employee power, and legitimates the economic inequality and class subordination that Title VII should attempt to eliminate. Consequently, even “best practices” that fully enforce Title VII “are insufficient to realize a labor market responsive to the needs of low-income workers for adequate wages, safe work conditions, and work hours and schedules that allow for fulfilling family and civic lives.”

 

The article is a Thing I Like Lots because it takes two seemingly unrelated topics – Title VII and neoliberalism – and explores how they are connected. Dinner notes neoliberalism is not a tight theory, but a general outlook that focuses on a free-market ideal that favors deregulation and individual autonomy. Accordingly, the article situates employment discrimination law inside of our American culture, recognizing that a law or its interpretation does not exist separate from the society in which it operates. Simply, Title VII – the statute considered most likely to bring substantive and procedural equality to the workplace – can be blunted by interpretations provided by courts and commentators operating in a neoliberal society. The article notes the roads not taken and laments the unmet possibilities of employment discrimination law. That is worthwhile to consider even for a reader who may tend to focus on employment discrimination doctrine rather than theory.

April 16, 2018 in Equal Employment, Theory | Permalink | Comments (0)

Film "I Am Evidence" on the Rape Kit Backlog

Film: I Am Evidence

I AM EVIDENCE exposes the alarming number of untested rape kits in the United States through a character–driven narrative, bringing much needed attention to the disturbing pattern of how the criminal justice system has historically treated sexual assault survivors. 

Why is there a rape kit backlog? What can we do to fix the problem? This film explores these questions through survivors’ experiences as they trace the fates of their kits and re-engage in the criminal justice process. I AM EVIDENCE illuminates how the system has impeded justice while also highlighting those who are leading the charge to work through the backlog and pursue long-awaited justice in these cases. 

In this film, we seek to send a clear message to survivors that they matter, that we as a nation will do everything possible to bring them a path to healing and justice, and that their perpetrators will be held accountable for their crimes.  

April 16, 2018 in Media, Pop Culture, Violence Against Women | Permalink | Comments (0)

Tuesday, April 10, 2018

Lilly Ledbetter on Equal Pay Day

Lilly Ledbetter: My #MeToo Moment

Equal Pay Day — the day up to which the typical woman must work in a particular year to catch up with what the average man earned the previous year — always brings back a rush of memories. Not surprisingly, many of them I’d rather forget: the pit in my stomach, for example, that developed when I read the anonymous note left in my mailbox that told me I was being paid a fraction of what other, male supervisors at Goodyear were making. And when the Supreme Court denied me justice in my pay discrimination case.

(Some of them are happier memories, like when President Barack Obama signed into law the Lilly Ledbetter Fair Pay Act to ensure other women would not receive the same treatment.)

Sexual harassment isn’t about sex, just like pay discrimination isn’t just about pay. Both are about power. They are clear evidence that too many workplaces value women less. That was true for me in the 1980s and 1990s when I worked at Goodyear, and it is still true today.

April 10, 2018 in Equal Employment, Workplace | Permalink | Comments (0)

Leveling Down Gender Equality

My latest article thinking about gender and remedies.

Tracy A. Thomas, Leveling Down Gender Equality

Introduction

The Supreme Court resurrected its “leveling down” jurisprudence in 2017 when it remedied an equal protection violation of gender discrimination by denying, rather than extending, the requested benefit. This approach of nullifying the benefit for all had previously been confined to a handful of cases, over thirty years old; but with the decision in Sessions v. Morales-Santana the Court brought new life and currency to this limitation of equality law. In Morales-Santana, a six-Justice majority of the Supreme Court led by Justice Ruth Bader Ginsburg and joined by Chief Justice Roberts and Justices Kennedy, Breyer, Sotomayor, and Kagan, struck down a gender-based distinction in the federal immigration statute.  The statute had two different standards for mothers and fathers for determining derivative citizenship for children born abroad to unwed citizen parents. It seemed to be an easy case of facially unequal rules based on gender: one year prior U.S. residence for mothers, five years prior residence for fathers. However, the Court then refused to grant the plaintiff father the same benefit of the shorter time frame allotted mothers.  It instead equalized the gendered rules by denying the previous benefit of the shorter one year to mothers. While Justice Ginsburg’s decision in Morales-Santana purported to be a strong, historic decision on the merits of equality, the denial of meaningful relief actually weakened the meaning of equality with a reach far beyond the contours of this one case. 

This “leveling down” of the remedy – responding to inequality by reducing benefits to all rather than leveling up and extending benefits to the disadvantaged group -- is unusual, but not unheard of.  It has been judicially endorsed in a few cases, where the courts have ratified the voluntary actions of defendants.  In one example, the city of Jackson, Mississippi remedied its racially segregated swimming pools by closing down all pools.  In another, Congress redressed the disparity of Social Security benefits that gave extra benefit to women by reducing the women’s benefit to the lower level previously applicable to men.  And in yet another example, a high school found to have discriminated against a pregnant teen by denying her membership in the school’s National Honor Society, eliminated the honor society for all students.

Defendants seem to choose this remedy almost in defiance, refusing to grant a benefit to the petitioner with the audacity to challenge inequality.  This retrenching is deemed an acceptable organizational response, as seen for example, in the example of the BBC and its overseas editors.  When the BBC (British Broadcasting Company) was exposed in the media for paying its women overseas editors substantially less than its men editors, it responded by reducing the men’s pay. The women were thus not only denied equal pay for the past discrimination, but were exposed to potential peer retaliation for “rocking the boat” and making the men worse off.  But for the BBC, as with other wrongdoing defendants, leveling down seemed to be a quick and easy way to erase the inequality problem.    

The Court in Morales-Santana similarly believed it needed to defer to the defendant’s choice of remedy for the gender discrimination.  This was ironic given that the Court in that same case expressly rejected such deference to Congress in the merits part of the decision.  It departed from previous decisions upholding gender distinctions in the derivative citizenship statute based on deference to Congress’s plenary power over immigration; this time, the Court forcefully applied constitutional norms of equality to a different end.  Yet, in the same breath, the Court turned around and espoused the importance of deference to the defendant’s choice for the remedy.  It struggled to find such legislative intent, trying to second guess what Congress would have done had it known its derivative citizenship statute was unconstitutional.  The Court decided Congress would have stricken the second of two statutory clauses, rather than the first provision or instead of utilizing the gender neutral term “parent” instead of “mother.” It thus achieved equality by a simple formal textual exercise which resulted in the elimination of the shorter-time benefit to all unwed parents.   

This textualist analysis, however, depended upon the assumption that leveling down is an equally-valid remedial option for inequality.  But this is where the Court went wrong.  The Court failed to question the constitutionally legitimacy of this nullification in light of the constitutional mandates of due process and equal protection.  Had the Court engaged in an analysis of the remedy as much as it did of the right, it might have discovered that more was demanded than mere neutral formality and equivalency of benefit across the board.  Equality itself, as a constitutional right, dictates more than just empty formalism.  And due process, I have argued, requires that rights be granted meaningful remedies. Together, this means that where the operative substantive right is based on equal protection, as in Morales-Santana, a meaningful remedy is one that grants the “protection” promised.  For equal protection does not merely mandate a logical parallelism of genders, but normatively values equal opportunity and benefit. Examining the leveling down remedy in light of equality, beyond the strict mandates of a particular statutory benefit, reaches a different conclusion than the Court.  Asking the additional question of whether the plaintiff has received a meaningful remedy for the past inequality casts doubt on the validity of leveling down relief for gender discrimination.  

This Article first examines the Court’s decision in Morales-Santana and its justification for choosing the “mean remedy” of leveling down and denying a citizenship benefit to the child of both mothers and fathers.  Part II then explores the Court’s general, but unexplained, impression that ordinarily leveling up is the proper remedial course.  It provides a normative foundation for this remedial presumption grounded in the meaning of equal protection and in the due process right to a meaningful remedy.  Given these constitutional norms, the Article then argues that the remedial calculus should be changed.  Rather than accepting the Court’s assumption, renewed in Morales-Santana, that leveling down and leveling up are equally valid remedial choices, it argues for a strong presumption of leveling up in cases of gender discrimination, with only narrow exceptions permitted to rebut.  Part III of the article explains that these exceptions permitting leveling down would be rare, and would be grounded in equity, but only in concerns that would inflict undue burden on the defendant or third parties from the leveling up itself.  Such a deferential rule to the plaintiff’s rights better effectuates the meaning of equal protection and protects against judicial and voluntary action that by remedial formalism of leveling down could eviscerate the very meaning of equality.

 

April 10, 2018 in Abortion, Constitutional, Courts, Family, Gender, SCOTUS, Theory | Permalink | Comments (0)

Five States Now Legally Recognize Nonbinary Gender Identity

States are Starting to Recognize a Third Gender

When Davi, a 17-year-old in Oakland, California, found out that their true gender identity — nonbinary, meaning neither male or female — was finally recognized by the state, they felt a sense of relief.

 

“I will feel like I don’t have to explain myself all of the time,” Davi said. “I will be so grateful, and less tired.”

 

Nonbinary gender identity is not recognized by most states. Last June, Oregon became the first to recognize a nonbinary gender option on driver’s licenses. Since the bill passed, Washington, DC, and three more states followed suit: Washington, New York, and California, which became the first state to allow nonbinary residents to change their gender on all relevant legal documents, including birth certificates, to a gender-neutral option.

 

For nonbinary youth like Davi, that means nothing less than a shift from nonexistence to existence in the eyes of the law. “Most people have the privilege of feeling that,” said Davi. “[They] probably do not even think about that concept.”

April 10, 2018 in Gender | Permalink | Comments (0)

Sixth Circuit Recognizes Possible Title IX Erroneous-Outcome Claim in Campus Sexual Assault

Justia Opinion Summary: Doe v. Miami U

John attended a party, drank six beers, then proceeded to a bar and drank more beer and alcohol. He left the bar in the early morning, sufficiently intoxicated that he cannot remember what happened for the remainder of the night. Based on text messages he later found on his cellphone, John knows that he called Jane. The two had engaged in several prior physical encounters. Jane, who had also been drinking, joined John in his bed. According to Jane’s subsequent statement, the two engaged in some consensual sexual acts, but Jane stopped consenting and John continued to engage in non-consensual sexual acts. John was found responsible for violating Miami University’s sexual assault policy and was suspended for four months. John sued Jane, Miami University, and individual University employees. John and Jane reached a settlement. The court dismissed John’s remaining claims. The Sixth Circuit affirmed the dismissal of John’s Title IX hostile-environment claim, Title IX deliberate-indifference claim, and 42 U.S.C. 1983 substantive-due-process claim. The court reversed, in part, finding that John sufficiently pleaded procedural-due-process and equal protection claims against one employee based on the claims that she was not an impartial adjudicator and did not fully disclose the evidence against him. The court also reversed a finding of qualified immunity as to that employee and held that John sufficiently pled his Title IX erroneous-outcome claim.

Doe v. Miami University (6th Cir. Feb. 9, 2018) (opinion by Karen Nelson Moore)

We agree with the district court that John has pleaded sufficient facts to cast “some articulable doubt on the accuracy” on the outcome of his disciplinary hearing. He alleges that he was so intoxicated that he cannot recall the critical events in question.  Thus, John’s only knowledge of what occurred is drawn from Jane’s description.  In her written statement, Jane describes a series of sexual acts between herself and John, some of which were consensual and some of which were not.
She states that she initially agreed to digital penetration, but at some point told John to stop. Id. John did stop, but only after some period of time had passed. Then John asked Jane if he could engage in oral sex. According to Jane, she said no, but John proceeded anyway and Jane responded by pushing him away, rather than re-verbalizing her denial of consent.  John then stopped. Jane also states, however, that “I never said no.”

[John was suspended by Miami for three terms].

Taken together, the statistical evidence that ostensibly shows a pattern of gender-based decision-making and the external pressure on Miami University supports at the motion-to dismiss stage a reasonable inference of gender discrimination. John alleges facts showing a potential pattern of gender-based decision-making that “raise a reasonable expectation that discovery will reveal” circumstantial evidence of gender discrimination. He asserts that every male student accused of sexual misconduct in the Fall 2013 and Spring 2014 semesters was found responsible for the alleged violation, and that nearly ninety percent of students found responsible for sexual misconduct between 2011 and 2014 have male first-names. Additionally, John incorporated an affidavit from an attorney who represents many students in Miami University’s disciplinary proceedings, which describes a pattern of the University pursuing investigations concerning male students, but not female students. Lastly, John points to his own situation, in which the University initiated an investigation into him but not Jane, as evidence that Miami University impermissibly makes decisions on the basis of a student’s gender. Discovery may reveal that the alleged patterns of gender-based decisionmaking do not, in fact, exist. That information, however, is currently controlled by the defendants, and John has sufficiently pleaded circumstantial evidence of gender discrimination.

...

John also alleges that the two other members of his Administrative Hearing Panel (Van Gundy-Yoder and Elliott) and the two individuals who decided his appeals (Ward and Brownell) were not neutral decision-makers.  He argues that Van Gundy-Yoder and Ward were biased due to their research interests. But merely being a feminist or researching topics that affect women does not support a reasonable inference that a person is biased. John also alleges that all of these individual defendants faced institutional pressures to find him responsible due to external influence from the federal government and lawsuits brought by private parties. 

April 10, 2018 in Courts, Education, Violence Against Women | Permalink | Comments (0)

Friday, April 6, 2018

Denying Copyright Protection to Pornography to help Gender Inequality

Kayla Louis, Pornography and Gender Inequality: Using Copyright Law as a Step Forward, 24 William & Mary J. L. 267 (2018)

Introduction:

The pornography industry generates billions of dollars of revenue annually. The industry relies heavily on protection from copyright law in order to distribute its materials without them being freely taken by others. In other words, copyright law currently operates as an economic incentive to pornographers. Unfortunately, this lucrative industry has negative effects on gender equality. Pornography promotes harmful gender roles for both women and men. Women are portrayed as merely sexual objects who enjoy any type of penetration imaginable, even if it is rape. They are objectified and dehumanized. Men are shown as animalistic, performance-based, and without morals. As a whole, pornography can lead to behavioral, psychological, and social problems. Beyond the social harms to both men and women, the performers themselves suffer physical harms. As a form of prostitution, filmed pornography contributes to the demand for trafficking, and many women are coerced into the industry.

The government’s denial of copyright protection to speech based on content would potentially violate the First Amendment. However, the Supreme Court has made clear that not all content deserves free speech protections. Rather, “obscene” materials, as described in Miller v. California, are not protected under the First Amendment.

This Article argues that pornography is an actual problem that warrants denial of copyright protection as a method to disincentivize pornographers.

April 6, 2018 in Constitutional, Media | Permalink | Comments (0)

Holding Corporate Fiduciaries Liable to Shareholders for Sexual Misconduct

Daniel Jacob Hemel & Dorothy Lund, Sexual Harassment and Corporate Law, Columbia Law Rev. (forthcoming)

The year 2017 marked an inflection point in the evolution of social norms regarding sexual harassment. While victims of workplace harassment had long suffered in silence, the surfacing of serious sexual misconduct allegations against Hollywood producer Harvey Weinstein encouraged many more victims to tell their personal stories of abuse. These scandals have spread beyond Hollywood to the rest of corporate America, leading to the departures of several high-profile executives as well as sharp stock price declines at a number of firms. In the past year, shareholders at four publicly traded companies have filed lawsuits alleging that corporate directors and officers breached their fiduciary duties and/or violated federal securities laws in connection with sexual harassment scandals at those firms. More such suits are likely to follow in the months ahead. 

In this Article, we examine the role of corporate and securities law in regulating and remedying workplace sexual misconduct. We specify the conditions under which corporate fiduciaries can be held liable to shareholders under state corporation law for perpetrating sexual misconduct or allowing it to occur at their firms. We also discuss the circumstances under which federal securities law requires issuers to disclose sexual misconduct allegations against top executives and to reveal payments made to settle sexual misconduct claims. After building a doctrinal framework for analyzing potential liability, we consider the strategic and normative implications of using corporate and securities law as tools to address workplace-based sexual misconduct. We conclude that corporate and securities law can serve to publicize the scope and severity of sexual harassment, incentivize proactive and productive interventions by corporate fiduciaries, and punish individuals and entities that commit, conceal, and abet sexual misconduct in the workplace. But we also address the potential discursive and distributional implications of using laws designed to protect shareholders as tools to regulate sexual harassment. We end by emphasizing the promise as well as the pitfalls of corporate law as a catalyst for organizational and social change.

April 6, 2018 in Business, Equal Employment, Workplace | Permalink | Comments (0)

Expanding the EEOC's Enforcement Powers for Sexual Harassment

Kenneth Robert Davis, Strong Medicine: Fighting the Sexual Harassment Pandemic, Ohio State L. J. (forthcoming)

A pandemic of sexual harassment has stricken the country. A recent EEOC report shows that, depending on how the question is posed, between 25 and 85 percent of women respond that they have experienced harassment in the workplace. The report also states that 90 percent of incidents go unreported. Victims do not believe that their employers will be receptive to their complaints, and many fear censure or retaliation. The law is limited in its capacity to deter a pandemic that has psychological, sociological, and cultural causes. Nevertheless, the law has a role to play, particularly in the workplace. Title VII of the 1964 Civil Rights Act prohibits employment discrimination based on sex, and the courts have long recognized sexual harassment as a form of sex discrimination. The Act has established a framework focused on conciliation, and, where efforts at settlement fail, on litigation. Regrettably, this framework has failed to achieve its mission of deterrence. In Meritor Bank v. Vinson, the Supreme Court established the elements of hostile-work-environment claim. A plaintiff must prove that she was subjected to unwelcome, discriminatory words or conduct of a sexual or gender-related nature so severe or pervasive that they altered the conditions of her employment. In applying this standard, federal courts have rejected claims alleging highly offensive and even egregious misconduct. Several reasons account for the failure of current law to curtail sexual harassment in the workplace. One of the primary reasons is the law’s focus on conciliation and litigation. Under the current model, complainants file grievances with the EEOC, which seeks to settle disputes. If efforts at settlement fail, the current approach authorizes a federal court action. Settling cases may do little to deter abuses. After entering into a settlement agreement, an employer may slip back into complacency. Litigation also fails to promote deterrence because the current framework focuses on compensating victims.

 

To strengthen Title VII’s deterrent impact, this Article proposes that Congress supplement the current model by granting the EEOC expanded enforcement powers. The EEOC should have broad authority to initiate civil enforcement proceedings in federal court and in quasi-judicial enforcement proceedings. Rather than compensating victims, the purpose of such proceedings would be to identify instances of workplace harassment, and, where appropriate, sanction irresponsible employers. Because the EEOC, in such enforcement proceedings, would not seek relief on behalf of victims, the elements that establish injury would be superfluous. In such proceedings the EEOC should merely have to prove that discriminatory, sexual or gender-related words or conduct would be highly offensive to a reasonable person. By adopting the “highly offensive to a reasonable person” standard, Congress would maximize prevention of sexual harassment in the workplace.

April 6, 2018 in Equal Employment, Workplace | Permalink | Comments (0)

Wednesday, April 4, 2018

CFP The Legal Consequences of Living a Long Life: The Differential Impact on Marginalized Communities

 Call for Proposals for the Section on Aging program at the 2018 AALS Annual Meeting, which the Section on Women in Legal Education is pleased to co-sponsor: 

The Legal Consequences of Living a Long Life: The Differential Impact on Marginalized Communities

Thanks to advances in health care people are living longer.  Longevity has legal consequences.  People can outlive their family, friends, and finances. Longevity has differing impacts for women, people of color, low-income people, and LGBT individuals. Statistically, women make less money than men and they live longer than men. People of color are less financially secure than Americans as a whole. In the United States, approximately 80 percent of long-term care for older people is provided by family members, such as spouses, children, and other relatives. This places an undue financial burden on low-income persons. LGBT individuals may face conscious and unconscious discrimination when seeking long-term care and other assistance, and they have historically formed various kinds of family structures.  This panel will explore the intersection of the legal system and longevity, examining systems that are in place or should be in place to help people plan for living longer. Topics might include: paying family caregivers, working conditions of nursing home assistants, and differential patterns of wealth accumulation. This call for paper seeks authors of published or unpublished papers that consider law and longevity. 

Please submit a 1 or 2 page proposal to Naomi Cahn, Secretary of the Section, at ncahn@law.gwu.edu by May 1, 2018. The Executive Committee will review all submissions and select proposals for presentation as a part of our AALS 2019 Program.  Presenters may have the opportunity to publish their paper in the Journal of Health Law and Policy at Cleveland State University. 

The program is co-sponsored by the following sections:  Family and Juvenile Law; Minority Group; Trusts & Estates;  and Women in Legal Education  

April 4, 2018 in Call for Papers, Law schools | Permalink | Comments (0)

Tuesday, April 3, 2018

Public Perceptions of Gender Bias in the Decisions of Female State Court Judges

Michael P. Fix & Gbemende E. Johnson, Public Perceptions of Gender Bias in the Decisions of Female State Court Judges, 70 Vanderbilt L. Rev. 1845 (2017)

How are women on the bench, and their decisions, perceived by the public? Many scholars find that gender influences the voting behavior of judges and the assessment of judges by state judicial systems and the American Bar Association. However, few scholars have examined how judge gender affects the way in which the public responds to judicial outcomes. Does the public perceive the decisions of female state court judges as being “biased” by their gender identity, particularly in cases involving reproductive rights/family law? Also, does the public view female judges on state courts as more likely to rely on ideology when ruling in cases? Using a survey experiment that varies judge gender in a state child custody case, we examine whether respondents exhibit less support for judicial decisions authored by female state court judges. Additionally, we test whether respondents are more likely to perceive the decisions of female state court judges as ideologically biased or as a product of gender influences (as compared to male judges). Finally, we assess whether these effects are conditional on or exacerbated by respondent characteristics such as gender, race, and religiosity. The influence of gender on public response to state court decisions has important implications for our understanding of why certain court decisions find public support and acceptance.

April 3, 2018 in Courts, Judges | Permalink | Comments (0)

State Civil Rights Remedies for Gender Violence

Julie Goldscheid & Rene Kathawala, State Civil Rights Remedies for Gender Violence: A Tool for Accountability

This article focuses attention on state civil rights remedies that provide a civil cause of action against those who commit acts of gender-based violence and frame the harm as a violation of the survivor’s civil rights. Though many of these laws long have been on the books, they are not widely used. The #MeToo movement has rightly focused public attention on the ways gender violence persists, and on the gaps in legal remedies for survivors. At the same time that law and policy-makers work to enact new laws to fill gaps, existing laws should be invoked to promote accountability and provide redress for survivors. State civil rights remedies do just that.

In 1994, after four years of hearings, Congress enacted a civil rights remedy as part of the Violence Against Women Act (VAWA) (“VAWA Civil Rights Remedy”), which provided a private right of action against an individual who committed an act of gender violence. The law was modeled after other federal civil rights legislation and authorized a survivor of gender-motivated violence to bring a civil cause of action against the individual who committed the harm. The Supreme Court, in United States v. Morrison, 529 U.S. 598 (2000), struck down the federal law as an unconstitutional exercise of Congress’ Commerce Clause powers and of Congress’ enforcement powers under the Fourteenth Amendment. While the law provided redress for survivors during the six years it was in effect, both pre-existing and later-enacted state and local remedies also provide a private right of action for gender violence as a civil rights violation. This article reviews those state statutes and the associated case law interpreting them. It demonstrates that those state laws can more widely be used by those who seek to hold those who commit acts of gender violence accountable. 

In the wake of the #MeToo movement, when high-profile and high-net-worth individuals are being held to account, and when reports of sexual violence that occur outside traditional employment settings are capturing public attention, those laws may be of increased utility. Trends in employment in which fewer workers are employed in settings covered by traditional federal and state anti-discrimination laws expose the gaps in existing civil rights frameworks and render additional remedies all the more important. The state laws reviewed here have not been the focus of much advocacy, scholarship, or litigation. This article advances an additional and under-utilized theory of recovery for gender violence survivors that offers a useful tool for accountability, redress and equality.

April 3, 2018 in Courts, Violence Against Women | Permalink | Comments (0)

Symposium: Women and Power in the Academy

Symposium: The Awakening--Women and Power in the Academy

"When it comes to silencing women," writes Mary Beard, "Western culture has had thousands of years of practice." Academe is no exception. A recent conference at Stanford University featured 30 speakers — all of them men, all of them white. The incident sparked ridicule and outrage, as well as a sense that higher education is facing a reckoning. Over the past few months, amid mounting revelations of sexual harassment, The Chronicle Review asked presidents and adjuncts, scientists and humanists, senior scholars and junior professors to take on the theme of women and power in academe. Here are their responses.

 

 

April 3, 2018 in Education | Permalink | Comments (0)

Wednesday, March 28, 2018

Limited Legal Recourse for Intersectional Age and Gender Discrimination in Employment

Joanne Song McLaughlin, Limited Legal Recourse for Older Women's Intersectional Discrimination Under the Age Discrimination in Employment Act

Older women compose a large share of labor force in the U.S. There are two federal statutes that can provide protection for older women against employers’ discriminatory behavior: the Age Discrimination in Employment Act (ADEA) and Title VII of the Civil Rights Act (Title VII). Theories and empirical evidence suggest that older women are more discriminated against for being old and female, but there is a concerning policy implication that current legislation does not provide adequate protection for older women. The main reason for this concern is that older women’s intersectional discrimination invokes age-plus-sex or sex-plus-age cause of action. However, the courts do not recognize this cause of action under the ADEA and they have mixed views on this issue under Title VII. This article discusses evidence of older women’s intersectional discrimination and the importance of recognizing this intersectionality in proof structure. It also reviews case laws and the effectiveness of the age discrimination laws on older women’s labor market outcomes. The findings indicate that the ADEA does not provide equal employment opportunities for older women. Older women’s legal recourse for their unique intersectional discrimination for being old and female is constrained under the ADEA and Title VII strictly due to legislative peculiarities in statutes intended to solve this exact problem.

March 28, 2018 in Equal Employment | Permalink | Comments (0)

Pregnancy, Poverty and the State

Michele Goodwin & Erwin Chemerinsky, Pregnancy, Poverty and the State, 127 Yale L. J. (forthcoming)

In Pregnancy, Poverty, and The State, we argue that the core bundle of rights contained in reproductive privacy have been hollowed out through new legislation and court decisions, affecting the actual practice of reproductive privacy. We show how increasingly, even judicial opinions affirming reproductive rights fail to constrain state governments seeking to eviscerate those rights through new legislation. Though court rulings recognize these rights, they ultimately render them meaningless for poor women, particularly poor women of color. These groups are the first victims since they are largely unseen and unheard by those who make the law and policy. As the policies that substantially burden women’s reproductive rights become normalized, these norms will affect broader segments of the population, placing greater numbers of women at risk. 

We view these issues as not simply matters of law, but of human rights, morality, and dignity. The moral hypocrisy of the state is clear in the reproductive health context. That is, when the state coerces women and girls into pregnancies they do not want and to bear children they do not desire to have, it not only creates unconstitutional conditions, but it also acts immorally. Even though legal scholars typically refer to lawmaking that unduly burdens the poor as unjust, we suggest that legislative efforts to eviscerate reproductive rights is far worse than that. 

This project, launches with a review of Professor Khiara Bridges’s daring book, The Poverty of Privacy Rights to problematize the intersections of privacy and morality. We view the state as not only a fallible and problematic arbiter of women’s morality, but argue the state acts immorally when it deprives poor women of privacy, bodily autonomy, and threatens to rob them of life itself. As we document in detail, bounded in the state’s immoral actions toward poor women of color are its historical struggles and campaigns against their personhood and citizenship as well as conscription of their bodies in service to malevolent state agendas such as eugenics and forced sterilization. As we show, this is more than mere indifference, but an historic pattern. We illustrate how the continued effects of more than a century of negative state interventions in the reproductive lives of poor women of color is actually deadly. Finally, we predict that the continued interference in the reproductive lives of poor women creates cultural norms and precedents in medicine, law, and society that will spill over and constrain the rights of all classes of women, regardless of race. That is, historical disregard for the lives and rights of Black women inscribed by judicial doctrine and court opinions as well as state and federal legislation serve as vehicles for contemporary and future disparagement of all women.

March 28, 2018 in Poverty, Pregnancy, Reproductive Rights | Permalink | Comments (0)

British House of Commons Speaker Reprimands Foreign Secretary for Sexist Language

Boris Johnson Told Off by Speaker for "Sexism"

Foreign Secretary Boris Johnson has been reprimanded by Commons Speaker John Bercow for using sexist language.

 

Speaker Bercow intervened - to applause from some Labour MPs - after Mr Johnson referred to shadow foreign secretary Emily Thornberry as Lady Nugee.

 

Ms Thornberry is married to High Court judge Sir Christopher Nugee - but chooses to go by her maiden name.

 

Mr Bercow said it was "inappropriate" and sexist to refer to her as Lady Nugee.

 

He said MPs should be called by their names and not by the titles of their spouses.

 

Mr Johnson had to be reminded of Ms Thornberry's title by MPs, as he answered a question from a Conservative MP on the Commonwealth, calling her "the Baroness, whatever it is, I cannot remember what it is... Nugee".

 

Mr Bercow rebuked the foreign secretary, telling him: "We do not address people by the titles of their spouses.

 

"The shadow Foreign Secretary has a name, and it is not 'Lady something'. We know what her name is. It is inappropriate and frankly sexist to speak in those terms, and I am not having it in this Chamber.

 

"That is the end of the matter. No matter how senior a Member, that parlance is not legitimate. It will not be allowed, and it will be called out."

 

Mr Johnson subsequently apologised for his "inadvertent sexism."

 

Ms Thornberry has occasionally been teased about her formal title by Conservative critics and in February last year complained to Mr Bercow when Theresa May referred to her as Lady Nugee in the Commons.

 

"Is it in order for the prime minister to refer to a member of this House not by her own name, but by the name of her husband?" the Islington South MP said in a point of order.

 

"I have never been a Lady and it will be a great deal more than being married to a Knight of the Realm in order to make me one."

 

Mrs May said: "If the Honourable Lady is concerned about the reference that I made to her, of course I will apologise for that.

 

"I have to say to her, though, that for the last 36 years I have been referred to by my husband's name."

March 28, 2018 in Family, International | Permalink | Comments (0)

Tuesday, March 27, 2018

A Legal Study of Equal Pay in the EU

Petra Foubert, The Enforcement of the Principle of Equal Pay for Equal Work or Work of Equal Value: A Legal Analysis of the Situation in the EU Member States, Iceland,Liechtenstein and Norway (July 2017)

Sixty years after the principle of equal pay for men and women for equal work or work of equal value was first laid down in Article 119 of the EEC Treaty (currently Article 157 of the Treaty on the Functioning of the EU), the EU today faces a gender pay gap that has remained constant at a relatively high level for decades. The most recent Eurostat data show an average figure of 16.3 % (for the year 2015) for the 28 EU Member States. Although there is a big difference between the countries with the lowest pay gap (Italy and Luxembourg, both with 5.5 % in 2015) and the country with the highest pay gap (Estonia, with 26.9 % in 2015), and although these figures represent the so-called "unadjusted" gender pay gap (i.e. not adjusted according to individual characteristics that may explain part of the difference), there are signs that all over Europe sex-based pay discrimination remains a problem that should not be underestimated.

March 27, 2018 in Equal Employment, International | Permalink | Comments (0)