Gender and the Law Prof Blog

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

Tuesday, December 12, 2017

Why Do Men Sexually Harass

 

3 Psychologists Explain Why Men Harass Women in the Workplace

1.  Desire to "protect occupational territory"

Shawn Burn, Ph.D., is a psychology professor at California Polytechnic State University in San Luis. She says "sometimes, sexual harassment is used to intimidate, disempower, and discourage women in traditionally male-dominated occupations" "in fields like the military, tech or politics."

2.  Approval of sexual objectification

Burn says many men are surrounded by a culture that reduces women to sexualized objects, which normalizes female colleague in a less than professional manner.Women in certain jobs, Burn argues, particularly those in which physical appearance plays a role, "sometimes face increased levels of sexual harassment because their jobs implicitly condone their sexual objectification. Some men take this as permission to process and react to these women not as people, but as fantasy sex objects without personal sexual boundaries."

3.  Perceived invincibility 

"There are intense issues of entitlement and power and control that have gone unchecked that lead to situations where men feel it's perfectly fine to engage in these kind of behaviors," says clinical psychologist David Ley.

According to Burn, this behavior is closely linked to abuse of power.

"Not all people handle power and money with grace," she says. "Some use their power to exploit and maltreat others, knowing they can get away with it, and some getting off on it."

4.  Exhibitionist Disorder 

December 12, 2017 in Workplace | Permalink | Comments (0)

Monday, December 11, 2017

Ninth Circuit Judge Kozinski Accused of Sexual Harassment

Three women law professors, including one former dean, and four women externs accuse US Court of Appeal Judge Alex Kozinski of sexual harassment 

Wash Post, Prominent Appeals Court Judge Alex Kozinski Accused of Sexual Misconduct

Seven Women Have Now Accused Judge of Sexual Harassment

NPR, Federal Appeals Judge Alex Kozinski Accused of Sexual Harassment

NYT, Federal Appeals Court Judge is Accused of Sexual Harassment

 

 

Heidi Bond's further response provides more details on her allegation.

 

Bond makes two important suggestions for structural change to address the problem of sexual harassment in judicial clerkships.  

I want the law clerk handbook distributed by the judiciary to explicitly state that judges may not compel clerk silence on matters like the ones I have described here. I also believe that there should be a person, or persons, or an institution that clerks can turn to in order to find answers. I understand that there are reasons why no such institution exists now—judicial independence and confidentiality must be fiercely protected. I also believe that the judiciary is capable of coming up with a solution to this problem.

A type of ombuds office within the court administrative office might be a way to implement this.

Bond's additional recommendation: 

I want greater honesty regarding judicial clerkships. Law students are often told in glowing terms that a clerkship will be the best year in their career. They are never told that it might, in fact, be their worst—and that if it is their worst, they may be compelled to lie to others in the name of loyalty to their judge.

I also want law schools to start giving our best and brightest students accurate advice about clerkships. Students are often told that if they receive a clerkship offer from a judge, they must say “yes” without hesitation. I cannot imagine a situation more rife for abuse. Students should feel free to say no to any judge who triggers their discomfort for any reason.

However, Nancy Leong counsels against the potential consequences of steering women away from prestigious clerkships.

 

 

 

December 11, 2017 in Courts, Judges, Workplace | Permalink | Comments (0)

Complicit Bias in Sexual Harassment

Michele Goodwin, Complicit Bias: Sexual Harassment and Communities that Sustain It

For all of the coverage about sexual harassment in recent weeks, reports lack an accounting for complicity and workplace cultural norms. They fail to probe why certain environments foster harassment while others do not. Sometimes news reports address why women do not come forward. Rarely do reports concentrate on why witnesses and co-workers do not come forward to shut down apparent and known harassment. I’m not talking about hypothetical situations. Rather, known instances of sexually inappropriate conduct goes unchecked by friends, co-workers, and bosses.

 

Unexamined are the challenging issues related to why other women (and men) who witness abuse do not speak up, even when they have the power to do so—such as seniority over their offending colleagues. For that matter, why do senior administrators and executives ignore reported instances of sexual harassment?

 

Many years ago, as a new law professor at a former institution, barely three months into my new tenure-track position, I observed a male colleague forcefully grab a female student’s arm and lick her at a law school fundraiser....By Monday morning, I reported the licking incident to my dean—who happened to be a woman. I expected that the dean would make an inquiry and investigate....By coming forward, I had not anticipated the enormous public backlash, the ultimate firing of the dean, the harassment that I would encounter, and the institution’s paralysis.

***

 

So, why had the institution put up with it for so long?

 

The short answer is fear. For colleagues who have worked together for many years—sometimes their families live in the same neighborhoods; their children school together or play sports on the same teams. They fear losing relationships and disrupting their lives.

 

However, there is also the fear of experiencing exactly what happened to me—retaliation for reporting. Deferring and deflecting is a way to divvy up who has to suffer the burden of speaking up. My colleagues avoided being lumped into the barrage of emails targeting me by not speaking up, while I took the brunt of it along with one other colleague who complained previously about another male colleague’s harassing behavior

 

So, why had the institution put up with it for so long?

 

The short answer is fear. For colleagues who have worked together for many years—sometimes their families live in the same neighborhoods; their children school together or play sports on the same teams. They fear losing relationships and disrupting their lives.

 

However, there is also the fear of experiencing exactly what happened to me—retaliation for reporting. Deferring and deflecting is a way to divvy up who has to suffer the burden of speaking up. My colleagues avoided being lumped into the barrage of emails targeting me by not speaking up, while I took the brunt of it along with one other colleague who complained previously about another male colleague’s harassing behavior

On a legal effort to hold these complict networks accountable, see RICO Claim Against Weinstein and Co-Conspirators in "Sexual Enterprise"

December 11, 2017 in Equal Employment, Workplace | Permalink | Comments (0)

MeToo is Really About Work, Not Sex

Rebecca Traister, This Moment Isn't (Just) About Sex. It's About Work

[I[n the midst of our great national calculus, in which we are determining what punishments fit which sexual crimes, it’s possible that we’re missing the bigger picture altogether: that this is not, at its heart, about sex at all — or at least not wholly. What it’s really about is work, and women’s equality in the workplace, and more broadly, about the rot at the core of our power structures that makes it harder for women to do work because the whole thing is tipped toward men.

 

Sexual assault is one symptom of that imbalance, but it is not the only one. ***

 

Because the thing that unites these varied revelations isn’t necessarily sexual harm, but professional harm and power abuse. These infractions and abuses are related, sometimes they are combined. But their impact, the reasons that they are sharing conversational and journalistic space during this reckoning, need to be clarified. We must regularly remind everyone paying attention that sexual harassment is a crime not simply on the grounds that it is a sexual violation, but because it is a form of discrimination.***

 

In other words, sexual harassment may entail behaviors that on their own would be criminal — assault or rape — but the legal definition of its harm is about the systemic disadvantaging of a gender in the public and professional sphere. And those structural disadvantages do not begin or end with the actual physical incursions — the groping, kissing, the rubbing up against. In fact, the gender inequity that creates the need for civil-rights protections is what has permitted so many of these trespasses to have occurred, so frequently, and for so long; gender inequity is what explains why women are vulnerable to harassment before they are even harassed; it explains why it’s difficult for them to come forward with stories after they have been harassed, why they are often ignored when they do; it clarifies why so many women work with or maintain relationships with harassers and why their reactions to those harassers become key to how they themselves will be evaluated, professionally. Gender inequity is cyclical, all-encompassing.

 

We got to where we are because men, specifically white men, have been afforded a disproportionate share of power. That leaves women dependent on those men — for economic security, for work, for approval, for any share of power they might aspire to. Many of the women who have told their stories have explained that they did not do so before because they feared for their jobs. When women did complain, many were told that putting up with these behaviors was just part of working for the powerful men in question — “That’s just Charlie being Charlie”; “That’s just Harvey being Harvey.” Remaining in the good graces of these men, because they were the bosses, the hosts, the rainmakers, the legislators, was the only way to preserve employment, and not just their own: Whole offices, often populated by female subordinates, are dependent on the steady power of the male bosses. ***

 

What’s more, to cross powerful men is to jeopardize not just an individual job in an individual office; it’s to risk far broader professional harm within whole professions where men hold sway, to cut yourself off from future opportunity. 

 

These are the economics of sexual harassment, but also, simply, of sexism.

 

What makes women vulnerable is not their carnal violability, but rather the way that their worth has been understood as fundamentally erotic, ornamental; that they have not been taken seriously as equalsthat they have been treated as some ancillary reward that comes with the kinds of power men are taught to reach for and are valued for achieving. How to make clear that the trauma of the smaller trespasses — the boob grabs and unwanted kisses or come-ons from bosses — is not necessarily even about the sexualized act in question; so many of us learned to maneuver around hands-y men without sustaining lasting emotional damage when we were 14. Rather, it’s about the cruel reminder that these are still the terms on which we are valued, by our colleagues, our bosses, sometimes our competitors, the men we tricked ourselves into thinking might see us as smart, formidable colleagues or rivals, not as the kinds of objects they can just grab and grope and degrade without consequence. It’s not that we’re horrified like some Victorian damsel; its that we’re horrified like a woman in 2017 who briefly believed she was equal to her male peers but has just been reminded that she is not, who has suddenly had her comparative powerlessness revealed to her.

December 11, 2017 in Equal Employment, Gender, Workplace | Permalink | Comments (0)

Friday, December 8, 2017

Congress Proposes MeToo Act Changing Complaint Process for Congressional Sexual Harassment

MeToo Legislation Aims to Combat Sexual Harassment in Congress

Sen. Kirsten Gillibrand, D-N.Y., is leading the effort in the Senate. She has previously disclosed that she has been harassed by unnamed male colleagues. She has also worked on combating sexual abuse in the U.S. military. "There is a serious sexual harassment problem in Congress and too many congressional offices are not taking this problem seriously at all," Gillibrand said.

  • Waive 30-day requirements each for counseling and mediation sessions before a formal complaint can be filed
  • Create a new, optional in-house victims' counsel position to provide legal advice and representation for complainants
  • Eliminate requirements that complainants to sign nondisclosure agreements as a condition for filing a complaint, although nondisclosures are still allowed as part of a negotiated settlement
  • Create an online system to initiate complaints
  • Require lawmakers to pay out of pocket for any settled claim where they are identified as the harasser. Other claims are still paid for by taxpayers
  • Require public disclosure of the employing office when a claim is settled and to disclose the settlement amount
  • Require an anonymous "climate survey" of congressional employees every two years
  • Extend all employer protections to interns, fellows and pages

December 8, 2017 in Equal Employment, Legislation | Permalink | Comments (0)

New Legislation Would Ban Employment Arbitration Clauses for Sexual Harassment

New Congressional Sexual Harassment Bill Would Stop Employers from Trying to Silence Accusers

Capitol Hill lawmakers on Wednesday introduced another bill to combat sexual harassment, addressing one of the legal mechanisms that employers often use to keep accusers silent.

The bipartisan legislation from Rep. Cheri Bustos (D-Ill.) and Sen. Kirsten Gillibrand (D-N.Y.) would ban employers from holding employees to forced arbitration clauses, which often prevent sexual misconduct survivors from speaking publicly about abuses in the workplace, and places power in the hands of the perpetrator.

Forced arbitration clauses can prohibit an accuser from going to court or dealing with the incident in other public means. They can include a private monetary settlement and/or a nondisclosure agreement. Victims often are forced out of their jobs, while the harasser remains.

“That is not a fair choice, and it is something that no one should have to put up with,” Gillibrand said at a press conference on Capitol Hill.

“To executives who think this should be an episode of ‘Mad Men,’ stop it, and stop it now,” Bustos said. “For the waitress, for the journalist, for the factory worker, for all the women who want to go to their job and do it well, we are to here to say, no more.”

The Senate bill is also backed by Sens. Lindsey Graham (R-S.C.), Lisa Murkowski (R-Alaska) and Kamala Harris (D-Calif.). The House version has support from Reps. Walter Jones (R-N.C.), Elise Stefanik (R-N.Y.), and Pramila Jayapal (D-Wash.).

***

Gillibrand and Rep. Jackie Speier (D-Calif.) recently introduced the Me Too Act, which aims to overhaul that complaint system and make it more transparent and less biased toward the perpetrator.

Bustos is also a co-sponsor on a House bill that would ban taxpayers from having to foot the bill for sexual harassment settlements on Capitol Hill.

December 8, 2017 in Equal Employment, Legislation | Permalink | Comments (0)

Sexism and Misogyny are not the Same Thing

What Everybody Gets Wrong About Misogyny

What is misogyny? How is it different from sexism? And why does the male-dominated status quo seem to persist?

 

new book by Cornell philosophy professor Kate Manne has answers. She argues that misogyny is not about male hostility or hatred toward women — instead, it’s about controlling and punishing women who challenge male dominance. Misogyny rewards women who reinforce the status quo and punishes those who don’t.

 

In this interview, we explore how sexism and misogyny are different, how misogyny is embedded in our customs and institutions***

One way of looking at it is we have these patriarchal social structures, bastions of male privilege where a dominant man might feel entitled to (and often receive) feminine care and attention from women.

I think of misogyny and sexism as working hand-in-hand to uphold those social relations. Sexism is an ideology that says, “These arrangements just make sense. Women are just more caring, or nurturing, or empathetic,” which is only true if you prime people by getting them to identify with their gender.

So, sexism is the ideology that supports patriarchal social relations, but misogyny enforces it when there’s a threat of that system going away.

A prior post on Prof. Manne's book, Down Girl: A Theory of Misogyny is here.

December 8, 2017 in Books, Theory | Permalink | Comments (0)

Thursday, December 7, 2017

Time's Person of the Year: The Women Who Broke the Silence on Sexual Harassment

Person-of-year-2017-time-magazine-cover1

Time, The Silence Breakers: The Voices that Launched a Movement

The galvanizing actions of the women on our cover—Ashley Judd, Susan Fowler, Adama Iwu, Taylor Swift and Isabel Pascual—along with those of hundreds of others, and of many men as well, have unleashed one of the highest-velocity shifts in our culture since the 1960s. Social media acted as a powerful accelerant; the hashtag #MeToo has now been used millions of times in at least 85 countries. “I woke up and there were 32,000 replies in 24 hours,” says actor Alyssa Milano, who, after the first Weinstein story broke, helped popularize the phrase coined years before by Tarana Burke. “And I thought, My God, what just happened? I think it’s opening the floodgates.” To imagine Rosa Parks with a Twitter account is to wonder how much faster civil rights might have progressed. * * * 

 

This reckoning appears to have sprung up overnight. But it has actually been simmering for years, decades, centuries. Women have had it with bosses and co-workers who not only cross boundaries but don't even seem to know that boundaries exist. They've had it with the fear of retaliation, of being blackballed, of being fired from a job they can't afford to lose. They've had it with the code of going along to get along. They've had it with men who use their power to take what they want from women. These silence breakers have started a revolution of refusal, gathering strength by the day, and in the past two months alone, their collective anger has spurred immediate and shocking results: nearly every day, CEOs have been fired, moguls toppled, icons disgraced. In some cases, criminal charges have been brought.

 

The Story Behind the Woman You Don't See on Time's Person of the Year Cover

But on the lower right-hand corner of the cover, there’s simply an arm, cropped at the shoulder. It belongs to an anonymous young hospital worker from Texas — a sexual harassment victim who fears that disclosing her identity would negatively impact her family.

She is faceless on the cover and remains nameless inside TIME’s red borders, but her appearance is an act of solidarity, representing all those who are not yet able to come forward and reveal their identities. 

But see

Wash Post, #MeToo? In 80 Years, No American Woman has Won Time's Person of the Year by Herself

How Many Women Have Been Time's Person of the Year? It's a Short List.

December 7, 2017 in Media, Pop Culture, Workplace | Permalink | Comments (0)

RICO Claim Filed Against Weinstein and Co-Conspirators for Sexual Enterprise

ABA J, Suit Accuses Harvey Weinstein of Racketeering, Says Law Firms Aided "Sexual Enterprise"

Defendants in the suit (PDF) include Weinstein, Miramax, the Weinstein Co. and members of its board, the New York Times, the Washington Post, the American Lawyer (sub. req.) and ABC Newsreport.

 

The plaintiffs accused Weinstein of isolating them and other class members to engage in unwanted sexual conduct that included flashing, groping, harassing, attempted rape and rape.

 

The suit says several lawyers and law firms were participants in the enterprise, though none are named as defendants. Weinstein hired the lawyers and private investigators “to harass, threaten, extort, and mislead both Weinstein’s victims and the media to prevent, hinder and avoid the prosecution, reporting, or disclosure of his sexual misconduct,” the suit says.

 

The law firms listed were Boies Schiller Flexner; K&L Gates; UK-based BCL Burton Copeland; and Israel-based Gross, Klatthandler, Hodak, Halevy, Greenberg & Co.

 

New York L. J., Weinstein's Alleged Sexual Misconduct Protected by Criminal Enterprise, Suit Claims

Film mogul Harvey Weinstein’s alleged sexual misconduct toward women was aided and abetted by a criminal enterprise made up of law firms, private investigators, fellow producers and others, a group of plaintiffs argued in a suit filed on Wednesday in federal court in New York.

 

The proposed class action, filed in the U.S. District Court for the Southern District of New York on behalf of six plaintiffs who say Weinstein assaulted them—in some cases with the assistance of employees from The Weinstein Co. or Miramax—includes civil claims under the Racketeering Influenced and Corrupt Organizations Act.

 

The suit, filed on behalf of the plaintiffs by attorneys from Hagens Berman Sobol Shapiro, is the latest in a cascade of legal issues surrounding Weinstein and allegations surrounding him; since Oct. 10, the suit states, more than 60 women have come forward to say they have been assaulted or harassed by Weinstein at some point.

 

The defendants—referred to collectively in the suit as the “Weinstein Sexual Enterprise”—worked together to prevent disclosure and prosecution of Weinstein’s alleged behavior through extortion, threats and harassment, the plaintiffs allege, and through misrepresentations to the media and to Weinstein’s alleged victims.

 The full complaint is here.

December 7, 2017 in Pop Culture, Workplace | Permalink | Comments (0)

CFP Special Issue on Sexual Harassment and Sexual Assault

Call for Papers: American University’s Journal of Gender, Social Policy & the Law


You are invited to submit articles for possible inclusion in a special themed edition of the American University Journal of Gender, Social Policy & the Law. The edition will focus on timely and important legal issues in the areas of sexual harassment and sexual assault. As one of the top-cited legal periodicals in the U.S. and selected non-U.S. regions in the subject areas of women, gender, sexuality, and the Law, the Journal is deeply committed to publishing high-quality pieces that explore legal issues relating to gender and social policy.

Requirements:

The Journal will consider articles that propose a new argument or perspective on a timely legal issue relating to sexual harassment or sexual assault. To fulfill its interdisciplinary mission, the Journal will accept articles authored by legal, policy, and gender scholars. Articles selected for publication in the Journal must include an analysis of U.S. law in addition to any international focus. All contributions are required to conform to the author policies available at: http://digitalcommons.wcl.american.edu/jgspl/policies.html#whocansubmit  

Content:

While not an exhaustive list, the Journal encourages authors to submit articles on any of the following topics:

● Institutional responses to sexual assault (e.g., schools, universities, the military, and prisons)

● Sexual assault in the workplace

● Statutory limitations in sexual harassment and sexual assault cases

● Selection of impartial venues

● The Department of Education Q&A on Campus Sexual Misconduct

● Judicial discretion and sentencing requirements

 

Deadlines for Submission:

Contributions for this special edition must be submitted by January 5, 2018. All submissions must include the article, a resume/CV, and contact information for the author(s).

Contact:

Please direct questions and final submissions to the Journal Senior Articles Editors: Sahar Ahmed and Kathryn Suma (gl-articles@wcl.american.edu).

December 7, 2017 in Call for Papers, Scholarship, Workplace | Permalink | Comments (0)

Book Review: Elizabeth Cady Stanton and the Feminist Foundations of Family Law

Thanks to Prof. Mary Block for this review of my book:

Civil War Book Review, Elizabeth Cady Stanton & the Feminist Foundations of Family Law

Elizabeth Cady Stanton was a woman far ahead of her time with regard to her advocacy for women’s rights within the family. Tracy A. Thomas, Professor of family law and a feminist legal historian, argues that Stanton believed a radical challenge to family law was vital to the woman’s rights agenda. Stanton asserted that four institutions: government, church, family, and industry acted symbiotically to keep women in a subordinate status. The public and private spheres were not separate, but intertwined and they operated in myriad ways to discriminate and hinder women and stifle equality. Thomas states that Stanton and many other nineteenth-century women’s rights advocates had a fluid notion of feminism, one that embraced both the sameness and differences between men and women. Women were equal not inferior to men, but women were different because they could procreate while men could not so in addition to the vote, Stanton also promoted rights that extended to women as mothers. The greatest hurdle to achieving equal rights for women was that too many people confounded differences with inferiority. The rest of the populace was apathetic. The solution to the problem of women’s inequality was complete formal legal equality. The question was how best to achieve it.

***

Stanton’s feminist attack on the oppressive structures of marriage was radical in that she framed women’s inequality as systemic victimization. Marriage laws sexualized women and created a sanctuary for male lust through protection of the husband’s marital right, a vestige of coverture that shielded men who raped their wives. At the Tenth Annual Convention, Stanton said marriage was legalized prostitution, a claim intended to shock her audience. Women give up everything when they wed while men gave up nothing. Marriage was analogous to slavery in many ways. Man was the master and woman had to obey him. Upon marriage woman’s identity became submerged into that of her husband and she literally no longer existed in the eyes of the law. Stanton lauded Lucy Stone who kept her maiden name after she wed Henry Blackwell. Stanton herself demanded she be called Elizabeth Cady Stanton rather than Mrs. Henry Stanton to express her independent identity. This was less radical than Stone, but still radical for her time.

 

By the end of Stanton’s life, family law had changed, but not as radically as Stanton had desired. It would not be until the last quarter of the twentieth century and the second women’s rights movement that nearly all of her recommendations came to fruition. She truly was a woman far ahead of her time. Tracy Thomas has thoroughly documented Stanton’s radicalism on matters of marriage and the family and has shown just how significantly one woman’s feminism affected family law for the betterment of women.

December 7, 2017 in Books, Family, Legal History | Permalink | Comments (0)

Monday, December 4, 2017

Sexual Harassment Cases Often Rejected by the Courts

Sandra Sperino, Sexual Harassment Cases Often Rejected by the Courts

Many actors, politicians and executives, including at NPR, are now facing sexual-harassment allegations in the court of public opinion.

 

But in actual courts, such cases filed by workers against their employers are very often dismissed by judges. The standard for harassment under the law is high, and only an estimated 3 percent to 6 percent of the cases ever make it to trial.

 

That stands in stark contrast to the large pool of people who say they have experienced sexual harassment. In surveys, a quarter to half of women say they've experienced sexual harassment at work. But only a small fraction — estimates range around 5 to 15 percent of women — report their complaints to their employers, largely due to fear of retaliation.

 

Legal experts say the high dismissal rate of sexual harassment cases also has a chilling effect.

 

University of Cincinnati professor Sandra Sperino has read roughly 1,000 sexual-harassment cases that were dismissed before they went to trial.

 

"You'll see case after case where a woman was groped at work and the court will dismiss the case as a matter of law, finding that's not sexual harassment," Sperino says.

 

In a 1986 decision, the Supreme Court said the behavior needs to be "severe or pervasive" in order to qualify as harassment, whether it's on the basis of sex or race. Sperino says judges' interpretations of what qualifies are out of step with common sense and standard office policies.

December 4, 2017 in Courts, Equal Employment, Violence Against Women | Permalink | Comments (0)

Severe or Pervasive Standard for Sexual Harassment Bars Many Claims

Sandra Sperino & Suja Thomas, Boss Grab Your Breasts? That's Not (Legally) Harassment

There remains a sense among Americans that the country’s legal system is well equipped to handle the harassment cases that will likely be brought as more women come forward with accusations, including against celebrities like Matt Lauer and Garrison Keillor. The country has laws protecting people against harassment in the workplace and courts in which those laws are supposed to be enforced. Several high-profile lawsuits — including Gretchen Carlson’s suit against the former Fox News chairman Roger Ailes, which was settled for $20 million — have reinforced this impression.But this notion is misleading. In fact, courts routinely dismiss cases brought by workers who claim their supervisors propositioned them, kissed them or grabbed their breasts. The judges declare that the conduct does not constitute harassment in a legal sense, and refuse to let the cases go to trial. How did we get here?

 

In the 1986 case Meritor Savings Bank v. Vinson, the Supreme Court held that Title VII of the Civil Rights Act prohibits harassment in the workplace based on sex, race, color, religion or national origin. Today, Meritor is viewed as a landmark case that officially recognized sexual harassment as an impermissible form of discrimination.

 

But in issuing its judgment, the Supreme Court used the words “severe or pervasive” to describe the level of seriousness that conduct must reach before meeting the legal definition of harassment. Those words are not found in Title VII. Instead they are a judicial interpretation of the statute — and have had lasting consequences.

 

Some conduct is clearly so serious that it always counts as harassment. For example, a supervisor raping an employee has consistently been viewed as “severe” enough to meet the bar. Supervisors who have subjected workers to sexual epithets and taunting every day for a long enough period meet the standard for “pervasive.” Other conduct, by contrast, is never going to meet the threshold — say, if a supervisor asks an employee out on a date once and does not treat her differently after she declines.

 

In the early and mid-1990s, the federal courts wrestled with the meaning of the “severe or pervasive” standard, and judges during that period created a very high bar for plaintiffs to meet. Unlike typical workers, these judges had lifelong job security and powerful positions. They also did not have the benefit of deliberating with a large group of people with different experiences as a jury does. These early cases have cast a long shadow, and today, some judges appear to simply be following the standards set by earlier courts. These standards have not aged well.

December 4, 2017 in Courts, Equal Employment, Violence Against Women | Permalink | Comments (0)

Tuesday, November 28, 2017

MI Legislation Proposes Additional Protections for Domestic Violence Victims

 Domestic Violence Victims Get Protections Under Bills in House, Senate

Victims of domestic violence would get protections under bills introduced last week by Democrats in the House of Representatives and Republicans in the Senate.

 

The Democrats' bills would protect the wages and benefits for victims of domestic violence and prohibit landlords from discriminating against victims.

 

The Republican legislation would protect the confidentiality of the victims by prohibiting the disclosure of addresses in voter records or release of school records to parents who are the subject of personal protection orders. Another bill would exempt victims from jury duty.

 

"This is a package of bills that will conceal where a victim of domestic violence lives so they can't be stalked," said Sen. Rick Jones, R-Grand Ledge, one of the sponsors of the GOP package of bills. "Most states are doing this now and you have to deal with all the different ways you can find people." 

November 28, 2017 in Legislation, Violence Against Women | Permalink | Comments (0)

Why You Should Stop Calling Women "Females"

6 Reasons You Should Stop Referring to Women as "Females" Right Now

  • 1. Because the words "female" and "woman" mean different things.
  • 2. Because reducing a woman to her reproductive abilities is dehumanizing and exclusionary.
  • 3. Because nobody casually refers to men as "males."
  • 4. Because it is most often used to imply inferiority or contempt.
  • 5. Because it's grammatically weird.
  • 6. And most importantly, because the word you're looking for already exists.

The Problem With Calling Women "Females"

For many who use the word, I'm sure it seems innocuous. If you listen closely to the howling winds of patriarchy, you can make out their cries: Why are women making such a big deal about one word? Aren't there more important issues, like rape? I don't mean anything negative by it. It's just a different way of saying "women."

No one is suggesting that calling women "females" is directly behind rape on college campuses and affordable access to birth control on Womanhood's List of Very Important Priorities. It is a simple and relatively contained issue—and the staunch resistance to such a simple issue is extremely telling.

Using "female" in this way is contrary to how we generally communicate. As noted above, "female" as a noun erases the subject—making "female" the subject of the sentence. In the most technical sense, it's correct, but by employing this word that is usually an adjective as a noun, you're reducing her whole personhood to the confines of that adjective. It's calling someone "a white" instead of a white person, "a black" instead of a black person, and so on.

"When you refer to a woman as a female, you're ignoring the fact that she is a female human," write Nigatu and Clayton, pointing out the connotation that follows: "It reduces a woman to her reproductive parts and abilities." The focus shifts away from the personal and onto onto her qualities as an object—qualities that have, historically, not been used in the best interest of women.

Why We Need to Reclaim the Word "Female"

Green and other linguists have long documented the innate misogyny of slang, where thousands of disparaging terms for women have proliferated over the years, with scant male equivalents. Indeed, the Oxford English Dictionary (OED) lists “female” as a disparaging term for men.

The OED goes on to note that since 1400, female has occasionally been used to describe one’s mistress, which could be seen as pejorative — as a sex object. As Katherine Martin, head of U.S. dictionaries at Oxford University Press, points out the term femalehas had depreciative connotations for longer than one might expect. She cites the OED’s original entry for female in 1895, in which the editors described its usage as “now commonly avoided by good writers, exc. with contemptuous implication.”

The simple solution seems to be to turn woman/women into an adjective: women Senators, women executives, a woman President. But I would argue that by allowing virtually every word that can be applied to women, except women, as negative we are helping men box us in with their “male gaze” of the English language, as Green puts it

November 28, 2017 in Gender, Pop Culture | Permalink | Comments (0)

Monday, November 27, 2017

Systemic Solutions for Sexual Harassment: Majority Women in the Board Room

A Bidder for the Weinstein Company Suggests a Rare Boardroom Set Up: A Majority Female Board

Maria Contreras-Sweet, who led the U.S. Small Business Administration under President Obama, has submitted a bid to acquire the Weinstein Co., the embattled film studio grappling with multiple allegations of sexual harassment or assault against its former co-chairman, Harvey Weinstein. It includes a group of investors with female leaders from private equity, venture capital and Hollywood, according to a source familiar with the deal. It proposes retaining the company's employees and has the blessing of lawyer Gloria Allred, who is representing some of Weinstein's accusers.

 

But one aspect of the bid is getting the most attention: Its proposal to install a majority-female board of directors, with Contreras-Sweet as chairman.

 

That's partly because, some researchers argue, having more women in leadership roles is a better answer to solving sexual harassment problems than installing more training programs or anti-harassment policies. Research has shown that having male-dominated management teams can lead to the tolerance of a sexualized environment, said Alexandra Kalev, a professor at Tel Aviv University and the co-author of a recent Harvard Business Review article on the topic. "Having more women in management increases the share of women who can work to promote women and create a working environment that allows women to flourish," she said.

 

Moreover, Kalev said, having more than just one or two token women on the board is important for female board members' contributions to be heard and for them to not be viewed as outsiders who represent a woman's point of view. She said research has shown that companies are actually more likely to adopt a diversity program when they have no women on the board than when 5 percent of the board is women. Having a single woman makes boards feel as though they've taken some action, and they "feel less of an urge to adopt programs that increase diversity."

 

It's not until they get to 15 or 20 percent of directors that they start to make a difference, Kalev said. "They're not seen as representing their gender anymore, but representing the board," she said. "It mainstreams women in positions of power."

 

Frequently cited research from 2006, based on interviews with female directors, also found that it seems to take at least three women for them to create "a critical mass where women are no longer seen as outsiders" and can influence decision-making.

 

I have written some about altering the gender balance on corporate boards, as well as balancing the power structures of other institutions such as legislative bodies, academia, and workplaces to reflect gender parity of 50/50 women.  Reconsidering the Remedy of Gender Quotas, Harvard J. Gender & Law Online (Nov. 2016).

 key feminist insight on these systemic problems has focused on the importance of power. The lack of women’s power as decision makers in the workplace, politics, or science means the perpetuation of the patriarchy (yes, patriarchy) and male privilege from the top down.
Generations at the top may be outdated, but they continue to transmit the same outmoded assumptions of women’s inferiority and disqualification, reinvigorating a new generation with the same discriminatory norms and practices.

November 27, 2017 in Business, Gender | Permalink | Comments (0)

Systemic Solutions for Sexual Harassment: Legislation and Insurance Industry Change

Marci Hamilton, Listen Up: There is a Solution to the Sex Abuse and Harassment Epidemic Unfolding Before Your Eyes--and You will be Surprised at Who Must Step Up to Succeed 

There has been intense media coverage but surprisingly little if any attention paid to the experts on sex abuse, assault and harassment, who could inject facts into the discourse. There is actually a science of child sex abuse and sex assault. Instead, there has been a lot of hand-wringing by those who do not labor in this vineyard, and over-politicization of the issues to the point that you can’t see what you need to see. When a cable news show staffs its “panel of experts” to discuss these cases solely with political reporters and pundits, they are missing the mark.

 

There is a systemic solution to the sexual misconduct pandemic, and it requires the insurance industry to step up. The vast majority of these claims are in the civil arena, because so few prosecutions go forward with the “beyond a reasonable doubt standard.” (Prosecutors are elected officials who watch their win-loss ratios closely. The public would be shocked by how few of the cases involving sexual abuse and assault are ever prosecuted despite strong evidence, but that is another column for another day.) That puts the insurance system on center stage due to its power to coerce better practices with the threat of no or escalating coverage. It has been no friend to victims as it has implemented non-disclosure agreements, intimidated victims, and avidly lobbied against statute of limitations reform.

 

If the industry declines to reform its predator-friendly practices, it’s time for hearings on Capitol Hill, which would supplement the recent hearings to enact legislation and rules to govern sexual harassment in Congress. They should probably happen anyway, but if there is no major insurance reform to solve the problem, there is no choice but to subpoena the executives. In all likelihood, Congress and the state legislatures will need to coerce them to do the right thing. The insurance industry has the power to turn around at least the workplace on these issues if it starts demanding the kind of preventative practices only it can effectively enforce and punishes those who harbor perpetrators with escalating premiums and the threat of no coverage.

 

With respect to members of Congress, it’s not the insurance world that matters, but rather a corrupt federal system ensconced in federal law. Interestingly, it needs the same fixes as the insurance industry, though, so I will include it in the discussion below.

 

Here is where we need to start to bring industries, institutions, and Congress into line:

 

First, non-disclosure agreements in sexual misconduct cases violate public policy and should be made unenforceable. While it is reasonable to permit the parties to agree that the settlement number is confidential, the perpetrator and/or entity should not be permitted to gag the victim. Non-disclosure agreements have been the darlings of the insurance companies and a mandatory feature of the federal system. The congressional victim has one route: to enter a lengthy and dysfunctional process at the end of which, if there is a settlement, secrecy is forced on her.

 

I would expect the insurance industry to sic its lobbyists on members contemplating a paradigm shift in this arena and to fight any bill that neutralizes nondisclosure clauses. But this is one of those instances where the public disclosure is so obviously in the common good that lawmakers need to put cotton in their ears. Besides, perhaps my cynical expectation that the industry (and members of Congress) will fight for nondisclosure agreements to the detriment of the common good is misplaced. One can hope daily scandals will guide the industry and federal government to a moral compass that points toward policies that protect the vulnerable rather than the predators and their complicit institutions.

 

Second, eliminate the SOLs for sex abuse, assault, and harassment. Let the victims come forward when they are ready, not according to some artificial deadline. 99% of the women who have come forward against the list of men at the start of this article were barred from the judicial process. This is a cause the insurance companies have been fighting for decades—against their better interests. They don’t want SOLs to open up, because more perpetrators and at-fault institutions named, which increases their liability. Yet, it’s better for them to permit the SOLs to be liberalized, because it concretizes their liabilities and makes it possible to demand that a perpetrator be fired so that they can avoid future liability. With short SOLs, the cycle of misconduct, settlement, misconduct, settlement remains in place, which does not serve the industry’s ultimate ends.

 

Third, insurance companies (and Congress) need to institute workplace rules with teeth that are a pre-condition to coverage and/or service that halt the secrecy spiral:

  • To qualify for coverage or to maintain one’s status in Congress, there should be mandatory training, as in real training conducted by professionals and not in-house people, on the rules of sexual misconduct from abuse and assault to harassment. It should be made clear that no one gets a pass—not the perpetrator and not the bystander, or observer. There should be mandatory reporting internally and to the authorities when a crime has occurred. Reporters must be shielded from retaliation.
  • Employers and Congress should be required to pledge to discharge any employee who has engaged in sexual misconduct, and that determination follows an investigation. Recommendations for other jobs would be required to disclose the sexual misconduct. Failure to disclose would create liability for the company that discharged the predator.
  • Employers and Congress must institute meaningful zero tolerance policies for sexual misconduct that are worth the paper they are written on. Most companies have pro forma policies but in practice, as we have learned, supervisors are wont to ignore allegations if the man serves the organization’s interests, whether it be image, power, or money. If it turns out a company’s supervisor learned about sexual misconduct and ignored it, that should come with the heavy price of steeply increased premiums. The member of Congress who fails to disclose knowledge of sexual misconduct should be subject to mandatory censure.
  • There need to be annual sexual misconduct audits. If there is reason to be suspicious, the insurance company (or relevant committee in Congress) must investigate all allegations with special focus on any cover-up. Results are to be released to the public, not buried.
  • Policies related to off-premises business or institution-related activities need to be tightened up. If the employee is performing work for the organization or in its name off-premises, as was Charlie Rose at his home, the company should be liable for any misconduct and the insurance company on the hook. There need to be rigid rules about work off-premises (other than flex-time when there is no employee interaction). Charlie Rose’s and Weinstein’s off-premises activities couldn’t have happened but for the environment. They weren’t going to parade around nude and uncovered at work.

 

Fourth, as I discussed here, the defamation laws need to be rewritten to protect the victim who goes public. None of these guys should be permitted to rattle the saber of defamation like Cosby, Trump, or Moore. The first order of business in any such claim should be an expedited proceeding on the facts of the sexual misconduct. If the victim proves the acts occurred to a preponderance of the evidence, the perpetrator should be liable for treble damages and attorneys fees. The remedy will deter such lawsuits except for the most narcissistic predators.

November 27, 2017 in Equal Employment | Permalink | Comments (0)

Symposium on the Jurisprudential Legacy of Judge Constance Baker Motley, the First Black Woman Federal Judge

Congress' Settlement and Awards Fund that Pays Victims of Sexual Harassment

  There's a Little-Known Fund that Goes to Victims of Sexual Harassment on the Hill. You Pay for It.

Since 1997, Congress has paid at least $15 million to settle complaints about sexual harassment, racial discrimination, and violations of the Americans With Disabilities Act under the umbrella of the Congressional Accountability Act (CAA) of 1995.

 

The payments made to Rep. Conyers’s alleged victim came out of his taxpayer-funded office budget. Generally, though, these payments aren’t made by members of Congress or their offices. They’re made by a special section of the Department of the Treasury established under Section 415 of the CAA — and ultimately by the American taxpayer.

 

The process by which victims of sexual harassment on the Hill seek justice is long and arduous — it takes up to three months before a formal complaint can be filed. If a settlement is reached, it’s kept secret. The source of the money in the fund is excluded from the standard appropriations budget made public by Congress each year. There’s no process by which voters — or potential employees — can find out who the harassers in office are, what they’ve been accused of, or if they’ve settled with victims before.

 

The fund used to settle violations of the CAA is perhaps just one of the several pockets of money throughout the government used to handle judgments made against government employees. As harassment accusations topple prominent men in mediacomedy, and Hollywood, it’s come under more scrutiny.

 

The Settlement and Awards Fund comes from an effort to hold Congress accountable for the federal laws that all other employers have to follow.

 

But as prominent men in other fields have faced snowballing accusations of sexual harassment, it’s instead shielded members of Congress from publicity.

 

In 1995, Congress passed the CAA, an effort to apply 12 federal laws to the legislative branch, including the Americans With Disabilities Act; the Fair Labor Standards Act, which requires that employers pay at least the minimum wage; and Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race, religion, national origin, color, or gender — including sexual harassment.

The CAA was, in part, a delayed legislative response to the Supreme Court's decision in Davis v. Passman (1979), implying a Bivens remedy for sex discrimination by Member of Congress from Louisiana, but with a 5-4 split and a dissent calling for Congressional immunity in employment matters absent a statutory extension of Title VII.  

November 27, 2017 in Equal Employment, Legislation | Permalink | Comments (0)

Tuesday, November 21, 2017

Why is Now the Sexual Harassment Tipping Point?

Julia Carpenter, CNN Money, Sexual Harassment Tipping Point: Why Now?

It's been called the Weinstein effect.

Following the bombshell investigations into Harvey Weinstein's conduct, more people began to speak out about sexual harassment, leading to a string of allegations against other prominent men like Charlie Rose, Kevin Spacey, Louis C.K., Jeffrey Tambor, Al Franken and others. Many of the accused have paid a steep price for their behavior.

 
But why now?
 
 
America has had its share of news-making scandals before. Anita Hill testified against Clarence Thomas in 1991, and Thomas still sits on the Supreme Court today.

 

Decades of assault accusations followed former television star Bill Cosby even as his star was rising. And in 2016, the "Access Hollywood" tape depicting then-candidate Donald Trump boasting of sexual assault did not stop his ultimate presidential victory.

 

So what's different in the moment we're experiencing now?

 

We know their names

Many of the women who spoke out against Weinstein -- Gwyneth Paltrow, Ashley Judd, Rose McGowan -- are famous names. In previous high-profile sexual harassment cases, it's usually the men who are more well-known (see: Bill O'Reilly, Clarence Thomas). Experts say that the previous power dynamic -- the famous man accused by the less-famous woman -- only bolstered a false narrative, one that discredited women's stories.

 

In Weinstein's case, however, as more women added their own allegations to a growing list, people paid attention.

 

"What do we focus on in our society? Movies and social media and People magazine," says Tracy Thomas, law professor at the University of Akron. "So those are the voices that finally ... make a difference."

 

And to people watching around the world, the women's fame cemented the credibility of their stories.

 

"Class and race and stature play into whether someone is believed," says Fatima Goss Graves, president and CEO of the National Women's Law Center. "The nature of who is telling the story mattered here."

 

Other women are sharing their stories

Since Hill testified in 1991, the way in which people show support for survivors has changed, says Renee Knake, professor at the University of Houston Law Center.

 

Case in point: the words we use.

 

"When Anita testified, women supported her, but they said, 'I believe Anita,'" Knake says. "And the reason why they believed her is because it was happening to them, but no one wanted to face what she endured. Now, women are saying, 'Me, too,' which is more tangible and more concrete."

 

The advent of social media, and the way women now turn to it to share their own stories, on their own terms, has created "a critical mass" of testimonials, Knake says.

 

"Suddenly, when you have more people speaking, that always creates a tipping point," Thomas says. It's harder for critics to say, "'They can't all be overly sensitive. They can't all be lying,'" she added.

 

And more importantly, these testimonials made an issue that was otherwise removed from many lives into something personal.

 

And when it's personal, Thomas says, you're encouraged to share your story, too -- whether on Facebook, with your friends or in an HR office making a formal complaint.  ***

 

Men are paying attention

Thomas says the recent outpouring of support for harassment survivors has also engaged a critical population: men.

 

At previous sexual harassment flashpoints throughout American history, men were listening, but they weren't engaged.

 

But in the last month, the #metoo campaign and barrage of accusations has made the issue personal for millions of women -- and men -- as they shared their own harassment stories or realized this issue had touched every woman they knew.

 

Thomas points to the important role men have played in previous women's rights milestones. Just a century ago, in the fight for suffrage, women relied on male supporters to add their voices to the conversation. In harnessing such widespread support and demonstrating in numbers before the White House, advocates won women the right to vote in 1920.

 

"Just like any movement when we're talking about women, bringing men into that dialogue is so critical and must really be taken seriously," Thomas says.

November 21, 2017 in Media, Pop Culture | Permalink | Comments (0)