Gender and the Law Prof Blog

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

Tuesday, October 17, 2017

Discrimination 3.0: Women as Devalued Workers in the Gig Economy

Arianne Renan Barzilay & Anat Ben-David, Platform Inequality: Gender in the Gig Economy, 47 Seton Hall L. Rev. 393 (2017)

From the Intro:

Americans are making extra money renting out a spare room, designing websites, selling products they design themselves at home, or even driving their own car. This ‘on demand’ or so-called ‘gig economy’ is creating exciting opportunities and unleashing innovation but it’s also raising hard questions about workplace protections and what a good job will look like in the future. –Hillary Rodham Clinton

Abstract:

Laboring in the new economy has recently drawn tremendous social, legal, and political debate. The changes created by platform-facilitated labor are considered fundamental challenges to the future of work and are generating contestation regarding the proper classification of laborers as employees or independent contractors. Yet, despite this growing debate, attention to gender dimensions of such laboring is currently lacking. This Article considers the gendered promises and challenges that are associated with platform-facilitated labor, and provides an innovative empirical analysis of gender discrepancies in such labor; it conducts a case study of platform-facilitated labor using computational methods that capture some of the gendered interactions hosted by a digital platform.

These empirical findings demonstrate that although women work for more hours on the platform, women’s average hourly rates are significantly lower than men’s, averaging about 2/3 (two-thirds) of men’s rates. Such gaps in hourly rates persist even after controlling for feedback score, experience, occupational category, hours of work, and educational attainment. These findings suggest we are witnessing the remaking of women into devalued workers. They point to the new ways in which sex inequality is occurring in platform-facilitated labor. They suggest that we are beholding a third generation of sex inequality, termed “Discrimination 3.0,” in which discrimination is no longer merely a function of formal barriers or even implicit biases. The Article sketches Equality-by-Design (EbD) as a possible direction for future redress, through the enlisting of platform technology to enhance gender parity. In sum, this Article provides an empirical base and analysis for understanding the new ways sex inequality is taking hold in platform-facilitated labor.

October 17, 2017 in Business, Equal Employment | Permalink | Comments (0)

Study of Gender Diversity in High Courts

Nancy B. Arrington, Leeann Bass, Adam Glynn, Jeffrey K. Staton, Brian Delgado, Staffan I. Lindberg, Gender Diversity in High Courts

Abstract

Increasing the diversity of political institutions is believed to improve the quality of political discourse and, subsequently, the quality of political outcomes. Moreover, the presence of diverse officials in positions of power signals the openness and fairness of political institutions. These benefits of diversity should be particularly acute in the judiciary, where judges are tasked with the symbolically and substantively powerful duty of interpreting and defending constitutional values. Extant scholarship suggests that well-designed appointment process can promote diversity without explicitly gendered goals, much less quotas. If correct, these proposals raise the possibility of promoting greater diversity without having to resolve politically charged debates about quotas. Yet, scholars disagree about the effects of particular design choices. Worse, estimating causal effects of institutions in observational data is particularly difficult. We develop a research design linked to the empirical implications of existing theoretical arguments to evaluate the effect of institutional change on the gender diversity of peak courts cross-nationally. Specifically, we consider the effect of an increase (or a decrease) in the number of actors involved in the appointment process. We find mixed results for any existing claim about the role of appointment institutions play in increasing diversity. Yet we also find that any institutional change seems to cause an increase in the gender diversity of peak courts.

From the Intro:

The presence of more women on peak courts may in influence the law, and by implication, core matters of public policy, either because women understand the law in particular contexts or evaluate facts differently than men (e.g. Boyd, Epstein and  Martin, 2010; Glynn and Sen, 2015; Collins, Manning and Carp, 2010) or because male judges behave differently when they share the bench with women (Boyd, Epstein and Martin, 2010; Farhang and Wawro, 2004). It is also possible that more diverse courts promote the legitimacy of the justice system (e.g. O'Connor and Azzarelli, 2011; Kenney, 2013), and increased gender diversity on important courts may be conceived of simply as an unalloyed normative good (e.g. Malleson, 2003).

October 17, 2017 in Courts, Gender, International, Judges | Permalink | Comments (0)

Monday, October 16, 2017

Court Upholds Denial of Parole to Pregnant Woman to Protect Unborn Child

Commonwealth v. Becker, (Pa. Super. Ct. Oct. 10, 2017)

P & P opposed Becker's parole because of the risk that she may use heroin while pregnant. The trial court shared similar concerns, among others, and denied Becker's petition for parole. 

Becker first claims that the denial of her parole was manifestly unreasonable, as she had incurred no misconducts during her incarceration, attended treatment and counseling, and had a stable address and family support. Becker's claim is without avail.

“Parole is nothing more than a possibility, and, when granted, it is nothing more than a favor granted upon a prisoner by the state as a matter of grace and mercy shown by the Commonwealth to a convict who has demonstrated a probability of his ability to function as a law-abiding citizen in society.”

 Here, the record does not support Becker's assertion that the denial of her parole was manifestly unreasonable. First, we note, Becker's gender and concomitant pregnancy are incidental to her well-chronicled heroin addiction. As such, the basis of the Becker's parole denial, as stated by the trial court, was the substantial risk that she would use heroin, not her unique status. In coming to its decision, the trial court expressed concern for the health of Becker's unborn child. However, the trial court did not discuss prisoner access to women's healthcare, prenatal care, child welfare resources or other associated services that might indicate its decision was motivated entirely by Becker's status. Rather, it focused on Becker's prior use of heroin and the dangers it posed to her and others. Specifically, the trial court reiterated its concern with “[Becker] using drugs and ․ harming herself” and the potential for relapse. N.T. Parole Hearing, 8/22/16, at 7, 15–17, 69 (“[S]he has a bad history [of heroin abuse][,] and history dictates when she gets out [of prison], she uses”).

 The trial court's concerns are well founded.

 Becker next claims that the trial court violated her substantive due process rights when it denied her parole based solely on her pregnancy. Becker concedes that in Pennsylvania, “a prisoner has no absolute right to be released from prison on parole upon the expiration of the prisoner's minimum term.” However, citing Block v. Potter, 631 F.2d 233, 235 (3rd Cir. 1980), Becker argues that the trial court based its denial of parole on factors she avers are unconstitutional and/or arbitrary, including gender, pregnancy and the safety of the unborn child.

 Here, Becker asks us to determine whether the trial court's consideration of her gender, pregnancy and the health of the unborn child was, like in Block, an unconstitutional arbitrary government action. We decline to conduct such an analysis.

 Under the Administrative Agency Law, a court can only review an action of a Commonwealth agency where its decision constitutes an adjudication. The Supreme Court found that the act unambiguously defines adjudication to exclude parole decisions. The Court also addressed the theory that parole decisions would be applicable for review under the Due Process Clause of the Fourteenth Amendment of the United States Constitution. The Court rejected this argument, as there was no precedent to support it.

 Becker's next claim on appeal is that the trial court violated her equal protection rights by denying her petition for parole. Equal protection requires that “all persons similarly situated should be treated alike.” Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). Legislative classifications based on gender call for a heightened standard of review. See Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 295 (1993). However, the Supreme Court of the United States has repeatedly held that we cannot reasonably presume opposition to abortion reflects an animus against women and/or pregnant women as a class. See Id. at 269–70;  see also Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983) (finding that discrimination based on pregnancy was discrimination based on gender only because Congress specifically intended it to be when it amended 42 U.S.C. § 2000e). “Where the challenged governmental action does not burden ‘fundamental’ or ‘important’ rights, and does not make a suspect classification or a quasi-suspect classification, it does not offend the Equal Protection Clause as long as it is rationally related to a legitimate governmental interest.” Small v. Horn, 722 A.2d 664, 672 (Pa. 1998) (citations omitted). Furthermore, drug users are not a suspect or a quasi-suspect class. New York City Transit Authority v. Beazer, 440 U.S. 568, 592–93 (1979). This argument affords Becker no relief.

 The trial court based its decision denying Becker's petition for parole on her status as an incarcerated, pregnant heroin addict. The court's action does not burden a fundamental or important right, nor is Becker's status a suspect or quasi-suspect classification. Therefore, the trial court's action need only pass a rational basis test. Small, 772 A.2d at 672. Our Supreme Court has defined the rational basis test as examining a law to find if it is “unreasonable, unduly oppressive or patently beyond the necessities of the case, and the means which it employs must have a real and substantial relation to the objects sought to be attained.” Nixon, 839 A.2d at 286–87 (citation omitted). If it is not, then the discrimination is permissible under the Equal Protection Clause. Id. at 286. Here, we find protecting Becker's unborn child was a legitimate governmental interest. Planned Parenthood, 505 U.S. at 846. By denying Becker parole, the trial court ensured Becker could not use heroin and harm her unborn child. Denying parole until going into labor was reasonable, as the only other alternative was releasing Becker on parole. Therefore, there was no equal protection violation.

October 16, 2017 in Abortion, Constitutional, Family, Pregnancy | Permalink | Comments (0)

CFP Gender Sidelining Symposium

Call for proposals in gender sidelining symposium

California Western School of Law

California Western School of Law invites proposals for its Gender Sidelining Symposium to be held April 26-27, 2018 in San Diego, California.  The symposium will bring together legal academics, practicing lawyers, business leaders, judges, and others to discuss subtle yet pernicious forms of unequal treatment that often are not actionable under anti-discrimination or other laws, but that nonetheless may hinder the ability of women to advance in their respective professions.  We refer to this unequal treatment as Gender Sidelining.  There are a myriad of behaviors, policies, and practices that lead to this phenomenon of Gender Sidelining that the law does not (and arguably should not) proscribe, but which still require solutions.

The Symposium will begin with a panel discussion that will provide the relevant context and background for the concept of Gender Sidelining, followed by a dinner and remarks by a panel of highly respected judges who will provide their thoughts and insights regarding this topic.  The second day will include lunch and a keynote address by American University Washington College of Law Dean Camille Nelson, a well-respected and widely published scholar who focuses on gender inequality.  The second day will also include three salon-style sessions, in which a primary anchor will discuss their work in conjunction with others who will provide commentary and response.  Finally, the Symposium will conclude with a final reception and rap session, where participants will be encouraged to share their reflections in an open discussion.

In seeking to explore this Gender Sidelining phenomenon, we invite proposals for three interactive salon-style sessions surrounding the themes of Employment, Entrepreneurship/Business, and Popular Culture.  Interested participants also are free to suggest other salon session topics that are consistent with the Symposium’s broader theme.  Each individual submitting a proposal should indicate the following: (1) whether you would like to serve as a primary anchor for one of the themed salon-style sessions or (2) have an interest in providing commentary in one of the themed salons. 

Proposals should be submitted to jfink@cwsl.edu no later than November 17, 2017, and include an abstract that indicates the specific themed salon session of interest, the presenter’s proposed role (primary anchor or commentator), a description of the presenter’s research/expertise, and a CV. We also welcome proposals that are fully developed in terms of a primary anchor and commentators. Please include “Gender Sidelining Symposium” in your email subject line.  Please use Microsoft Word or the equivalent, but do not use PDF.    Questions should be directed to Professor Jessica Fink at jfink@cwsl.edu.  More complete descriptions of the salon sessions appear below.

Employment: Women in the workplace often face obstacles which may impede their advancement and success, but which may not – without more – provide grounds for legal action.  For example, women are significantly under-represented in positions of leadership and power across professional sectors; they often are not given adequate credit or recognition for their work; they may find their voices silenced in meetings with their male peers; they may lack appropriate mentors or other professional guidance.  While such barriers and slights, standing alone, generally will not rise to the level of being legally actionable, the aggregation of these incidents leads to egregious inequality in the workplace that begs solutions.  In this salon, participants will contribute to a vibrant discussion on this visible, yet often unactionable, inequality in employment contexts like academia, the military, religious institutions, law enforcement, law, medicine, and beyond.

Entrepreneurship and Business: The news has been replete of late with stories of sexism at tech startups and reports finding gender bias in business funding, especially in the world of venture capital.  For this salon, we invite contributions to a discussion about how gender sidelining plays a role in business and entrepreneurship.  How does gender impact decisions about which entrepreneurs are funded, which markets are “disrupted,” or who is appointed to boards of directors and other leadership positions? How might these decisions affect both women in the business world and women as consumers?  How do issues of intersectionality complicate this analysis?  And is there a role for the law to play in addressing these issues, which are traditionally left to the market to sort out?  Ideally this salon will feature a mix of academics, practitioners, and business leaders.

Popular Culture: Popular culture often contributes to narratives that displace women and make them secondary in status to men within the collective imagination. From sports, to movies, to mainstream news and music, popular culture reproduces cultural norms, practices, and narratives that allow women to be overlooked and disregarded. Proposals that address the relationship between popular culture and gender sidelining might consider any of the following questions: How does mainstream news media coverage overlook the contributions of women politicians, lawyers, judges, and businesswomen, or subject them to different standards than men? How are women athletes and other women in entertainment exposed to unequal conditions due to gender sidelining? How do pop culture portrayals of women politicians, athletes, professionals, and artists create barriers that prevent or discourage women from entering these fields, or make it difficult for women within these fields to advance? Is there a role for the law to mitigate any of these issues?

Thank you,

Symposium Committee

Hannah Brenner

Leslie Culver

Jessica Fink 

Catherine Hardee

India Thusi

Daniel Yeager

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

The Mansfield Rule for Gender Diversity in Hiring

ABA J, Law Firms Borrow a Concept from the NFL to Address a Lack of Diversity in their Leadership Ranks

The Mansfield rule was inspired by the National Football League’s Rooney rule—named after the late Pittsburgh Steelers owner Dan Rooney—which requires that at least one person of color be interviewed for head coach jobs. Arabella Mansfield was the first woman admitted to practice law in the United States, so the rule mandates that at least 30 percent of a firm’s candidates for leadership positions (defined as firm governance roles, equity partnerships, practice chair positions and seats on compensation committees) be women, attorneys of color or both.

 

According to a June press release, 44 major law firms will utilize the Mansfield rule, including two of the world’s largest firms by lawyer head count: Dentons and DLA Piper. Law firms that implement the rule over the next year will be “Mansfield certified” and can participate in a 2018 client forum, which will pair in-house lawyers with attorneys who are women or people of color for business development opportunities.

 

A group of partners from Am Law 200 law firms and a Stanford Law School student came up with the Mansfield rule idea at the 2016 Women in Law Hackathon. Besides the Diversity Lab, the hackathon was done in conjunction with the law school and Bloomberg Law. The original pitch only addressed women, and it only called for one woman to be considered for leadership choices.

 

According to Mark Helm, a Munger, Tolles & Olson partner who was part of the team that came up with the idea for the rule, it was modified to get more buy-in from law firms. If candidate pools have more women and people of color, he says, it might be easier to convince some decision-makers that the individuals could do the job in question.

 

“My firm has done relatively well with diversity, but at the same time I think it’s relative to other law firms,” he adds. “We all feel that the profession as a whole—including our firm—has a lot more to do.”

 

Indeed, in 2016 only 18.1 percent of equity partners were women, and 5.8 percent were racial or ethnic minorities, according to the National Association for Law Placement.

 

Rather than focus on current data about how many women and people of color are in leadership positions at law firms, the goal of the Mansfield rule project is to encourage the firms to be more mindful about their candidate pools, pipeline and succession planning, says Caren Ulrich Stacy, the Diversity Lab’s CEO. In a hackathon press release, the group is described as being focused on “innovative ways to close the gender gap and boost diversity in law firms and legal departments by leveraging data, behavioral science and design thinking.”    

See the previous post on the Mansfield Rule, The Mansfield Rule: Law Firms' Rooney Rule for Addressing Gender in Hiring

I have previously written about the Rooney Rule, and its limitations, as well as the benefits of targets like the Mansfield Rule.  See Tracy A. Thomas, Reconsidering the Remedy of Gender Quotas, Harvard J. Law & Gender Online (Nov. 2016).

October 16, 2017 in Business, Equal Employment | Permalink | Comments (0)

Friday, October 13, 2017

Gender Bias in Academe: An Annotated Bibliography

London School of Economics, LSE Impact Blog, Gender Bias in Academe: An Annotated Bibliography

Academic research plays an important role in uncovering bias and helping to shape a more equal society. But academia also struggles to adequately confront persistent and entrenched gender bias in its own corridors. Here Danica Savonick and Cathy N. Davidson have aggregated and summarised over twenty research articles on gender bias in academe. 

 

The often unconscious and unintentional biases against women, including in academe, have been well documented in the autobiographical writings of authors such as Audre Lorde, Adrienne Rich, Patricia Williams, and bell hooks. But is the experience they document merely “subjective”?  Several recent social science research studies, using strictly controlled methodologies, suggest that these first-person accounts of discrimination are representative, not simply anecdotal. While some studies suggest that some fields are making a concerted effort to reverse gender imbalance in hiring and other practices, the majority of these studies reveal a consistent and continuing range of biases at each stage of the hiring, tenuring, and promotion process as well as in peer review and teaching evaluation.

 

The studies aggregated and summarized below offer important policy implications for the traditional ways that we quantify the processes leading to hiring, promotion, and tenure. You cannot simply count “outputs” in making an evaluation of someone’s worth and reputation if there is a “biased filter” at the first stage of evaluation, prejudicing judgment at the outset.

October 13, 2017 in Education, Equal Employment | Permalink | Comments (0)

As Law School Hiring Season Begins, a Look at Gender Bias in the Academy

As hiring season in U.S. law schools is upon us, a few posts today on gender bias in the academy.

Virginia Valia, Beyond Gender Schemas: Improving the Advancement of Women in Academia, 20 Hypatia 198 (2005):

The statistics on women in academia are well documented and summarized in a number of places.


The generality and ubiquity of the problem shows the necessity for a general explanation. Since the phenomena are not confined to a single profession, we need to understand what underlies them. The explanation I focus on is social cognitive; it examines the moment-by-moment perceptions and judgments that disadvantage women. The social-cognitive account relies on two key concepts: gender schemas and the accumulation of advantage. Very briefly: the gender schemas that we all share result in our overrating men and underrating women in professional settings, only in small, barely visible ways: those small disparities accumulate over time to provide men with more advantages than women.

Constance Wagner, Change from Within: Using Task Forces and Best Practices to Achieve Gender Equity, 47 Journal of Legal Education (forthcoming).

This article focuses on the search for gender equity among women faculty in the university setting in the United States. The author advocates for the use of university task forces and the institutionalization of best practices for achieving gender equity as means to remove the persistent barriers to professional advancement experienced by many women faculty. Discriminatory treatment of faculty based on gender may be hidden and remain unacknowledged in some universities, so the process of uncovering such treatment and formulating recommendations for change is an important first step in the process of creating a work environment that is both fair and inviting to women. Many universities have achieved positive outcomes for faculty using this approach, which has the potential to benefit a wider group of women faculty in a more targeted fashion than a strategy that relies on the use of litigation and government agency proceedings. This article documents the disparities in employment status experienced by women faculty in U.S. universities compared to their male counterparts through the use of statistically based gender equity indicators, explores explanations for the existence of such inequities and proposes reasons for their elimination, develops a model framework for the structure and process to be used by a successful gender equity task force, and identifies best practices that have the greatest potential to advance the status of women university faculty. The author draws upon case studies of successful task forces at several U.S. universities, the work of professional organizations representing university faculty and administrators, and the academic literature on the employment status of women faculty in the United States.

This piece contributes to the literature on employment discrimination based on gender in the United States in a novel way by approaching the topic from the perspective of mechanisms for institutional change rather than from a litigation perspective. It fills a gap in the literature by exploring the topic of gender inequity among university faculty from a strategic perspective by drawing on the work of successful task forces and emerging best practices that show promise to improve the status of university women faculty.

Gender Bias in Academe: An Annotated Bibliography:

Studies of the hard data of gender bias—in an era of hard data—should be required reading of all administrators and all faculty who are called upon to make decisions about hiring, tenure, and promotion based on purely quantitative measures such as “productivity” or “citation counts.”  An adage of data scientists is “garbage in, garbage out.” That means if the sample or the data is corrupt or biased when it is first entered, then any conclusions based on mining or crunching that data must be regarded with keen skepticism. You cannot simply count the end product (such as number of articles accepted, reviewed, awarded prizes, or cited) without understanding the implicit bias that pervades the original selection process and all the subsequent choices on the way to such rewards.

 

Book Review, Deborah Rhode, Women and Leadership, 8 ConLawNOW 1 (2017).

October 13, 2017 in Education, Equal Employment, Gender | Permalink | Comments (0)

Thursday, October 12, 2017

Women's Leadership in Academia at AALS

Women Judges in Pakistan

Livia Holden, Women Judges and Women's Rights in Pakistan, 7 Onati Socio-Legal Series (2017).

Abstract:

Although the first appointment of women judges in Pakistan dates back to 1974, the significant appointment of “lady judges” in the past decade has caused a jump in female representation in the judiciary to more than one third in family courts – a quiet move that sends a message of adherence to the principle of gender equality as per the international treaties to which Pakistan is signatory. By investigating the everyday interactions and preoccupations of women judges in their daily management of justice, this paper explores the socio-legal reception of the human rights discourse from the perspective of the female judges. The challenge in this scenario is whether this change will only be formal or whether it will also lead to substantial and accountable justice. The findings here additionally elucidate how the global agenda impacts local expectations and conceptualizations of rights within and beyond the state.

Introduction:

According to statistics from Pakistan’s Law and Justice Commission (2009-2013), women now represent at least 1/3 of the judiciary in family courts in Pakistan. This figure makes Pakistan the country with the greatest number of women-appointed judicial officers among common law legal systems in Muslim majority states.1 Given the overall scarcity of information—not only in Pakistan but throughout the world—regarding modalities of judicial appointments (especially as concerning social diversity), this figure should be taken with a certain degree of caution. Nevertheless, it seems to be a significant indicator of an increasing awareness regarding gender representation in the judiciary, which is not, however, the primary focus of this paper.2 On the basis of qualitative data positioned on a national level by including state law and relevant legal precedents, this paper addresses the main concerns of women judges in Pakistan in their daily professional lives. This data assists in understanding how the global agenda of women’s rights is received and implemented in Pakistan. * * * 

In June 2011, the Thomas Reuters Foundation’s poll of experts declared Pakistan among the three most dangerous countries for women “due to a barrage of threats ranging from violence and rape to dismal healthcare and ‘honor’ killings”. The same report also signaled that 90% of women in Pakistan are exposed to some form of domestic violence. Even though our fieldwork experiences suggest that such quantitative data require scrutiny, these should nevertheless be considered as components of the social framework in which female judges work in Pakistan.

October 12, 2017 in Courts, Family, International, Judges | Permalink | Comments (0)

Tuesday, October 10, 2017

New Book: The Theory of Misogyny

Cover

Kate Manne, Down Girl: The Logic of Misogyny (Oxford Press. Nov. 2017)

From the publisher:

Misogyny is a hot topic, yet it's often misunderstood. What is misogyny, exactly? Who deserves to be called a misogynist? How does misogyny contrast with sexism, and why is it prone to persist --or increase-- even when sexist gender roles are waning? This book is an exploration of misogyny in public life and politics, by the moral philosopher and writer Kate Manne. It argues that misogyny should not be understood primarily in terms of the hatred or hostility some men feel toward all or most women. Rather, it's primarily about controlling, policing, punishing, and exiling the "bad" women who challenge male dominance. And it's compatible with rewarding "the good ones," and singling out other women to serve as warnings to those who are out of order. It's also common for women to serve as scapegoats, be burned as witches, and treated as pariahs.

Manne examines recent and current events such as the Isla Vista killings by Elliot Rodger, the case of the convicted serial rapist Daniel Holtzclaw, who preyed on African-American women as a police officer in Oklahoma City, Rush Limbaugh's diatribe against Sandra Fluke, and the "misogyny speech" of Julia Gillard, then Prime Minister of Australia, which went viral on YouTube. The book shows how these events, among others, set the stage for the 2016 US presidential election. Not only was the misogyny leveled against Hillary Clinton predictable in both quantity and quality, Manne argues it was predictable that many people would be prepared to forgive and forget regarding Donald Trump's history of sexual assault and harassment. For this, Manne argues, is misogyny's oft-overlooked and equally pernicious underbelly: exonerating or showing "himpathy" for the comparatively privileged men who dominate, threaten, and silence women.

October 10, 2017 in Books, Gender, Theory | Permalink | Comments (0)

CAL Passes Bill to Codify Obama-Era Title IX Guidance for Campus Sexual Assault

California Senators Want to Codify Obama-Era Title IX Guidance on Campus Sexual Assault

With the stroke of a pen, Education Secretary Betsy Devos rescinded Obama-era Title IX guidance—effectively undoing nearly half a century of policy and advocacy work that helped to protect women and girls from sexual assault and advance equal access to education. The Department of Education’s updated guidance on Title IX allows schools to mediate rather than adjudicate sexual assault cases, revokes the suggested timeline for investigations and revises the suggested “preponderance of evidence” standard for sexual assault cases to make room for schools to enforce “clear and convincing evidence” standards.

 

Colleges and universities have been swift to respond, speaking out against the new interim guidance and pledging to uphold the old standards by following the procedures with which they were imbued under the Obama-era guidance. In a statement on Friday, UC Berkeley said it “stands firmly in support of the profoundly important policies enacted in recent years that seek to ensure a more efficient and fair system for all parties in cases of sexual harassment and sexual violence.” Penn State stated that it was their goal “to keep our reporting mechanisms and supportive services for responding to incidents of sexual and gender-based harassment and discrimination as effective and accessible as possible.” Washington University announced that “regardless of decisions at the federal level” they “have no intention of turning back on our commitment or resolve.”

 

These responses are undeniably uplifting and important—but laws are only as good as their enforcement. Without the proper mechanisms for effective enforcement that the previous guidance provided, it is hard to say whether schools will hold themselves accountable to the law or let their promises ring empty. Rather than hope for the best, California Senator Hannah-Beth Jackson (D-Santa Barbara) authored a bill that would enshrine into California law the Obama guidelines that guaranteed girls and women equal access to education.

 

SB 169 sends a message that the state does not want to sit idly by as the federal government attempts to propel women’s rights into the past. “In California, we will not go back,” Jackson said in a statement on Friday. “Both houses of the Legislature made a clear bipartisan statement by passing my bill, SB 169, to protect the Obama-era guidelines that strike an appropriate balance that were put in place during his tenure. We will not back down from the progress we have made on sexual assault and sexual violence.”

 

SB 169 passed with a 28-10 vote and is awaiting a signature from Governor Jerry Brown (D)

October 10, 2017 in Education, Legislation, Violence Against Women | Permalink | Comments (0)

Best Law Firms for Women? Really?

Best Law Firms for Women? Really?

How marvelous. A fresh batch of “best” law firms for women lists. They are proliferating like bunnies across the American legal landscape. Law360, Working Mother and our own National Law Journal are just some of the publications that recently put out such lists. (Yale Law Women issues one too; it’s called “Top 10 Family-Friendly Firms”—a much more P.C. moniker.)

 

I’d love to say that these lists signal an abundance of opportunities for women in law. But that’s not how I see them. I find these lists confusing, if not misleading. And sad.

 

Often, firms get the “best” designation because they boast a high percentage of women lawyers—even though not many of them are actual shareholders.

 

The result is that firms with below-average percentage of women equity partners can get a skewed ranking, as I see it. For example, Baker McKenzie (16.4 percent female equity partners; the national average hovers around 18 percent) ranks No. 24 on the NLJ’s list, while Paul, Weiss, Rifkind, Wharton & Garrison (23.3 female equity partners) only ranks No. 38. Using a similar formula, Law360 puts Baker McKenzie in second place on its best women’s list in the 600-plus law firm category, tying with Jackson Lewis.

 

To me the proof in the equality pudding is how many women are elevated to equity partner. If women aren’t equal stakeholders with men, how can anyone say they have any genuine power?

 

I’m all for encouraging institutions to reach lofty goals, but why laud firms so behind the curve? What’s so great about all those spiffy flexibility arrangements when female lawyers essentially have second-class status? ***

 

Instead of focusing on initiatives, I’d rather take a cold, hard look at where women are making equity partner. And here’s the reality check: Women are scarce in the top echelons of the profession.

 

The bottom line is that the sexy Big Law firms are not the places where women are making it in Big Law. So let’s call the “best firms for women” what it really is: a sad statement of how much women lag behind.

October 10, 2017 in Women lawyers, Workplace | Permalink | Comments (0)

Monday, October 9, 2017

New legislation: The Women, Peace and Security Act

The Women, Peace and Security Act Guarantees Women a Seat at the Table

New legislation making its way to President Trump’s desk would guarantee women a seat at peace and security decision-making tables.

 

The Women, Peace and Security Act—passed by the Senate in August and the House in October—mandates that federal agencies make women’s participation a priority internally and in their work on-the-ground in conflict zones around the world. The legislation, which strengthens an Obama-era executive order on women’s participation in peace and security processes, gives Congress oversight of its implementation.

 

The WPS Act is five years in the making, but it has passed at a uniquely critical time. The Trump administration—one of the most male-dominated in modern history—has already shown a tendency to erase women from strategic frameworks related to peace and security. And around the world, while tensions rise, women remain vastly underrepresented at peace-making tables and in security forces.

 

Allison Peters, former Director of Policy and Security Programs at Inclusive Security and foreign policy and defense adviser in the U.S. Senate, penned an op-ed for USA Today presenting the comprehensive case for the historic legislation:

 

Critics might note that the U.S. is dealing with numerous foreign policy challenges and security threats and argue that focusing on women’s participation would be a “soft” distraction from these priorities. However, research shows us time and again that gender diverse groups are more likely to effectively prevent and resolve conflicts in the long-term.

 

Here is the the actual text of the bill that passed and the legislative history.

 

October 9, 2017 in International, Legislation | Permalink | Comments (0)

More on Manels and How to Fix Them

I posted last week about "manels" -- all male discussion panels at legal and academic conferences. See Chronicle, "Man-els": Should Universities Ban Single-Gender Discussion Panels?

Here's more thinking about manels and some ideas of what to do about it:  Brigid Shulte, Slate, There is no Excuse for all Male Panels: Here's How to Fix Them

In the public arena, there is never a shortage of white men who are asked to step into the spotlight and give expert opinions. The world is filled with all-male panels at mostly male conferences, featuring male keynote speakers and discussions dominated by men—including one at Oxford—that didn’t include a single woman—on “Being a Human Being.” One academic study of prestigious TED talks found that male speakers outnumber females by a ratio of 3 to 1. That’s about the same ratio of male-to-female political analysts on top cable news shows talking about the 2016 presidential campaign, which had the first female major party candidate.

 

Men are even asked to take starring roles in conversations about women. PayPal hosted an all-male panel—a “manel”—on gender equality. A manel has held forth on the topic of #WhenWomenThrive at the World Economic Forum in Davos, Switzerland. And in June, an all-male panel at the PRWeek Hall of Femme Conference told female attendees they’d do better in the “macho” PR culture if they would only “speak up more loudly.”

 

....In Sweden, I met a nonprofit group called Equalisters. It’s working to change assumptions about who we think of as an expert—i.e., white men—and offer concrete proof that expert women, immigrants, and diverse voices do, indeed, exist across a wide range of fields. “We believe people saying, ‘There aren’t any’ is just a lazy way of saying, ‘I don’t have them in my network,’ ” said project manager Tina Sayed Nestius. “With our lists, we’ve got a really good way to prove them wrong.”

 

....Witness Fresh Speakers. Co-founder Vanessa Valenti, a speaker herself, got sick of complaining about the whiteness and maleness of conferences. Then she found out that a white male speaker was paid $10,000 and flown first class to a conference while a black female speaker at the same conference had to argue to get a coach ticket refunded and wasn’t paid a dime. “We thought, ‘OK, we have to do something,’ ” Valenti said.

 

She and her two partners opened their own speakers bureau and began curating a list of diverse experts and speakers. Now, 73 percent of their speakers are nonwhite, 71 percent are women, and 51 percent are women of color. “In the conference world, a very common response you hear is, ‘Oh, we couldn’t find enough women speakers for this event. We couldn’t find enough people of color,’ ” Valenti said. “Well, here they are.”

 

The thing is, she said, you have to want to find them. As Elizabeth Broderick, sex discrimination commissioner on the Australian Human Rights Commission, has said, “If you don’t intentionally include, the system unintentionally excludes.” (The commission publishes a “Panel Pledge Toolkit to help, it says, broaden the range of perspectives and the quality of public conversation.)

 

In this era of big data, there are more ways to quantify, create accountability, and publicize the problem of a lack of diversity on the public stage. The nonprofit Gender Avenger creates social media campaigns to track the presence of women on panels as speakers and in the news. And a new app, Are Men Talking Too Much, allows users to time how long “dudes” speak compared with those “not a dude."  

 

Tumblr’s “Congrats, you have an all male panel!” plasters a thumbs-up from David Hasselhoff on photos of testosterone-heavy public forums. The Gendered Conference Campaign of female philosophers not only publicly shames all-male public events but boasts a catchy theme song: “When I flip the page/ I feel something close to rage/ If not a single name of a lady can be found.”

Hey AALS Women in Legal Ed Section-- maybe a Speakers' List of our own. 

October 9, 2017 in Conferences, Gender | Permalink | Comments (0)

Friday, October 6, 2017

A Plea for More Women Judges on the Third Circuit

Dear Senators: The Third Circuit's Shortage of Women Judges is a Crisis

Once Stephanos Bibas is confirmed, the Third Circuit will have 12 active judges: 10 men and 2 women. That gender imbalance is appalling.

 

Two Third Circuit openings remain — one for Pennsylvania, one for New Jersey. We do need those seats filled, because the court has a crushing case load and we need the court back up to full strength.

 

We need both of those seats filled by women.

 

Senators, this is an air-raid-siren crisis. The shortage of women judges on the Third Circuit weakens the court and undercuts its legitimacy. It undermines public confidence in the federal judiciary at a moment in history when that confidence is needed urgently. It weakens our legal system and our democracy.

 

Nationwide, more than a third of active circuit judges are women. That’s double — double! — the Third Circuit’s proportion. If other circuits can do it, we can too.

 

We have done it in the past. The Third Circuit has a proud history of service by women on the bench. As recently as 2006, the court had four active judges who were women. But all four have since taken senior status, and from 2000 to 2012 10 Third Circuit seats in a row were filled by men.

 

Senators, you didn’t cause this problem, but it is a problem you can fix.

 

Nine of the 22 sitting federal district judges for the District of New Jersey are women. Thirteen of Pennsylvania’s sitting district court judges are women. Our law school faculties and practicing bars are brimming with qualified women who would bring credit to the court.

 

And this shouldn’t be a partisan issue. Four of President Trump’s 12 pending circuit nominees are women, right in line with the national rate. In the two most conservative circuits in the nation, the Fifth and Eleventh, 40% of the active judges — 10 of 25 — are women. Republicans are just as capable as Democrats of finding outstanding women to fill circuit judgeships.

President Obama nominated Rebecca Haywood last year, who would have been the first black woman to serve on the Third Circuit.

October 6, 2017 in Courts, Judges | Permalink | Comments (0)

"Man-els": Should Universities Ban Single-Gender Discussion Panels?

Should Universities Ban Single-Gender Discussion Panels?

One source of controversy at some academic conferences is the tendency for discussion panels to be composed largely of white men. In recent years, there’s been a heightened awareness among scholars of the importance of both gender and racial diversity when organizing such discussions — be they at conferences or on campuses.

 

In July, the Elliott School of International Affairs at George Washington University took an unorthodox step to ensure gender diversity in its panel discussions: It adopted a rule banning single-gender panels. Specifically, the policy requires panels with more than two speakers to include both men and women. And if all speakers happen to be of the same gender, the moderator must be of a different gender. Violating the policy could result in a panel’s cancellation.

 

But there was backlash. Some faculty members complained, and news outlets like Breitbart seized upon the controversy. "It’s a total, obvious infringement on common sense to begin with, and academic freedom," said Jonathan Chaves, a professor of Chinese in the Elliott school, told the university’s student newspaper. "There’s only one standard that applies to an institution of higher education," said Mr. Chaves, "and that is who the best person is in the field. Period."

[However...]

 

"Part of privilege is just not having to think about this, you just call your friends, you call your buddies, or you call people in your network, to be on panels like this," she said. "In a practice of exclusion, like all-male, all-white panels are, we are not allowing the merits of somebody’s scholarship to actually bubble to the top."

 

One of the most recognizable efforts to diversify panels hasn’t come from administrators but from professors themselves.

 

Last year, women in political-science departments across the nation founded a searchable database called Women Also Know Stuff in an effort to bring attention to what they call "man-els," or all-male panels.

 

Melissa Michelson, a professor of political science at Menlo College and one of the founders, said she’s seen more women included in news stories and in conferences since the site launched.***

 

But single-gender panels aren’t always all-male. Aili Mari Tripp, chair of the gender and women’s studies department at the University of Wisconsin at Madison, said her department has the opposite problem: all-female panels, because of a lack of men working in gender and women’s studies.

 

As for a rule enforcing gender diversity, Ms. Tripp said that other means are more effective.

 

"The way to go is to create incentives for gender diversity, model it, and find ways to value and recognize the expertise of women and minorities," Ms. Tripp wrote in an email. "rather than legislating it in this way, which will only create unnecessary hostility."

Note, the ABA has adopted a similar rule requiring both gender and racial diversity on ABA CLE and conference panels.  More here The ABA's New Rule Mandating Diverse CLE Panels

October 6, 2017 in Conferences, Education, Gender | Permalink | Comments (0)

Wednesday, October 4, 2017

Inspiring Trailblazer, Australian Judge Rosemary Balmford

Obituary: Inspiring Trailblazer for Women in Law

Rosemary Balmford moved through many professional barriers for women. She was the first woman to lecture in law at the University of Melbourne. She heard the first sex discrimination in employment case brought before the Equal Opportunity Board. She was the first woman appointed a judge of the Supreme Court of Victoria. She was also the first woman to preside over a murder trial in Victoria.

 

Rosemary Anne Balmford AM was born in Melbourne on September 15, 1933. Her parents were John and Ada Norris. Her father, Sir John, returned from serving as lieutenant-colonel in the AIF during World War II, resuming his law practice in 1945. He became a barrister and then a judge appointed to the County Court and later the Supreme Court. Her mother, Dame Ada, held the honour in her own right for her extensive charity work.

 

The law was not Rosemary's sole interest. Rosemary and Peter shared a lifelong love of travel and ornithology. They visited all seven continents, and returning from one extensive trip Rosemary commented: "I can now say we have travelled through George Bush's Axis-of-Evil," namely Iran, Iraq and North Korea. When asked the highlight of her trip, she replied: "The warmth of the Iranian people."

 

Rosemary served as secretary of the Royal Australasian Ornithologists Union (RAOU) and wrote Learning About Australian Birds (William Collins, 1981) later updated as The Beginners Guide to Australian Birds (Penguin Australia, 1990). It was not unusual for friends travelling with Rosemary and Peter to be encouraged to help them identify a bird.

 

In 1971, Rosemary was appointed as the founding executive director of the Leo Cussen Institute for Continuing Legal Education. It was at the Equal Opportunity Board, however, in 1979 that Rosemary heard the landmark sex discrimination in employment case of Deborah Wardley v Ansett. Ansett, a major domestic airline, had refused to employ the pilot Deborah Wardley because she was a woman. The board ruled that Ansett's refusal to employ Wardley was unlawful. She then became the first female commercial pilot in Australia.

 

In 1982, Rosemary was appointed as a senior member of the Commonwealth Administrative Appeals Tribunal. Later, as a judge of the County Court, Rosemary made public her view on the opening up of the professions to women. Her argument was typical of her staunch and consistent logic, namely that to exclude women wasted the abilities of half the population.

 

In 1996, when Attorney-General Jan Wade appointed Rosemary the first female Supreme Court judge of Victoria, her influence on women in the legal profession was profound.

October 4, 2017 in International, Women lawyers | Permalink | Comments (0)

Most Women in Prison are Victims of Domestic Violence. That's Nothing New.

Most Women in Prison are Victims of Domestic Violence. That's Nothing New.

While the mass incarceration of men has dominated the discussion of policing and prisons over the past few years—and rightly so—there’s been a recent shift in thinking about incarcerated women, and not a moment too soon. According to a report by the Vera Institute, women’s incarceration has increased a startling 14-fold since 1970. Like their male counterparts, these women are also overwhelmingly women of color.

 

Despite the shocking increase in their numbers, however, the specific issues and needs of female prisoners have largely gone ignored. In particular, as National Domestic Violence Awareness Month begins in the U.S., it’s worth noting that the vast majority of women in prison are single mothers who have been victims of domestic and/or sexual violence.

 

These concerns have rarely been part of prison-reform discussions, and yet this fact is typical of the history of women’s incarceration in our country.

 

Criminal justice in the American South for decades following the Civil War was meted out unjustly, disproportionately affecting African Americans, regardless of gender. And, thanks to a unique historical record created by women in a Mississippi prison in the 1930s, it’s possible to see that the similarities between women’s incarceration then and now is significant. In both periods, women were more likely to be incarcerated for nonviolent crimes than for violent ones. Likewise, many of the incarcerated women in both cases were victims of domestic and sexual violence whose income was vital to their family household.

This report matches my own experience.  In practice, I handled a pro bono class action on behalf of the women prisoners in D.C.  See Women Prisoners of DC v. District of Columbia.

October 4, 2017 in Courts, Legal History, Violence Against Women | Permalink | Comments (0)

Tuesday, October 3, 2017

An Originalist Defense of the Privileges or Immunities Clause for Gender Nondiscrimination in Bradwell v. Illinois

M. Frances Rooney, Note, The Privileges or Immunities Clause of the Fourteenth Amendment and an Originalist Defense of Gender Nondiscrimination, Geo. J. Law & Public Policy (forthcoming).

The Privileges or Immunities Clause of the Fourteenth Amendment provides a constitutional right not to be discriminated against on the basis of gender. Original public meaning originalism provides the structure to find that the clause includes a right to practice a lawful profession that extends to all citizens, irrespective of gender. The clause is a guarantee of rights to every “citizen of the United States,” not every male citizen; because of that, the clause is a positive grant of rights to all citizens in the United States. 

The central thesis of this Note is that women who are citizens of the United States have rights guaranteed by the Privileges or Immunities Clause, specifically the right to practice a profession. This right cannot be denied on the basis of gender, because adult women have the same capacity as men to practice law. Had this been recognized in 1873, the time The Slaughter-House Cases and Bradwell v. Illinois were decided, and had the erroneous interpretation of the clause in Slaughter-House not prevailed, Bradwell would have recognized this right. Given the contemporary knowledge of the capacities of women and an originalist approach to constitutional interpretation and construction, the decision in Bradwell should be overruled. Taking this step would lead to the development of an originalist gender equality jurisprudence.

Feminist pioneer Elizabeth Cady Stanton made a similar argument against Bradwell (and Minor v. Happersettat the time using the P&I Clause.  Although her arguments were more textualist than originalist per se.  I discuss these early equality interpretations of the Privileges or Immunities Clause in my recent book Elizabeth Cady Stanton & the Feminist Foundations of Family Law.  A blog post summarizing the relevant part, chapter 2, is here, at  What do You Women Want?: The 19th Century Demand for Reform of Marital Property.

October 3, 2017 in Constitutional, Legal History, SCOTUS | Permalink | Comments (0)

CONF Gender Equality: Progress & Possibilities

Law Review Symposium--Gender Equality: Progress & Possibilities

GENDER EQUALITY: PROGRESS & POSSIBILITIES

Friday, Oct. 13, 2017, 8 a.m. 
The University of Toledo, College of Law
McQuade Law Auditorium

Discussions of gender in American society have been ongoing since the suffrage movement began in the 19th Century. Today, “feminism” is a controversial term. Intersectional critiques of the historic whiteness and privilege of the feminist movement have likewise challenged feminism’s relevance. The recent divisive political climate has further catalyzed dialogue about this topic, suggesting a retrenchment of traditional perspectives on gender and highlighting serious patterns of ongoing discrimination that may increasingly render feminism relevant.

The University of Toledo Law Review’s 2017 Symposium will explore the ways in which gender equality has been achieved or remains aspirational in nature. Four panels of experts will discuss gender as applied to various areas of life and law. Panels will include:  Sex Inequality in the Workplace;  Gender Equality in Education; Gendered Violence; and Reimagining Family Law

Lisa Pruitt, the Martin Luther King, Jr. Professor of Law at the University of California, Davis, will present the keynote address, “The Women Feminism Forgot:  Rural and Working-Class White Women in the Age of Trump.”

Panelists will publish a collection of essays in Volume 49, Issue 3 of The University of Toledo Law Review.

This symposium will be of interest to attorneys and other professionals in a multitude of practices and settings, particularly those whose practice involves representing women in any area of the law.

October 3, 2017 in Conferences | Permalink | Comments (0)