Tuesday, October 3, 2017
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.
Monday, October 2, 2017
This book is sitting near the top of my pile of books-to-read.
Linda Greenhouse, Who Killed the ERA?, NYT Book Review, reviewing:
Divided We Stand: The Battle Over Women’s Rights and Family Values That Polarized American Politics, by Marjorie J. Spruill
Marjorie J. Spruill’s Divided We Stand is the most recent effort to probe the feminist/antifeminist struggle of the 1970s for what it might tell us about today’s polarized America. It’s an ambitious book, built around a close study of an event that Self treats in only a few pages and Mansbridge in a single passing reference: the congressionally mandated, federally funded National Women’s Conference that took place in Houston in November 1977. The conference was organized by the National Commission on the Observance of International Women’s Year, set up by the Ford administration in 1975 to coordinate American participation in the United Nations–sponsored Decade for Women. From May to July 1977, some 130,000 people—all but a few hundred of them women—took part in state-level meetings to select delegates and debate the conference’s agenda. The idea was to come up with a “plan of action” for the national delegates to adopt and present to the White House and Congress.
The path to this goal was intensely contested, with a number of the state conventions becoming ideological battlegrounds over issues like federally funded child care, gay rights, and abortion. Two thousand delegates and nearly 20,000 observers eventually attended the official conference in Houston, while a similar number gathered across town in a conservative counter-convention organized by Schlafly. Both sides emerged highly mobilized and ready for continued battle.
The events of 1977 are often portrayed merely as one episode in a decade of feminist conflicts, gains, and setbacks. Spruill, a historian of southern and women’s history at the University of South Carolina, makes the rather stronger claim that the competing conferences “ushered in a new era in American politics—the beginning rather than the end of a protracted struggle over women’s rights and family values.” Whereas in the early 1970s Democrats and Republicans had, in Spruill’s view, “both…supported feminist goals,” the events of 1977 created two polarized and increasingly partisan camps. The plan of action that emerged from the official convention in the end included support for the ERA, abortion rights, and gay rights. It called for equal access to credit, which banks routinely denied to married women on the premise that the husband was in control of the family finances. One plank called for reform “based on the principle that marriage is a partnership in which the contribution of each spouse is of equal importance and value.” The counter-conference was dominated by Christian and anti-abortion delegates united under a “pro-family” banner. Spruill notes that the official delegates were so “caught up in their own conference experience” that they had “little sense” of how equally empowering the Houston weekend had proved to be to the other side.
Nonetheless, Spruill’s project of historical reclamation is an important one. While the National Women’s Conference and the competing Pro-Life, Pro-Family Rally did not quite amount to “Four Days That Changed the World” (as it was described in a Ms.magazine headline the following March), they were signal events that drew thousands of women into political engagement and offered clearly defined—if opposing—arguments in which these new activists could discover sympathies. Gloria Steinem may well have been right in a recent interview to call the National Women’s Conference “the most important event nobody knows about.”
There is another book review of the book by Gillian Thomas posted here.
Thursday, September 28, 2017
It was the Government v. the Government on Whether Sexual Orientation Discrimination is Gender Discrimination
In the recent Second Circuit case, it was the Government - the Equal Employment Opportunity Commission v. the Government - the Department of Justice. The government bizarrely found itself on opposite sides of the issue.
Erin Mulvaney, US Agencies to Clash in Appeal Over Sexual Orientation Bias
The U.S. Court of Appeals for the Second Circuit will hear arguments in a high-profile case next week that could telegraph what’s to come in the ongoing legal battle over whether sexual orientation should be protected under federal civil rights law. Zarda v. Altitude Express is also notable in that it pits two government agencies—the U.S. Department of Justice and the U.S. Equal Employment Opportunity Commission—against each other in the courtroom.
After a three-judge panel of the Second Circuit ruled back in April that Title VII of the Civil Rights Act of 1964 does not protect LGBTQ workers, the full appeals court agreed to revisit the decision en banc. Arguments are scheduled for Sept. 26 in New York.
The ultimate answer to the question of whether Title VII should be expanded in scope to include workers from discrimination based on their sexual orientation will have widespread effects on companies across the country. So far, rulings on the issue have varied, and eventually the Supreme Court will almost certainly provide its own view. Lower court arguments will be crucial in setting the stage for a possible circuit split and an eventual high court showdown.
The U.S. Court of Appeals for the 2nd Circuit had a burning question for Donald Trump’s Department of Justice on Tuesday: What are you doing in our courthouse? By the end of the day, the answer still wasn’t clear. Something else was, though: The DOJ’s new anti-gay legal posture is not going to be received with open arms by the federal judiciary.
The Justice Department’s latest wound was fully self-inflicted, as Tuesday’s arguments in Zarda v. Altitude Express should not have involved the DOJ in the first place. The case revolves around a question of statutory interpretation: whether Title VII of the Civil Rights Act of 1964 outlaws anti-gay workplace discrimination. Title VII bars employment discrimination “because of sex,” which many federal courts have interpreted to encompass sexual orientation discrimination. The 2nd Circuit is not yet one of them, and Chief Judge Robert Katzmann signaled recently that he would like to change that. So on Tuesday, all of the judges convened to consider joining the chorus of courts that believe Title VII already prohibits anti-gay discrimination in the workplace.
It’s important to understand some background before getting further into how those arguments went. The Equal Employment Opportunity Commission decided in 2015 that Title VII’s ban on sex discrimination doesprotect gay employees. Under President Barack Obama, the Justice Department took no position on this question. But in late July, Attorney General Jeff Sessions’ DOJ unexpectedly filed an amicus brief in Zarda arguing that Title VII does not protect gay people. The 2nd Circuit had not solicited its input, making the brief both puzzling and gratuitous. Its purpose only became apparent in September, when the DOJ filed a similarly uninvited brief asserting that bakers have a free speech right not to serve same-sex couples. Both anti-gay briefs were startlingly incoherent, seemingly the product of political pandering rather than legal reasoning.
Regardless, the DOJ’s decision to weigh in on Zarda ensured that oral arguments would include the weird spectacle of one federal agency opposing another in court. That doesn’t happen often—and really shouldn’thappen—because the executive branch is expected to speak with one voice on legal affairs.
American Bar Foundation,
William H. Neukom Fellows Research Chair in Diversity and Law
The American Bar Foundation (ABF) invites applications for its William H. Neukom Fellows Research Chair in Diversity and Law. This is a one-year, visiting position for the 2018-19 academic year. The ABF anticipates that the Neukom Chair will become a long-term position in the future.
We seek an outstanding scholar with a distinguished record of scholarship in law and the social sciences who is conducting empirical research on diversity and law, broadly conceived. Topics of interest include, but are not limited to, diversity in the legal profession and other institutions of justice; the impact of diversity on legal processes, legal institutions, and public policy; the roles of race, gender, disability, and sexuality in legal institutions and legal processes; and the interaction between legal processes and inequalities of race, gender, disability, and sexuality. Applicants from all social science fields, history, and law will be considered.
In addition to pursuing the Research Chair’s own research, the Neukom Fellows Research Chair will participate in the ABF’s expanding program of research in diversity and law. The Neukom Chair is expected to be in residence at the ABF during the visit, and to make at least one formal presentation on the scholarly work they are doing at the ABF.
The ABF is an independent, scholarly research institute committed to social science research on law, legal institutions, and legal processes. Its faculty consists of leading scholars in the fields of law, sociology, psychology, political science, economics, history, and anthropology. The ABF is strongly committed to diversity in hiring.
Review of applications will begin on December 15, 2017, but the search will be ongoing until the position is filled. We ask that applicants submit a letter of application, a curriculum vitae, a brief (no more than 2-page) description of current research and a list of three references.
Application letters should be addressed to Robert L. Nelson, Chair, Search Committee, and sent in electronic form to Holly Gitlin, Executive Assistant, at firstname.lastname@example.org with the subject line “Faculty Search.” Queries about the application process can be directed to Ms. Gitlin at (312) 988-6582.
The American Bar Foundation encourages diversity in its workforce and seeks to provide equality of opportunity for all applicants and employees. All persons are considered for positions on the basis of job-related requirements. All decisions regarding recruiting, hiring, promotion, assignment, training, termination, and other terms and conditions of employment will be made without unlawful discrimination on the basis of race, color, national origin, ancestry, sex, sexual orientation, gender identity or expression, religion, age, disability, veteran status, pregnancy, or marital status, in accordance with the ABF’s commitment to equal opportunity and all governing laws.
Tuesday, September 26, 2017
Mark your calendars for panels on law and gender at the annual Association of American Law Schools (AALS) meeting, January 2018.
Thursday, Jan. 4
10:30am AALS Open Source Program – Mainstreaming Feminism
Saturday, Jan. 6
9:00am Women in Legal Education –Whispered Conversations Amplified
10:30am Sexual Orientation and Gender Identity Issues – Relationships Between Religious
Exemptions and Principles of Equality and Inclusion
12:15pm Women in Legal Education Luncheon. Ticket price $75 per person.
1:30pm Women in Legal Education – Speed Mentoring
Full AALS Draft Program is here.
Linda Edwards, Telling Stories in the Supreme Court: Voices Briefs and the Role of Democracy in Constitutional Deliberation, 29 Yale J. L & Feminism 29 (2017)
On January 4, 2016, over 112 women lawyers, law professors, and former judges told the world that they had had an abortion. In a daring amicus brief that captured national media attention, the women “came out” to their clients; to the lawyers with or against whom they practice; to the judges before whom they appear; and to the Justices of the Supreme Court.
The past three years have seen an explosion of such “voices briefs,” 16 in Obergefell and 17 in Whole Woman’s Health. The briefs can be powerful, but their use is controversial. They tell the stories of non-parties—strangers to the appellate case—with no vetting by cross examination or the rules of evidence. Yet, despite their controversial nature, they have thus far received little academic attention.
The time has come to ask some tough questions: Are these briefs legally permissible? Theoretically legitimate? How do they compare with other sources consulted regularly by the Court? Are they really so different from the policy arguments we have accepted without blinking for over a hundred years?
These foundational questions quickly take us into even murkier waters—legal and constitutional theory; narrative theory; framing; and cognitive science. Voices briefs prompt us to look at constitutional decision-making in a new way. Soon we find that voices briefs are interrogating long-accepted assumptions rather than the other way around. The analysis produces some surprising reasons why voices briefs can play an important role in constitutional interpretation and some realistic ideas about handling the undeniable concerns that still haunt their use.
Erwin Chemerinsky & Michele Goodwin, Abortion: A Woman's Private Choice, 95 Tex. L. Rev. 1189 (2017)
The uncertainty about abortion rights makes it especially important to provide a strong constitutional foundation and the best possible constitutional defense for their protection. That is our purpose in this Article, because abortion rights in the United States are in serious jeopardy. Despite the fact that a legal abortion is medically safer than carrying a pregnancy to term in the United States, that right may soon be more illusory than real. If Roe v. Wade is overturned, lessons from the era preceding that landmark decision underscore the broad harms women will encounter, particularly because 49% of pregnancies in the United States are unintended. In traditionally conservative states, the rates of unintended pregnancies are even higher: 54% in Texas, 55% in Alabama and Arkansas, 60% in Louisiana, and 62% in Mississippi, among others. Yet these states also have some of the highest rates of maternal mortality in the developing world: Texas ranks worst in the developing world on maternal mortality.
The Article proceeds in three parts. First, it explains the flawed foundation for the protection of reproductive rights under the Constitution, noting that the problem began in Griswold v. Connecticut, the first case to protect reproductive freedom. Second, it seeks to reconceptualize abortion rights and underscore the value and relevance of a reproductive justice framework, including taking serious account of women’s lived lives. Finally, in Part III we discuss what it would mean for abortion to be regarded as a private choice. In this Part, we identify three implications: a) restoring strict scrutiny to examining laws regulating abortions, which would mean that the government must be neutral between childbirth and abortion; b) preventing the government from denying funding for abortions when it pays for childbirth; and c) invalidating the countless types of restrictions on abortion — often referred to as “targeted restrictions of abortion providers” — that have the purpose and effect of limiting women’s access to abortion rather than promoting safety and health. We especially focus on “informed consent” and waiting period laws and show that they are inconsistent with regarding abortion as a private choice for each woman.
and the response:
Aziza Ahmed, Abortion in a Post-Truth Moment: A Response to Erwin Chemerinsky and Michele Goodwin, 95 Tex. L. Rev. See Also 198 (2017)
In Abortion: A Woman’s Private Choice, Erwin Chemerinsky and Michele Goodwin respond to the crisis of abortion rights in our current political moment. While preserving the right to abortion is an ongoing challenge for reproductive-justice advocates and lawyers, the arrival of a new Republican administration led by Donald Trump and a Republican majority in the House and Senate heightens these concerns. In the face of ongoing and new threats to abortion access, Chemerinsky and Goodwin argue that abortion should be treated as a woman’s private choice. I agree with Chemerinsky and Goodwin, as all supporters of abortion rights should. This response to their insightful essay situates their argument in a set of debates and discussions that undergird many of the logics utilized by the court to justify their choice of standard: medical, psychological, and scientific evidence on abortion.
Wojciech Burek, Family Reunification Regulations and Women: The Perspective of International Law, 36 Polish Yearbook of International Law 83 (2016)
The concept of family reunification is well established in contemporary migration laws, at both the national and international levels. Focusing on international and EU law, in this article I argue that while existing provisions on family reunification are formulated in neutral language, from the gender point of view the enforcement of these substantively neutral rules may, in certain situations, result in discrimination, or at least bring about negative consequences, with respect to women in cases both when they are the sponsors of migration or the bearers of consequences of male migration. Following presentation of the international legal framework on family reunification and the relevant international jurisprudence, I deal with some rather common aspects relating to the personal scope of family reunification regulations, covering only the issues of who can, and who cannot, join their family member(s)/sponsor(s) in a foreign country (i.e. the unmarried minor rule, excluded forms of marriages – polygamous and forced marriages - and age limits). Some procedural aspects of family reunification are then dealt with (waiting periods, delays in proceedings, and end of a relationship as a cause for termination of residence rights.). These issues are examined with respect to concerns that they may cause indirect, or even direct, gender discrimination in some cases, while in others they may affect women more negatively than men.
Monday, September 25, 2017
Arianne Renan Barzilay, Parenting Title VII: Rethinking the History of the Sex Discrimination Prohibition, 28 Yale J.L. & Feminism 55 (2016)
It is a pillar of employment discrimination law that Title VII’s prohibition of “sex” discrimination lacks prior legislative history. When interpreting the meaning of sex discrimination protection under Title VII, courts have stated that it is impossible to fathom what Congress intended when it included “sex” in the Act. After all, the sex provision was added at the last minute by the Southern arch conservative congressman Howard “Judge” Smith in an attempt to frustrate the Civil Rights Act’s passage. Courts have often interpreted the sex provision’s passage as a “fluke” that has left us bereft of prior legislative history that might guide judicial interpretation. It is not surprising, then, that Title VII’s sex discrimination prohibition has been rather narrowly construed.
This Article rethinks this received narrative and emphasizes its implausibility in light of the pre-Civil Rights Act contributions feminists made to the national discourse on sex discrimination. It considers not only scholarship on Equal Rights Feminists’ role in passing Title VII’s sex provision, but also scholarship on the often-overlooked Working-Class Social and Labor Feminists. The Article also explores the contestations between these two groups over the meaning of sex discrimination. It provides a more complex narrative of the provision’s parentage than the one previously recognized.
The Article reframes the narrative by broadening the scope of inquiry in two ways: first, by focusing on Working-Class Social and Labor Feminists’ agitation for equality in the workplace, and second, by looking further back in time in order to reconceptualize debates over workplace equality as formative of the discourse on sex discrimination. The Article begins with early twentieth century contestations over protective labor legislation and argues that Working-Class Social Feminists supported labor regulation based not merely on sex stereotypes, but on their understanding of labor regulation as a means to combat sex discrimination. It continues through the New Deal, when an early sex anti-classification provision was inscribed in federal law by Social Feminists to provide equal pay for men and women. It examines the debates over workplace sex discrimination that reverberated in the decades following World War II and persisted through the early 1960s—when Congress passed the Equal Pay Act and the President’s Commission on the Status of Women issued its report. The Article considers these developments as part of feminists’ sustained efforts to combat sex discrimination, and as stage-setters for the sex provision’s passage. It claims that Working-Class Social and Labor Feminists’ long agitation for women’s equality de-facto constitutes decades’ worth of legislative history for the sex provision. When Congress voted to include “sex” discrimination in Title VII, it was already well aware of its robust meanings, thanks in large part to these feminists’ efforts to ameliorate systemic disadvantages facing women in the workforce.
Working-Class Social and Labor Feminists’ actions and ideology should be considered important influences on the context of the sex provision’s birth. As law is the dynamic and indeterminate product of human interaction, its interpretation must account for the complexity of the legacies that infuse it with meaning. To this end, after re-conceiving the history of the sex provision’s birth, the Article suggests this history may provide a richer notion of Title VII sex discrimination, one that emphasizes structural features of the market and requires employers to take affirmative measures to offset the features that often result in discrimination.
Friday, September 22, 2017
Today the Dept of Education rescinded the prior Title IX "Dear Colleague Letter" on handling claims of campus assault and issued its own letter.
The purpose of this letter is to inform you that the Department of Education is withdrawing the statements of policy and guidance reflected in the following documents:
• Dear Colleague Letter on Sexual Violence, issued by the Office for Civil Rights at the U.S.Department of Education, dated April 4, 2011.
• Questions and Answers on Title IX and Sexual Violence, issued by the Office for Civil Rights at the U.S. Department of Education, dated April 29, 2014.
These guidance documents interpreted Title IX to impose new mandates related to the procedures by which educational institutions investigate, adjudicate, and resolve allegations of student-on-student sexual misconduct. The 2011 Dear Colleague Letter required schools to adopt a minimal standard of proof—the preponderance-of-the-evidence standard—in administering student discipline, even though many schools had traditionally employed a higher clear-and-convincing-evidence standard. The Letter insisted that schools with an appeals process allow complainants to appeal not-guilty findings, even though many schools had previously followed procedures reserving appeal for accused students. The Letter discouraged cross-examination by the parties, suggesting that to recognize a right to such crossexamination might violate Title IX. The Letter forbade schools from relying on investigations of criminal conduct by law-enforcement authorities to resolve Title IX complaints, forcing schools to establish policing and judicial systems while at the same time directing schools to resolve complaints on an expedited basis. The Letter provided that any due-process protections afforded to accused students should not “unnecessarily delay” resolving the charges against them.
Legal commentators have criticized the 2011 Letter and the 2014 Questions and Answers for placing “improper pressure upon universities to adopt procedures that do not afford fundamental fairness.” As a result, many schools have established procedures for resolving allegations that “lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.
The 2011 and 2014 guidance documents may have been well-intentioned, but those documents have led to the deprivation of rights for many students—both accused students denied fair process and victims denied an adequate resolution of their complaints. The guidance has not succeeded in providing clarity for educational institutions or in leading institutions to guarantee educational opportunities on
the equal basis that Title IX requires. Instead, schools face a confusing and counterproductive set of regulatory mandates, and the objective of regulatory compliance has displaced Title IX’s goal of educational equity
The Department imposed these regulatory burdens without affording notice and the opportunity for public comment. Under these circumstances, the Department has decided to withdraw the above referenced guidance documents in order to develop an approach to student sexual misconduct that responds to the concerns of stakeholders and that aligns with the purpose of Title IX to achieve fair access to educational benefits. The Department intends to implement such a policy through a rulemaking process that responds to public comment. The Department will not rely on the withdrawn documents in its enforcement of Title IX.
DoE Q&A on Campus Sexual Misconduct (Sept. 22, 2017). This allows for mediation and provides required procedures for adjudicating campus sexual misconduct.
Recent popular and scholarly interest has highlighted the complex and brutal system of mass incarceration in the United States. Much of this interest has focused on recent developments while other scholars have revealed the connections between the development of the prison system after Reconstruction and the legacies of slavery. In her new book, No Mercy Here: Gender, Punishment, and the Making of Jim Crow Modernity (University of North Carolina Press, 2016), Sarah Haley points to an often under recognized part of this history. Haley, an associate professor of gender studies and African American Studies at the University of California, Los Angeles, focuses on the Southern criminal justice system’s treatment and exploitation of black women during the Jim Crow era. Though black women were caught up in the criminal justice system in smaller numbers than men were, Haley shows their treatment was very important to the development of Jim Crow modernity. The brutal and violent treatment, the ideological narratives surrounding black women, and the exploitation of their labor were all key in creating the ideologies of racial capitalism and patriarchy. Haley also discusses the ways black women resisted this treatment and contented the related ideologies.
In this episode of New Books in History, Haley discusses No Mercy Here and this history of gender, criminal justice, and race.
It doesn't matter where in the world you live. Lessons about gender start early, and they have lifelong consequences.
A new study in the Journal of Adolescent Healthfound many norms around gender, what's expected of boys and girls, become entrenched in adolescence and have negative impacts that carry into adulthood.
We knew some of this already. Existing research shows gender roles can harm both sexes. But the Global Early Adolescent Study — which looked at girls and boys between 10-14 years old in 15 countries with varying income levels — found many of these stereotypes are universal, and they become entrenched before 10 years old.
"We were actually anticipating more differences than similarities, and one of the big findings is that there are still very consistent forms of patriarchy around the world," said Kristin Mmari, an associate professor at Johns Hopkins Bloomberg School of Public Health and the lead qualitative researcher on the study.
The ideas girls and boys have about gender, the study found, form earlier in adolescence than had previously been measured, Mmari said.
"There seems to be a shift as soon as girls and boys enter this stage, where their attitudes and beliefs about the opposite sex change dramatically," she said. "And they talked about how this was not so in childhood. That they could have these friends — opposite sex friends — and they were given equal amounts of freedom. They were treated the same, they thought. But once they began puberty, and their bodies developed, their worlds changed."
The biggest myth perpetuated about gender, researchers found, is that once girls hit puberty, they are vulnerable and in need of protection to preserve their sexual and reproductive health, while boys are seen as strong and independent. It's this myth, Mmari said, that changes how the world sees both sexes during adolescence, and how it continues to treat them throughout their lives.
"How you perceive girls and boys is socially driven," Mmari said. "It's not biologically driven."
Consequences when girls conform to gender stereotypes:
- Child marriage
- Leaving school early
- Exposure to violence
Consequences when boys conform to gender stereotypes:
- Engaging in physical violence to a much greater extent than girls
- Dying more frequently from unintentional injuries
- Being more prone to substance abuse and suicide
- Having a shorter life expectancy than womenMmari said one of the major takeaways from the study is that it's important to challenge gender stereotypes when children are young.
"You can look at it as a window of opportunity to really address these attitudes and beliefs before they become cemented later on," she said.
"We need to view gender as more of a system," Mmari said. "One of the problems ... is we typically look at things on an individual level. So we feel like if we just empower girls, make them feel good, then we'll change. But the problem is they go back to their homes where they're given messages from their parents that are contradictory. They go to the schools where they're given messages from their teachers that are contradictory. They look at the media — it's a whole system out there that's transmitting these inequitable norms, and so we have to think of it more on that level."
Tuesday, September 19, 2017
Ben Trachtenberg, How University Title IX Enforcement and Other Discipline Processes (Probably) Discriminate Against Minority Students, 18 Nevada L. Rev. 2 (forthcoming 2018)
This Article argues that university discipline procedures likely discriminate against minority students and that increasingly muscular Title IX enforcement—launched with the best of intentions in response to real problems—almost certainly exacerbates yet another systemic barrier to racial justice and equal access to educational opportunities. Unlike elementary and secondary schools, universities do not keep publicly available data on the demographics of students subjected to institutional discipline, preventing evaluation of possible disparate racial impact. Further, several aspects of the university disciplinary apparatus—including broad and vague definitions of offenses, limited access to legal counsel, and irregular procedures—increase the risk that black students will suffer disproportionate suspensions and other punishment.
This Article brings needed attention to an understudied aspect of Title IX enforcement and raises concerns about the potential effects of implicit bias. While many commentators and courts have addressed whether university disciplinary procedures mistreat men—or, instead, even now provide inadequate protection for college women—few observers have discussed possible racial implications, which may explain (and be explained by) the current lack of data. Outside the context of sex-discrimination cases, university discipline procedures for quotidian matters such as plagiarism and alcohol abuse likely exhibit similar biases.
This article argues that the U.S. Department of Education should use its authority under Title VI of the Civil Rights Act to require that colleges and universities immediately begin collecting and publishing the sort of data already reported by elementary and secondary schools, thereby allowing observers to assess the scope of disparate impact in campus discipline processes.
The Senate appropriations bill, Senate Bill 1780, the "Department of State, Foreign Operations and Related Programs Appropriates Act, 2018," includes provisions for "gender equality," defined to include women's leadership, protection against violence and extremism, and for the Malala type efforts in Pakistan/Afghanistan and Boko Haram.
Sec. 7059. (a) Gender Equality.—Funds appropriated by this Act shall be made available to promote gender equality in United States Government diplomatic and development efforts by raising the status, increasing the participation, and protecting the rights of women and girls worldwide.
(b) Women’s Leadership.—Of the funds appropriated by title III of this Act, not less than $50,000,000 shall be made available to increase leadership opportunities for women in countries where women and girls suffer discrimination due to law, policy, or practice, by strengthening protections for women’s political status, expanding women’s participation in political parties and elections, and increasing women’s opportunities for leadership positions in the public and private sectors at the local, provincial, and national levels.
(1) (A) Of the funds appropriated by titles III and IV of this Act, not less than $150,000,000 shall be made available to implement a multi-year strategy to prevent and respond to gender-based violence in countries where it is common in conflict and non-conflict settings.
(B) Funds appropriated by titles III and IV of this Act that are available to train foreign police, judicial, and military personnel, including for international peacekeeping operations, shall address, where appropriate, prevention and response to gender-based violence and trafficking in persons, and shall promote the integration of women into the police and other security forces.
(2) Department of State and United States Agency for International Development gender programs shall incorporate coordinated efforts to combat a variety of forms of gender-based violence, including child marriage, rape, female genital cutting and mutilation, and domestic violence, among other forms of gender-based violence in conflict and non-conflict settings.
(d) Women, Peace, And Security.—Funds appropriated by this Act under the headings “Development Assistance”, “Economic Support Fund”, “Assistance for Europe, Eurasia and Central Asia”, and “International Narcotics Control and Law Enforcement” should be made available to support a multi-year strategy to expand, and improve coordination of, United States Government efforts to empower women as equal partners in conflict prevention, peace building, transitional processes, and reconstruction efforts in countries affected by conflict or in political transition, and to ensure the equitable provision of relief and recovery assistance to women and girls.
(1) ASSISTANCE.—Of the funds appropriated by this Act under the heading “Economic Support Fund”, not less than $19,000,000 shall be made available to support women and girls who are at risk from extremism and conflict, and for activities to—
(A) empower women and girls to counter extremism;
(B) address the needs of women and girls adversely impacted by extremism and conflict;
(C) document crimes committed by extremists against women and girls, and support investigations and prosecutions of such crimes, as appropriate;
(D) increase the participation and influence of women in formal and informal political processes and institutions at the local level and within traditional governing structures;
(E) support reconciliation programs between impacted minority, religious, and ethnic groups and the broader community;
(F) develop and implement legal reforms and protections for women and girls at the national and local government levels; and
(G) create and sustain networks for women and girls to collectively safeguard their rights on a regional basis.
(A) are in addition to amounts otherwise available by this Act for such purposes; and
(B) shall be made available following consultation with, and subject to the regular notification procedures of, the Committees on Appropriations.
(f) Coordination.—Funds made available for the purposes of this section shall be administered in coordination with the Ambassador-at-Large for Global Women’s Issues, Department of State, and the Senior Coordinator for Gender Equality and Women’s Empowerment, USAID.
And see Sec. 7042
(1) shall be made available for assistance for women and girls who are targeted by the terrorist organization Boko Haram, consistent with the provisions of section 7059 of this Act, and for individuals displaced by Boko Haram violence; and
(2) may be made available for counterterrorism programs to combat Boko Haram.
Friday, September 15, 2017
by Congresswoman Yvette D. Clarke who represents New York’s Ninth Congressional District in Congress. She has served in Congress since 2007 and is co-chair of the Congressional Caucus on Black Women & Girls.
September 14th marks what would have been Constance Baker Motley’s 96th birthday. In 1966, Judge Motley became the first Black woman to serve as a federal judge. Yet, fifty years later, Black women are still heavily underrepresented at nearly all levels of the legal profession. While Black women are also underrepresented in the arts, sciences, media, and numerous other industries, our underrepresentation in the legal profession is particularly troubling, given its unique role in protecting the rights of those who lack the knowledge or resources to protect their constitutional rights.
The history of Black female attorneys in the United States really begins with Charlotte E. Ray. On March 2nd, 1872 Ms. Ray became the first Black woman to serve as a licensed attorney in the United States. Charlotte E. Ray was born in my home state of New York in 1850 at a time when slavery still existed and even freed Black women were taught that the measure of their success was their ability to care for the men in their lives. Not willing to accept this narrow definition of purpose, Ms. Ray hid her gender in order to gain acceptance to Howard Law School. She worked twice as hard as her male colleagues to graduate Phi Beta Kappa and was admitted to the District of Columbia Bar that same year. This made Ms. Ray only the third licensed female attorney in the United States. Ms. Ray was also a dedicated social advocate and served as a delegate to the 1876 Conference of the National Woman’s Suffrage Association.
While Charlotte E. Ray laid the foundation for Black women to serve as attorneys in the United States, it took nearly fifty years until a Black woman gained admission to the highest bar in the nation. This occurred on January 29, 1926 with the admission of Violette Neatley Anderson to the Bar of the Supreme Court of the United States. Ms. Anderson had served as a court reporter for fifteen years before attending the Chicago Law School. Like Charlotte E. Ray, Violette Neatley Anderson was deeply involved in her community and recognized the need for women of color to help each other overcome the unique barriers that stood in their way.
Yet, the tide of progress remained slow for Black women in the law. It took until January 25, 1966 until Constance Baker Motley was nominated to serve as a federal judge on the U.S. District Court for the Southern District of New York. By this point, Ms. Motley was already a towering figure in the law. Born in New York to parents from the Caribbean, Ms. Motley joined the NAACP’s Legal Defense and Education Fund soon after graduating from Columbia Law School. At LDF, Ms. Motley helped draft the original complaint in Brown v. Board of Education and became the first Black woman to argue a case before the Supreme Court, ultimately winning nine of the ten cases that she argued before that body.
More than fifty years after Constance Baker Motley became the first Black woman to serve as a federal judge, Black women are still grossly underrepresented at nearly all levels of the legal profession. Despite comprising more than 6.6 percent of the US population, Black women accounted for less than 5 percent of full time law school graduates for the 2014 and 2015 academic years. A January 2017 NALP report similarly found that Black women only accounted for 2.32 percent of associates at major law firms and a paltry 0.64 percent of partners.
Of the 578 active district court judges in the United States, 6.4 percent (37) are Black women. While this is roughly proportionate to our share of the U.S. population, 65 percent (24) of these district court judges were nominated within the past few years by President Obama. Unsurprisingly, Black female representation drops precipitously on the circuit courts. Of the 160 active circuit court judges, only 4.4 percent(7) are Black women. Two of those judges, representing 29 percent of the total figure, were appointed by President Obama. We need not even proceed to the highest court in the land, since it is well known that no Black woman has ever served on the Supreme Court
Google is being sued for gender pay discrimination, turning up the heat on the Internet giant already facing allegations it shortchanges women.
Three female former Google employees are seeking class-action status for the complaint filed Thursday in San Francisco Superior Court.
The lawsuit comes as the Labor Department investigates systemic pay discrimination at Google. Google says its own analysis found no pay gap.
In a statement to USA TODAY, Google said it would review the lawsuit but disagreed with "the central allegations."
The lawsuit is being brought by three women — Kelly Ellis, Holly Pease and Kelli Wisuri — who say they quit Google after being placed at lower job levels, resulting in lower pay and denying them promotions and moves to other teams that would advance their careers.
The plaintiffs allege women at all levels of Google are paid less than men and that women are assigned to lower job tiers with less opportunity for upward mobility.
“Women should have the same opportunities as men, and receive equal pay for substantially similar work,” Wisuri said in a statement. ***
Google spokeswoman Gina Scigliano said job levels and promotions are determined "through rigorous hiring and promotion committees, and must pass multiple levels of review, including checks to make sure there is no gender bias in these decisions."
Wednesday, September 13, 2017
I have just published the edited collection, Women and the Law (Thomson Reuters 2017 ed.). This annual reference book collects the leading scholarship in the field of women and law from the prior year -- kind of a "greatest hits" of law review scholarship on litigated topics in this field.
This year's articles:
A. Violence Against Women: The Campus Sexual Assault Debate
Corey Rayburn Yung, Is Relying on Title IX a Mistake?, 64 Kan. L. Rev. 891 (2016)
Jacob Gersen & Jeannie Suk, The Sex Bureucracy, 104 Cal. Law Rev. 881 (2016)
Deborah L. Brake, The Trouble with "Bureaucracy", 7 Cal. L. Rev. Online 66 (2016)
Suzanne B. Goldberg, Is There Really a Sex Bureaucracy?, 7 Cal. L. Rev. Online 107 (2016)
Nancy Chi Cantalupo, For the Title IX Civil Rights Movement: Congratulations and Cautions, 125 Yale L.J. Forum 281 (2016)
Katharine K. Baker, Campus Sexual Misconduct as Sexual Harassment: A Defense of the DOE, 64 Kan. L. Rev. 861 (2016)
Sarah L. Swan, Between Title IX and the Criminal Law: Bringing Tort Law to the Campus Sexual Assault Debate, 64 Kan. L. Rev. 963 (2016)
Aya Gruber, Consent Confusion, 38 Cardozo L. Rev. 415 (2016)
Eric R. Carpenter, Patriarchy, not Hierarchy: Rethinking the Effect of Cultural Attitudes in Acquaintance Rape Cases, 68 Hastings L.J. 225 (2017)
B. Gendered Immigration
Joanna J. Kallinosis, Refugee Roulette: A Comparative analysis of Gender-Related Persecution in Asylum Law, 6 DePaul J. Women, Gender & L. 55 (2017)
Blaine Bookey, Gender-Based Asylum Post-Matter of ARCG: Evolving Standards and Fair Application of the Law, 22 Southwestern J. Int'l Law 1 (2016)
C. Reproductive Rights
Linda Greenhouse & Reva Siegel, The Difference a Whole Woman Makes: Protection for the Abortion Right After Whole Woman's Health, 126 Yale L.J. Forum 149 (2016)
Saru M. Matambanadzo, Reconstructing Pregnancy, 69 SMU L. Rev. 187 (2016)
D. Women in the Workplace
Joanna L. Grossman, Moving Forward, Looking Back: A Retrospective on Sexual Harassment Law, 95 B.U. L. Rev. 1029 (2015)
Deborah Brake, The Shifting Sands of Employment Discrimination: From Unjustified Impact to Disparate Treatment in Pregnancy and Pay, 105 Georgetown L.J. 559 (2017)
Jennifer Bennett Shinall, The Substantially Impaired Sex: Uncovering the Gendered Nature of Disability Discrimination, 101 Minnesota L. Rev. 1099 (2017)
E. Feminist Legal Theory
Tracy A. Thomas, Reconsidering the Remedy of Gender Quotas, Harvard J. Law & Gender Online (Nov. 2016)
Stephanie Bornstein, Unifying the Antidiscrimination Law Through Stereotype Theory, 20 Lewis & Clark L. Rev. 919 (2016)
Jamie R. Abrams, Debunking the Myth of Universal Male Privilege, 49 U. Mich. J. L. Reform 303 (2016)
Deborah Tuerkheimer, Underenforcement as Unequal Protection, 57 Boston College L. Rev. 1287 (2016)
For the list of articles from the 2016 editions of Women and the Law, see here.:
Government attorneys on Tuesday asked the Ohio Supreme Court to override lower court rulings and uphold the state Health Department’s order to shut down Toledo’s last abortion clinic.
A lawyer for the clinic told the court that the state is trying to prevent women in northwestern Ohio from seeking legal abortions and is putting them at greater risk.
The case involves one of several restrictions Ohio lawmakers have placed on abortion clinics in recent years.
The Ohio Department of Health issued an order in 2014 to close Capital Care of Toledo because the clinic didn’t have a patient-transfer agreement with a local hospital.
Such agreements were mandated, and public hospitals barred from providing them, under restrictions Ohio lawmakers passed in 2013. The University of Toledo Hospital, which is public, withdrew from its transfer arrangement with Capital Care after the law passed.
The clinic sued and won in the lower courts, which ruled the restrictions were unconstitutional. Judges have allowed the clinic to continue operating as the legal dispute carries on.
Abortion-rights groups contend the transfer agreements and other restrictions not at issue in the case are medically unnecessary. They also say the city of 275,000 residents would be the first major city in Ohio without access to abortion services.
Chief Justice Maureen O’Connor on Tuesday asked about alternatives women would have if the Toledo clinic closes.
The state’s attorney, Stephen Carney, said the closest options would be Detroit and Ann Arbor, Mich. — both about an hour’s drive from Toledo.
“Certainly we are not telling women, ‘You can’t have an abortion in Ohio, but you can go to Michigan’?” Justice William O’Neill asked.
Jennifer Branch, an attorney representing Capital Care, said women seeking an abortion would have to make more than one trip, adding up to several hundred miles.
“The danger to those women from an unlawful abortion would be health risks,” she said. “They could bleed. They could have an infection.”
Branch also argued that transfer agreements are unnecessary.
“They could call 911 if they needed to, there is nothing to prohibit that,” she told justices. “No one ever asks if there is a written transfer agreement.”
O’Connor asked, “Are there any other (ambulatory surgical centers) precluded from contracting or entering into a (written transfer agreement) with hospitals, any hospital public or private?”
Branch replied: “No, your honor, only abortion clinics.”
Taunya Lovell Banks, President Obama and the Supremes: Obama's Legacy -- The Rise of Women's Voices on the Court, (forthcoming), Drake Law Rev. (forthcoming)
For approximately two hundred years, all of the United States Supreme Court justices were male. Now there are three women on the Court, two appointed during the administration of President Barack Obama. With the appointment of Justices Sotomayor and Kagan to the Court, women’s voices literally are more prominent, especially during oral argument. This article speculates on whether the presence of these three women on the Court will influence the substance of decisions. It asks whether we are witnessing the emergence of a definable “women’s” voice, in the collective sense, or whether there is simply a greater representation of women on the Court; women justices, who like their male counterparts, sometimes agree and sometimes do not. In addition, this article asks whether the reaction of some commentators, and male justices, to the increased participation of women justices during oral argument suggests implicit gender bias, another possible by-product of President Obama’s legacy.
Tuesday, September 12, 2017
Congress enacted the Pregnancy Discrimination Act of 1978 which amended Title VII of the Civil Rights Act of 1964 and made it unlawful sex discrimination for an employer to discriminate on the basis of pregnancy, childbirth, or any related medical conditions.
However, there is currently little case law on whether or not a male can bring a claim of employment discrimination under the Pregnancy Discrimination Act, based solely on his wife’s pregnancy.
At what point, if at all, is it considered employment discrimination when an expecting father or partner is denied particular benefits or is subjected to adverse employment actions that an expecting mother may not be?
Fired for Accompanying His Pregnant Wife to a Doctor’s Appointment
In a recent tragic case, a Mississippi man committed suicide after he was fired for taking a day off to accompany his wife, who had been diagnosed with a high-risk pregnancy, to a pregnancy-related appointment.
His estate filed a complaint against his employer alleging that he was fired because of his sex and his wife’s pregnancy. Estate of Pennington v. Southern Motion, Inc., 2017 BL 313057 (N.D. Miss. Sept. 06, 2017).
Pregnancy Discrimination Must Be Based on Sex
The court turned to precedent and found that the only two cases to address this issue, Nicol v. Imagematrix, Inc., 773 F. Supp. 802, 56 FEP Cases 1533 (E.D. Va. 1991) and Griffin v. Sisters of Saint Francis, Inc., 489 F.3d 838, 100 FEP Cases 1416 (7th Cir., 2007), held that in order for a male to properly bring an employment discrimination claim based on pregnancy, he must allege that he was discriminated against because of his sex.
What makes this case unique compared to most sex discrimination cases is that the estate did not allege that the male frame builder was treated less favorably than female frame builders. Instead, it argued that he was “treated less favorably than male employees whose wives were not pregnant.” It unsuccessfully attempted to bring an associational claim, which depends on unlawful discriminatory hostility arising out of a relationship.
Two-Step Associational Discrimination Claim
The court found that the estate couldn’t bring its claim because a successful associational claim of sex discrimination in this case must be based on two arguments. It must allege 1) that the male was fired because of his partner’s pregnancy, and 2) that a female would not have been fired because of her partner’s pregnancy.
In other words, the discrimination in this case must be based on the male’s relationship with his pregnant wife and it must be based on the male’s sex, which the estate didn’t allege.
Although the court found that the man’s estate couldn’t go forward with its complaint, it will be allowed to refile an amended complaint to fully plead the associational claim against the employer.
Isn't this a Family Medical Leave Act claim? Of retaliation for caring for a sick/pregnant family member? Unless the FMLA didn't apply because he worked for a small employer.