Monday, November 27, 2017
There has been intense media coverage but surprisingly little if any attention paid to the experts on sex abuse, assault and harassment, who could inject facts into the discourse. There is actually a science of child sex abuse and sex assault. Instead, there has been a lot of hand-wringing by those who do not labor in this vineyard, and over-politicization of the issues to the point that you can’t see what you need to see. When a cable news show staffs its “panel of experts” to discuss these cases solely with political reporters and pundits, they are missing the mark.
There is a systemic solution to the sexual misconduct pandemic, and it requires the insurance industry to step up. The vast majority of these claims are in the civil arena, because so few prosecutions go forward with the “beyond a reasonable doubt standard.” (Prosecutors are elected officials who watch their win-loss ratios closely. The public would be shocked by how few of the cases involving sexual abuse and assault are ever prosecuted despite strong evidence, but that is another column for another day.) That puts the insurance system on center stage due to its power to coerce better practices with the threat of no or escalating coverage. It has been no friend to victims as it has implemented non-disclosure agreements, intimidated victims, and avidly lobbied against statute of limitations reform.
If the industry declines to reform its predator-friendly practices, it’s time for hearings on Capitol Hill, which would supplement the recent hearings to enact legislation and rules to govern sexual harassment in Congress. They should probably happen anyway, but if there is no major insurance reform to solve the problem, there is no choice but to subpoena the executives. In all likelihood, Congress and the state legislatures will need to coerce them to do the right thing. The insurance industry has the power to turn around at least the workplace on these issues if it starts demanding the kind of preventative practices only it can effectively enforce and punishes those who harbor perpetrators with escalating premiums and the threat of no coverage.
With respect to members of Congress, it’s not the insurance world that matters, but rather a corrupt federal system ensconced in federal law. Interestingly, it needs the same fixes as the insurance industry, though, so I will include it in the discussion below.
Here is where we need to start to bring industries, institutions, and Congress into line:
First, non-disclosure agreements in sexual misconduct cases violate public policy and should be made unenforceable. While it is reasonable to permit the parties to agree that the settlement number is confidential, the perpetrator and/or entity should not be permitted to gag the victim. Non-disclosure agreements have been the darlings of the insurance companies and a mandatory feature of the federal system. The congressional victim has one route: to enter a lengthy and dysfunctional process at the end of which, if there is a settlement, secrecy is forced on her.
I would expect the insurance industry to sic its lobbyists on members contemplating a paradigm shift in this arena and to fight any bill that neutralizes nondisclosure clauses. But this is one of those instances where the public disclosure is so obviously in the common good that lawmakers need to put cotton in their ears. Besides, perhaps my cynical expectation that the industry (and members of Congress) will fight for nondisclosure agreements to the detriment of the common good is misplaced. One can hope daily scandals will guide the industry and federal government to a moral compass that points toward policies that protect the vulnerable rather than the predators and their complicit institutions.
Second, eliminate the SOLs for sex abuse, assault, and harassment. Let the victims come forward when they are ready, not according to some artificial deadline. 99% of the women who have come forward against the list of men at the start of this article were barred from the judicial process. This is a cause the insurance companies have been fighting for decades—against their better interests. They don’t want SOLs to open up, because more perpetrators and at-fault institutions named, which increases their liability. Yet, it’s better for them to permit the SOLs to be liberalized, because it concretizes their liabilities and makes it possible to demand that a perpetrator be fired so that they can avoid future liability. With short SOLs, the cycle of misconduct, settlement, misconduct, settlement remains in place, which does not serve the industry’s ultimate ends.
Third, insurance companies (and Congress) need to institute workplace rules with teeth that are a pre-condition to coverage and/or service that halt the secrecy spiral:
- To qualify for coverage or to maintain one’s status in Congress, there should be mandatory training, as in real training conducted by professionals and not in-house people, on the rules of sexual misconduct from abuse and assault to harassment. It should be made clear that no one gets a pass—not the perpetrator and not the bystander, or observer. There should be mandatory reporting internally and to the authorities when a crime has occurred. Reporters must be shielded from retaliation.
- Employers and Congress should be required to pledge to discharge any employee who has engaged in sexual misconduct, and that determination follows an investigation. Recommendations for other jobs would be required to disclose the sexual misconduct. Failure to disclose would create liability for the company that discharged the predator.
- Employers and Congress must institute meaningful zero tolerance policies for sexual misconduct that are worth the paper they are written on. Most companies have pro forma policies but in practice, as we have learned, supervisors are wont to ignore allegations if the man serves the organization’s interests, whether it be image, power, or money. If it turns out a company’s supervisor learned about sexual misconduct and ignored it, that should come with the heavy price of steeply increased premiums. The member of Congress who fails to disclose knowledge of sexual misconduct should be subject to mandatory censure.
- There need to be annual sexual misconduct audits. If there is reason to be suspicious, the insurance company (or relevant committee in Congress) must investigate all allegations with special focus on any cover-up. Results are to be released to the public, not buried.
- Policies related to off-premises business or institution-related activities need to be tightened up. If the employee is performing work for the organization or in its name off-premises, as was Charlie Rose at his home, the company should be liable for any misconduct and the insurance company on the hook. There need to be rigid rules about work off-premises (other than flex-time when there is no employee interaction). Charlie Rose’s and Weinstein’s off-premises activities couldn’t have happened but for the environment. They weren’t going to parade around nude and uncovered at work.
Fourth, as I discussed here, the defamation laws need to be rewritten to protect the victim who goes public. None of these guys should be permitted to rattle the saber of defamation like Cosby, Trump, or Moore. The first order of business in any such claim should be an expedited proceeding on the facts of the sexual misconduct. If the victim proves the acts occurred to a preponderance of the evidence, the perpetrator should be liable for treble damages and attorneys fees. The remedy will deter such lawsuits except for the most narcissistic predators.
Symposium on the Jurisprudential Legacy of Judge Constance Baker Motley, the First Black Woman Federal Judge
Symposium in the recent issue of the Columbia Law Review.
Tomiko Brown-Nagin, Identity Matters: The Case of Judge Constance Baker Motley
Judge Denny Chin & Kathy Hirata Chin, Constance Baker Motley, James Meredith, and the University of Mississippi
Judge George B. Daniels* & Rachel Pereira, Equal Protection as a Vehicle for Equal Access and Opportunity: Constance Baker Motley and the Fourteenth Amendment in Education Cases
Judge Raymond J. Lohier, Jr., On Judge Motley and the Second Circuit
Since 1997, Congress has paid at least $15 million to settle complaints about sexual harassment, racial discrimination, and violations of the Americans With Disabilities Act under the umbrella of the Congressional Accountability Act (CAA) of 1995.
The payments made to Rep. Conyers’s alleged victim came out of his taxpayer-funded office budget. Generally, though, these payments aren’t made by members of Congress or their offices. They’re made by a special section of the Department of the Treasury established under Section 415 of the CAA — and ultimately by the American taxpayer.
The process by which victims of sexual harassment on the Hill seek justice is long and arduous — it takes up to three months before a formal complaint can be filed. If a settlement is reached, it’s kept secret. The source of the money in the fund is excluded from the standard appropriations budget made public by Congress each year. There’s no process by which voters — or potential employees — can find out who the harassers in office are, what they’ve been accused of, or if they’ve settled with victims before.
The fund used to settle violations of the CAA is perhaps just one of the several pockets of money throughout the government used to handle judgments made against government employees. As harassment accusations topple prominent men in media, comedy, and Hollywood, it’s come under more scrutiny.
The Settlement and Awards Fund comes from an effort to hold Congress accountable for the federal laws that all other employers have to follow.
But as prominent men in other fields have faced snowballing accusations of sexual harassment, it’s instead shielded members of Congress from publicity.
In 1995, Congress passed the CAA, an effort to apply 12 federal laws to the legislative branch, including the Americans With Disabilities Act; the Fair Labor Standards Act, which requires that employers pay at least the minimum wage; and Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race, religion, national origin, color, or gender — including sexual harassment.
The CAA was, in part, a delayed legislative response to the Supreme Court's decision in Davis v. Passman (1979), implying a Bivens remedy for sex discrimination by Member of Congress from Louisiana, but with a 5-4 split and a dissent calling for Congressional immunity in employment matters absent a statutory extension of Title VII.
Tuesday, November 21, 2017
Julia Carpenter, CNN Money, Sexual Harassment Tipping Point: Why Now?
It's been called the Weinstein effect.
Following the bombshell investigations into Harvey Weinstein's conduct, more people began to speak out about sexual harassment, leading to a string of allegations against other prominent men like Charlie Rose, Kevin Spacey, Louis C.K., Jeffrey Tambor, Al Franken and others. Many of the accused have paid a steep price for their behavior.But why now?America has had its share of news-making scandals before. Anita Hill testified against Clarence Thomas in 1991, and Thomas still sits on the Supreme Court today.
Decades of assault accusations followed former television star Bill Cosby even as his star was rising. And in 2016, the "Access Hollywood" tape depicting then-candidate Donald Trump boasting of sexual assault did not stop his ultimate presidential victory.
So what's different in the moment we're experiencing now?
We know their names
Many of the women who spoke out against Weinstein -- Gwyneth Paltrow, Ashley Judd, Rose McGowan -- are famous names. In previous high-profile sexual harassment cases, it's usually the men who are more well-known (see: Bill O'Reilly, Clarence Thomas). Experts say that the previous power dynamic -- the famous man accused by the less-famous woman -- only bolstered a false narrative, one that discredited women's stories.
In Weinstein's case, however, as more women added their own allegations to a growing list, people paid attention.
"What do we focus on in our society? Movies and social media and People magazine," says Tracy Thomas, law professor at the University of Akron. "So those are the voices that finally ... make a difference."
And to people watching around the world, the women's fame cemented the credibility of their stories.
"Class and race and stature play into whether someone is believed," says Fatima Goss Graves, president and CEO of the National Women's Law Center. "The nature of who is telling the story mattered here."
Other women are sharing their stories
Since Hill testified in 1991, the way in which people show support for survivors has changed, says Renee Knake, professor at the University of Houston Law Center.
Case in point: the words we use.
"When Anita testified, women supported her, but they said, 'I believe Anita,'" Knake says. "And the reason why they believed her is because it was happening to them, but no one wanted to face what she endured. Now, women are saying, 'Me, too,' which is more tangible and more concrete."
The advent of social media, and the way women now turn to it to share their own stories, on their own terms, has created "a critical mass" of testimonials, Knake says.
"Suddenly, when you have more people speaking, that always creates a tipping point," Thomas says. It's harder for critics to say, "'They can't all be overly sensitive. They can't all be lying,'" she added.
And more importantly, these testimonials made an issue that was otherwise removed from many lives into something personal.
And when it's personal, Thomas says, you're encouraged to share your story, too -- whether on Facebook, with your friends or in an HR office making a formal complaint. ***
Men are paying attention
Thomas says the recent outpouring of support for harassment survivors has also engaged a critical population: men.
At previous sexual harassment flashpoints throughout American history, men were listening, but they weren't engaged.
But in the last month, the #metoo campaign and barrage of accusations has made the issue personal for millions of women -- and men -- as they shared their own harassment stories or realized this issue had touched every woman they knew.
Thomas points to the important role men have played in previous women's rights milestones. Just a century ago, in the fight for suffrage, women relied on male supporters to add their voices to the conversation. In harnessing such widespread support and demonstrating in numbers before the White House, advocates won women the right to vote in 1920.
"Just like any movement when we're talking about women, bringing men into that dialogue is so critical and must really be taken seriously," Thomas says.
The 80.5 percent wage ratio figure, the most commonly used figure to measure the gender wage gap in the United States, is often derided as misleading, a myth, or worst of all, a lie. In this post, we argue that the figure is an accurate measure of the inequality in earnings between women and men who work full-time, year-round in the labor market and reflects a number of different factors: discrimination in pay, recruitment, job assignment, and promotion; lower earnings in occupations mainly done by women; and women’s disproportionate share of time spent on family care, including that they—rather than fathers—still tend to be the ones to take more time off work when families have children. Just because the explanation of the gender wage gap is multi-faceted does not make it a lie.
When a phenomenon, such as the wage gap, can be explained by various factors, it does not mean the phenomenon doesn’t exist. In fact, those explanations are the exact factors to look at when identifying interventions to solve the problem. Take another phenomenon for example: poverty. Black and Hispanic populations in the United States have higher poverty rates than the white population. When analyses control for education, place of residence, type of job, and many other factors, the remaining differences in poverty rates are smaller but not gone. It is not a myth or a lie, then, to say that black and Hispanic Americans are disproportionately more likely to live in poverty. Indeed, they are.
Here are five key facts to remember about the gender wage gap:
1) Other data series on weekly or hourly earnings are not necessarily more accurate than the annual figure.
2) The annual wage ratio of 80 percent is actually a moderate estimate of gender pay inequality. Women of color fare much worse.
If part-time workers were included, the wage ratio would be 73 percent, a gap of 27 percent.
3) Women’s ‘choices’ are not necessarily choices.
4) There is no proof that being a mother makes a woman less productive on the job.
5) Discrimination is still a factor—a big one—in the gender wage gap.
Job Announcement: Gloria Steinem Endowed Chair in Media, Culture and Feminist Studies
Rutgers University’s School of Communication and Information, the Institute of Women’s Leadership, and the Department of Women’s and Gender Studies in the School of Arts and Sciences, are joining together to seek a prominent leader in the area of media, culture, and feminist studies to launch the prestigious Gloria Steinem Endowed Chair.
The Gloria Steinem Chair in Media, Culture and Feminist Studies reflects and builds on the work and world view of Gloria Steinem, feminist, organizer, reporter, editor, and humanist. The chair inspires students and faculty at Rutgers, as well as the wider audience outside the university, to explore and reimagine the role of the media in serving democracy, with explicit focus on women and under-served communities. Connecting the worlds of academia and media, this chair will invite all students to come together across boundaries, to analyze, critique, and create media that reflect reality, and to provide facts, narratives, and new forms of storytelling that advance empathy, democracy, communal action, and innovative solutions.
This notable leader may come from the academic, media, and/or activist worlds and will engage with topics such as a) examining the relationship among media technologies, democracy, social change, gender and racial equality, and public policy as well as catalyzing and supporting others in the Rutgers and engaged communities; b) providing opportunities for students and faculty to learn from scholars, experts, and activists with frontline experience; c) developing classes and educational programs to enhance students’ understanding of how technology and media shape who we are; and d) guiding students toward critically analyzing important social and cultural questions and encouraging them to take action to address social inequalities.
The successful candidate will be the first Gloria Steinem Chair and therefore will play an important role in shaping the chair’s development, ensuring that its work is world-leading in envisioning its positive impact on gender equality in society.
In Last Year, 40 Lawmakers in 20 States Publicly Accused by 100 People of Sexual Misconduct or Harassment
Since last year, at least 40 lawmakers – nearly all men – in 20 states have been publicly accused by more than 100 people of some form of sexual misconduct or harassment, a USA TODAY NETWORK analysis found.
The total, which doesn’t include confidential or anonymous complaints or government staffers who have been accused of sexual misdeeds, reflects unprecedented levels of scrutiny on statehouses across the country.
Swift action has been taken against high-profile men, including Hollywood producer Harvey Weinstein, and others accused of sexual harassment. There have been varying degrees of punishment for lawmakers.
Two weeks ago, Kentucky House Speaker Jeff Hoover resigned from his leadership position amid growing pressure over a report that he settled a sexual harassment complaint made by a staff member.
Florida's Senate president earlier this month ordered an investigation into allegations that Sen. Jack Latvala, who is running for governor, made inappropriate comments or touched six women. Latvala has denied the claims.
Earlier this year, Rep. Mark Lovell, a freshman Tennessee lawmaker, resigned amid allegations of sexual harassment. The resignation followed last year's expulsion of former Rep. Jeremy Durham, who had inappropriate sexual contact with at least 22 women, according to an attorney general's investigation.The ways lawmakers have handled sexual harassment and assault allegations has left some experts looking for change.
“The consequence must fit the transgression,” said Jennifer A. Drobac, an Indiana University law professor and expert on sexual harassment cases. “You have to withdraw the privileges, kick them out of Congress or out of the statehouse. Take away the privileges of their employ and their health care benefits.”
Debbie Dougherty, a professor in the Department of Communication at the University of Missouri who has written several reports on sexual harassment, said the latest wave of sexual harassment allegations against powerful men follows a slow but steady stream of similar accusations against officials at FOX News, Uber and the National Park Service.
“It’s like a stone rolling downhill. You see some and then you see some more and then you see a lot,” said Dougherty.
“The problem has been ignored and minimized for so, so many years that I think we’re just seeing the tip of the iceberg.”
ABA J, Girls' Courts Under Scrutiny
As courtrooms specializing in girls’ cases crop up around the country, the U.S. Department of Justice is examining whether they actually work.
Since the early 2000s, an estimated 20 specialty girls’ courts have been created nationwide, though these gender-specific courts mean different things in different places. Sometimes it’s simply a docket dedicated to cases for girls. Others specialize in linking young female defendants with social services. There are even courts that hear only sex trafficking cases.
Leading the examination is the Office of Juvenile Justice and Delinquency Prevention’s National Girls Initiative. “The study is a chance to look at where they are, what do they look like and how do we define their effectiveness,” says Jeannette Pai-Espinosa, president of the National Crittenton Foundation in Portland, Oregon, which coordinates the National Girls Initiative with the office.
The major concern is whether these courts are bringing more girls into the system and keeping them in detention and in prison longer or offering alternatives to incarceration.
The researchers are meeting with judges around the country, including Jennifer L. Ching, presiding judge of the Hawaii Girls Court. Established in 2004 as part of the Family Court of the First Circuit in Honolulu, it’s one of the country’s first such courts. It focuses on girls brought in on status charges, such as running away, skipping school or breaking curfew.
“Girls’ court is about the actual court hearings but also about supporting gender-specific, empowering activities,” says Karen Radius, founding judge of the Hawaiian court.
For a related prior post, see Girls' Court
Monday, November 20, 2017
We are seeing an endless parade of new allegations of sexual harassment made daily against powerful men in entertainment, news, and business industries. While doing much to elevate the public discourse of sexual harassment, they are also triggering the backlash accusations of “witch hunt.”
One piece of this accusation is that in many of these cases, the incidents now reported and alleged go back five, ten or twenty years. There seems to be an inherent unfairness in bringing up such old claims now. Advocates, of course, understand victims’ reluctance to come forward with claims, since such claims are rarely taken seriously or investigated and more often than not, cause substantial negative consequences to the woman professionally, financial, and emotionally.
The law, however, is quite concerned about these types of old claims, and has several doctrines designed to address this potential unfairness to the accused.
First, are statutes of limitations, which are relatively short for sexual harassment lawsuits. Most harassment suits are filed under the federal statute Title VII, and require that complaints be filed with the EEOC within 180 days of the incident (or sometimes deferred to 300 days where state action is first sought). Statutes of limitations for sexual assault are longer, most commonly 2-3 years for civil claims of sexual assault and 5-10 years for criminal sexual assault, or even no time limit for certain crimes like sexual assault of a minor. Statutes of limitations generally help preserve evidence needed for both plaintiffs and defendants to accurately present their case, and provides timely notice and resolution of disputes. In the sexual harassment context, it also may help ensure that the perpetrator stops his continued conduct against other women.
There is an exception to the statute of limitations for sexual harassment when the incident is part of a continuing pattern of conduct. When old incidents are part of the same pattern of more recent conduct, the most recent incident triggers the clock, and the old incidents can still be brought in as evidence. Mandel v. M&Q Packaging Corp., 3d. Cir. 2013.
Laches is as second doctrine seeking to avoid old claims from being actionable. Laches is an equitable notion that bars a plaintiff from seeing a remedy when she has unreasonably delayed in filing an action, or unreasonably delayed in prosecuting the action after filing it. Here, the known reluctance and harm to victims from filing might help mitigate the unreasonableness of the delay. But the core of the laches inquiry is whether the delay caused prejudice to the defendant. Prejudice can be economic, monetary or investment harm, or procedural, such as loss of evidence and witnesses. Thus, in the law, foundational precepts of due process and fairness prohibit litigating old claims, and place the obligation squarely on the plaintiff to bring forward her claims within a short time of the incident.
Of course the media revelations of alleged past incidents are not bound by these doctrines of timeliness. Nor, apparently, are internal organizational investigations of misconduct. See NPR, Legal Landscape Shifts as More Sexual Harassment Allegations Surface Online
"It is a much sweeter and faster form of justice to out a harasser than to go through many years of legal battle, which is psychically, emotionally and financially exhausting," says Debra Katz, an attorney who specializes in harassment and discrimination in Washington, D.C. ***
More accusers are also coming forward online because "sex harassment cases have historically been difficult to prove" on legal grounds, says Deborah Rhode, a law professor at Stanford University.
More than half of sexual harassment claims made to the Equal Employment Opportunity Commission last year resulted in no charge. There is a consistent pattern in which accusers are unsuccessful, according to data from the past six years.
In addition, fewer than 5 percent of sexual harassment cases actually get to court, Rhode told Here & Now's Jeremy Hobson earlier this month.
"Fewer than those are actually litigated. And what normally happens when the cases are filed is they're settled with a confidentiality clause that prevents the victim from disclosing any details," she says.
Victims can also get around the legal statute of limitations [online], Rhode says.
"You can see people losing their jobs for conduct that occurred well before the statute of limitations," she says. "They may not have a legal claim, but they have an audience. And the reputational injuries — as we've seen with someone like Kevin Spacey — could be substantial."
An amendment to the tax reform bill working its way through Congress would deny businesses the ability to write off sexual harassment settlements as business expenses.
The Senate tax bill, passed by the Senate Finance Committee Thursday, includes an amendment that says businesses cannot deduct settlements, payouts, attorney fees or other expenses related to sexual harassment or sexual abuse, if such payments are subject to a nondisclosure agreement.
The amendment was proposed by New Jersey Democratic Senator Bob Menendez.
The proposal could affect sexual harassment settlements in a couple of ways. Businesses would no longer be allowed to write off legal settlements, fines and other expenses associated with sexual assault and harassment as "ordinary and necessary business expenses." And by denying these deductions, the amendment would make it costlier for companies to cover up misconduct.
"Right now a company can secretly settle allegations of sexual harassment in the workplace, silencing the victim and making it harder for other victims to come forward to seek justice," wrote Juan Pachon, spokesperson for Menendez, in an email to CNNMoney. "To add insult to injury, these same corporations can actually take a tax break for those payouts. Senator Menendez believes it's wrong for corporations who fail to protect their employees from sexual harassment to be able to write it off as an 'ordinary business expense."
Daniel Hemel, assistant professor of law at the University of Chicago law school, says the amendment's specific mention of non-disclosure agreements seems intended to disincentivize them -- a move that stops short of banning their use altogether.
"This is a pretty soft punishment if you're trying to deter closed agreements," he says. "I would think of this as largely symbolic legislation, but not exclusively so. It may change the way that some subset of sexual harassment cases are handled. But look, if an employer has a very strong preference for a closed agreement, then the tax deduction is unlikely to convince them to have an open agreement."
So at the end of the day businesses can still right off the settlements as long as they have an open, transparent agreement.
The question is what impact what tax restrictions might have on settlements. The availability of the deductions could actually helps victims at it increases or leverages the available monies employers have to settle the cases and provide compensation to victims.
Only a handful of scientific studies have tested the effectiveness of sexual harassment training, which is nearly ubiquitous in American workplaces and intended to help protect workers as well as minimize an employer’s own legal and financial risks.
[R]esearchers don’t have much evidence that sexual harassment training is effective at certain key goals: reducing the number of incidents in a workplace; or helping to shift its culture toward one that takes the issue seriously.
Last year, the Equal Employment Opportunity Commission published a reportthat found only two research papers based on large-scale studies of anti-harassment training in workplaces (rather than in lab settings).
The research showed that the training does have benefits — particularly in increasing awareness of what constitutes sexual harassment and how it should be reported. But it also showed that some efforts had a negative effect, such as a study where male participants were more likely to blame the victim and less likely to report harassment.
That sentiment has also reached Capitol Hill, where harassment allegation reports recently emerged. "Going forward, the House will adopt a policy of mandatory anti-harassment and anti-discrimination training for all Members and staff,” House Speaker Paul Ryan (R-WI) said in a statement Tuesday. “Our goal is not only to raise awareness, but also make abundantly clear that harassment in any form has no place in this institution.”
There’s just one problem with this initiative: It’s probably not going to do anything to curb sexual harassment.
The research from sociology and organizational psychology on the billion-dollar anti-harassment training industry suggests these programs aren’t actually effective at stopping or preventing abuse.
“Over 90 percent of large US employers have harassment trainings in place, but it’s having very little effect, if no discernible effect, on the overall number of harassment complaints that are reported,” Harvard sociologist Frank Dobbin told Vox. “I don’t think we can sit around and wait for training to solve the problem.”
Experts who study workplace harassment view these trainings as more of a strategic defense against future lawsuits than a solution to a pervasive problem.
Now that we’ve had something of an awakening about the pervasiveness of sexual harassment in the American workplace, the conversation is shifting to what to do about it. In many workplaces, the answer seems to be that we need mandatory training and clearer policies.
That seems to be the dominant thinking on Capitol Hill. After more than 1,500 former congressional aides signed a letter calling for action, the House and Senateadopted mandatory anti-harassment training for all lawmakers and staffers. This “sends a clear message: harassment of any kind is not and will not be tolerated in Congress,” Sen. Amy Klobuchar (Minn.), the ranking Democrat on the Senate Rules Committee, said in a statement.
Unfortunately, there is little evidence that training reduces sexual harassment. Rather, training programs, along with anti-harassment policies and reporting procedures, do more to shield employers from liability than to protect employees from harassment. And the clearest message they send is to the courts: Nothing to see here, folks.
Friday, November 17, 2017
Taja-Nia Y. Henderson, "I Shall Talk to My Own People": The Intersectional Life and Times of Lutie A. Lytle, 102 Iowa L. Rev. 1983 (2017).
In the fall of 1898, the Chicago Tribune hailed Lutie A. Lytle of Topeka as the “only female law instructor in the world.” Notwithstanding this purported shattering of the legal academy’s glass ceiling, Lytle’s accomplishments—her path to the professoriate, and her career in the years following her appointment to the faculty of a Nashville law school—have been largely lost to historians of legal education. She is not among those honored or commemorated by our profession, and her name is largely unknown beyond a small circle of interest. The biographical sketch that follows fills this scholarly gap through an examination of Lytle as a historical figure, using contemporary newspaper accounts and other primary source material to provide context for her achievements and linking her life to previously understudied legal, political and social movements.
As a genre, biography seeks to use the life of the individual to tell a larger story about the collective. Feminist biography—probably best understood as both subgenre and method—has the same goals, but moves gender “to the center of the analysis.” This methodology asks not only how gender as a social category has impacted the lives of historical actors, but also how the unequal distribution of power resulting from existing gender hierarchies has influenced epistemologies of scholarly inquiry.
A biographical sketch of Lutie A. Lytle, a woman coming of age in the second half of the nineteenth century, warrants such treatment. Lytle’s career in the law was certainly impacted by gender as she was among the earliest cadre of women lawyers in the nation. As a student, she was the only woman enrolled in the Law Department of Central Tennessee College. When she was appointed as an instructor at the College, moreover, she was the only woman among the law school’s faculty. As a woman of African descent born during Reconstruction, however, Lytle (and her story) “cannot be captured wholly by” a methodology that moves only gender to the center. The intersection (or overlap) of Lytle’s identities as a woman of color and the daughter of former slaves requires that gender and race (and arguably, status and class) move to the center. In other words, a biographical sketch of Lytle’s life cannot privilege gender in isolation; it must also grapple with the persistence of race, racism, and the myriad legacies of chattel slavery in the subject’s world.
Wednesday, November 15, 2017
A lawsuit filed by an anonymous former student claiming that Colgate University unlawfully expelled him in his senior year based on accusations of sexual abuse by three female students was dismissed Wednesday by a federal judge for the U.S. District Court for the Northern District of New York.
U.S. District Judge Lawrence Kahn granted the small liberal arts university in Hamilton summary judgment with respect to each cause of action in the lawsuit brought on by John Doe in August 2015, Doe v. Colgate University, 5:15-cv-1069.The plaintiff’s attorney said he planned to appeal the ruling to the U.S. Court of Appeals for the Second Circuit.
The anonymous plaintiff in the lawsuit attended the university from 2011 until he was expelled during his senior year in April 2015, after being found responsible for three instances of sexual misconduct against the unnamed students that occurred during the 2011-12 academic year. He contended the touching was consensual and not reported to college officials until much later. The plaintiff alleges that in his expulsion, Colgate University violated Title IX—a federal law that prohibits sex-based discrimination in education—and the state’s Human Rights Law. The plaintiff also claimed that the university was in breach of contract, breach of the covenant of good faith and fair dealing, violated the New York General Business Law, as well as demonstrated liability based on equitable estoppel theory and was negligent.
Kahn granted the plaintiff anonymity in April 2016 after a magistrate judge had earlier denied the request. The plaintiff successfully argued that the potential harm he faced outweighed the public’s interest in his being identified.
In his decision released Tuesday, Kahn wrote that the plaintiff “fails to provide sufficient evidence that gender bias motivated Colgate’s decision to expel him.”
The plaintiff had argued that the school was biased in favor of women due to student activism and the reaction to what occurred in Columbia University, when a female student carried a mattress throughout the campus after an inquiry by the university found a lack of evidence that she was raped by a male student. The plaintiff also claimed that Colgate’s investigation was tainted because the primary investigator, Val Brogan, once worked in the Abused Persons Unit at the Onondaga County Sheriff’s Department, and might be biased against men.
President Donald Trump is nominating white men to America’s federal courts at a rate not seen in nearly 30 years, threatening to reverse a slow transformation toward a judiciary that reflects the nation’s diversity.
So far, 91 percent of Trump’s nominees are white, and 81 percent are male, an Associated Press analysis has found. Three of every four are white men, with few African-Americans and Hispanics in the mix. The last president to nominate a similarly homogenous group was George H.W. Bush.
The shift could prove to be one of Trump’s most enduring legacies. These are lifetime appointments, and Trump has inherited both an unusually high number of vacancies and an aging population of judges. That puts him in position to significantly reshape the courts that decide thousands of civil rights, environmental, criminal justice and other disputes across the country. The White House has been upfront about its plans to quickly fill the seats with conservatives, and has made clear that judicial philosophy tops any concerns about shrinking racial or gender diversity.
Trump is anything but shy about his plans, calling his imprint on the courts an “untold story” of his presidency.
“Nobody wants to talk about it,” he says. “But when you think of it ... that has consequences 40 years out.” He predicted at a recent Cabinet meeting, “A big percentage of the court will be changed by this administration over a very short period of time.”
Advocates for putting more women and racial minorities on the bench argue that courts that more closely reflect the demographics of the population ensure a broader range of viewpoints and inspire greater confidence in judicial rulings.
Ido Katri (Toronto), Transgender Intrasectionality: Rethinking Anti-Discrimination Law and Litigation, U. Penn. J. Law & Social Change 20.1
This article will puts a gender variant perspective on anti-discrimination law and litigation. It analyze trans right claims by synthesizing queer theory’s concept of performativity and critical race theory’s concept of intersectionality, to offer a new and original concept of legal “intrasectionality”, with far-reaching implications for rights-based litigation. Instead of considering how “legal men” are treated different than “legal women”, this article will ask whether a given gender variant individual is treated differently than one whose gender performance coheres to social standards. These inquiries into the intrasectionality of the sex category with respect to equality will set the stage for the claim that anti-discrimination law and litigation intertwines with performativity.
Ido Katri, The Banishment of Isaac: Racial Signifiers of Gender Performance, Univ. Toronto L.J. 68.1
This article suggests that a performative reading of discrimination cases allows for recognition of intersectional harms and facilitates a broader systemic account of exclusion from resources and opportunities. Revealing the protected category of sex as a prohibition against discrimination on the basis of gender performance, the article considers how signifiers marked on the gendered body constitute the protected categories relating to race and ethnicity as well. The article suggests that racial/ethnic signifiers and sex/gender performance function reciprocally to construct material realities of exclusion from resources and opportunities. Drawing on the trans position in anti-discrimination, the article offers a nuanced reading of discrimination suffered by Jews of Arab decent, the Mizrahim, under Israeli law. It shows that courts could address systemic aspects of individual claims by looking for the intersecting differentiating logics at the root of private discrimination. The article argues that protected legal categories do not reflect pre-legal truths but constitute them; that when the law prohibits discrimination on the basis of sex it prohibits discrimination on the basis of gender performance; and that gendered performance is always already marked by racial signifiers. Thus, by turning the legal gaze to racial signifiers of gender performance, intersecting harm can be accounted for.
Monday, November 13, 2017
Today the US Supreme Court granted cert in National Institute of Family and Life Advocates v. Becerra
The petition for a writ of certiorari is granted and limited to the following question: “Whether the disclosures required by the California Reproductive FACT Act violate the protections set forth in the Free Speech Clause of the First Amendment, applicable to the States through the Fourteenth Amendment."
For a prior post on the case see Petition for Cert on Required CAL Disclosures for Pregnancy Crisis Centers as Violating Free Speech
See also USA Today, Abortion, Contraception Return to Supreme Court in Free Speech Case
The Ninth Circuit's decision below upholding the law and disclosures is here.
The decision in Feminist Majority Foundation v. University of Mary Washington, 2017 Wl 4158787 (E.D. Va. Sept. 19, 2017)
This case arises from the cyberbullying of a student-run feminist organization at the University of Mary Washington (“UMW”). The cyberbullying occurred primarily through a social media smartphone application called Yik Yak. Yik Yak allowed users to anonymously share messages—called “yaks”—with other users within a certain radius (e.g., with users at or around UMW). Other users could then anonymously comment on yaks or could vote up or down on the yaks. During the 2014–2015 school year, users on Yik Yak harassed the plaintiffs by posting insulting, derogatory, and threatening yaks. The plaintiffs complained to UMW about the harassment, and eventually filed a complaint against UMW under Title IX.The plaintiffs have now sued UMW, along with its current and former presidents, for violations of Title IX and the Equal Protection Clause. The defendants have moved to dismiss. Because UMW has limited, if any, control over Yik Yak, the plaintiffs' Title IX discrimination claim fails. Their Title IX retaliation claim fails because UMW took no retaliatory action against the plaintiffs. Finally, because no constitutional violation occurred, let alone a clearly establish or continuing violation, the plaintiffs have not stated claims under the Equal Protection Clause. Accordingly, the Court will grant the defendants' motion to dismiss
Recently, I have worked with a number of professional services firms committed to equality, diversity and inclusion. Many offer diversity training and leadership development programs, and many support affinity groups for traditionally underrepresented groups.
However, none has been able to crack what sometimes feels like a code set in stone: significantly increased diversity at the entry level, but very little change at the top.
This divide is particularly salient in law firms. At many law schools, more women than men graduate, leading to an increase in the proportion of female lawyers in the United States from about 3 percent in 1970 to almost 40 percent today. Similarly, about one-third of law school graduates are minorities, but fewer than 10 percent of equity partners are nonwhite and fewer than 20 percent are female. These numbers have been fairly stable for a while and have even backtracked in some instances.
However, there is reason for optimism. As a behavioral economist, I look for data, as it typically tells the tale. Instead of throwing money at the problem, we need to understand what is broken before we try to fix anything. For example, when looking at promotion data, the picture is clear: There is a promotion gap between white men and traditionally disadvantaged groups.
This may be the result of flawed promotion procedures at some firms where committees spend time guessing a candidate’s potential. These appraisals are fertile ground for biases, since people tend to predict the future by extrapolating from the past — and the past looks rather white and rather male.
What are the ways in which we can combat these biases in performance appraisals and narrow the promotion gap? One study we have underway at Harvard looks at whether potential bias will go away when we use data analytics to offer more concrete and more objectively measurable criteria for such traits as analytical skills, emotional intelligence, people skills or client interaction. Generally, the arsenal of evidence-based insights that help address flaws in the promotion process is steadily increasing. Still, fixing the process alone won’t be enough.
We will also need to tackle something called the “thin file,” a term I came across only recently. When explaining to me why a person was not promoted to partner, promotion committee members repeatedly said that a candidate simply didn’t have what it takes, based on a file summarizing his or her work over the past eight years.
The candidate had not been on enough, if any, important deals, and, making matters worse, had received little feedback over the years. Associates with these “thin files” tended to be minorities and women.
Although the promotion process might have some flaws, the flaws of the system had affected these candidates from the time they joined the firm as first-year associates. They were victims of what has become known as performance-support bias, in which some employees receive less support from the start.
Friday, November 10, 2017
Study after study shows that, among heterosexual parents, fathers — even the youngest and most theoretically progressive among them — do not partake generously of the workload at home. Employed women partnered with employed men carry 65 percent of the family’s child-care responsibilities, a figure that has held steady since the turn of the century. Women with babies enjoy half as much leisure time on weekends as their husbands. Working mothers with preschool-age children are 2 1/2 times as likely to performmiddle-of-the-night care as their husbands. And in hours not so easily tallied, mothers remain almost solely in charge of the endless managerial care that comes with raising children: securing babysitters, filling out school forms, sorting through hand-me-downs.
Empirical research shows that no domestic arrangement, not even one in which Mother works full time and Father is unemployed, results in child-care parity between heterosexual spouses. The story we tell ourselves, the one about great leaps toward the achievement of gender equality between parents, is a glass-half-full kind of interpretation. But the reality is a half-empty glass: While modern men and women espouse egalitarian ideals and report that their decisions are mutual, outcomes tend to favor fathers’ needs and goals much more than mothers’.
The result of this covert power imbalance is not a net zero. A growing body of research in family and clinical studies demonstrates that spousal equality promotes marital success and that inequality undermines it. And the disparity creates not only undue emotional, physical and financial strain on mothers, but also perpetuates attitudes about what is and should be acceptable — or even desirable — between a woman and a man, with children as their eager audience
Ideals are no substitute for behavior. What are kids to make of their father sitting on his phone reading Facebook while their mother scrambles to prepare them for the day? It’s not hard to predict which parent’s personhood those offspring will conclude is more valuable. Children are gender detectives, distinguishing between the sexes from as early as 18 months and using that information to guide their behavior, for example by choosing strongly stereotyped toys. And family research shows that men’s attitudes about marital roles, not women’s, are ultimately internalized by both their daughters and their sons. This finding is a testament to kids’ ability to identify implicit power, to parse whose beliefs are more important and therefore worth adopting as their own.
Rethinking Campus Response to Sexual Violence: Betsy DeVos, Title IX, and the Continuing Search for Access to Justice
Friday, January 5, 2018 from 8:30 -10:15 am
- Hannah Brenner, California Western School of Law
- Mary M. Penrose, Texas A&M University School of Law
- Verna Williams, University of Cincinnati College of Law
- Cory Rayburn Young, University of Kansas School of Law
- Nancy Chi Cantalupo, Barry University Dwayne O. Andreas School of Law
- Ben Trachtenberg, University of Missouri School of Law
The Trump Administration recently revised the Title IX process addressing sexual violence on college campuses. These revisions, coupled with a Sixth Circuit decision finding due process protections lacking in a university’s Title IX hearing, underscore the importance of ensuring that both victims and accused receive access to justice following allegations of sexual violence. Against the backdrop of these and other current events, this panel considers strategies for rethinking the response from a legal access to justice perspective. As lawyers and legal academics, this topic is important to us, our students, institutions, and society as we strive to find balance between the rights of victims and accused. The voices on this panel offer diverse viewpoints regarding Title IX’s role in addressing sexual violence. Panelists will discuss necessary protections for those bringing claims of sexual violence to ensure fair resolution that causes limited harm to these individuals and their educational opportunities, and protections for those accused of perpetrating sexual violence, recognizing that consequences may extend far beyond the classroom. We challenge attendees to return to their campuses and respectfully engage one another to find meaningful solutions to an issue that, thus far, has failed to adequately guarantee access to justice for all.
For other programs coming up at AALS, see Law and Gender Programs at AALS 2018