Gender and the Law Prof Blog

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

Friday, January 19, 2018

A Relational Feminist Approach to Conflict of Laws

Roxana Banu, A Relational Feminist Approach to Conflict of Laws, 24 Michigan J. L. & Gender 1 (2017)

Feminist writers have long engaged in critiques of private law. Surrogacy contracts or the “reasonable man” standard in torts, for example, have long been the subjects of thorough feminist analysis and critique. When private law issues touch on more than one jurisdiction, Conflict of Laws is the doctrine that determines which jurisdiction can try the case and—as separate questions—which jurisdiction’s law should apply and under what conditions a foreign judgment can be recognized and enforced. Yet, there are virtually no feminist perspectives on Conflict of Laws (also known as Private International Law). This is still more surprising when one considers that feminist approaches to Public International Law have been developing for over a quarter century.

In this Article, I show that there is a fundamental need to rethink the image of the transnational individual in Conflict of Laws theory and methodology. It is here, I argue, that feminism—specifically relational, often known as cultural, feminism—has an important contribution to make to Conflict of Laws. I develop a relational feminist approach to Conflict of Laws and apply it to a pressing contemporary issue, namely transnational surrogacy arrangements.

Overall, this Article shows how relational feminism can illuminate the problems of adopting an atomistic image of the individual in a transnational context, as well as provide an outline for an alternative—a relational theory of the self that redefines autonomy and the law, creating an important shift in how Conflict of Laws perceives its regulatory dimensions. The Article connects three of relational feminism’s core insights—the notion of relational autonomy, the focus on relationships, and relational theories of judging—to Conflict of Laws theory and methodology.

January 19, 2018 in International, Theory | Permalink | Comments (0)

Class Action Suit Alleges Gender Bias of Law Firm in Treatment of Women Partners

Shareholders' $300m Suit Accuses Employment Firm Ogletre Deakins of Gender Bias

A nonequity shareholder at Ogletree, Deakins, Nash, Smoak & Stewart claims in a $300 million lawsuit that the defense-side labor and employment firm discriminates against female partners in pay, promotions and opportunities.

 

The would-be federal class action was filed Jan. 12 by shareholder Dawn Knepper, according to a press release, the Recorder and Bloomberg Big Law Business. Knepper is represented by David Sanford of Sanford Heisler Sharp, the same firm that filed gender bias suits against Chadbourne & Parke, and the now-disbanded firm Sedgwick.

 

On its website, Ogletree Deakins purports to foster diversity and inclusion, “but this rhetoric is largely hollow,” the suit says. “In reality, the firm has shirked its obligations under the law through its ‘do as I say not as I do’ practices.”

 

The suit says the firm doesn’t give female shareholders the appropriate credit for business they generate and the work they do, doesn’t give women the same development and training opportunities provided to men, and doesn’t select women for business pitches as often as men.

 

Compensation decisions are controlled by the firm’s predominantly male compensation committee and are approved by a vote of equity shareholders, about 80 percent of whom are men, the suit says. Men also dominate at the nonequity shareholder level, making up 58 percent of the group, according to the suit, which relied on statistics that were current as of last Dec. 31. ***

 

The suit seeks $100 million for underpayment, $100 million in compensatory damages, and $100 million in punitive damages. The suit alleges pay discrimination, gender bias and retaliation in violation of Title VII of the Civil Rights Act; violation of the federal Equal Pay Act; violation of California employment law; and unfair competition.

 

separate suit seeks a declaratory judgment that Knepper is not bound by any arbitration agreement.

 

January 19, 2018 in Equal Employment, Women lawyers | Permalink | Comments (0)

Remedying Sex Discrimination in the Sale of Goods and Services through Federal Law

Whitney Brown, The Illegality of Sex Discrimination in Contracting, 32 Berkeley J. Gender, Law & Justice 137 (2017) 

Sex discrimination in contracting is rampant and is largely tolerated in a variety of economic markets. Federal law prohibits discrimination on the basis of sex only in certain circumscribed markets, including employment, housing, and education. Sex is not a protected class under federal public accommodations law, which prohibits discrimination only on the basis of race, color, religion, or national origin by business establishments offering goods, services, or facilities to the general public. And no federal law is currently understood to prohibit sex discrimination in the sale of goods or services. Merchants may, for instance, lawfully refuse to sell a car—or a paperclip or any other good—to a woman because of her sex, or may charge a woman twice as much as a man for the same item.

 

This gap in our civil rights regime is not merely academic. Without the enforcement of a federal law prohibiting sex discrimination in contracting, women suffer manifold and measurable consequences in the marketplace. Women are charged more than men for clothing and personal care products, from deodorant and razor blades to canes and other supports. Studies in multiple states have found that women consistently pay more for haircuts and for dry cleaning, even where the services or products purchased are essentially the same as those purchased by men. The federal tariff schedule, which imposes different rates of duty on goods imported into the United States, contains over one hundred sex-classified tariff rates. Research also suggests that women, despite having better credit scores than men on average, are more likely to receive subprime mortgages. Taken together, the cumulative cost to women of such price inequities in goods and services—a product of unequal contracting rights—is substantial. Indeed, prior to passing a state law that prohibited sex-based price discrimination in retail service establishments (leaving sex discrimination in the price of goods still unregulated), the state of California found that women paid an average “gender tax” of $1351 per year in added costs for similar goods and services as compared to men. Attempts to solve the problem of sex discrimination in contracting through new legislation have failed, in part because of the lobbying efforts of manufacturers and retailers that charge women more for their products and services.

 

This Article argues that while practices that discriminate on the basis of sex in the sale of goods and services are widespread, and are largely regarded as lawful, such forms of sex discrimination in contracting were prohibited over one hundred fifty years ago by the passage of the first civil rights statute in our nation’s history—the Civil Rights Act of 1866.

January 19, 2018 in Legal History, Theory | Permalink | Comments (0)

Thursday, January 18, 2018

Former Prostitutes Challenge UK Law Requiring Disclosure of Past Convictions

Former Prostitutes Launch High Court Challenge to UK Law

A group of former prostitutes have taken a groundbreaking legal challenge to the high court, arguing that government policy criminalises victims of abuse and trafficking.

 

The women argue they have been stigmatised by the existing law, which requires people convicted of crimes to disclose their past when applying for a range of jobs or volunteering activity after DBS (Disclosure and Barring Service) checks.

 

It is the first time the system of recording and disclosing convictions has been challenged on the grounds of gender discrimination, said Harriet Wistrich, the women’s solicitor.

 
The women argue that it is unlawful to record and disclose criminal convictions for soliciting offences, saying it is discriminatory and breaches their right to a private life. ***
 
 
Lawyers representing the women argue that they are victims of trafficking, and that the requirement to disclose past convictions is at odds with government anti-trafficking policy. “It is entirely outmoded that we are still penalising women for street prostitution offences, many of which happened many years ago,” said Wistrich. “It is out of sync with current understanding that those women are often victims of abuse rather than perpetrators of crime.

 

“The women in this case all exited prostitution many years ago but continue to be blighted. It is grotesquely unjust that these convictions are still following them around.”

January 18, 2018 in Human trafficking, International | Permalink | Comments (0)

Ninth Circuit Holds No Legal Right to Prostitution

No Right to Earn a Living Via Prostitution, Says Federal Court

A federal appeals court has sided against the Erotic Service Providers Legal, Education, and Research Project (ESPLERP) in a case challenging the constitutionality of California's law criminalizing prostitution.

 

During oral arguments last October, judges from the U.S. Court of Appeals for the 9th Circuit seemed somewhat sympathetic to ESPLERP's position, which relied on similar arguments to those used in Lawrence v. Texas, the case that destroyed the country's laws against gay sex.

 

But in an opinion released today, a three-judge panel wound up affirming the district court's decision to dismiss the lawsuit. The panel rejected the idea that Lawrence v. Texas "created a liberty interest that prohibits a state from criminalizing prostitution," ruling that "a relationship between a prostitute and a client is not protected by the Due Process Clause of the Fourteenth Amendment."

 

The court also concludes that sex workers' rights to earn a living is not violated by the criminalization of prostitution because prostitution is illegal and "there is no constitutional rights to engage in illegal employment."

 

Read the whole disappointing decision here.

 Sex for Sale is Not a Constitutional Right

The U.S. Supreme Court’s 2003 ruling that declared a constitutional right to “intimate conduct” such as gay sex didn’t apply to sex for sale, a federal appeals court ruled Wednesday in upholding California’s 146-year-old ban on prostitution.

 

Three former prostitutes, a would-be client and the Erotic Service Providers Legal, Educational and Research Project had argued that the high court, in striking down state laws against gay or lesbian sexual activity, recognized an adult’s right to engage in consensual sex without state interference. They maintained that the ruling extended to adults who consent to sex for a price.

 

A panel of the Ninth U.S. Circuit Court of Appeals in San Francisco seemed receptive to that argument at a hearing in October, suggesting that the 1872 state ban might need closer scrutiny.

 

One panel member said prostitution had been historically subjected to the same sort of moral disapproval that had once condemned gay sex, and might be more acceptable under the Supreme Court’s current view of individual rights. Another asked why it should be “illegal to sell something that it’s legal to give away.”

January 18, 2018 in Constitutional | Permalink | Comments (0)

Equal Work: A Comprehensive Survey of the Literature on Pay Discrimination, its Causes, and Some Practical Solutions

Joseph Seiner, JOTWELL, A Modern Approach to Pay Disparities in the Workplace, reviewing Stephanie Bornstein, Equal Work, 77 Md. L. Rev. (forthcoming 2018), available at SSRN.

In her article, Equal Work, Professor Stephanie Bornstein (Florida) does a superb job of providing a fresh approach to the continuing problem of pay discrimination in the workplace on the basis of gender and race. As Professor Bornstein correctly acknowledges, pay discrimination has remained an ongoing problem in our society for decades. Her article makes two extraordinarily useful contributions: first, it undertakes a comprehensive survey of the latest literature on pay discrimination and its causes, and second, it offers solutions that do not require legislative reform to chip away at this pervasive problem.

***

 

It is difficult to overstate the important contribution Professor Bornstein makes here with Equal Work. The vast collection of data on the topic and the exhaustive background information provided are by themselves quite impressive. However, the novel approach to helping fix the problem advocated by Professor Bornstein makes this work an invaluable contribution to the academic literature.

January 18, 2018 in Equal Employment | Permalink | Comments (0)

Tuesday, January 16, 2018

Women and the Law Conference 2018: Gender at the Bargaining Table

Thomas Jefferson School of Law, Women and the Law Conference 2018: Her Place at the Bargaining Table: Gender, Negotiation and “Risky” Decision-Making

Thomas Jefferson School of Law’s 18th Annual Women and the Law Conference, Her Place at the Bargaining Table: Gender, Negotiation and “Risky” Decision-Making, will be held on Friday, February 9, 2018 at Thomas Jefferson School of Law.

 

This conference brings together leading experts and practitioners to focus exclusively on issues related to gender and the law to address the issue of women at the bargaining table. How does gender affect the way we approach and manage negotiations in a variety of settings?

 

Explorations into the enduring wage gap between men and women prompt us to examine this important topic. Despite advances, women on average continue to earn roughly 80 cents for each male dollar earned. In 1960, women earned approximately 64 cents for each male dollar and experts estimate that the gap will likely not close for at least another 40 years...longer for Latina or African American women. What accounts for this gap? Is it explicit sexism, implicit bias, male and female divergent life choices? 

 

Negotiation experts maintain that women’s antipathy to negotiation and risk-taking provides a partial explanation. This year’s topic explores women and decision-making, with particular attention paid to the art and science of bargaining for advantage. 

 

Professor Linda C. Babcock will deliver the Ruth Bader Ginsburg Lecture. Babcock continues in a long line of illustrious speakers who have been honored as the Ruth Bader Ginsburg Lecturer, a lecture series Justice Ginsburg generously established for Thomas Jefferson in 2003.

January 16, 2018 in Business, Conferences | Permalink | Comments (0)

When Barbie Went to War with Bratz

Jill Lepore, When Barbie Went to War with Bratz: How a Legal Battle Over Intellectual Property Exposed a Cultural Battle over Sex, Gender Roles, and the Workplace, The Atlantic

The feud between Barbie and Bratz occupies the narrow space between thin lines: between fashion and porn, between originals and copies, and between toys for girls and rights for women. In 2010, Alex Kozinski, then the chief judge of the U.S. Court of Appeals for the Ninth Circuit, who presided over Mattel v. MGA, wrote in his opinion that most of what makes a fashion doll desirable is not protectable intellectual property, because there are only so many ways to make a female body attractive. “Little girls buy fashion dolls with idealized proportions which means slightly larger heads, eyes and lips; slightly smaller noses and waists; and slightly longer limbs than those that appear routinely in nature,” Kozinski wrote, giving “slightly” a meaning I never knew it had. But only so much exaggeration is possible, he went on. “Make the head too large or the waist too small and the doll becomes freakish.” I’d explain how it is that anyone could look at either a Barbie or a Bratz doll and not find it freakish, except that such an explanation is beyond me. As a pull-string Barbie knockoff once told Lisa Simpson, “Don’t ask me! I’m just a girl!”

 

Orly Lobel, a professor at the University of San Diego School of Law, has recently published “You Don’t Own Me: How Mattel v. MGA Entertainment Exposed Barbie’s Dark Side” (Norton). For the book, a hair-raising account of a Barbie Dreamhouse-size Jarndyce and Jarndyce, Lobel interviewed Judge Kozinski over lunch and happened to mention that, when she was a girl, her mother, a psychologist, told her that Barbie dolls were bad for girls’ body image. Kozinski professed astonishment. “The only thing wrong that I saw when I held Barbie,” he said, joking, “is when I lift her skirt there is nothing underneath.” Last month, Kozinski resigned from the federal judiciary after more than a dozen women, including two of his own former law clerks, accused him of inappropriate behavior. Justice is hard! ***

 

Once told to be hotties, girls were next told to empower themselves by being hot employees, as both the culture and corporations set aside long-standing concerns about sexual harassment in the workplace—abandoning possible societal, industry-wide, or even governmental remedies—in favor of sex-positive corporate feminism. The 2013 publication of Sheryl Sandberg’s “Lean In” marked a steepening in the decline of structural efforts to reform workplaces. Instead of fighting for equal pay, equal work, and family leave, women were told that they needed to empower themselves, one by one, through power dressing and personal exertion. Unsurprisingly, Barbie and Bratz leaned in, too. MGA relaunched Bratz with the latest mindless lingo of corporate-friendly girl power in a box. “We have doctors, lawyers, journalists,” MGA’s C.E.O., Isaac Larian, told Forbes. “Now more than ever before, Bratz empowers girls.” The rebranded dolls, though, had no discernible interests in such careers. Instead, the Bratz, who, like Barbie, started out as teen-agers, now came with hobbies, including yoga and running, and wardrobes newly inspired by study-abroad travel. Mattel ran its own Sandbergian campaign—“When a Girl Plays with Barbie, She Imagines Everything She Can Become”—and promoted Doctor Barbie, who, with her stethoscope, wears stilettos, a miniskirt, and a white lab coat embroidered, in pink thread, “Barbie.”

 

Empowerment feminism is a cynical sham. As Margaret Talbot once noted in these pages, “To change a Bratz doll’s shoes, you have to snap off its feet at the ankles.” That is pretty much what girlhood feels like. In a 2014 study, girls between four and seven were asked about possible careers for boys and girls after playing with either Fashion Barbie, Doctor Barbie, or, as a control, Mrs. Potato Head. The girls who had played with Mrs. Potato Head were significantly more likely to answer yes to the question “Could you do this job when you grow up?” when shown a picture of the workplaces of a construction worker, a firefighter, a pilot, a doctor, and a police officer. The study had a tiny sample size, and, like most slightly nutty research in the field of social psychology, has never been replicated, or scaled up, except that, since nearly all American girls own a Barbie, the population of American girls has been the subject of the scaled-up version of that experiment for nearly six decades.

 

January 16, 2018 in Books, Media, Pop Culture | Permalink | Comments (0)

New Books: 100 Years of the 19th Amendment

Holly J. McCammon & Lee Ann Banaszak, eds., 100 Years of the Nineteenth Amendment: An Appraisal of Women's Political Activism (Oxford 2018)

The year 2020 will mark the 100th anniversary of the Nineteenth Amendment giving many women in the United States the right to vote. ***

Looking forward to the 100-year anniversary of the passage of the Nineteenth Amendment, this collection of original essays takes a long view of the past century of women's political engagement to gauge how much women have achieved in the political arena. The volume looks back at the decades since women won the right to vote to analyze the changes, developments, and even continuities in women's roles in the broad political sphere. Ultimately, the book asks two important questions about the last 100 years of women's suffrage: 1) How did the Nineteenth Amendment alter the American political system? and 2) How has women's engagement in politics changed over the last 100 years? 

As the chapters reveal, while women have made substantial strides in the political realm--voting at higher rates than men and gaining prominent leadership roles--barriers to gender equality remain. Women continue to be underrepresented in political office and to confront gender bias in a myriad of political settings. The contributors also remind us of the important understanding to be gained from an intersectional perspective to women's political engagement. In particular, several chapters discuss the failure of the Nineteenth Amendment to provide full political rights and representation to African American, Latina, and poorer women. The work also considers women's extra-institutional activism in a wide variety of settings, including in the feminist, civil rights, environmental, and far-right movements. As the volume traces women's forceful presence and limitations in politics over the past century, it also helps us look forward to consider the next 100 years: what additional victories might be won and what new defeats will need women's response?

Including my chapter with TJ Boisseau, After Suffrage Comes Equal Rights? ERA as the Next Logical Step

January 16, 2018 in Books, Constitutional, Legal History | Permalink | Comments (0)

Thursday, January 11, 2018

Reforming WTO Labor Standards of Parenting Leave to Reflect Women's Worldwide Equality

Taylor Stoneman, International Economic Law, Gender Equality, and Paternity Leave: Can the WTO Be Utilized to Balance the Division of Care Labor Worldwide?, 32 Emory Int'l Law Rev. 51 (2017)

Which public policies most effectively promote gender equality and how can they be realized internationally to support women on a global scale? I first argue that longer periods of paid paternity leave must be embraced to challenge the historical conception of women as the primary caregiver in a male-female partnership and to bring men into the private sphere at the important confluence of a couple’s childfree and parental lives. In order to broadly achieve these policies, I turn to international law. Building off Charlesworth, Chinkin, and Wright’s observation of the international legal order’s gendered nature, I demonstrate that the International Labour Organization’s (ILO) core labor standards, as they are today, reflect a gendered understanding of the labor market and are insufficient to support the basic needs of a working population that includes both men and women. I further argue that a reimagined set of these standards should be incorporated into a World Trade Organization (WTO) Trade-Related Agreement on Labor Standards that would impose substantive obligations on Member States. Such an agreement would be consistent with the WTO’s historical embrace of “embedded liberalism” and could ultimately drive domestic policy transformations benefiting women worldwide.

January 11, 2018 in Family, International | Permalink | Comments (0)

Comparing Reproductive Freedom in the US and China

Marisa Cianciarulo,  For the Greater Good: The Subordination of Reproductive Freedom to State Interests in the United States and China, 51 Akron Law Rev. 99 (2017)

This Article provides a comparative analysis of two very different restrictions on reproductive freedom that have startling parallels and similarities. Both China and the United States impose limits on reproductive freedom: China restricts the number of children that families can have, often in ways that violate international law, while some U.S. states have attempted to restrict access to abortion in ways that violate the precepts of Roe v. Wade as well as international law. Both China and U.S. states impose restrictions on reproductive freedom in order to achieve compelling state goals: protecting development and sustainability in China, and protecting prenatal life in the United States. Finally, both China and the United States have means other than severe restrictions on reproductive freedom at their disposal to achieve the governments’ goals: broad access to birth control and sex education. This Article uses the lens of international human rights law to evaluate the concept of subordinating individual reproductive choice to a perception of the common good. Part II provides an overview of the major international instruments addressing individual rights and how they interact with the rights and responsibilities of the state. Part III discusses anti-abortion laws in the United States and the anti-abortion movement’s rationale that protecting prenatal life justifies limiting reproductive choice. Part IV discusses China’s vast and population control system and the government’s rationale that providing a controlled, sustainable population justifies limiting reproductive choice. Part V examines three levels of coercion—compulsory sex education and unrestricted access to contraception, monetary incentive and disincentive programs, and forced abortion and forced child-bearing—and analyzes whether these levels of coercion are consistent with international human rights principles. Finally, the Article concludes that in light of modern access to education and contraception, and the ability to reduce the incidence of unwanted pregnancies via those means, more coercive means are unnecessary (in the case of monetary incentives and disincentives) and unjustifiable (in the case of forced abortion and forced child-bearing).

January 11, 2018 in Abortion, International, Reproductive Rights | Permalink | Comments (0)

Third Generation Gender Discrimination in the Workplace

Catherine Ross Duhnam, Third Generation Discrimination: The Ripple Effects of Gender Bias in the Workplace, 51 Akron Law Rev. 55 (2017)

This Article will begin by examining the [Ellen] Pao [Silicon Valley] and [Betty] Dukes [Wal-Mart] cases, focusing on the role of the decision-makers in the ultimate outcomes of those cases. The Article will then consider implicit bias as a concept, noting the interplay between implicit bias and gender-based stereotypes. Building on that understanding, the Article will explore generally the evolution of second generation discrimination as a legal theory, connecting that analysis back to Dukes’ and Pao’s cases. The Article will then explore the role of implicit bias in the court system, reviewing social science literature regarding the role of gender-based bias in the courtroom as it relates to female attorneys, female litigants, and the effect of certain “feminine traits” in the courtroom. The Article will argue that gender based implicit bias against female litigants plays out in the form of a Third Generation Discrimination, a term developed here, by layering on the biases of judges and juries. Third Generation Discrimination further undermines efforts by women seeking relief under Title VII for workplace discrimination based on claims that their employer allowed bias against them to curb their opportunities for advancement. Women will only succeed in implicit bias cases, such as those brought by Dukes and Pao, if the facts of the case are evaluated by those who can assess the case without regard to their own preconceptions about the role of women in the workplace and in society.

January 11, 2018 in Equal Employment, Theory | Permalink | Comments (0)

Wednesday, January 10, 2018

10th Circuit Rejects First Amendment Challenge by Student Expelled for Social Media Comments after Sexual Misconduct

Yeasin v. Durham, 10th Cir., Jan. 5, 2018

Dr. Tammara Durham, the Vice Provost for Student Affairs at the University of Kansas, expelled Navid Yeasin from the university after finding that by physically restraining and later tweeting indirectly but disparagingly about his ex-girlfriend, he had violated the university's student code of conduct and sexual-harassment policy. After Yeasin sued Dr. Durham in Kansas state court, the university reinstated him. Yeasin then sued Dr. Durham in federal court, asserting a claim under 42 U.S.C. § 1983 based on his First Amendment right to freedom of speech and his Fourteenth Amendment right to substantive due process. He argued that Dr. Durham had violated these rights when she expelled him for his off-campus online speech. Dr. Durham successfully moved to dismiss Yeasin's complaint based on qualified immunity. Yeasin appealed. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

 

Yeasin and A.W. dated from the fall of 2012 through June 2013. On June 28, 2013, Yeasin physically restrained A.W. in his car, took her phone from her, threatened to commit suicide if she broke up with him, threatened to spread rumors about her, and threatened to make the University of Kansas's “campus environment so hostile, [that she] would not attend any university in the state of Kansas.” .

 

For this conduct, Kansas charged Yeasin with criminal restraint, battery, and criminal deprivation of property. On July 25, 2013, A.W. sought and obtained a protection order against Yeasin from the Johnson County District Court. The order was “entered by consent without any findings of abuse.”  In August 2013, Yeasin entered a diversion agreement with the state on these charges. Yeasin v. Univ. of Kansas, 360 P.3d 423, 424 (Kan. Ct. App. 2015).

 

That same month, A.W. filed a complaint against Yeasin with the university's Office of Institutional Opportunity and Access (IOA), alleging that Yeasin had sexually harassed her.... Then, “[a]fter considering the Johnson County District Court's final protection from abuse order,” the IOA decided to issue Yeasin a no-contact order. 

 

The no-contact order informed Yeasin that the university had “received information concerning an allegation that [he] may have violated the University's Sexual Harassment Policy in interactions with University of Kansas student [A.W.].” The letter also put Yeasin on notice that he was “prohibited from initiating, or contributing through third-parties, to any physical, verbal, electronic, or written communication with [A.W.], her family, her friends or her associates.” 

 

After Yeasin received the no-contact order, he tweeted the following messages on August 15, August 23, and September 5 . . . .  On September 6, 2013, Brooks e-mailed Yeasin the following warning: While your August 23rd tweet does not specifically state the name of your ex-girlfriend, this communication is in violation of the No Contact Order. I am writing to you to clarify that any reference made on social media regarding [A.W.], even if the communication is not sent to her or [does not] state her name specifically, it is a violation of the No Contact Order.

 

All told, Yeasin posted fourteen tweets referring to A.W. without specifically naming her; of these, three were posted after the IOA e-mailed Yeasin and told him to stop.

 

On October 7, 2013, the IOA issued an investigative report concluding that Yeasin had sexually harassed A.W. in violation of university policy by physically restraining her during the June 28, 2013 incident and by posting the fourteen tweets....

 

Dr. Durham said her decision was based on several facts supported by the preponderance of the evidence, such as the Johnson County protection order and A.W.'s hearing statement that “her grades had slipped significantly during the summer because of the emotional toll her interactions with Mr. Yeasin had taken on her.” Dr. Durham further relied on A.W.'s statement to the hearing panel that her relationship with Yeasin had “affected her day-to-day on-campus activities, since she [couldn't] enter public campus places without receiving glares and remarks from Yeasin's friends telling her she needs to leave and that her presence is unwanted.”  

 

On these bases, Dr. Durham found that Yeasin's June 28, 2013 conduct and his tweets were “so severe, pervasive and objectively offensive that it interfered with [A.W.]'s academic performance and equal opportunity to participate in or benefit from University programs or activities.” She found that his tweets violated the sexual-harassment policy because they were “unwelcome comments about [A.W.]'s body.” And she found that his conduct “threatened the physical health, safety and welfare of [A.W.], making the conduct a violation of Article 22, A. 1 of the Code.” 

 

As a result of his conduct, Dr. Durham decided to expel Yeasin from the university and ban him from campus. 

 

 Yeasin contested his expulsion in Kansas state court. The court set aside Yeasin's expulsion, reasoning that the hearing panel's findings, adopted by Dr. Durham, “were not supported by substantial evidence.”  The court also determined that “KU and [Dr.] Durham erroneously interpreted the Student Code of Conduct by applying it to off-campus conduct.” 

 

DISCUSSION

 

Yeasin's case presents interesting questions regarding the tension between some students' free-speech rights and other students' Title IX rights to receive an education absent sex discrimination in the form of sexual harassment. Department of Education Office for Civil Rights Dear Colleague Letter on Sexual Violence (OCR Sexual Violence DCL), April 4, 2011 (:Sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination prohibited by Title IX.”). But even if Yeasin could show that Dr. Durham violated his First Amendment rights, we conclude that he has failed to show a violation of clearly established law. We don't decide whether Yeasin had a First Amendment right to post his tweets without being disciplined by the university.

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

Fourth Circuit Allows Pay Gap Case to Move Forward over Dissent on State Sovereignty Grounds

EEOC Wins Battle Over Maryland Insurance Regulator Pay

A federal appeals court has put a pay discrimination suit against the Maryland Insurance Administration back in action.

 

A three-judge panel at the 4th U.S. Circuit Court of Appeals has ruled, 2-1, that the U.S. Equal Opportunity Employment Commission (EEOC) can move forward with a lawsuit alleging that the insurance regulatory agency may have paid female employees less than it paid male employees holding comparable jobs.

 

The EEOC has presented evidence in the case, EEOC v. Maryland Insurance Administration (Case Number 16-2408), suggesting that the agency paid three former fraud investigators who are women less than it paid four former fraud investigators with comparable credentials and experience who are men.

 

The EEOC showed that the female investigators ended up earning $45,503 to $50,300 per year. The male investigators earned from $47,194 to $51,561 per year.

 

A judge at the U.S. District Court in Baltimore granted summary judgment in favor of the Maryland Insurance Administration.

 

Two judges at the 4th Circuit, Circuit Judge Barbara Milano Keenan and Circuit Judge Henry Floyd, overturned the lower-court ruling and agreed to let the EEOC move ahead with the suit.

Judge Wilkinson dissent on state sovereignty grounds.

J. Harvie Wilkinson III, the third judge on the panel, voted to uphold the lower-court ruling. In a dissenting opinion, he blasted his colleagues for ignoring Maryland's sovereign rights.

"The majority refuses to so much as mention a state's sovereign interest in its own civil service," Wilkinson writes. "The place of state governments in our Republic has quite passed it by. Respect for states [as] states fails to merit even the slight courtesies of lip service."

Given that, legally, the United States still has a federal system, and states still have rights, the EEOC should not have brought such a marginal case against a state, Wilkinson writes.

"State workforces are highly regulated and regimented, and state law provides remedies for gender discrimination in all its forms," Wilkinson writes. "Simply put, state civil service systems are not hotbeds of gender bias, as this feeble suit makes all too clear."

The Maryland Insurance Administration suit puts Maryland's sovereign interest in its own workforce entirely in the hands of federal authorities, Wilkinson writes.

"Here, a federal agency is bringing suit, the federal courts are deciding the suit, and federal law is providing the applicable rule of decision," he writes. "In combination, this assertion of federal authority diminishes to an unacceptable extent the proper role of states in our constitutional system."

The majority opinion and the dissent are available here

 

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

Too Pretty to be a Lawyer

From Guest Blogger Catherine Dunham, Professor of Law, Elon University School of Law 

directory photo of Catherine Dunham

Too Pretty: An Essay

The #MeToo moment is powerful and encouraging to those of us who have worked in uncomfortable environments for years.  In my high school years, there were retail managers who made up reasons to brush behind you as you ran the cash register.  Then, there were the college food service job years which included outright sexual propositions from same age colleagues and groping opportunities disguised as rides home (“let me reach across and get that door for you.”). Fast forward to my first professional environment with new shoes and proper clothes.  I was asked to pick things up, to walk across the room, to sit with older male clients and keep them company as they waited for my boss.  I knew it was creepy but I perceived myself as someone without power.  Also, the men were much older and seemed harmless.  To me, they were sad and unthreatening but, in retrospect, they probably saw themselves as first rate opportunities for a young gal like me.  I spent eight post college years in subordinate professional roles and literally lost count of the times I was propositioned and of the men who made the overtures.  At one particularly low point, a supervisor who positioned himself as my mentor, some 20 years my senior, made a full-scale play for me after months of uncomfortable flirting.  The encounter ended with me saying, “please don’t do this – I need this job.”  Thank goodness, he relented.  I left that encounter thinking I need to get into a better professional position so as not be treated like the Gal Friday, possibly available for anything, for the rest of my career.  So, I went to Law School.  Certainly, after I became a lawyer, this would stop. 

Law school was an oasis in my professional story.  I had great male and female student colleagues and felt respected for my intellect and hard work.  This calm faded as I entered the profession, particularly private practice where I was called upon for coffee runs in depositions when I was the only women in the room.  I was mistaken for a paralegal, a court reporter, a clerk, with one time reprimanded by an out-of-county lawyer who demanded I remain behind the bar as the counsel tables were available only for licensed attorneys.  I was called “honey,” “sweetie,” and “girl” by a person on every rung of the legal professional ladder.  There were also appearance-based comments by judges and jurors and the occasional “you are just too pretty to be a lawyer.”  For the record, I am not that pretty.  I was simply female and young and offered an alternative version of what lawyers in my rural practice area were supposed to look like.  But because I was a young woman, comments on my physical appearance were to be considered compliments. 

I learned to manage this terrain.  I refused coffee runs, openly chastised lawyers who called me “honey,” and responded to the “too pretty” comments with a good Southern comeback like, “thank you – you are much too old to be looking at women my age.”  In fact, my small firm which was all male sans me remains the most gender balanced environment I have ever worked in.  My male superiors were excellent trial lawyers who valued hard work and intelligence without a care about how you looked, who you slept with, and whether you had a life outside of the office.  If you did well, you were celebrated.  If you screwed up, you heard about it and received some direction to keep you from making the same mistake again. The firm environment was fair, which made up for the constant inequities of the rural southern courts where I practiced.  Even so, those years were the time in my life when I was most often a woman among men and I got a glimpse of the ease the permeates a non-diverse world.  The language was not modern but it was not all menacing.  I had grown up with good people who used old-fashioned language to discuss women so learned not to be too quick to judge a gendered, albeit gracious, phrase.

I expected the switch to legal academia to expose me to the Holy Grail of gender equality.  Law professors were progressive and would create and propagate fair and balanced environments.  Wrong.  Twenty years after that first brush up behind the cash register, I was still deciding how to deal with a creep.  The only difference was the creep’s tactics.  Law academia has included being told by a Dean that I should “just go home, take care of my kids, and let my husband pay the bills.”  Another Dean promised to “take care of me” if I followed his lead on voting and retaliated when I did not.  And I once had a student tell me he could not attend my class because it was against his personal beliefs for a man to learn from a woman. I have seen women colleagues painted as “shrill,” “passive,” “too aggressive,” “brash,” and just overall not good enough to play in the big leagues of real law teaching.  I have sat in meetings trying to convince male colleagues that when viewing the teaching evaluations of women (and minority) faculty, particularly those who teach in predominantly male, white schools, you must account for the power differences, understanding that minority teachers do not get the benefit of the doubt.  And I have watched male colleagues protect their territory against female interlopers by appointing themselves the junior female colleague’s unofficial mentor then using that access to offer an ostensibly credible assessment of the junior faculty member to the rest of the faculty.  “I have really worked with her but she just isn’t getting there.” On this point, I have seen male colleagues praised for protecting the quality of instruction and women colleagues criticized for being territorial.  Territorial men are protectors and providers.  Territorial women are like my border collie when the repairman comes; a nasty bitch.

Why do we accept that women will deal with a certain amount of skirt chasing and “boys will be boys” behavior in the workplace?  Because we view men as more and view women as less. Our cultural views come through in our language, public and private, whether we know it or not.  For a woman of my age, raised in the culture of the American South, language was a complicated mix of the sweet and the cruel which offered few guiderails for my journey into professional adulthood. It took years for me to begin to challenge the words used to describe me and other women and the subtext beneath the conscious word choices of my peers.  I must admit that when I was first told I was too pretty for something, it read as a compliment.  It took time for me to understand that words which celebrated physical attractiveness when those traits are not relevant are words that diminish.

I have lovely memories of my Great Uncle holding my hand and telling me I looked like Snow White. However, a father, grandfather, or uncle could show the same affection with other words, words which do not connect physical appearance with value thus confounding those two things in a way that confuses young women on their personal value.  In truth, members of my own family told me I was too pretty to be a lawyer, telegraphing the cultural assumption that attractive women can get husbands so don’t need careers.  These messages sent me off into the world confused about my value and my role.  When our cultural rhetoric focuses on the physical attributes of women, we devalue women and invite the aggressors.  And we are all too pretty for that.

Catherine Dunham is a Professor of Law at Elon University School of Law where she teaches Civil Procedure, Civil Litigation, and Litigation Skills including Trial Practice.  She has also served as a trial analyst for several major news outlets, including NBC and CNN. In addition to procedural topics, Prof. Dunham’s scholarship explores social psychology and legal education, as well as topics related to gender equity and unconscious bias. Prof. Dunham is also prior recipient of the ABA Smyth-Gambrell Award for Teaching Professionalism.

January 10, 2018 in Guest Bloggers, Law schools, Women lawyers, Work/life | Permalink | Comments (0)

Tuesday, January 9, 2018

Study Finds Women Professors Get More Grief from Students

Female Professors Get More Grief From Students, Study Finds

Research from Eastern Washington University has found that women working in education are more often requested to give extensions, boost grades and be more lenient when it comes to classroom policy.

 

"I always found it odd that students would sometimes have emotional responses to me simply enforcing my own policy, and I always wondered why that was," said Amani El-Alayli, a psychology professor at Eastern Washington University and the study's lead author.

 

She said standard policies like not sending PowerPoint slides to students, denying retests and not including extra credit or grade-boosting projects would be met with irritation or persistent nagging.

 

"Students wouldn't take no as an answer … I always suspected that gender could play a role, and it seems that maybe it does," El-Alayli told Early Edition host Stephen Quinn.

 

Students turned to their female professors expecting favours, and the effect of the requests seemed to take an emotional toll on top of adding to their workload.

 

Overall, El-Alayli found that more is expected from female professors but evidence from the students who participated in the study suggests gender bias isn't a conscious decision.

 

"We believe that it's because women in general are expected to be more empathetic, more nurturing, more likely to be helpers, to assume a nurturing role."

 

"People generally have that perception of women, and they also have that expectation of women, so we think that that translates into the classroom as well."

 

This means more hours spent in the office and more time sifting through emails, even if requests aren't granted.

January 9, 2018 in Education, Gender | Permalink | Comments (0)

Oregon Justices Share Experience of Sitting on Majority Female Bench

Justices of the Oregon Supreme Court

Oregon Justices Share Experiences of Sitting on Majority Female Bench (video)

For the first time in state history, there are more women than men sitting on the Oregon Supreme Court.***

 

Justice Rebecca Duncan was the female justice to tip the scale after being appointed to the bench by Governor Kate Brown in May of 2017.

 

Duncan told FOX 12 the fact that the majority of justices are women is very meaningful, not only for her and the other women on the court, but also for women and girls across the state.

 

“It sends the signal that times do change and progress can be made,” she said. “I heard from people who were incredibly excited, and there were people who had gone to law school, or where law school wasn’t even really an option for them at the time they were entering their professional lives just because of what was viewed as available career paths for women, and they were so excited to see what had been a limit no longer existing.”

 

Justice Martha Lee Walters, Justice Lynn Nakamoto and Justice Meagan Aileen Flynn said they too have heard similar stories since that momentous day.

 

“Everybody wants to know that they’re going to be heard if they appear before a court of law.  What’s the most important thing to them? That they’re going to be listened to, that they think they’re going to have a fair hearing,” Walters explained. “So, if people see people on the bench who they think are similar to them in some way, it makes them think, ‘Oh, there’s someone who I think will listen to me.’ So, we need to have great diversity.”***

 

 

 

The four justices say they are honored to sit on Oregon’s highest court and hope this historic appointment encourages other young women to pursue similar interests.

 

“It’s nice to see that women have now gotten into more senior positions,” Nakamoto said. “That they are in a position to be on a high court."

 

There will soon be a fifth female justice in Oregon after Governor Brown announced Monday that Judge Adrienne Nelson from the Multnomah County Circuit Court will be replacing the retiring Justice Jack Landau.

 

The four current justices also told FOX 12 they are hopeful that majority-female supreme courts will one day be nothing notable at all and instead will be common.

January 9, 2018 in Courts, Judges | Permalink | Comments (0)

New Books: Eloquent Rage: A Black Feminist's Journey Through Sexism, Racism, and Classism

Brittney Cooper (professor, Women and Africana Studies,Rutgers University), Eloquent Rage: A Black Feminist Discovers her Superpower

A professor explores the ways “sexism, and racism, and classism work together to fuck shit up for everybody” and how feminism can begin undoing the damage.

 

“We [black women] are told we are irrational, crazy, out of touch, entitled, disruptive and not team players,” writes Cooper (Women and Gender Studies, Africana Studies/Rutgers Univ.). But as her feminist foremother Audre Lorde once remarked, this anger was not only legitimate; it was also “a powerful source of energy serving progress and change.” Here, Cooper brings together essays tracing her evolution as a feminist while giving voice to the political (out)rage seething within. The author begins by detailing the difficult journey that led her to “disidentify with [the] whiteness” of mainstream feminism and learn to embrace her “particular Black girl magic.” Her quest for political authenticity meant fighting with white women over racism and black men over sexism. Participating in these separate battles did not blind her to the need for alliances with both groups, however; they only made her more aware of the need for creating solidarity across communities to topple patriarchy. Cooper’s feminist journey also forced her to shed cultural “baggage”—such as the racism of a white society that questioned her movements on American streets and the sexism of black society that sought to control her sexuality through the church—that limited her passage through the world. Once uncovered and focused, however, the rage that inevitably comes from such injustices is of tremendous benefit to all. Cooper points to tennis star Serena Williams, former first lady Michelle Obama, and singer Beyoncé as contemporary black feminist role models. By learning how to channel their rage in their areas of endeavor, they have earned game-changing respect that has transcended race and gender. Sharp and always humane, Cooper’s book suggests important ways in which feminism needs to evolve for the betterment not just of black women, but society as a whole.

 

A timely and provocative book that shows “what you build is infinitely more important than what you tear down.”

January 9, 2018 in Books, Race, Theory | Permalink | Comments (0)

Thursday, January 4, 2018

German Institute Creates Women-Only Tenure-Track Positions

Max Plank Institutes Create Research Positions Which Only Women May Apply

Germany’s Max Planck Society of research institutes has launched a women-only program of tenure-track positions to improve its gender balance and stop rivals poaching its best female scientists.

 

The Lise Meitner excellence program, named after the pioneering early-20th-century physicist, is one of several women-only hiring initiatives that some observers believe are becoming more common while the proportion of women in top research positions remains stubbornly low.

 

Backed by more than 30 million euros ($35.5 million), the society will create up to 10 five-year research group leader positions annually for the next four years. Unlike the network’s previous women-only initiative to recruit group leaders, which ended in 2015, these positions will be on the tenure track, meaning that recipients get the chance to make their positions permanent at the end of the period.

 

Grietje Molema, president of the Dutch Network of Women Professors and a professor at the University of Groningen, said that women-only programs were getting more common in Europe and called the move by Max Planck a “good step forward.”

“Affirmative action” was an “essential part” of tackling the underrepresentation of women in research, she said.

The concern is if these positions become the only positions for which women are practically considered.

January 4, 2018 in Education | Permalink | Comments (0)

Steps the Judiciary Needs to Take to Redress Sexual Harassment in its Own Courts

Lara Bazelon, After #MeToo Comes to the Courts

Chief Justice John G. Roberts Jr. took a long overdue step toward answering that question on Sunday when he announced that a working group would assess whether the judiciary’s disciplinary procedures are capable of addressing sexual harassment complaints and taking corrective action. The governing statute, passed by Congress in 1980, holds federal judges responsible for disciplining one another, save for the nine Supreme Court justices who are immune from any oversight.

 

But this process is shrouded in secrecy, with embarrassing allegations swept under the rug and sanctions that are inadequate to the offense. If the judiciary is going to better police itself, it must overcome its historical impulse to shield bad actors from consequences they would not hesitate to mete out to people who don’t wear black robes.

 ***

 

This ordeal makes it clear that the chief justice’s working group must overhaul the process to make it more robust and transparent. This is no easy task. The law mandates that all evidence, testimony and hearings relating to misconduct investigations be kept secret. But judges can — and should — publish detailed, well-reasoned opinions about the outcome of those cases to inform the public and maintain confidence in the integrity of the proceedings.

 

Also crucial to ensuring fairness is giving both sides the same procedural rights. The statute allows for equal treatment, but as enforced it is biased against the person who brings the complaint. An accused judge has the right to be present at a disciplinary hearing, to present testimony and witnesses, and to have a lawyer in any disciplinary case that is subject to investigation. The working group should provide the same rights to the person accusing the judge.

 

Sexual misconduct cases should also be automatically transferred from the circuit where they arose to a court in a different region of the country so that judges won’t have to pass judgment on a close colleague whom they see on a regular basis. (Before he resigned, Judge Kozinski was set to be judged by his colleagues on the Second Circuit, but only because Chief Justice Roberts had ordered that transfer.)

 

Finally, the working group should hold the nine Supreme Court justices accountable under the same standards. The fact that Congress exempted them when it passed the disciplinary law in 1980 is no excuse for refusing to play by the same rules as everyone else.

January 4, 2018 in Courts, Workplace | Permalink | Comments (0)