Thursday, October 8, 2015

Title VII is not a Tort

Sandra Sperino (Cincinnati), Title VII is Not a Tort

In several posts, I will be blogging about how federal courts are pushing federal discrimination law out of a public law model and into a more private law frame....


In upcoming posts, I will explain why Title VII is not a tort in any way that conveys specific, textual meaning.  The claim that Title VII is a tort ignores the history of the statute and its text.  It also unnecessarily muddies an already confusing jurisprudence and leads to odd results in what would otherwise be fairly easy cases.

What Does it Mean for Something to be a Tort?

When I say Title VII is not a tort, what I mean is that it does not fit precisely into the mold of any traditional tort.  Calling Title VII a tort in some general sense does not help to answer the vast majority of questions that arise in discrimination cases.  The tort label is dangerous because it allows courts to claim that tort law demands particular results in discrimination cases.  This is simply not true.


October 8, 2015 in Equal Employment | Permalink | Comments (0)

The Unintended Consequences of Canada's Equal Rights Amendment

The Unintended Consequences of Canada's Equal Rights Amendment

Section 28 of the Canadian Charter of Rights and Freedoms was supposed to be a game changer for women. It reads: "Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons." But lawyer, Trudeau Foundation scholar, and Queen's University PhD candidate Kerri Froc says it has been used to hurt women's rights instead of advance them. 


Froc would like to see Section 28 - which was modelled on the proposed American Equal Rights Amendment - rehabilitated to protect and promote women's rights, as it was intended.  




Right after the Charter was entrenched, there was a flurry of activity with respect to sex discrimination cases but most of it was brought by men, essentially attacking some of the very few legislative provisions that protected women. There was a case concerning social assistance benefits that gave some small protections to single mothers and what the courts said was, 'Section 28 requires absolute equal treatment between men and women, you can't have that.' So it struck down that benefit.

h/t Sonia Lawrence

October 8, 2015 in Constitutional, International | Permalink | Comments (0)

Wednesday, October 7, 2015

Keith Cunningham-Parmeter's new article

Prof. Keith Cunningham-Parmeter has uploaded a new article onto SSRN.  The article is titled "Marriage Equality, Workplace Inequality:  The Next Gay Rights Battle," and its abstract reads:  

Same-sex marriage is not the only civil rights issue impacting the gay community. Although the Supreme Court's decision in Obergefell v. Hodges represented a momentous victory on same-sex marriage, workplace protections affect far more people and remain a high priority for many lesbians and gay men. Today, even though the Supreme Court has invalidated state marriage restrictions across the country, federal law still makes it perfectly permissible to fire a gay man for telling a coworker about his sexuality or to discharge a woman for displaying her wife's picture at work.

This Article critically evaluates the relationship between same-sex marriage and workplace rights. Focused narrowly on case-by-case tactics, proponents of same-sex marriage won in court by selectively choosing gay couples who appeared “safe” and “ordinary” to judges. The decision to prioritize marriage over other gay civil rights-while utilizing reductive depictions of gay relationships in the process-raises distinct challenges for lawyers attempting to extend victories on the marriage front to other important legal realms such as employment protections.

Outlining a model for thinking about gay rights beyond marriage, this Article calls for renewed attention to the argument that sexual orientation discrimination constitutes a form of sex discrimination. The cultural imperative requiring individuals to desire only partners of the opposite sex constitutes American society's most enduring gender stereotype. Employers and states that punish sexual minorities for violating this norm engage in both sexual orientation discrimination and sex discrimination. By combating discrimination in employment, housing, and other civil rights areas, this refocused approach to gay rights applies to numerous legal contexts outside of marriage, thereby addressing the legal needs of a much larger segment of the gay community.

October 7, 2015 in LGBT, Scholarship | Permalink | Comments (0)

Tuesday, October 6, 2015

US Feminist Judgments Project Featured in Time Magazine

The US Feminist Judgments Project is featured in Time, with editors Linda Berger, Bridget Crawford, and Kathy Stanchi.

The book is expected out next August.

The conference, building on the book and the broader question of the difference women make as judges will be next year, October 20 & 21, 2016 at the Constitutional Law Center @ Akron sponsored by Akron Law and UNLV Law.



October 6, 2015 in Books, Courts, Law schools | Permalink | Comments (0)

Monday, October 5, 2015

Gender Diversity Makes Good Business Sense

From CNBC: 

Firstly, to hire women at junior levels and invest in them only to lose them before they can take on the senior roles is a poor outcome business-wise, returns-wise and image-wise.

Secondly, women are increasingly becoming the decision-making consumer. Not having a proper representation of women at senior levels would mean firms are losing out on an opportunity to have leaders who have a better understanding of the needs and psyche of their target consumers. That is a bad business decision.

Thirdly, women will increasingly be the decision-maker and enterprise-buyer on the corporate side as well. Not having top leaders who can easily relate to the situation of senior female executives across the table can have adverse consequences.

October 5, 2015 in Work/life, Workplace | Permalink | Comments (0)

Saturday, October 3, 2015

Punishing Young Girls for Prostitution to Protect Them

Cynthia Goode (Brooklyn), Punishment as Protection, Houston Law Review, forthcoming


Each year, thousands of girls are prosecuted, and often incarcerated, for prostitution. Indeed, prostitution is the only crime for which girls are the majority of juveniles arrested. Why are girls below the age of consent victims of statutory rape when they have sex, yet become offenders if they are paid?
This differential treatment cannot be justified on retributive or consequential grounds, as prostituted girls inflict only self-harm, usually deemed illegitimate grounds for criminal sanctions, and punishment does not deter their conduct. Criminal sanctions are not only unjustified, but counter-productive. They result in great harms to the individual girls and have not decreased the scope of juvenile prostitution. In short, the cure is worse than the ill.
This Article examines the persistence of this criminalization model and argues that the protectionist rationale offered is pretextual, cover for moralism. Entering ‘the life’ at an average age of thirteen, most of these girls have experienced abuse or family trauma. They are also victims under trafficking and statutory rape laws. Nonetheless, studies report that police see only one in five as a victim. The men who purchase girls for sex are rarely prosecuted. Using a historical lens, this Article argues that this punitive paternalism is the current incarnation of a long trajectory of regulating adolescent female sexuality via criminalization.
This story of regulation as punishment also offers broader insights into the dynamics and dysfunctions of the criminal law. The high costs of punishment render criminal sanctions an untenable instrument for addressing self-harm or enforcing sexual norms. By punishing the victims and failing to pursue the real offenders, this institutional approach ignores, even normalizes, the commercial sexual exploitation of children. This Article concludes by considering three alternative frameworks for addressing this widespread social problem.

October 3, 2015 in Human trafficking | Permalink | Comments (0)

Plaintiff in SCOTUS Pregnancy Discrimination Case Settles

NBC, UPS Settles with Maryland Woman in Pregnancy Discrimination Case

A former UPS driver who sued the company for putting her on unpaid leave while she was pregnant has reached a settlement with the company after her case went all the way to the Supreme Court.


An attorney for Peggy Young announced the resolution Thursday but didn't specify the terms. UPS said the parties had reached an agreement -- and said in a statement that a new UPS pregnancy accommodation policy implemented in January had helped the two sides settle.

For previous blog coverage on the Young case, see

SCOTUS Grants Cert in Pregnancy Accommodation Case

Members of Congress Submit Amicus in Pregnancy Accommodations Case

Pregnant Workers Win Without Winning

Debriefing Yesterday's SCOTUS Pregnancy Discrimination Case

50 Years of Pregnancy Discrimination Litigation under Title VII

Economist Magazine on Young v. UPS

October 3, 2015 in Pregnancy, SCOTUS | Permalink | Comments (0)

Friday, October 2, 2015

Glenn Reynolds: The unilateral war on college men

Glenn Reynolds, a law professor at Tennessee, has an op-ed in USA Today.  Here are some excerpts: 

It appears to many — including me — as if theObama administration is engaged in a war on college men. Using debunked statistics, the president, the vice president and various other political officials have falsely claimed that there’s an epidemic of rape on college campuses, even though campus rape is, in fact, falling, just as off-campus rape is. (And, in fact, rape is less common on campus than off).


And, ever since the Department of Education issued a ”Dear Colleague" letter to universities in 2011, in essence ordering them to adopt new and draconian campus “sexual assault” rules that treat accusations as presumptively true and force the accused — almost always men — to prove their innocence, sometimes even very strong evidence of innocence is ignored.

October 2, 2015 | Permalink | Comments (0)

"Pope Francis' Visit With a Transgender Man Deserves the Same Media Coverage Given Kim Davis"

From HuffPost: 

Since the American press largely ignored or downplayed the Pope's January 2015 Vatican visit with a transgender man from Spain, many Americans have nothing to counterbalance off the Pope's Kim Davis visit to understand that the pontiff's visit is not meant to signal he has taken Davis' side, or joins in condemning gay culture. Rather it is the Pope's demonstration of compassion for all people.


While those eager to criticize and even hate the Pope for his visit with Davis, those with open minds can consider the Vatican visit with Diego Neria Lejarraga and his fiancee as a refutation of the hatred that the Davis camp is spreading. The public following the Pope is due more comprehensive exposure to Pope Francis' inclusion of the different voices and lifestyles he embraces in his spiritual vision of the Church in the future, and the vist with Neira represents the Pope's boldest departure from Catholic doctrine to date.

October 2, 2015 in LGBT, Religion | Permalink | Comments (0)

Thursday, October 1, 2015

Forcing Pregnant Students Out of Grad School

Joan Williams and Jessica Lee, It's Illegal, Yet It Happens All the Time, Chronicle of Higher Ed.

Why don’t we have more women in STEM fields? One reason is that students get hounded out of their college or graduate-school programs when they become pregnant. It’s against federal law, but it happens all the time.


One student told us she had a pregnancy-related disability that required her to go to the hospital at least twice a week. Exhausted but driven, she continued to produce quality work. Late in her pregnancy, the publishing deadline she was struggling to meet was accelerated by her department — it now fell right after her due date. Just months prior she had been celebrated as a rising star in her department, but now, she said, "I had to prove I was still worthy to even be in their program." If she didn’t meet the new deadline, she would lose the funding her family relied upon. After her baby was born, she was intimidated into finishing her degree in significantly less time than the average student in her department. The hostility and bias the student faced "traumatized me in so many ways," she said. "I wasn’t asking for accommodations, I wanted to be treated like everybody else, but I was the one who was punished."

A graduate student with a disability caused by childbirth was pursuing her degree full force after a lengthy struggle, only to be told by a faculty mentor, "You don’t have a disability, you just need to go home and be with your baby." Professors frequently make off-the-cuff statements — often written off as harmless — telling pregnant women or new mothers to stay home instead of pursuing their education. Plaintiffs’ lawyers love such direct evidence of gender discrimination.


And it’s not just professors who open their institutions to legal liability. Administrators do, too. A graduate student said she anticipated the birth of her child at the start of the academic year, so she asked to be able to record classes for the first week or two of the semester. The student-affairs dean told the student to withdraw for at least a semester, with no guarantee of readmission, informing her that all of the pregnant students at the institution in the past six years withdrew from the program — except one, who regretted her decision. This student, like many others, didn’t want to take leave at all.


The consequences of being forced out of your program can be grim. Many women need to keep working in their university-sponsored jobs to make ends meet. Yet those jobs are often unavailable to students while they are on leave, or aren’t offered back to them upon their return. On many campuses, being on leave or withdrawn status means losing that income, along with health insurance, loan deferment status, and even your university email address. Sometimes it means losing your housing, too.


Federal law requires that pregnant students must be reinstated following leave to their prior status, without penalty. Yet we hear over and over about women are penalized for their absence, or forced to reapply to their programs as if they had never been accepted.

October 1, 2015 in Reproductive Rights, Work/life | Permalink | Comments (0)

Medicalizing Gender

Kathleen Darcy (Michigan State), Medicalizing Gender: How the Legal and Medical Professions Shaped Women's Experience as Lawyers, 4 Tennessee J. Race, Gender & Social Justice 31 (2015)


Despite significant progress, women in the legal profession still have not advanced into positions of power at near the rate in which they saturate the legal market. Scholars agree that simply waiting for parity is not sufficient, and, thus, they have identified many of the barriers that contribute to women’s difficulties. To date, however, the role that scientific and medical understandings play on the evolution of law, and on women as lawyers, has not received examination until now. To this end, I posit that medicine played a significant role in shaping societal expectations and assumptions about gender, and was similarly influenced by already-existing societal assumptions about gender. This created a complex and substantial barrier that kept women from exploring options outside the “spheres” of society they traditionally occupied. This article explores how medically-supported gender theories, in practice, have actually operated to limit women’s professional progress, relegating them to traditional gender roles and halting their ascension in the ranks of the legal profession. I examine how this barrier operates in three ways: how early women lawyers adopted these medical theories into views about their own gender; how society and those around these early women lawyers adopted these views to shape expectations about women as lawyers; and how the court explicitly and implicitly relied on these assumptions about gender to keep women out of the legal profession. An examination of how these medical and scientific theories about gender have shaped the ways society views gender, and vice versa, can help illuminate the discussion on the barriers that impede modern women lawyers.

October 1, 2015 in Gender, Science, Theory | Permalink | Comments (0)

Wednesday, September 30, 2015

"Gender Bias at Work Turns Up in Feedback"

From the WSJ blog: 

If companies are looking for gender bias in their workplace, here’s one place they may want to start: feedback.

Research suggests that men and women are assessed very differently at work. Specifically, managers are significantly more likely to critique female employees for coming on too strong, and their accomplishments are more likely than men’s to be seen as the result of team, rather than individual efforts, finds new research from Stanford University’s Clayman Institute for Gender Research. Those trends appear to hold up whether the boss making the assessments is male or female.

September 30, 2015 in Work/life, Workplace | Permalink | Comments (0)

Tuesday, September 29, 2015

Women and the Law: A "Greatest Hits" of Scholarship from the Past Year

I just published the 2015 edition of Women and the Law for West. 

This is an annual collection of what I call the "greatest hits" in legal scholarship from the past year on women's rights. It includes sections on reproductive rights, family, employment, domestic violence, feminist theory, and sometimes education.

Here's this year's awesome lineup.


Table of Contents

Introduction and Summary, Tracy Thomas

Reproductive Rights

Abortion Distortions, Caroline Mala Corbin

Fetal Protection Laws: Moral Panic and the New Constitutional Battlefront, Michele Goodwin

Abortion and the Constitutional Right (Not) to Procreate, Mary Ziegler

Bearing Children, Bearing Risks: Feminist Leadership for Progressive Regulation of Compensated Surrogacy in the United States, Sara L. Ainsworth

Feminism and the Family Law

Unprotected Sex: The Pregnancy Discrimination Act at 35, Deborah L. Brake & Joanna L. Grossman

Reframing the Work-Family Conflict Debate by Rejecting the Ideal Parent Norm, Jennifer H. Sperling

Spousal Support in the 21st Century, Judith G. McMullen

Digging Beneath the Equality Language: The Influence of the Fathers' Rights Movement on Intimate Partner Violence Public Policy Debates and Family Law Reform, Kelly Alison Behre

Violence Against Women

Real Men Advance, Real Women Retreat: Stand Your Ground, Battered Women's Syndrome, and Violence as Male Privilege,Mary Anne Franks

Enjoining Abuse: The Case for Indefinite Domestic Violence Protection Orders, Jane K. Stoever

Love Matters, Tamara L. Kuennen

Financial Freedom: Women, Money, and  Domestic Abuse, Dana Harrington Conner

A Home with Dignity: Domestic Violence and Property Rights, Margaret E. Johnson

Women in the Workplace

Twenty Years of Compromise: How the Caps on Damages in the Civil Rights Act of 1991 Codified Sex Discrimination, Lynn Ridgeway Zehrt

Two Very Different Stories: Vicarious Liability Under Tort and Title VII Law, Martha Chamallas

It's Complicated: Age, Gender, and Lifetime Discrimination Against Working Women—The United States and the U.K. as Examples, Susan Bisom-Rapp and Malcolm Sargeant

Feminist Legal Theory

State Responsibility for Gender Stereotyping, Barbara Stark

Rights of Belonging for Women, Rebecca E. Zietlow

The New Sex Discrimination, Zachary A. Kramer

September 29, 2015 in Scholarship | Permalink | Comments (0)

Monday, September 28, 2015

The vexed paradox of Fiorina's feminism

From the NYT: 

When the novelist Jennifer Weiner watched the second Republican presidential debate with her two daughters on Sept. 16, she felt a sense of pride at seeing the lone woman on stage,Carly Fiorina, hold her own against Donald J. Trump.

Then Mrs. Fiorina denounced abortion and Planned Parenthood in a graphic monologue that thrilled many conservative Republican voters but left Ms. Weiner appalled.

September 28, 2015 in Media, Theory | Permalink | Comments (0)

Saturday, September 26, 2015

New issue Journal of Women's History

The new issue of the Journal of Women's History (Fall 2015).



"I Wouldn't Be No Woman If I Didn't Hit Him": Race, Patriarchy, and Spousal Homicide in New Orleans, 1921 - 1945          

Jeffrey S. Adler

"As Potent a Prince as Any Round About Her": Rethinking Weetamoo of the Pocasset and Native Female Leadership in Early America          

Gina M. Martino-Trutor

Dode Akabi: A Reexamination of the Oral and Textual Narrative of a "Wicked" Female King       

Harry N.K. Odamtten

From Anne to Hannah: Religious Views of Infertility in Post-Reformation England          

Daphna Oren-Magidor

Sex Scandals and Papist Plots:The Mid-Nineteenth-Century World of an Irish Nurse in Quebec          

Lisa Chilton

Sanitizing the Domestic: Hygiene and Gender in Late Colonial Bengal          

Srirupa Prasad

Constructing Women's Citizenship: The Local, National, and Global Civic Lessons of Rajkumari Amrit Kaur         

EmIly Rook-Koepsel



Single Girls and Working Women: Gender, Power, and Feminism in American History and Culture 

Elizabeth Fraterrigo

Sexual Labor and the Transnational Sphere          

Michelle K. Rhoades

Personal and Political: Love's Revolutions in Recent Historical Research          

Mark Seymour

New Views on Left Feminist Activism Before the 1960s          

Kate Weigand

September 26, 2015 in Legal History, Scholarship | Permalink | Comments (0)

6 Reasons for Gender Differences at the Top of the Legal Profession

ATL, 6 Reasons for Gender Differences at the Top of the Legal Profession


  1. Research has found that people view women as less competent than men and lacking in leadership potential, and partly because of these perceptions, women encounter greater challenges to or skepticism of their ideas and abilities at work.
  2. Research has found that men are more likely than women to engage in dominant or aggressive behaviors, to initiate negotiations, and to self-select into competitive environments— behaviors likely to facilitate professional advancement.
  3. Women tend to believe they have less time in which to attain a greater number of goals, and they are likely to experience more conflict in deciding which goals to pursue and which to sacrifice or compromise.
  4. Compared to male participants, female participants expected the promotion to bring more negative outcomes, which led them to view the potential promotion as less desirable than men did and to be less likely than men to pursue it. However, men and women expected the same level of positive outcomes from the promotion.
  5. It is also possible that women are overestimating the negative consequences associated with power, that men are underestimating them, or both.
  6. Women believe, unlike men, that assuming high-level positions would require them to compromise other important life goals. This is an assumption that is worth studying further.


September 26, 2015 in Women lawyers | Permalink | Comments (0)

Re-entry Program for Women Lawyers Expands

Re-Entry Program for Women Lawyers Expands

The OnRamp Fellowship, which connects women lawyers who have taken a hiatus for at least two years with jobs at law firms and companies, is expanding.


The network of law firms that participate in its fellowship program expanded by six to include Skadden, Arps, Slate, Meagher & Flom, Morrison & Foerster, Loeb & Loeb, Stoel Rives, Wiley Rein and Wilson Elser, OnRamp announced on Thursday.


Both Amazon’s legal department and the compliance division at financial services firm Barclays also joined.


“Everyone realizes we are in a war for talent, and we are fighting for the same talent,” said Caren Ulrich Stacy, founder and CEO of the Onramp Fellowship & Diversity Lab. “Some are looking for new and inventive ways to find people.”


OnRamp launched in January 2014 to provide women lawyers re-entering the profession with an opportunity to update their skills and contacts through a paid-for, one-year fellowship with a major law firm.

September 26, 2015 in Women lawyers | Permalink | Comments (0)

Friday, September 25, 2015

"Law Firms Are Learning: Work-Life Balance Isn't Just for Moms"

From the Atlantic:

For decades, work-life balance at law firms has been a women’s issue—something for working moms to sort out. But there are a growing number of new firms built on flexible schedules that are now attracting men, and slowly shifting the definition of a successful legal career. Though the partner office is still the prototypical legal-career status symbol, the prerequisites of long hours and 24-7 availability are inconsistent with the emphasis many men put on time away from the office.


“Young men today have different values, different aspirations than their fathers,” says Stewart Friedman, a Wharton Practice professor of management and director of the Wharton Work/Life Integration Project. “They want to be available both psychologically and physically for children.” At some of the most competitive white-collar workplaces, such as Netflix and Microsoft, these shifts have led to expanded parental-leave policies.

September 25, 2015 in Manliness, Masculinities, Work/life, Workplace | Permalink | Comments (0)

"Chinese Leader to Address UN on Gender Equality, Vexing Some"

From the NYT: 

BEIJING — Chinese leader Xi Jinping will preside this weekend over a U.N. conference on gender equality, which some activists say is galling given China's recent detentions of women's rights activists and its history of stopping people from attending U.N. meetings to discuss such issues.

Scheduled to draw more than 80 national leaders at the United Nations' headquarters in New York on Sunday, the meeting co-hosted by China comes 20 years after Beijing held a groundbreaking U.N. conference on women's rights in which Hillary Clinton equated women's rights with human rights.


China has made some progress in women's rights since then, including the introduction of local-level regulations against domestic violence, but much remains to be done in bringing women into positions of power. Only two women are in the Communist Party's powerful 25-member Politburo.

September 25, 2015 in International | Permalink | Comments (0)

Thursday, September 24, 2015

The Rules of Maternity

Dara Purvis (Penn State), The Rules of Maternity, on SSRN.


This article examines a diverse body of laws and regulations speaking to reproductive rights, healthcare, criminal punishment of drug use, termination of parental rights, and more in order to unearth the rules of maternity: guidance provided both obliquely and explicitly by the law’s coercive power telling women both how and who should mother. Rule 1 begins in pregnancy, with the message that “your body is your child’s vessel.” Every choice that a pregnant woman makes becomes a source of potential harm to her child, and thus of potential punishment through both civil and criminal law. Rule 2 explains one way women should attempt to avoid such liability, by following the maxim that “doctor knows best.” To question medical authority or have preferences other than following doctor’s orders is to needlessly risk the health of a pregnancy or a child, and is evidence of bad mothering. After the child’s birth, the mother remains responsible for the people who enter a child’s life, leading to rule 3, “the buck stops with you.” Rule 4 provides examples of the tightropes that mothers must walk: be nurturing, but not too nurturing. Breastfeed, but not for too long. Be protective, but not overprotective. “Damned if you do, damned if you don’t.” Finally, the rules of maternity create an aspirational maternity, one that excludes women deemed undesirable as mothers, because of class, race, past actions, and so on. Rule 5 specifies that “only some women need apply” for motherhood; women who have already been judged as bad mothers should not be legally permitted to reproduce.

September 24, 2015 in Pregnancy, Reproductive Rights | Permalink | Comments (0)