Thursday, May 28, 2015
The Professor Brief in the "Most Important Pregnancy Discrimination Case in Nearly a Quarter Century"
Deborah Brake (Pitt) & Joanna Grossman (Hofstra), Introduction to Amici Curiae Brief in Young v. UPS
Abstract:On March 25, 2015, the U.S. Supreme Court issued its decision in Young v. United Parcel Service, Inc., the most important pregnancy discrimination case before the Court in nearly a quarter century. The Court ruled for Peggy Young in a decision that will chart the path of pregnancy discrimination litigation for years to come. Our brief, published here with a short introduction, lays out our theory for why an employer’s refusal to accommodate pregnancy with light-duty assignments on the same terms as other medical conditions similarly affecting work violates Title VII and the Pregnancy Discrimination Act. The brief was filed on Sept. 10, 2014, on behalf of women’s and civil rights organizations and twenty-nine law professors with expertise in pregnancy discrimination. It weaves together insights from recent legal scholarship on pregnancy and maternity to construct a coherent theory of pregnancy discrimination and its centrality to women’s inequality. We hope that the brief will help illuminate the scope of the victory in Young, contributing to a better understanding of the theory behind the PDA.
Deborah Rhode, Law is the Least Diverse Profession in Nation. And Lawyers Aren't Doing Enough to Change That, Wash. Post.
Women constitute more than a third of the profession, but only about a fifth of law firm partners, general counsels of Fortune 500 corporations and law school deans. The situation is bleakest at the highest levels. Women account for only 17 percent of equity partners, and only seven of the nation’s 100 largest firms have a woman as chairman or managing partner. Women are less likely to make partner even controlling for other factors, including law school grades and time spent out of the workforce or on part-time schedules.Studies find that men are two to five times more likely to make partner than women.***
The problem is not lack of concern. I recently surveyed managing partners of the 100 largest law firms and general counsel of Fortune 100 companies. Virtually all of the 53 participants in the study said diversity was a high priority. But they attributed the under-representation of minorities to the lack of candidates in the pool. And they explained the “woman problem” by citing women’s different choices and disproportionate family responsibilities in the context of a 24/7 workplace. As one managing partner put it, “You have to be realistic. It’s a demanding profession. . . . I don’t claim we’ve figure it out.”
Such explanations capture only a partial truth. Minorities’ under-representation in law school does not explain their disproportionate attrition in law firms. And even women who work long hours and never take time out of the labor force have a lower chance of partnership than similarly situated men. Moreover, although data on women’s desires for partnership is lacking, what the research on women’s leadership preferences generally does not show is substantial gender disparities. In law, women experience greater dissatisfaction than men with key dimensions of practice such as level of responsibility, recognition for work and chances for advancement.
Wednesday, May 27, 2015
If the premise were being done purely as a comedic stunt, the results would not have been funny. But the men in the video were behaving in earnest: Trying to satisfy some vaunted standard of manliness, the hosts of Fox and Friends (conservatives, yes) tried to change a car tire.
Change a car tire. That is apparently what domestic manliness has become in these times. For a man whose wife does all the automotive repairs and all of the "handyman" work throughout the house and garden, I couldn't understand what was manly about changing a tire. But there they, Fox and Friends, were....
And, alas, the Fox and Friends......blew it.
"The hosts of Fox & Friends nearly caused serious damage to a rental car on Tuesday while trying to prove their “manhood” by changing a tire.
Fox News — and Fox & Friends in particular — have set a high bar for painful television news, and hosts Scott Brown and Brian Kilmeade kept the tradition alive on Tuesday when they tried to take retired Navy SEAL Derrick Van Orden’s “manhood” test.
Round one of the test was to tie a necktie, which Kilmeade accomplished with the help of his teeth and his co-host.
Kilmeade and Brown teamed up once again for changing a tire on a car that had been loaned by Enterprise Rent-A-Car." Watch here.
The May issue of the Atlantic dwells on "The Confidence Gap".
Evidence shows that women are less self-assured than men—and that to succeed, confidence matters as much as competence. Here's why, and what to do about it.
The statistics are well known: at the top, especially, women are nearly absent, and our numbers are barely increasing. Half a century since women first forced open the boardroom doors, our career trajectories still look very different from men’s.
.....Other commentators point to cultural and institutional barriers to female success. There’s truth in that, too. But these explanations for a continued failure to break the glass ceiling are missing something more basic: women’s acute lack of confidence.
Tuesday, May 26, 2015
Deborah Brake, On NOT "Having it Both Ways" and Still Losing: Reflections on Fifty Years of Pregnancy Litigation Under Title VII, 95 Boston U L. Rev. 995 (2015)
From the abstract:
This article . . . reflects on the past fifty years of conflict and struggle over how to treat pregnancy discrimination under Title VII. Pregnancy has played a pivotal role in debates among feminist legal scholars and women’s rights advocates about the limitations of both the equal treatment and special treatment anti-discrimination frameworks. The article’s title references the much-discussed Wendy W. Williams cautionary note that if we cannot have it “both ways” we need to decide which way we want to have it - a warning Williams followed with an argument for the equal treatment approach. The Pregnancy Discrimination Act (PDA), which amended Title VII in 1978, largely tracks the equal treatment model, setting a floor tying the treatment of pregnant women to that of other workers with similar health-based work restrictions. The model’s greatest promise was that it would avoid the backlash that would otherwise ensue if Title VII required employers to treat pregnancy more favorably than they treated other medical conditions. Equal treatment proponents framed their preferred approach as taking the long view, ensuring that as the boats of other workers rose, so too would those of pregnant employees. In the intervening years, this cautious optimism has not panned out. This article explores what lies beneath judicial resistance to pregnancy discrimination claims, and considers the future of the PDA after the Supreme Court’s decision (which was issued shortly before this article went to press) in Young v. UPS. It wraps up with a look at the recent pregnancy discrimination scholarship, contending that the rift posited between pro-maternity and anti-stereotyping discourses might be breached by greater attention to fostering egalitarian masculinities in relation to caretaking.
It's what the early 20th century equality feminists feared from social feminism and protective labor laws.
In Chile, a law requires employers to provide working mothers with child care. One result? Women are paid less.
In Spain, a policy to give parents of young children the right to work part-time has led to a decline in full-time, stable jobs available to all women — even those who are not mothers.
Elsewhere in Europe, generous maternity leaves have meant that women are much less likely than men to become managers or achieve other high-powered positions at work.
Family-friendly policies can help parents balance jobs and responsibilities at home, and go a long way toward making it possible for women with children to remain in the work force. But these policies often have unintended consequences.
Monday, May 25, 2015
On this Memorial Day, I wanted to commend the best book I have read about manhood,--in all its ambivalence, ambiguousness, and ambitiousness--and war: Tim O'Brien's matchless The Things They Carried. And for some commentary on the novel, see my far less impressive "The Burdens of Manliness."
Sunday, May 24, 2015
BBC reports on surprising, and rather liberal, comments offered by the Dublin Archbishop after Ireland became the first nation to legalize gay marriage:
Diarmuid Martin, the archbishop of Dublin, said the Church in Ireland needed to reconnect with young people.
The referendum found 62% were in favour of changing the constitution to allow gay and lesbian couples to marry.
The archbishop voted 'No' in the referendum
The archbishop told the broadcaster RTE: "We [the Church] have to stop and have a reality check, not move into denial of the realities.
"We won't begin again with a sense of renewal, with a sense of denial.
"I appreciate how gay and lesbian men and women feel on this day. That they feel this is something that is enriching the way they live. I think it is a social revolution."
The archbishop personally voted "No" arguing that gay rights should be respected "without changing the definition of marriage".
"I ask myself, most of these young people who voted yes are products of our Catholic school system for 12 years. I'm saying there's a big challenge there to see how we get across the message of the Church," he added.
Ireland is the first country in the world to legalise same-sex marriage through a popular vote, and its referendum was held 22 years after homosexual acts were decriminalised in the Republic of Ireland.
The vote in Ireland illuminates a dynamic shift on LGBT issues among Catholics and people of faith across the globe. Today about 60% of Catholics in the United States support gay marriage, compared to about 36% a decade ago.
In fact, many who voted “yes” on gay marriage did so because of their faith, not in spite of it. One elderly Irish couple put it this way: “We are Catholics, and we are taught to believe in compassion and love and fairness and inclusion. Equality, that’s all we’re voting for.”
The idea of an inclusive Catholic Church may have seemed like a pipe dream not many years ago, but under the tenure of Francis the Troublemaker, it doesn’t seem that farfetched. Two summers ago the Pope tweeted, “Let the Church always be a place of mercy and hope, where everyone is welcomed, loved and forgiven.”
On the eve of Pentecost, it seems that Ireland has taken that message to heart and sent an unmistakable message to the Church and society at large: A community that excludes anyone is no community at all.
Saturday, May 23, 2015
Directions from the College Common Application.
Ms. and Miss
If you are describing an unmarried woman, please select Ms. as your choice. This title can be used for a married or unmarried woman (like Mr. refers to a married or unmarried man).
Friday, May 22, 2015
A Boy Scout wears an Eagle Scot neckerchief during a 2013 parade in Austin, Texas. (Eric Gay)
“We must deal with the world as it is, not as we might wish it would be,” Boy Scouts of America President Robert Gates announced to an auditorium full of scouting officials and volunteers Thursday. “The status quo in our movement’s membership standards cannot be sustained.”
The announcement — that the Boy Scouts should change its policy to admit gay leaders — was radical, but you wouldn’t know it from listening to Gates’s speech. His tone was measured and matter-of-fact. His audience: totally silent.
It was an astute capitulation from the former secretary of defense, but it might not be enough to save one of America’s most iconic youth organizations.
Thursday, May 21, 2015
So, I just submitted my book manuscript, 11 years in the making. I never thought it would take so long... but, well, a lot of life happened along the way.
Anyway, I thought I would share some random things I learned that might translate to others’ scholarly projects.
1. A book is an enormous undertaking. It’s not just 6 law reviews strung together as someone told me. It’s a battle just to keep all the information, thesis, sub-theses and dates in your mind while also teaching, attending meetings, etc.
2. A book is one giant document review. At least this one based on historical primary sources felt like it. Flashback to my law firm days of antitrust cases and dark dreary basements of documents.
3. A book frees you from the vagaries of student law review selection. You work with peers, and receive expert advice. Which can also be the downside. Everyone wants you to write their book.
4. You can find almost anything on the internet. Especially old newspapers. Google is your friend. Exhibit A: Matilda Joslyn Gage, The Matriarchate, The Open Court Journal (1888).
5. My best writing came from reading others. That’s actually advice I heard at my daughter’s middle-school creative writing competition. By reading, you learn both good and bad writing, what to do and what not to do by reading others. For example, during this process of researching for a random footnote, I got involved in reading a biography of Margaret Fuller that won a recent Pulitzer Prize. It an artful way, it really captured Fuller’s voice by blending her own words, quotes, and impressions throughout book. It also really bogged down in parts, trying to show too much research and going on detours.
6. Question Authority. Trust your instincts when you read something – a book, a law review article, a case—that doesn’t seem right. Lots of people are wrong. They are rushed, rely on secondary sources rather than checking the original primary source, or predate new discoveries or decisions.
7. Get Digital. I battled one step behind the technology for the entire book project, as new scanning, indexing and digitizing appeared just after I had made due without it. But it was worth the time to recreate databases and management systems (several times) to insure the best collection and utilization of the source material.
8. Books are awesome. Forget Westlaw. This was not just because I was writing legal history. The best books on divorce law, including the details, dates, and legislation, were two books written in the 1960s and 1970s. The best summary of the history of child custody law were two books from the 1980s, not the gobs of more recent law reviews which superficially simplify the field. I think these books are so good because they exhibited careful, original, non-derivative research where the authors did the heavy lifting.
9. Human error is inevitable on long projects. I spent a lot of time retracing my steps. I forgot where I left off a month before grading finals or neglected to record the source of the awesome quote I found. Many RAs made for many mistakes in coding, dating, and we had to correct for such things along the way. Sigh.
10. The rewards of scholarship. At the risk of melodrama, the book was an amazing experience. I got to read fascinating things. I felt like Sherlock Holmes, tracking down suspects and piecing together mysteries. I expanded my thinking and understanding of family law, renewing my interest in the field after 17 years of teaching the subject. I have come away with many new insights for class and my students.
11. To quote Nike, “Just do it.” A book is a marathon, not a sprint. But you must keep moving.
Everyone keeps asking me if I feel relieved. Actually, I don’t.... I feel empty. I long for this deep creative experience again. As I was bemoaning this loss over dinner, my son said “Mom, geez, just write another book.” Maybe I will.
Another update: 5-21-15
Before adding in these new hires, women constitute 20.6% of Law Deans. See ABA Commission on Women, A Current Glance at Women in the Law
By my count, women constitute 9 of 21 new deans so far this year.
Jennifer Bard (Texas Tech), Cincinnati
Kathleen Boozang (Seton Hall), Seton Hall
Lyn Entzeroth (Tulsa), Tulsa
Melanie Leslie (Cardozo), Cardozo
Laura Rosenbury (Wash U), Florida
Melanie Wilson (Kansas), Tennessee
Help keep the list current. Add others to comments below.
Jill Lepore, To Have and to Hold, New Yorker
This spring marks the fiftieth anniversary of the case that went forward instead: Griswold v. Connecticut. (“We became the footnote to the footnote,” Trubek told me.) In Griswold, decided in June, 1965, the Supreme Court ruled 7–2 that Connecticut’s ban on contraception was unconstitutional, not on the ground of a woman’s right to determine the timing and the number of her pregnancies but on the ground of a married couple’s right to privacy. “We deal with a right of privacy older than the Bill of Rights,” Justice William O. Douglas wrote in the majority opinion. “Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.”
Wednesday, May 20, 2015
An article by Jim Lindgren so argues.
How diverse are tenured and tenure-track law faculties? Which ethnic and gender groups are now the most under- and over-represented in law teaching compared to a very broad measure of the pool: English-fluent, full-time working lawyers of a similar age?
In “Measuring Diversity: Law Faculties in 1997 and 2013,” which can be downloaded from SSRN, I explore tenure-track law school diversity in 1997 and 2013. For the gender and ethnicity of law professors in 2013, I use data released by the ABA, representing the 2013-2014 academic year. For the lawyer population, I use data from the government’s 2011-2013 American Communities Surveys.
This study finds that diversity hiring in law schools has been a great success, at least as to ethnicity and gender. All large traditional affirmative-action groups in law teaching are now at or above parity with full-time lawyers, and such groups as women, minorities, and minority women are significantly over-represented in law teaching compared to working lawyers. Indeed, the only ethnic and gender groups that are more than a half slot short of parity on a typical tenure-track faculty of about forty are non-Hispanic whites, males, and non-Hispanic white males, the groups typically thought of as over-represented.
As we watch the news and observe our young men we notice many things. We note that they have struggled often to get where they are whether its a position on some NBA, NFL or MLB and of course those entertainers in the music industry all who are making decent money. We are often greeted with late evening or morning news reporting that ‘Big NBA Playa, was arrested for toting a gun'; ‘NFL charged with cruelty to dogs or domestic violence'; ‘MLB left fielder violated drug probation'; or ‘Hip Hop Mogul involved in scuffle at the Metropolitan involving a gun’. We see, hear read this sort of news all day everyday. Too many times we have shaken our heads or thrown up our hands in disgust thinking what’s wrong with these young people? We ask and we ponder, . . .they have million dollar contracts why do they do these things?
They are missing an understanding of decorum, etiquette and manners, knowing what’s appropriate when and what’s not from dress, to conversation as well as table manners. These necessary essentials will prove to be an asset to the young men’s future progress and success.
So 20 to 30 black males ages 12-18 will learn table etiquette as part of the agenda of Manhood Development Camp. The workshop will be facilitated by Nathan Wright President of Excel Etiquette. Nathan Wright is perfect for leading the workshop. His company is not only a full-service Etiquette and Cultural Enhancement Company but it offers a variety of etiquette and social/cultural programs and workshops for adults as well as.
This fabulous opportunity is offered free to young men who can benefit from such a workshop Saturday, May 16 – 9 to Noon held at Leo High School – 7901 S. Sangamon – Chicago, Auditorium. This is an invaluable asset that oftentimes can determine whether or not you get the job. Knowing your way around the table is most important. As a managerial and executive employee you may be called upon to attend, luncheons, dinners, galas, workshops etc., that require you to demonstrate your etiquette skills.
Not a bad idea, it seems to me.
The Monkey Cage has previously discussed an important article by Daniel Maliniak, Ryan Powers, and Barbara F. Walter, which presented evidence that international relations articles published in top journals written by women received fewer citations than equivalent articles written by men. The articleattracted a great deal of attention given its potential implications for the professional success of women in academia.
The journal that published the article (International Organization) has a data-sharing policy and helped make the data available for reanalysis. Results from my reanalysis published in Research & Politics indicate that the gender citation gap in international relations articles might be largely limited to articles that have collected a large number of citations.
The relevant graph:
Tuesday, May 19, 2015
Rona Kaufman Kitchen (Duquesne), Holistic Pregnancy: Rejecting the Theory of the Adversarial Mother, 26 Hastings Women's L.J. (2015).
From the abstract:
In its zealous effort to protect the lives and health of unborn children, the law frequently views the expecting mother with suspicion. In its most extreme form, the law regards the potential mother as a potential murderess. This perspective does not reflect the nature of pregnancy, it undermines the autonomy of loving mothers, and it is detrimental to children. Regardless of whether there is any conflict between mother and fetus, the State presumes the mother to be a threat to her fetus and subjugates her rights as a result. The State interferes with the mother’s autonomy, bodily integrity, parental rights, and physical freedom. This overreach of authority has disastrous consequences for mothers, children, and families. This article proposes a reconceptualization of pregnancy that reflects maternal and scientific understandings of pregnancy. Further, it offers a path toward recognition of the pregnant woman as an expecting mother.