Tuesday, September 19, 2017
Ben Trachtenberg, How University Title IX Enforcement and Other Discipline Processes (Probably) Discriminate Against Minority Students, 18 Nevada L. Rev. 2 (forthcoming 2018)
This Article argues that university discipline procedures likely discriminate against minority students and that increasingly muscular Title IX enforcement—launched with the best of intentions in response to real problems—almost certainly exacerbates yet another systemic barrier to racial justice and equal access to educational opportunities. Unlike elementary and secondary schools, universities do not keep publicly available data on the demographics of students subjected to institutional discipline, preventing evaluation of possible disparate racial impact. Further, several aspects of the university disciplinary apparatus—including broad and vague definitions of offenses, limited access to legal counsel, and irregular procedures—increase the risk that black students will suffer disproportionate suspensions and other punishment.
This Article brings needed attention to an understudied aspect of Title IX enforcement and raises concerns about the potential effects of implicit bias. While many commentators and courts have addressed whether university disciplinary procedures mistreat men—or, instead, even now provide inadequate protection for college women—few observers have discussed possible racial implications, which may explain (and be explained by) the current lack of data. Outside the context of sex-discrimination cases, university discipline procedures for quotidian matters such as plagiarism and alcohol abuse likely exhibit similar biases.
This article argues that the U.S. Department of Education should use its authority under Title VI of the Civil Rights Act to require that colleges and universities immediately begin collecting and publishing the sort of data already reported by elementary and secondary schools, thereby allowing observers to assess the scope of disparate impact in campus discipline processes.
The Senate appropriations bill, Senate Bill 1780, the "Department of State, Foreign Operations and Related Programs Appropriates Act, 2018," includes provisions for "gender equality," defined to include women's leadership, protection against violence and extremism, and for the Malala type efforts in Pakistan/Afghanistan and Boko Haram.
Sec. 7059. (a) Gender Equality.—Funds appropriated by this Act shall be made available to promote gender equality in United States Government diplomatic and development efforts by raising the status, increasing the participation, and protecting the rights of women and girls worldwide.
(b) Women’s Leadership.—Of the funds appropriated by title III of this Act, not less than $50,000,000 shall be made available to increase leadership opportunities for women in countries where women and girls suffer discrimination due to law, policy, or practice, by strengthening protections for women’s political status, expanding women’s participation in political parties and elections, and increasing women’s opportunities for leadership positions in the public and private sectors at the local, provincial, and national levels.
(1) (A) Of the funds appropriated by titles III and IV of this Act, not less than $150,000,000 shall be made available to implement a multi-year strategy to prevent and respond to gender-based violence in countries where it is common in conflict and non-conflict settings.
(B) Funds appropriated by titles III and IV of this Act that are available to train foreign police, judicial, and military personnel, including for international peacekeeping operations, shall address, where appropriate, prevention and response to gender-based violence and trafficking in persons, and shall promote the integration of women into the police and other security forces.
(2) Department of State and United States Agency for International Development gender programs shall incorporate coordinated efforts to combat a variety of forms of gender-based violence, including child marriage, rape, female genital cutting and mutilation, and domestic violence, among other forms of gender-based violence in conflict and non-conflict settings.
(d) Women, Peace, And Security.—Funds appropriated by this Act under the headings “Development Assistance”, “Economic Support Fund”, “Assistance for Europe, Eurasia and Central Asia”, and “International Narcotics Control and Law Enforcement” should be made available to support a multi-year strategy to expand, and improve coordination of, United States Government efforts to empower women as equal partners in conflict prevention, peace building, transitional processes, and reconstruction efforts in countries affected by conflict or in political transition, and to ensure the equitable provision of relief and recovery assistance to women and girls.
(1) ASSISTANCE.—Of the funds appropriated by this Act under the heading “Economic Support Fund”, not less than $19,000,000 shall be made available to support women and girls who are at risk from extremism and conflict, and for activities to—
(A) empower women and girls to counter extremism;
(B) address the needs of women and girls adversely impacted by extremism and conflict;
(C) document crimes committed by extremists against women and girls, and support investigations and prosecutions of such crimes, as appropriate;
(D) increase the participation and influence of women in formal and informal political processes and institutions at the local level and within traditional governing structures;
(E) support reconciliation programs between impacted minority, religious, and ethnic groups and the broader community;
(F) develop and implement legal reforms and protections for women and girls at the national and local government levels; and
(G) create and sustain networks for women and girls to collectively safeguard their rights on a regional basis.
(A) are in addition to amounts otherwise available by this Act for such purposes; and
(B) shall be made available following consultation with, and subject to the regular notification procedures of, the Committees on Appropriations.
(f) Coordination.—Funds made available for the purposes of this section shall be administered in coordination with the Ambassador-at-Large for Global Women’s Issues, Department of State, and the Senior Coordinator for Gender Equality and Women’s Empowerment, USAID.
And see Sec. 7042
(1) shall be made available for assistance for women and girls who are targeted by the terrorist organization Boko Haram, consistent with the provisions of section 7059 of this Act, and for individuals displaced by Boko Haram violence; and
(2) may be made available for counterterrorism programs to combat Boko Haram.
Friday, September 15, 2017
by Congresswoman Yvette D. Clarke who represents New York’s Ninth Congressional District in Congress. She has served in Congress since 2007 and is co-chair of the Congressional Caucus on Black Women & Girls.
September 14th marks what would have been Constance Baker Motley’s 96th birthday. In 1966, Judge Motley became the first Black woman to serve as a federal judge. Yet, fifty years later, Black women are still heavily underrepresented at nearly all levels of the legal profession. While Black women are also underrepresented in the arts, sciences, media, and numerous other industries, our underrepresentation in the legal profession is particularly troubling, given its unique role in protecting the rights of those who lack the knowledge or resources to protect their constitutional rights.
The history of Black female attorneys in the United States really begins with Charlotte E. Ray. On March 2nd, 1872 Ms. Ray became the first Black woman to serve as a licensed attorney in the United States. Charlotte E. Ray was born in my home state of New York in 1850 at a time when slavery still existed and even freed Black women were taught that the measure of their success was their ability to care for the men in their lives. Not willing to accept this narrow definition of purpose, Ms. Ray hid her gender in order to gain acceptance to Howard Law School. She worked twice as hard as her male colleagues to graduate Phi Beta Kappa and was admitted to the District of Columbia Bar that same year. This made Ms. Ray only the third licensed female attorney in the United States. Ms. Ray was also a dedicated social advocate and served as a delegate to the 1876 Conference of the National Woman’s Suffrage Association.
While Charlotte E. Ray laid the foundation for Black women to serve as attorneys in the United States, it took nearly fifty years until a Black woman gained admission to the highest bar in the nation. This occurred on January 29, 1926 with the admission of Violette Neatley Anderson to the Bar of the Supreme Court of the United States. Ms. Anderson had served as a court reporter for fifteen years before attending the Chicago Law School. Like Charlotte E. Ray, Violette Neatley Anderson was deeply involved in her community and recognized the need for women of color to help each other overcome the unique barriers that stood in their way.
Yet, the tide of progress remained slow for Black women in the law. It took until January 25, 1966 until Constance Baker Motley was nominated to serve as a federal judge on the U.S. District Court for the Southern District of New York. By this point, Ms. Motley was already a towering figure in the law. Born in New York to parents from the Caribbean, Ms. Motley joined the NAACP’s Legal Defense and Education Fund soon after graduating from Columbia Law School. At LDF, Ms. Motley helped draft the original complaint in Brown v. Board of Education and became the first Black woman to argue a case before the Supreme Court, ultimately winning nine of the ten cases that she argued before that body.
More than fifty years after Constance Baker Motley became the first Black woman to serve as a federal judge, Black women are still grossly underrepresented at nearly all levels of the legal profession. Despite comprising more than 6.6 percent of the US population, Black women accounted for less than 5 percent of full time law school graduates for the 2014 and 2015 academic years. A January 2017 NALP report similarly found that Black women only accounted for 2.32 percent of associates at major law firms and a paltry 0.64 percent of partners.
Of the 578 active district court judges in the United States, 6.4 percent (37) are Black women. While this is roughly proportionate to our share of the U.S. population, 65 percent (24) of these district court judges were nominated within the past few years by President Obama. Unsurprisingly, Black female representation drops precipitously on the circuit courts. Of the 160 active circuit court judges, only 4.4 percent(7) are Black women. Two of those judges, representing 29 percent of the total figure, were appointed by President Obama. We need not even proceed to the highest court in the land, since it is well known that no Black woman has ever served on the Supreme Court
Google is being sued for gender pay discrimination, turning up the heat on the Internet giant already facing allegations it shortchanges women.
Three female former Google employees are seeking class-action status for the complaint filed Thursday in San Francisco Superior Court.
The lawsuit comes as the Labor Department investigates systemic pay discrimination at Google. Google says its own analysis found no pay gap.
In a statement to USA TODAY, Google said it would review the lawsuit but disagreed with "the central allegations."
The lawsuit is being brought by three women — Kelly Ellis, Holly Pease and Kelli Wisuri — who say they quit Google after being placed at lower job levels, resulting in lower pay and denying them promotions and moves to other teams that would advance their careers.
The plaintiffs allege women at all levels of Google are paid less than men and that women are assigned to lower job tiers with less opportunity for upward mobility.
“Women should have the same opportunities as men, and receive equal pay for substantially similar work,” Wisuri said in a statement. ***
Google spokeswoman Gina Scigliano said job levels and promotions are determined "through rigorous hiring and promotion committees, and must pass multiple levels of review, including checks to make sure there is no gender bias in these decisions."
Wednesday, September 13, 2017
I have just published the edited collection, Women and the Law (Thomson Reuters 2017 ed.). This annual reference book collects the leading scholarship in the field of women and law from the prior year -- kind of a "greatest hits" of law review scholarship on litigated topics in this field.
This year's articles:
A. Violence Against Women: The Campus Sexual Assault Debate
Corey Rayburn Yung, Is Relying on Title IX a Mistake?, 64 Kan. L. Rev. 891 (2016)
Jacob Gersen & Jeannie Suk, The Sex Bureucracy, 104 Cal. Law Rev. 881 (2016)
Deborah L. Brake, The Trouble with "Bureaucracy", 7 Cal. L. Rev. Online 66 (2016)
Suzanne B. Goldberg, Is There Really a Sex Bureaucracy?, 7 Cal. L. Rev. Online 107 (2016)
Nancy Chi Cantalupo, For the Title IX Civil Rights Movement: Congratulations and Cautions, 125 Yale L.J. Forum 281 (2016)
Katharine K. Baker, Campus Sexual Misconduct as Sexual Harassment: A Defense of the DOE, 64 Kan. L. Rev. 861 (2016)
Sarah L. Swan, Between Title IX and the Criminal Law: Bringing Tort Law to the Campus Sexual Assault Debate, 64 Kan. L. Rev. 963 (2016)
Aya Gruber, Consent Confusion, 38 Cardozo L. Rev. 415 (2016)
Eric R. Carpenter, Patriarchy, not Hierarchy: Rethinking the Effect of Cultural Attitudes in Acquaintance Rape Cases, 68 Hastings L.J. 225 (2017)
B. Gendered Immigration
Joanna J. Kallinosis, Refugee Roulette: A Comparative analysis of Gender-Related Persecution in Asylum Law, 6 DePaul J. Women, Gender & L. 55 (2017)
Blaine Bookey, Gender-Based Asylum Post-Matter of ARCG: Evolving Standards and Fair Application of the Law, 22 Southwestern J. Int'l Law 1 (2016)
C. Reproductive Rights
Linda Greenhouse & Reva Siegel, The Difference a Whole Woman Makes: Protection for the Abortion Right After Whole Woman's Health, 126 Yale L.J. Forum 149 (2016)
Saru M. Matambanadzo, Reconstructing Pregnancy, 69 SMU L. Rev. 187 (2016)
D. Women in the Workplace
Joanna L. Grossman, Moving Forward, Looking Back: A Retrospective on Sexual Harassment Law, 95 B.U. L. Rev. 1029 (2015)
Deborah Brake, The Shifting Sands of Employment Discrimination: From Unjustified Impact to Disparate Treatment in Pregnancy and Pay, 105 Georgetown L.J. 559 (2017)
Jennifer Bennett Shinall, The Substantially Impaired Sex: Uncovering the Gendered Nature of Disability Discrimination, 101 Minnesota L. Rev. 1099 (2017)
E. Feminist Legal Theory
Tracy A. Thomas, Reconsidering the Remedy of Gender Quotas, Harvard J. Law & Gender Online (Nov. 2016)
Stephanie Bornstein, Unifying the Antidiscrimination Law Through Stereotype Theory, 20 Lewis & Clark L. Rev. 919 (2016)
Jamie R. Abrams, Debunking the Myth of Universal Male Privilege, 49 U. Mich. J. L. Reform 303 (2016)
Deborah Tuerkheimer, Underenforcement as Unequal Protection, 57 Boston College L. Rev. 1287 (2016)
For the list of articles from the 2016 editions of Women and the Law, see here.:
Government attorneys on Tuesday asked the Ohio Supreme Court to override lower court rulings and uphold the state Health Department’s order to shut down Toledo’s last abortion clinic.
A lawyer for the clinic told the court that the state is trying to prevent women in northwestern Ohio from seeking legal abortions and is putting them at greater risk.
The case involves one of several restrictions Ohio lawmakers have placed on abortion clinics in recent years.
The Ohio Department of Health issued an order in 2014 to close Capital Care of Toledo because the clinic didn’t have a patient-transfer agreement with a local hospital.
Such agreements were mandated, and public hospitals barred from providing them, under restrictions Ohio lawmakers passed in 2013. The University of Toledo Hospital, which is public, withdrew from its transfer arrangement with Capital Care after the law passed.
The clinic sued and won in the lower courts, which ruled the restrictions were unconstitutional. Judges have allowed the clinic to continue operating as the legal dispute carries on.
Abortion-rights groups contend the transfer agreements and other restrictions not at issue in the case are medically unnecessary. They also say the city of 275,000 residents would be the first major city in Ohio without access to abortion services.
Chief Justice Maureen O’Connor on Tuesday asked about alternatives women would have if the Toledo clinic closes.
The state’s attorney, Stephen Carney, said the closest options would be Detroit and Ann Arbor, Mich. — both about an hour’s drive from Toledo.
“Certainly we are not telling women, ‘You can’t have an abortion in Ohio, but you can go to Michigan’?” Justice William O’Neill asked.
Jennifer Branch, an attorney representing Capital Care, said women seeking an abortion would have to make more than one trip, adding up to several hundred miles.
“The danger to those women from an unlawful abortion would be health risks,” she said. “They could bleed. They could have an infection.”
Branch also argued that transfer agreements are unnecessary.
“They could call 911 if they needed to, there is nothing to prohibit that,” she told justices. “No one ever asks if there is a written transfer agreement.”
O’Connor asked, “Are there any other (ambulatory surgical centers) precluded from contracting or entering into a (written transfer agreement) with hospitals, any hospital public or private?”
Branch replied: “No, your honor, only abortion clinics.”
Taunya Lovell Banks, President Obama and the Supremes: Obama's Legacy -- The Rise of Women's Voices on the Court, (forthcoming), Drake Law Rev. (forthcoming)
For approximately two hundred years, all of the United States Supreme Court justices were male. Now there are three women on the Court, two appointed during the administration of President Barack Obama. With the appointment of Justices Sotomayor and Kagan to the Court, women’s voices literally are more prominent, especially during oral argument. This article speculates on whether the presence of these three women on the Court will influence the substance of decisions. It asks whether we are witnessing the emergence of a definable “women’s” voice, in the collective sense, or whether there is simply a greater representation of women on the Court; women justices, who like their male counterparts, sometimes agree and sometimes do not. In addition, this article asks whether the reaction of some commentators, and male justices, to the increased participation of women justices during oral argument suggests implicit gender bias, another possible by-product of President Obama’s legacy.
Tuesday, September 12, 2017
Congress enacted the Pregnancy Discrimination Act of 1978 which amended Title VII of the Civil Rights Act of 1964 and made it unlawful sex discrimination for an employer to discriminate on the basis of pregnancy, childbirth, or any related medical conditions.
However, there is currently little case law on whether or not a male can bring a claim of employment discrimination under the Pregnancy Discrimination Act, based solely on his wife’s pregnancy.
At what point, if at all, is it considered employment discrimination when an expecting father or partner is denied particular benefits or is subjected to adverse employment actions that an expecting mother may not be?
Fired for Accompanying His Pregnant Wife to a Doctor’s Appointment
In a recent tragic case, a Mississippi man committed suicide after he was fired for taking a day off to accompany his wife, who had been diagnosed with a high-risk pregnancy, to a pregnancy-related appointment.
His estate filed a complaint against his employer alleging that he was fired because of his sex and his wife’s pregnancy. Estate of Pennington v. Southern Motion, Inc., 2017 BL 313057 (N.D. Miss. Sept. 06, 2017).
Pregnancy Discrimination Must Be Based on Sex
The court turned to precedent and found that the only two cases to address this issue, Nicol v. Imagematrix, Inc., 773 F. Supp. 802, 56 FEP Cases 1533 (E.D. Va. 1991) and Griffin v. Sisters of Saint Francis, Inc., 489 F.3d 838, 100 FEP Cases 1416 (7th Cir., 2007), held that in order for a male to properly bring an employment discrimination claim based on pregnancy, he must allege that he was discriminated against because of his sex.
What makes this case unique compared to most sex discrimination cases is that the estate did not allege that the male frame builder was treated less favorably than female frame builders. Instead, it argued that he was “treated less favorably than male employees whose wives were not pregnant.” It unsuccessfully attempted to bring an associational claim, which depends on unlawful discriminatory hostility arising out of a relationship.
Two-Step Associational Discrimination Claim
The court found that the estate couldn’t bring its claim because a successful associational claim of sex discrimination in this case must be based on two arguments. It must allege 1) that the male was fired because of his partner’s pregnancy, and 2) that a female would not have been fired because of her partner’s pregnancy.
In other words, the discrimination in this case must be based on the male’s relationship with his pregnant wife and it must be based on the male’s sex, which the estate didn’t allege.
Although the court found that the man’s estate couldn’t go forward with its complaint, it will be allowed to refile an amended complaint to fully plead the associational claim against the employer.
Isn't this a Family Medical Leave Act claim? Of retaliation for caring for a sick/pregnant family member? Unless the FMLA didn't apply because he worked for a small employer.
Friederike Mengel, Jan Sauermann, Ulf Zolitz, Gender Bias in Teaching Evaluations
This paper provides new evidence on gender bias in teaching evaluations. We exploit
a quasi-experimental dataset of 19,952 student evaluations of university faculty [in the Netherlands] in a context where students are randomly allocated to female or male instructors. Despite the fact that neither students’ grades nor self-study hours are affected by the instructor’s gender, we find that women receive systematically lower teaching evaluations than their male colleagues. This bias is driven by male students’ evaluations, is larger for mathematical courses and particularly pronounced for junior women. The gender bias in teaching evaluations we document may have direct as well as indirect effects on the career progression of women by affecting junior women’s confidence and through the reallocation of instructor resources away from research and towards teaching.
From the paper:
Our results show that female faculty receive systematically lower teaching evaluations than their male colleagues despite the fact that neither students’ current or future grades nor their study hours are affected by the gender of the instructor. The lower teaching evaluations of female faculty stem mostly from male students, who evaluate their female instructors 21% of a standard deviation worse than their male instructors. While female students were found to rate female instructors about 8% of a standard deviation lower than male instructors.
When testing whether results differ by seniority, we find the effects to be driven by junior instructors, particularly PhD students, who receive 28% of a standard deviation lower teaching evaluations than their male colleagues. Interestingly, we do not observe this gender bias for more senior female instructors like lecturers or professors. We do find, however, that the gender bias is substantially larger for courses with math-related content. Within each of these subgroups, we confirm that the bias cannot be explained by objective differences in grades or student effort. Furthermore, we find that the gender bias is independent of whether the majority of instructors within a course is female or male. Importantly, this suggests that the bias works against female instructors in general and not only against minority faculty in gender-incongruent areas, e.g., teaching in more math intensive courses.
The gender bias against women is not only present in evaluation questions relating to the individual instructor, but also when students are asked to evaluate learning materials, such as text books, research articles and the online learning platform. Strikingly, despite the fact that learning materials are identical for all students within a course and are independent of the gender of the section instructor, male students evaluate these worse when their instructor is female. One possible mechanism to explain this spillover effect is that students anchor their response to material-related questions based on their previous responses to instructor-related questions.
Armie Hammer will start opposite Felicity Jones in On the Basis of Sex, the biopic of renowned Supreme Court Justice Ruth Bader Ginsburg.
Participant Media is behind the drama, which will be directed by Mimi Leder from a script by Daniel Stiepleman, who is also Ginsburg’s nephew.Sex focuses on Ginsburg, played by Jones, as she teams up with her husband, Marty Ginsburg (Hammer) to bring the first landmark gender discrimination case before the Supreme Court.
The movie is eyeing a fall shoot in Montreal.
The feature is slated for release in 2018, in line with Ginsburg's 25th anniversary as a Supreme Court Justice. Focus Features is distributing domestically.
Felicity Jones is set to star as Ruth Bader Ginsburg in a biopic about the Supreme Court justice's life.
On the Basis of Sex will be directed by Mimi Leder (The Leftovers, Shameless) and follows Ginsburg as she fights for equal rights throughout her entire law career, which began at Harvard University and Columbia Law School and led to Washington.
At one time, Natalie Portman was considered to play Ginsburg in the feature, which was written by Daniel Stiepleman and was placed on the 2014 Black List.
Monday, September 11, 2017
Patrick Dorrian, Breast-Feeding Alabama Police Officer Proved Sex, Leave Bias
An Alabama police officer was within her rights to quit when she was denied a desk job so she wouldn’t have to wear a ballistic vest that may have rendered her unable to breast-feed, a federal appeals court ruled.
Stephanie Hicks can keep her jury win on her constructive discharge claim because lactation is a medical condition related to pregnancy under federal sex discrimination law, the U.S. Court of Appeals for the Eleventh Circuit held on an issue of first impression for the court ( Hicks v. City of Tuscaloosa , 2017 BL 314674, 11th Cir., No. 16-13003, 9/7/17 ). Hicks is a former employee of the Tuscaloosa Police Department.
The Sept. 7 ruling is “very significant” because with it the Atlanta-based Eleventh Circuit became the second federal appeals court to recognize that “breastfeeding is covered under Title VII” of the 1964 Civil Rights Act, Galen L. Sherwin said Sept. 8. The New Orleans-based Fifth Circuit previously reached the same conclusion in 2013, she said.
Sherwin is a senior staff attorney with the American Civil Liberties Union’s Women’s Rights Project, which supported Hicks as an amicus in the case. The New York-based lawyer said the Eleventh Circuit’s holding is also novel in two other important ways.
The court recognized that employers may be required to provide work accommodations to breast-feeding employees if they provide such accommodations to similarly situated non-breast-feeding workers, she told Bloomberg BNA. In other words, employers must treat accommodation requests from breast-feeding or lactating workers on the same terms as they treat other similar accommodation requests.
“We must do better because the current approach isn’t working,” she said.
Christina Hoff Sommers, Protecting Due Process in Sexual Assault Cases on Campus, Chronicle of Higher Ed.
used to wonder what was worse: Republican politicians ignoring women’s issues or Republican politicians talking about them. The recent speech by Secretary of Education Betsy DeVos is a welcome exception: Her address on the need to reform campus sexual-assault procedures was empathetic and judicious. She offered a way forward that should appeal to fair-minded people across political and cultural divides.
"One rape is one too many," she said. But, she added, "One person denied due process is one too many."
She acknowledged the suffering of both victims of sexual assault and those falsely accused of assault: "Every survivor of sexual misconduct must be taken seriously. Every student accused of sexual misconduct must know that guilt is not predetermined." Those are non-negotiable principles, and she promised to revamp the current system for adjudicating cases of campus sexual assault, which she called "broken."
That broken system was created by a letter from a little-known public official. No one in the House or Senate voted for it, and no judge reviewed it. The public was not notified in advance and did not discuss it before it was issued. On April 4, 2011, Assistant Secretary of Education Russlyn Ali sent out her now-famous "Dear Colleague" letter to colleges across the country.
The letter advised them to determine guilt in sexual-assault cases by the lowest standard possible — a preponderance of evidence — and to "minimize the burden on the complainant." It said nothing about the rights of the accused. Informal measures for resolving "he said, she said" confrontations were ruled out of order. "In cases involving sexual assault," Ali instructed, "mediation is not appropriate even on a voluntary basis."
Ali thought college administrators were doing too little to protect students from the reported epidemic of sexual violence and harassment on campus. I have argued elsewhere that these reports were exaggerated, and that most college officials did take the problem seriously, but I don’t question her sincerity. I do question her judgment and her right to regulate by fiat. Secretary DeVos was right to say, "Instead of working with schools on behalf of students, the prior administration weaponized the Office for Civil Rights to work against schools and against students."
Colleges were panicked by Assistant Secretary Ali’s "Dear Colleague" letter and rushed to meet the new requirements. They revamped their disciplinary committees and hired Title IX officers to run programs with titles like the Office for Sexual and Gender-Based Dispute Resolution. According to Emily Yoffe, Harvard has 55 full- and part-time Title IX coordinators. Princeton has 41.
Fearing Title IX investigations and loss of federal funding, many colleges set up extrajudicial sex courts, where defendants could be found guilty of a crime even if there was a 49.9 percent chance that they were innocent. At last count, more than 150 lawsuits have been filed since 2011 by students (mostly young men) alleging unfair treatment in a campus sexual-assault proceeding.
See also, prior post, Harvard Law Profs Call for DOE to Revise Title IX Campus Assault Policy
Friday, September 8, 2017
9th Circuit Grants En Banc Review for Decision Permitting Women to be Paid Less Than Men Due to Salary History
The full 9th U.S. Circuit Court of Appeals will revisit a panel’s ruling that men may be paid more than women based on salary histories, Law.com reported Thursday.
In April, a three-judge panel of the San Francisco-based court ruled (PDF) that the Equal Pay Act does not forbid employers from paying a woman less than a man for the same work if the man had made more money in a prior job and the employer had used that as a factor in setting salaries.
But the U.S. Equal Employment Opportunity Commission appealed that ruling, saying it created a split from other federal appeals courts and would perpetuate the gender pay gap. (The American Association of University Women says women make, on average, 80 percent of what men make for the same work.) The 9th Circuit granted that request and has scheduled oral arguments for early December.
The case was brought by Aileen Rizo, a math consultant for a school district in Fresno County, California. Rizo came to the district from a teaching position in Arizona, where she had earned nearly $10,000 less than the $62,733 Fresno County agreed to pay her.
But then she spoke to her colleagues, who said a newly hired man in the same job was being paid $79,000 a year. She later learned that all of her male colleagues earned more than she did. Rizo complained to human resources, but the county took no action. In court, it argued that Rizo’s salary would have been the same for a man who came from the same job, because it was determined by a policy that adds 5 percent to the candidate’s prior salary to determine starting pay.
Under the Equal Pay Act, employers may pay employees unequally if the unequal treatment is based on a factor other than sex, including seniority. The panel’s ruling had cited a 1982 ruling, also from the 9th Circuit, saying prior salary can be a factor other than sex if the employer can show that its policy “effectuate[s] some business policy” and was implemented reasonably in light of its stated purpose.
The panel had remanded the case to trial court, so it could investigate the business purpose for Fresno County’s salary policies.
For prior posts on this case, see:
Sandara Sperino & Suja Thomas, Unequal: How America's Courts Undermine Discrimination Law (Oxford Press)
It is no secret that since the 1980s, American workers have lost power vis-à-vis employers through the well-chronicled steep decline in private sector unionization. American workers have also lost power in other ways. Those alleging employment discrimination have fared increasingly poorly in the courts. In recent years, judges have dismissed scores of cases in which workers presented evidence that supervisors referred to them using racial or gender slurs. In one federal district court, judges dismissed more than 80 percent of the race discrimination cases filed over a year. And when juries return verdicts in favor of employees, judges often second guess those verdicts, finding ways to nullify the jury's verdict and rule in favor of the employer.
Most Americans assume that that an employee alleging workplace discrimination faces the same legal system as other litigants. After all, we do not usually think that legal rules vary depending upon the type of claim brought. The employment law scholars Sandra A. Sperino and Suja A. Thomas show in Unequal that our assumptions are wrong. Over the course of the last half century, employment discrimination claims have come to operate in a fundamentally different legal system than other claims. It is in many respects a parallel universe, one in which the legal system systematically favors employers over employees. A host of procedural, evidentiary, and substantive mechanisms serve as barriers for employees, making it extremely difficult for them to access the courts. Moreover, these mechanisms make it fairly easy for judges to dismiss a case prior to trial. Americans are unaware of how the system operates partly because they think that race and gender discrimination are in the process of fading away. But such discrimination still happens in the workplace, and workers now have little recourse to fight it legally. By tracing the modern history of employment discrimination, Sperino and Thomas provide an authoritative account of how our legal system evolved into an institution that is inherently biased against workers making rights claims.
Here are the presentations on gender and law and the upcoming annual conference of the American Society of Legal History. The full preliminary program is here.
Lauren Thompson, Kennesaw State University, “Not for Physicians to Decide”: Medicine, Law, and Mary Ware Dennett in the Early Birth Control Movement
Cookie Woolner, University of Memphis, “Framing Women in Harlem”: Regulating Black Women’s Sexuality in the Prohibition Underworld
Katherine Luongo, Northeastern University, Mens Rea as a Cultural Matter: Adjudicating Witch-Killings in Nigeria and Tanzania
Stephanie Jones-Rogers, University of California, Berkeley, Women, American Slavery, and the Law
Luisa Stella de Oliveira Coutinho Silva, Universidade de Lisboa, Women in Colonial Paraíba: A Feminist Postcolonial Study of Brazilian Legal History, 1580s–1822
Hannah Francis, Rice University, The Impact of American Law on Free Women of Color in Nineteenth Century New Orleans
Jeffrey Gonda, Syracuse University, “All the Feeling of Being a Lady Had Been Crushed”: Black Women and Jim Crow Transportation in the 1940s
Roundtable: Making Reproductive Rights Law from Griswold to Whole Woman’s Health
Chair: Kate Shaw, Cardozo Law School
Reva Siegel & Linda Greenhouse, Yale Law School, The Story of Roe v. Wade
Serena Mayeri, University of Pennsylvania, The Story of Planned Parenthood v. Casey
Cary Franklin, Yale Law School, The Story of Whole Woman’s Health v. Hellerstedt
Khiara Bridges, Boston University School of Law, The Story of Harris v. McRae
Thursday, September 7, 2017
Nancy Leong & Emily Bartlett, Sex Segregation in Sports as a Public Health Issue
This Article adds a critical yet previously unaddressed dimension to the growing debate about the merits of sex segregation in sports by approaching sex segregation in sports as a public health issue. Participation in sports has consequences for women’s health, ranging from physical fitness to disease prevention to self-esteem to mental wellness to eating disorders. Critically, sex segregation in sports both reduces women’s participation in sports and changes the nature of the sports in which women participate, both of which have implications for the myriad health issues we discuss. The Article argues that analysis under the Equal Protection clause of governmentally-imposed sex-segregation must incorporate these consequences. Even where the government has plausible reasons for segregating sports by sex, those reasons may not be sufficient to survive intermediate scrutiny when the health issues are taken into account. The Article does not argue that sports should never be segregated by sex. Rather, it argues that the correct analysis must take into account all the relevant considerations, including those affecting health.
See also a prior post The Case Against Segregated Women's Sports
Paola Monaco & Angelo Venchiarutti, Women on Corporate Boards: An Appraisal of Italian Law, European Business Law Review (forthcoming).
Both within and outside Europe, the number of women sitting on corporate boards is very low. In spite of the rising number of women earning post-graduate degrees in law, business and administration, only a minority of them ends up sitting on companies’ corporate boards. Against this context, the aim of this article is to study the Italian approach to this problem, and to set it against the framework of the solutions adopted in Europe. The articles starts by analyzing the initiatives carried out by the European Union with the goal of promoting equal treatment between genders on corporate boards. After the survey of the soft and hard measures undertaken by some European countries to tackle gender imbalance on boards, the paper will analyze the legislative reform recently adopted by the Italian Parliament. The conclusion will focus on the effectiveness of European positive actions to tackle gender inequality in corporate boards.
Lucia Martelotte, 25 Years of Quota Laws in Latin America
In the last two decades, the majority of Latin American countries approved quota laws with the goal of reducing gender inequalities in the political arena and guaranteeing the effective fulfilment of women's political rights. The functioning and effectiveness of these mechanisms vary according to the design of the regulations and their linkages to the electoral system. In spite of advances, important challenges remain. In light of this, the debate on the political participation of women has evolved from quotas to parity. However, the discussion must not be approached from a purely numeric perspective or restricted to the public sphere; other dimensions of women's autonomy (physical and economic) must be taken into account. It is only once the conditions necessary for women to exercise their full autonomy are in place that achieving gender parity in democracy will be possible.
Wednesday, September 6, 2017
My book podcast for the New Books Network is now live. Check it out here at Thomas on Elizabeth Cady Stanton & the Feminist Foundations of Family Law
For past blogging about the book, chapter by chapter, see:
Chiara Capraro, Women's Rights and Fiscal Justice
This article makes the case for tax policy to be considered from a human rights perspective. In a context of increasing economic inequality and austerity programmes cutting back on services and social protection measures, it is critical for human rights advocates to take up tax as an issue for the full realisation of human rights. In particular, given the gendered consequences of lack of funding to realise human rights, tax policy is of particular importance to women's rights advocates and feminists globally. Whether it is the impact of indirect taxes on women’s income, how tax policy influences labour market participation for women or the consequences for women’s rights of large scale corporate tax dodging, our advocacy would benefit from a deeper understanding of tax as human rights issue.