Gender and the Law Prof Blog

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

Tuesday, May 23, 2017

EEOC Seeks Rehearing En Banc in 9th Cir Decision Finding Unequal Pay Based on Salary History Alone is not Gender Discrimination

The EEOC has petitioned for rehearing en banc in the 9th Circuit's decision in Rizo v. Yovino (Apr. 27, 2017) holding that pay a woman less than men doing the same job because of their different salary histories was not gender discrimination.

Some of the highlights of the petition:

  • The Commission, along with two circuit courts, takes the position that prior pay cannot be the sole factor causing the disparity because the practice perpetuates the gender pay gap that continues to exist nationally, in the field of education and elsewhere.
  • A practice like the County’s undermines the purposes of the EPA because it institutionalizes the gender pay gap that studies confirm continues to exist and relies on the largely discredited market forces theory, which endorses paying women less than men because they will agree to work for less.
  • The Tenth and Eleventh Circuits have held categorically that while there is no prohibition against relying on multiple factors including prior pay, prior pay alone cannot be considered a “factor other than sex” within the meaning of the EPA. See, e.g., Riser v. QEP Energy, 776 F.3d 1191, 1199 (10th Cir. 2015) (citing Angove, 70 F. App’x at 508); Irby, 44 F.3d at 955 (stating that “prior salary alone cannot justify pay disparity”). They reason that “if prior salary alone were a justification, the exception would swallow up the rule and inequality in pay among genders would be perpetuated.” Irby, 44 F.3d at 955.
  • Courts similarly reject the related “market forces theory,” discredited by Corning Glass (417 U.S. at 205) — that an employer must offer more money to male applicants because they will not accept less but, conversely, may offer less money to female applicants because they will accept less. The Eleventh Circuit explained, “[T]he argument that supply and demand dictates that women qua women may be paid less is exactly the kind of evil that the [Equal Pay] Act was designed to eliminate, and has been rejected.”
  • We recognize that even if this Court adopts the rule from the Tenth and Eleventh Circuits, it will not entirely eliminate the circuit conflict. The Seventh Circuit takes the position that “prior wages are a ‘factor other than sex.’” Wernsing v. Ill. Dep’t of Human Servs., 427 F.3d 466, 468 (7th Cir. 2005) (citation omitted).

For a prior blog post about the Rizo decision, see Court Holds Salary Histories are Non-discriminatory Basis to Pay Women Less

For some of my additional thoughts on the case, see Erin Mulvaney, EEOC Fights Ninth Circuit Ruling That Institutionalizes Gender Pay Gap, Natl. L. J. (May 23, 2017) 

Two important points to keep in mind are:

  1.  How salary histories can be gendered:  Historically women have been paid less than men because they could be.  "Market forces" allowed employers to pay women less because women were willing to take jobs for less than men, usually because women had less options and less bargaining power.  Women were also paid less because they were assumed to be working for "pin money," extra spending money rather than being a primary breadwinner or supporter of a family.  It was also assumed that women were primarily dedicated to their families and children, and thus work was secondary, and family needs might interfere with dedication to work, thus justifying the lower pay.  And, most obviously, if a woman was discriminated in a past job, that discrimination is perpetuated forwarded if it is continued to be used as a marker for future salaries.  These are all workings of structural or systemic gender discrimination beyond any individual animus.                                                                                                                            
  2.  There are easy non-gendered workarounds:  As the EEOC points out, just base salary on the relevant factors, sometimes reflected in salary history and sometimes not in cases of discrimination.  Consider the factors directly of work experience, number of years of experience, and education and degrees.     

 

May 23, 2017 in Equal Employment, Workplace | Permalink | Comments (0)

Thursday, May 18, 2017

Gender Policy Report Online Platform to Analyze New Proposed Government Policies

The Humphrey School of Public Affairs at the University of Minnesota has created an online platform called The Gender Policy Report that will analyze the policies that will be proposed by the US federal government in this new administration through the lens of gender.  

The goal is to be non-partisan and to consider how new policies may affect the welfare of women, gender, and sexual minorities in the US and around the world. 

The GPR platform seeks collaborators and submissions.  

Here is the CFP. 

 

The Gender Policy Report

 

The Gender Policy Report (GPR) is a non-partisan, multidisciplinary effort to produce and disseminate timely, gender-focused analyses of emerging policy proposals and developments. GPR contributions will clarify the gendered bases of policy practices and conflicts. They will offer diverse public audiences informed perspectives on how policies matter for gender justice and constructions of gender itself. Working across varied media platforms, the GPR will seek to inform policy debates and improve public discourse. Our mission is to take the best insights from gender scholarship and research and make them accessible to broader communities in a way that is timely for addressing serious policy challenges.

The Violence Area of the GPR seeks to make visible the high prevalence of violence that occurs inside and outside of family contexts against women and sexual and gender minorities: intimate partner violence, harassment, rape and sexual assault, trafficking and female genital cutting. The GPR also seeks to explore the mechanisms that can explain the behaviors and available policy interventions. For instance, contributions might explore economic interventions that may give women subjected to intimate partner violence leverage to leave abusive relationships, or may explore the existing debates on the effectiveness of mediation in cases of intimate partner violence. Other lines of contribution may be current evidence on the relationships between and policies on child maltreatment and partner violence; or policies that are in place or should be in place to address violence in the workplace; or a comparison on the treatment of sexual assault on campus between Title IX and the criminal justice system. We welcome pieces that explore how violence and gender work intersectionally to affect more vulnerable communities and what policies may alleviate these disparities. Contributions to the area might offer comparisons with international cases and policies or how US policies may affect policies in an international context.

Call for Collaborators: We are actively seeking Research and Advocacy Collaborators to join the work of the Violence area and shape its trajectory going forward. We encourage potential collaborators to set their own pace, and we expect a lot of variation in terms of individual involvement. Please contact us at the email addresses below if you are interested.

Call for Submissions: The violence justice area of the GPR will seek to publish original content at least twice per month. We are eager to receive submissions and proposals from diverse perspectives across a broad spectrum of relevant issues. We are also committed to publishing work in a wide range of formats and communications styles.

Examples of Content include but are not limited to:

  • Policy Analysis Blog Posts (500-1200 words): Short essays that weigh in on current policy, evidence on this policy and how policy proposals may affect the tools people from diverse and different communities have to respond to being victims of gender-based violence. Ideally, the essay would clarify gender implications of a policy that otherwise may not be evident.
  • Research Summary Blogs (500-1200 words): Accessible, engaging summaries or reviews of existing research on gender-based violence. This public-friendly translation of a recent research article or book might use current debates in the field (i.e. to use mediation or not in cases of intimate partner violence) as a “hook.”
  • Data posts on Policy that relates to issues of Violence (3-4 figures with explanatory text): Posts that focus on drawing attention to illuminating data visualizations in the form of charts, graphs, etc. Contributors would provide a short written introduction and a few lines to help readers interpret each data visual. Examples include prevalence rates of sexual assault on campus versus the wider community and intimate partner violence prevalence rates by race, ethnicity, gender and sexual orientation.
  • Multimedia Contributions: Video presentations, powerpoint slide decks, audio podcasts, recordings of panel discussions…You name it, we’re interested. Send us your ideas and teach us some new tricks!

We hope you'll join us in this exciting and timely new project. If you have any questions about the violence area of the GPR, would like to become a Research Collaborator, or have ideas for contributing content, please contact via e-mail.

Greta Friedemann-Sánchez gfs@umn.edu

Leigh Goodmark  lgoodmark@law.umaryland.edu  

May 18, 2017 in Call for Papers, Gender | Permalink | Comments (0)

New Women Law School Deans

Updated May 18, 2017

For awhile, it looked like the appointments of new law deans this year was trending women.  For my thoughts as to possible explanations for this trend, see my quoted comments in Karen Sloan, If It's a New Law Dean, It's Likely a Woman.  

However, now as we near the end of the 2017 hiring season, it seems that the trend is less to a gender preference, and more to equality of appointment.   

To date in 2017, 14 of 25 (56%) new deans are women. Two are women of color.  

In 2015, 46% of new law dean appointments were women. Annual List of New Women Law Deans.   

Women are currently only 30% of law deans. This is a relatively recent increase as just three or so years ago women were 21% of law deans. See The Rise of Women Law Deans (June 2015). 

Still, a new study of law school deans, US Law School Industry: Dean Positions 2015-2016, concludes that “Law programs and their leadership remain potentially gendered. . . . Women continue to be substantially under-represented at the highest levels of leadership, though we find that differences are significantly less pronounced at Assistant and Associate Dean positions.”

Here is the 2017 list:

Aviva Abramovsky, Buffalo (Associate Dean for International Initiatives, Syracuse)

Joan Bullock, Thomas Jefferson (Associate Dean for Academic Affairs, Florida A&M)

Marcilynn Burke, Oregon (Associate Dean for Academic Affairs, Houston)

Cathy Cox, Mercer (President, Young Harris College, former Secretary of State Georgia)

Megan Carpenter, New Hampshire (Co-Director, Intellectual Property, Texas A&M)

Darby Dickerson, John Marshall Chicago (Dean, Texas Tech)

Susan Duncan, Univ. of Mississippi (Interim Dean, Louisville)

Heather Gerken, Yale (Professor, Yale)

Judge Maureen Lally-Green, Duquesne (Judge, Interim Dean, Duquesne) 

Rachel Janutis, Capital (Interim Dean, Capital)

Judge Madeline Landrieu, Loyola New Orleans (Judge, Louisiana Court of Appeal)

Lyrissa Lidsky, Univ. of Missouri (Associate Dean, Graduate Programs, Florida)

Hari Osofksy, Penn State (Professor, Minnesota)

Judge A. Gail Prudenti, Hofstra (Judge, Interim Dean Hofstra)

 

The men appointed to new deanships are: 

Paul Caron, Pepperdine (Professor, Pepperdine)

Erwin Chemerinsky, Berkeley (Dean, UC Irvine)

Colin Crawford, Louisville (Professor, Tulane)

Dan Filler, Drexel (Associate Dean, Drexel)

Lee Fisher, Cleveland State (former Lt. Gov, Interim Dean CSU)

Michael Hunter Schwartz, McGeorge (Dean, Arkansas)

Michael Kaufman, Loyola Chicago (Professor, Loyola Chicago)

Gregory Mandel, Temple (Interim Dean, Temple)

Richard Moberly, Nebraska (Interim Dean, Nebraska)

Anthony Niedwiecki, Golden Gate (Associate Dean, John Marshall Chicago)

CJ Peters, Akron (Associate Dean for Scholarship, Baltimore)

 

May 18, 2017 in Law schools, Women lawyers | Permalink | Comments (2)

French Cabinet is Fifty Percent Women

The new French President has appointed women to 50% of his cabinet, as did Canadian prime minister Justin Trudeau.

Macron Cabinet: Women are Half of France's New Ministers

French President Emmanuel Macron has unveiled a gender-balanced cabinet in accordance with an earlier pledge, with 11 of 22 posts taken by women.

Macron's Cabinet Gives Glimpse of How He Plans to Govern France

I have written about the importance of these gender quotas in institutional power structures as important to rectifying systemic gender inequality.  Reconsidering the Remedy of Gender Quotas, Harvard J. Law & Gender Online (Nov. 2016).

May 18, 2017 in Gender, International | Permalink | Comments (0)

Wednesday, May 17, 2017

Comparing Legislative versus Judicial Abortion Laws

Noya Rimalt, When Rights Don't Talk: Abortion Law and the Politics of Compromise,  28 Yale J. Law & Feminism 328 (2017)

This Article draws attention to the significance of rights-talk in shaping proper abortion legislation. It engages with ongoing debates regarding the wisdom of Roe v. Wade’s judicially imposed, strict rights-based approach to legal abortion. As the issue of abortion remains extremely controversial in American politics, it has been argued that the Supreme Court’s rights-based rhetoric, coupled with its “undemocratic” judicial imposition of a resolution to the issue, played a central role in triggering the ongoing conflict over abortion. Legal scholars often rely on comparative examples in an attempt to argue in favor of legislative and conciliatory policy solutions to the issue of abortion.

This Article questions the superiority of legislative solutions to abortion by providing a critical comparative account of abortion legislation that seems to exemplify precisely the sort of compromise-based solution advocated by critics of Roe v. Wade’s judicially created right to abortion. It critically analyzes the give-and-take process in the Israeli legislature that gave birth to the country’s abortion law. The Article argues that the Israeli case study provides a cautionary tale of a legal system in which abortion regulation was decided exclusively by legislators, rather than judges, which resulted in legislation devoid of any concept of individual rights.

The Article concludes by exploring a number of additional comparative examples outside of Israel. Focusing specifically on Canada, Germany, and France, it illustrates how a broad comparative perspective is useful in drawing attention to the roles of courts and legislatures in shaping abortion policies, as well as to the disguised costs of abortion compromises.

May 17, 2017 in Abortion, International, Legislation | Permalink | Comments (0)

Tuesday, May 16, 2017

Preferring the Male Voice in Supreme Court Arguments

Covering: Mutable Characteristics and Perceptions of Voice in the US Supreme Court

Using data on 1,901 U.S. Supreme Court oral arguments between 1998 and 2012, we document that voice-based snap judgments based on lawyers’ identical introductory sentences, “Mr. Chief Justice, (and) may it please the Court?”, predict court outcomes. The connection between vocal characteristics and court outcomes is specific only to perceptions of masculinity and not other characteristics, even when judgment is based on less than three seconds of exposure to a lawyer’s speech sample. Consistent with employers irrationally favoring lawyers with masculine voices, perceived masculinity is negatively correlated with winning and the negative correlation is larger in more masculine-sounding industries. The first lawyer to speak is the main driver. Among these petitioners, males below median in masculinity are 7 percentage points more likely to win in the Supreme Court. Justices appointed by Democrats, but not Republicans, vote for less-masculine men. Female lawyers are also coached to be more masculine and women’s perceived femininity predict court outcomes. Republicans, more than Democrats, vote for more feminine-sounding females. A de-biasing strategy is tested and shown to reduce evaluators’ tendency to perceive masculine voices as more likely to win. Perceived masculinity explains 3-10% additional variance compared to the current best prediction model of Supreme Court votes.

May 16, 2017 in Courts, Gender, Masculinities | Permalink | Comments (0)

Program: Mothers and the Constitution

The Institute for Constitutional History is pleased to announce another seminar for advanced graduate students and junior faculty:

 Mothers and the Constitution

Program Content:

The seminar will explore the relationship between the changing practice of motherhood and the law.  Using Supreme Court cases, important state cases, and supplementary historical and statutory materials we will study the many ways that constitutional interpretation and government policy have regulated the lives of different kinds of mothers and occasionally of fathers too. We will organize our discussions around four key issues: Custody and Care, Reproduction, Work, and State Support, focusing on the twentieth century; and taking into account the influence of such factors as race, religion, migration, and sexuality on developing constitutional interpretation. 

 

Logistics:

The dates the seminar will meet are:  October 6, October 13, November 3, and November 10; Fridays from 2-5 p.m.  The seminar will be held at the New-York Historical Society, 170 Central Park West, New York City.

Instructors:

Alice Kessler-Harris is R. Gordon Hoxie Professor of American History, Emerita, at Columbia University where she was also Professor in the Institute for Research on Women and Gender, and held a faculty affiliate appointment in the Columbia University School of Law.  Kessler-Harris specializes in the history of American labor and twentieth century social policy.  Her books include In Pursuit of Equity: Women, Men and the Quest for Economic Citizenship in Twentieth Century America (2001), which won the Bancroft, Taft, Joan Kelly and Herbert Hoover prizes; Gendering Labor History (2007), which contains her essays on women, work and social policy, and A Woman’s Wage: Historical Meanings and Social Consequences (1990). She is perhaps best known for the now classic, Out to Work: A History of Wage-Earning Women in the United States (1982, 2001). She is co-editor, among other books of Protecting Women: Labor Legislation in Europe, Australia, and the United States, 1880-1920 (1995); Democracy and Social Rights in the ‘Two Wests’; and Democracy and the Welfare State, which explores the impact of expanding citizenship rights in Western Europe and the U.S.

 

Carol Sanger is the Barbara Aronstein Black Professor of Law at Columbia Law School where she teaches Contracts, Family Law, and research seminars  on “Meanings of Motherhood: Legal and Historical Perspectives” (with Alice Kessler-Harris) and “Abortion: Law in Context.”  Prof. Sanger’s scholarship focuses on how law influences family formation in such areas as immigration, custody, and adoption, and particularly regarding relationships between mothers and children.  Her  book  About Abortion: Terminating Pregnancy in Twenty-First-Century America (Harvard University Press, 2017) concerns the role of abortion in American culture, politics, and in women’s lives.  Sanger’s 2012 article, The Birth of Death: Stillborn Birth Certificates and the Problem for Law won a prize for “exemplary legal writing” from the journal Green Bag. Sanger is also the senior editor of a leading law school casebook, Contracts: Cases and Materials (8th ed., 2013).

Application Process:

The seminar is designed for graduate students and junior faculty in history, political science, law, and related disciplines.  All participants will be expected to complete the assigned readings and participate in seminar discussions.  Although the Institute cannot offer academic credit directly for the seminar, students may be able to earn graduate credit through their home departments by completing an independent research project in conjunction with the seminar.  Please consult with your advisor and/or director of graduate studies about these possibilities.  Space is limited, so applicants should send a copy of their c.v. and a short statement on how this seminar will be useful to them in their research, teaching, or professional development.  Materials will be accepted only by email at MMarcus@nyhistory.org until May 22, 2017 Successful applicants will be notified soon thereafter.  For further information, please contact Maeva Marcus at (202) 994-6562 or send an email to MMarcus@nyhistory.org.

 

Additional Information:

There is no tuition or other charge for this seminar, though participants will be expected to acquire the assigned books on their own.

 

About ICH:

The Institute for Constitutional History (ICH) is the nation’s premier institute dedicated to ensuring that future generations of Americans understand the substance and historical development of the U.S. Constitution. Located at the New York Historical Society and the George Washington University Law School, the Institute is co-sponsored by the American Historical Association, the Organization of American Historians, and the American Political Science Association.  The Association of American Law Schools is a cooperating entity.  ICH prepares junior scholars and college instructors to convey to their readers and students the important role the Constitution has played in shaping American society.  ICH also provides a national forum for the preparation and dissemination of humanistic, interdisciplinary scholarship on American constitutional history.

May 16, 2017 in Conferences, Constitutional, Family | Permalink | Comments (0)

Proskauer Sued by Partner in Gender Bias Suit

Partner Hits Proskauer with 50 Million Gender Bias Suit  

An unnamed partner in Proskauer’s Washington, D.C., office has sued the firm in federal court, alleging she is a victim of discrimination and claiming “substantial gender disparities” in the firm’s partnership. The suit claims at least $50 million in damages.

 

Proskauer called the claims “groundless” and suggested that the partner sought to force a payout after her practice faltered.

 

The complaint was filed Friday in D.C. by lawyers at Sanford Heisler Sharp—which is also leading a high-profile gender bias lawsuit in New York on behalf of current and former female Chadbourne & Parke partners. Proskauer represents Chadbourne in that case.

 

The plaintiff in Friday’s lawsuit accuses Proskauer of paying her millions of dollars less than her male counterparts, despite her “standout performance” at the firm.

 

“Among other things, Proskauer excluded plaintiff from client matters, declined to allow plaintiff to pitch or to participate in any employment litigation matter for firm clients, rebuffed her efforts to assume a greater leadership role at the firm, tolerated and facilitated an environment where she was targeted for harassment and humiliation by firm leadership, demeaned and belittled her to her peers and clients, and refused to rectify pay disparities,” the suit alleges.

May 16, 2017 in Equal Employment, Women lawyers | Permalink | Comments (0)

Friday, May 12, 2017

CFP Constitutional Remedies

The Center for Con Law at Akron announces Call for Papers its fall Virtual Symposium on "Constitutional Remedies."

The Center for Constitutional Law at Akron seeks proposals from those interested in participating in its Fall Virtual Symposium on Constitutional Remedies.

Constitutional Remedies. The focus of this symposium is on the Constitution and Remedies, broadly defined. Topics for discussion might include issues of remedies for constitutional harms, constitutional concerns with remedies, or comparative constitutional remedies across countries. Such issues dominate the headlines—from immigration travel bans to religious liberty concerns to police force injunctions and national injunctions on executive power. The symposium is designed to be an interactive roundtable, allowing for deeper discussion and questioning beyond mere presentation.

Virtual Symposium. This symposium will be conducted virtually, that is by video web conferencing. The idea is to make it easier for scholars to participate and share ideas, without the barriers of travel such as limited university travel budgets, family obligations, or the demands of teaching and administration. Participants will just need a computer with a webcam and microphone to participate.

Symposium Papers. Proposals for the symposium should be related to the topic of constitutional remedies and intended to produce a final essay of about 15 published pages (@10,000 words). Proposals including an abstract and CV should be submitted to Professor Tracy Thomas, director of the Center for Constitutional Law at Akron at thomast@uakron.edu by June 16, 2017. Accepted papers for the symposium should then be completed by October 27th in time for circulation to and review by participants in advance of the symposium. Finalized essays will then be published in a dedicated symposium issue in the Center for Constitutional Law’s online journal, ConLawNOW, an open access journal available to interdisciplinary scholars, journalists, as well as legal scholars (also available on Westlaw).

 

May 12, 2017 in Call for Papers, Constitutional | Permalink | Comments (0)

State Lawmaker Faces Expulsion over Online Misogyny

New Hampshire State Lawmaker Accused of Online Misogyny Faces Expulsion

The New Hampshire state Legislature is deciding whether to discipline one of its members for his role in setting up a misogynistic online forum.

 

Two-term Republican Rep. Robert Fisher, 31, was identified last month by The Daily Beast as the creator of the Reddit community The Red Pill, which champions so-called "pickup artists" and blames feminism for societal woes. (The forum takes its name from a scene in the 1999 film The Matrix in which Keanu Reeves' character, Neo, is offered a choice between a red pill, which represents reality, and a blue pill, which represents illusion.)

Testifying before a state House committee Tuesday, Fisher argued that his online statements revealed by the Daily Beast investigation — including comments deriding women's intelligence, detailing ways for men to dodge rape accusations and questioning whether rape itself was wholly bad — have been misreported and misconstrued.

He has never "hated women," Fisher assured the Legislative Administration Committee and criticized the journalism that brought his comments to light.

The committee has until next week to make a recommendation. The state House will vote on the committee's decision June 1.

May 12, 2017 in Legislation | Permalink | Comments (0)

The Story of Ida Platt: The First Black Woman Lawyer in Illinois

Gwen Jordan, "A Woman of Strange, Unfathomable Presence": Ida Platt's Lived Experience of Race, Gender & Law, 1863-1939"

In 1894, Ida Platt became the first African-American woman lawyer in Illinois. She was one of only five black women lawyers in the country and the only one able to maintain a law practice. Throughout her thirty-three year career, Platt served as head of her household, providing for her mother and sisters, without marrying or having children. She accomplished these feats by employing a fluid racial identity, passing as white in her professional life, and by avoiding the dominant gender roles that excluded women from the masculine legal profession. In 1927, at the age of sixty-four, Ida Platt retired, married Walter Burke, a white man, and moved to England. Twelve years later, Ida Burke died. As is the practice in England, there was no race designation on her death certificate.

Platt’s choice to employ a fluid racial identity allowed her to pursue her career as a lawyer amidst a racist and sexist society that particularly discriminated against black women. She entered the law when Jim Crow was taking root, race lines were hardening, and elite, white, male lawyers were intensifying their opposition to women’s rise within the profession. Platt’s life and career offer insights into how law and the legal profession responded to the complexities of race and tender a new story of the lived experience of race as it intersects with gender. It suggests that Platt’s pragmatic strategy of changing her racial identity both contested and shaped the ways in which race, gender, and identity were constructed and represented in American society, as it exposed both the rigidity and permeability of these constructions.

 

May 12, 2017 in Legal History, Race, Women lawyers | Permalink | Comments (0)

Friday, May 5, 2017

NYC Passes Legislation Banning Employers' Use of Salary Histories

 Employers in New York City Won't Be Able to Ask for for Your Salary History Anymore

Mayor Bill de Blasio, a Democrat, signed a bill on Thursday that makes it unlawful for those involved in the hiring process to inquire about what an applicant currently makes -- a measure that takes aim at the gender pay gap.

 

"This is about fixing a broken history. This is about overcoming years and years of discrimination that held people back," de Blasio said at the signing ceremony.

 

More than 20 states, from California to Georgia to Vermont, are considering similar legislation that would bar employers from asking about a job applicant's pay history, according to the National Conference of State Legislatures. New York City joins Massachusetts and Philadelphia, which already have those laws on the books.

 

Such bills look to address a real problem. Women earned 79.6 cents for every dollar men made in 2015, according to data released by the Census Bureau last year.

 

A court decision last week has also renewed calls for local action. The 9th U.S. Circuit Court of Appeals overturned a lower court and ruled that employers are allowed to pay women less than men based on salary history if they have a legitimate business reason for using that information. [See the prior blog about the case here.]

 

Democratic members of Congress hope to take federal steps to address the issue too, even though they're the minority in both houses.

 

The Paycheck Fairness Act, which has been introduced by Sen. Patty Murray of Washington and Rep. Rosa DeLauro of Connecticut, would strengthen provisions in the Equal Pay Act of 1963. Part of the bill bans employers from asking about a job candidate's pay history during the interview process. [For recent scholarship on the PFA see the prior blog post here.]

NY state has proposed a similar bill:

2017 New York Assembly Bill No. 2040, New York Two Hundred Thirty-Ninth Legislative Session, Apr. 4, 2017  

Section 1. Legislative intent. The legislature hereby finds that New York should lead the nation in preventing wage discrimination.
 
The wage gap between men and women is one of the oldest and most persistent effects of inequality between the sexes in the United States.
 
The 1963 Equal Pay Act and the 1964 Civil Rights Act in the United States established the legal right to equal pay for equal work and equal opportunity. Yet half a century later, women are still subjected to wage gaps and paid less then men.
 
The concept of comparable worth attacks the problem of gender-based wage discrimination by mandating that jobs characterized by similar levels of education, skill, effort, responsibilities, and working conditions be compensated at similar wage levels regardless of the gender of the worker holding the job.
 
The goal of pay equity is to raise the wages for undervalued jobs held predominantly by women. Today, women make only 77 cents per every dollar earned by a man for a comparable job, a gender wage gap of 23 percent.
 
This translates into thousands of dollars of lost wages each year for each female worker, money that helps them feed their families, save for a college education and afford decent and safe housing.
 
Pay disparities affect women of all ages, races, and education levels, but are more pronounced for women of color. Minority womenmake as little as 54 cents per dollar for a comparable job held by a man.
Female-dominated jobs pay twenty to thirty percent less than male-dominated jobs classified as comparable in worth and more than one half of all women work in jobs that are over seventy percent female.
 
Women are more likely to enter poverty in old age for several reasons: A lifetime of lower wages means women have less income to save for retirement, and less income that counts in their Social Security or pension benefit formula.
 
The current life expectancy for women means they will, on an average of three years, outlive men. Yet they will have to stretch their retirement savings, which are less to begin with, over a longer period of time.
 
The existence of pay inequity is a manifestation of deep-seated sex discrimination that prevents both equality of pay for women and equality of opportunity for both sexes.
 
More women in the United States are obtaining college degrees and increasing their participation in the labor force and family-friendly legislation, including the Equal Pay Act, Family and Medical Leave Act, and Pregnancy Discrimination Act, and policies such as flex time and telecommuting, have increased options to create a win-win situation for women and their employers.
 
Despite the progress, women continue to suffer the consequences of inequitable pay differentials: in 2010, the average college-educated woman working full-time earned $47,000 a year compared to $64,000 for a college-educated man.
 
During 2012, median weekly earnings for female full-time workers were $691, compared with $854 per week for men, a gender wage gap of 19 percent.
 
Fair pay strengthens the security of families and eases future retirement costs while also strengthening the American economy. In order to achieve fair pay, policymakers must enact laws that prevent gender based wage discrimination from when women enter the labor force.

In order to do so, it is necessary to prevent employers to base a woman's pay based on her previous pay history.
 
Because the pay is already based on gender discrimination, allowing pay history to be requested by employers is equivalent to maintaining a standard of lower pay for women performing similar jobs as men. This practice of asking for pay history must be outlawed

May 5, 2017 in Equal Employment, Legislation | Permalink | Comments (0)

How Women Could Save the World: Questions of International Law, Equality Theory, and Feminism

Catherine Powell, How Women Could Save the World, If Only We Would Let Them: From Gender Essentialism to Inclusive Security, 28 Yale J. L. & Feminism 271 (2017)

Abstract

We increasingly hear that empowering women and placing them in positions of leadership will lead to a safer, more prosperous world. The UN Security Council’s groundbreaking resolutions on Women Peace, and Security (WPS) — and U.S. law implementing these commitments — rest on the assumption that women’s participation in peace and security matters will lead to more sustainable peace, because women presumably “perform” in ways that reduce conflict, violence, and extremism. This idea is of heightened importance today because women are still vastly underrepresented in positions of leadership in the peace and security field, having yet to “shatter that highest and hardest glass ceiling” as Commander-in-Chief in the United States or rise to the role of Secretary-General in the United Nations. Before her own historic race to become the first woman Commander in Chief, Hillary Clinton had prominently made the claim we increasingly hear that women’s empowerment is not only the right thing to do, but the smart thing to do for global and economic security.

Such claims raise fundamental questions for international law, equality theory, and feminism. Assertions that the world would be a better — more peaceful, more prosperous — place, if women assumed leadership positions in peace and security matters are unapologetically instrumentalist and reinforce essentialist views of women. At the same time, evidence suggests that these claims are to some extent accurate. Thus, these assertions should be carefully examined. Reviewing new research, this Article argues that while some evidence supports these claims, the statistical evidence supporting these claims suffers from methodological flaws. Moreover, the forms of gender performance reflected in the data — which international law has organized itself around — are based on the socially constructed roles women play as caregivers, nurturers, and collaborators, not necessarily on their inherent biological roles. Yet, international law reifies these roles and the stereotypes that surround them, even as it tries to open up opportunities for women beyond traditional sex-segregated positions that have long relegated women around the world to the pink ghetto of economic inequality and inferior political and social status. Having to maneuver around formal equality, on the one hand, and instrumentalist claims that women will “save” the world, on the other, means that the category of “woman” can restrict even as it liberates. After all, not all women are “peace-loving,” particularly in a world where the women who succeed are often those who can succeed on terms defined by men.

Two prevailing theoretical frameworks — antisubordination and securitization—shape the current debate about WPS, but each ultimately falls short. This Article identifies democratic legitimacy as a novel third approach missing from the existing debate. As an alternative view, the democratic legitimacy account effectively reframes the WPS debate as one concerning inclusive security — emphasizing that women’s participation enhances the representativeness, democracy, and fairness of the process as a whole — rather than privileging the “special interests” of a particular group (as the antisubordination approach is accused of doing) or reinforcing gender essentialism (as the securitization approach does). Notably, a democratic legitimation paradigm is grounded in a model of inclusion that can be applied to vectors of inequality beyond gender, as well as to inequality at the intersection of various forms of inequality. Moreover, by emphasizing democratic representation, this approach insists on local ownership and bottom-up solutions, thereby emphasizing participation and leadership by women in conflict zones, rather than female global elites. Under a democratic legitimacy paradigm, women can still “save” the world, but in a different way than the predominant discourse would have us believe.

May 5, 2017 in Gender, International, Theory | Permalink | Comments (0)

Thursday, May 4, 2017

Sex Quotas and Burkini Bans in France

Darren Rosenblum, Sex Quotas and Burkini Bans, 92 Tulane L.Rev. (2017)

This Essay recounts how feminist theorists and activists managed to write their ideals into the fabric of French law and culture, and how non-feminists began to appropriate those ideals. Parité, the 2000 law that requires half of all candidates for public office be women, saw French feminists first engineer a change in French universalism to respect sex difference; although not wholly successful, Parité advanced women’s political inclusion. Then, like a drop of water in a pond, these feminist ideas disappeared in plain sight: they became intrinsic to French state norms and public values. As they became woven into state norms, however, politicians began to use them to promote exclusions: first excluding Muslims from full participation in the Republic with veil and burqa bans; then supporting exclusions of sex and class with a corporate board quota (CBQ); most recently feminist ideas have been called upon to exclude French Muslims with proposed burkini bans.

May 4, 2017 in International | Permalink | Comments (0)

Reviving Paycheck Fairness: The Factor-Other-Than-Sex Defense

Deborah Brake, Reviving Paycheck Fairness: Why and How the Factor-Other-Than-Sex Defense Matters, 52 Idaho L.Rev. (2016)

Ever since the Supreme Court’s short-lived decision in Ledbetter v. Goodyear Tire Company, the equal pay movement has coalesced around the Paycheck Fairness Act as the legal reform strategy for addressing the gender wage gap. The centerpiece of the Act would tighten the Factor Other Than Sex defense (FOTS) to require the employer’s sex-neutral factor to be bona fide, job-related for the position in question, and consistent with business necessity. Even without the Paycheck Fairness Act, some recent lower court decisions have interpreted the existing Equal Pay Act to set limits on the nondiscriminatory factors that can satisfy the FOTS defense, effectively incorporating a business necessity standard to assess the strength of the employer’s justification for the pay disparity.

This move to heighten judicial scrutiny of the FOTS defense is not without controversy. Some critics of the Paycheck Fairness Act have charged that requiring an employer to use a bona fide, business-justified factor to defend a pay disparity would turn the equal pay claim into a disparate impact claim, leaving it unmoored from its doctrinal and normative foundations. Others question whether the strategy goes far enough to make a difference in plaintiffs’ poor success rates, since it does nothing to relieve the problem of courts requiring strict similarity between comparators, a problem that would remain as a roadblock to proving a prima facie equal pay case. This article surveys recent developments in the Equal Pay Act case law interpreting the FOTS defense and considers how these developments compare to the changes proposed in the Paycheck Fairness Act. It then argues that the Supreme Court’s recent pregnancy discrimination decision in Young v. UPS, which uses unjustified impact to infer discriminatory intent, can help respond to the criticism of the proposed changes to the FOTS. The Court in Young took a similar step in incorporating a business necessity test to smoke out employer intent in a disparate treatment framework. Finally, the article defends judicial scrutiny of the employer’s business justifications for unequal pay as a way to ensure that the equal pay laws move beyond a narrow understanding of pay discrimination as conscious animus to encompass implicit bias. In addition to making the equal pay claim more likely to succeed in litigation, the tightening of the FOTS defense brings to the forefront the core issue in the politics of pay equality: the legitimacy of market explanations for paying women less to do substantially equal work.

May 4, 2017 in Equal Employment, Legislation | Permalink | Comments (0)

Wednesday, May 3, 2017

CFP The 40th Anniversary of the National Women's Conference

Extended Deadline: Call for Papers: "1977-2017: The IWY National Women's Conference in Retrospect" Nov. 5-7, 2017, University of Houston

This year marks the 40th Anniversary of the 1977 National Women’s Conference, the domestic answer to the United Nations’ International Women’s Year initiative. The Houston Conference, as it came to be known, was the largest federally mandated gathering of American women in history. On this occasion, 2000 delegates elected from fifty states and six territories and roughly 16,000 observers came together to craft a twenty-six plank National Plan of Action, submitted to President Jimmy Carter in 1978. The conference remains one of the most imaginative and wide-ranging exercises in civic engagement realized in the twentieth century, and we seek to draw attention to the diversity, ingenuity, and determination of participants who dared to dream up concrete policy goals of “what women want.” The recent global response to the Women’s March on Washington suggests just how much the issues debated at the Houston Conference still resonate. 

During a three day conference, November 5-7, we aim to take stock of this momentous feat as well as consider the separate concerns articulated at a “pro-family” counter-convention held in Houston simultaneously. A scholarly academic symposium will coincide with a delegate and observer reunion. Commemorative activities will occur simultaneous to academic sessions and begin the prior weekend. In holding two events at once, we seek a cross-pollination of ideas and action, bringing together academics and activists, current and lifetime students and teachers, and those that remember being there alongside those who seek to carry the torch forward. 

We would like to take the occasion of the 40th Anniversary of the National Women’s Conference to engage a fresh conversation about U.S. politics and society in the last quarter of the twentieth century. Issues debated at the Houston Conference have dominated American culture since: LGBTQ and racial civil rights; family planning and reproductive health; immigration and civil justice; access to education and childcare; welfare and government spending; poverty and wealth distribution; environmentalism; foreign policy priorities; globalization and a shifting workforce; and gender neutrality and protection in law. Likewise, we seek papers that engage these broad currents. Work that interrogates the conference itself, the context from which it developed, its prominent themes, and its legacy will be considered. Papers need not focus on the conference per se or women’s history in general. Rather, we aim to foster a dialogue about contemporary history and society using this conference—a barometer of its times—as a jumping off point. We seek the participation of scholars who explore institutional politics, social movements, cultural conflicts, global and transnational politics, and economic turmoil. 

We welcome individual paper proposals as well as complete or partial session proposals. Format ranges from dynamic roundtable discussions to more traditional sessions with three papers and a chair/commentator. We are especially interested in sessions that mix academic research with the experience of activists. We envision this conference to be a forum for interdisciplinary thinking and encourage broad methodology, perspective, and disciplinary grounding (such as history, political science, public policy, English, economics, sociology, and the arts). 

Questions that could be considered by participants include: Why did a policy forum that emerged from bi-partisanship become a caustic ideological battleground? What political, economic, and social changes underway manifested reaction and response at this conference and the coinciding counter-conference? In what ways do the issues considered at the National Women’s Conference still resonate? Is the leading question asked then—what do women want?—still relevant today? 

Tentative schedule includes: Luncheon with Keynote Speaker, Dr. Marjorie Spruill, author of Divided We Stand: The Battle Over Women’s Rights and Family Values That Polarized American Politics. 

Traditional paper session and roundtable proposals: Abstracts should include a short session description and title, individual paper titles, one page proposals of approximately 300 words for each paper, and one page CVs for all participants including chair/commentator. 

Individual paper proposals: Abstracts should be 300 words, and should be accompanied by a one page CV. 

Extended submission deadline: August 10, 2017 

Please submit applications as one PDF at: houstoncon17@gmail.com 

For questions, please consult our website: http://classweb.uh.edu/iwynatlwomensconf/ 

Or contact Nancy Beck Young: nyoung@central.uh.edu, or Leandra Zarnow: lrzarnow@central.uh.edu

May 3, 2017 in Call for Papers | Permalink | Comments (0)

Essays on Women, Gender, and Law in Medieval Studies

Women, Gender and Law: Essays from the Gender and Medieval Studies Conference, 43 Historical Reflections (2017)

In the last 30 years the focus of medieval scholars has turned increasingly to nontraditional subjects, especially to women, children, and marginalized others in medieval society. . . . In examining formerly invisible “Others,” medievalists have changed the discourse of the past to one that is both more inclusive and more equivocal: no longer can the certainties that shaped, for example, the nineteenth century’s view of the past as populated by public males and private females, and energized by the confident triumphalism of Western Christianity, be maintained.

 

Linda E. Mitchell, Introduction: Women, Gender, and Law and Remembering Shona Kelly Wray 

Ecaterina Lung, Depictions of Women in the Works of Early Byzantine Historians and Chroniclers: Stereotype and Reality 

Niki Megalommati, Women and Family Law in Byzantium: Some Notes

Nina Verbanaz, Envisaging Eternity: Salian Women's Religious Patronage

Amy Livingstone, Pious Women in a "Den of Scorpions": The Piety and Patronage of the Eleventh-Century Countesses of Brittany

Teresa Phipps, Misbehaving Women: Trespass and Honor in Late Medieval English Towns

Miriam Shadis, The Personal and the Political in Testaments of the Portuguese Royal Family (12th & 13 c)

Mireia Comas-Via, Widowhood and Economic Difficulties in Medieval Barcelona

Stanley Chojnacki, Wives and Goods in the Venetian Palazzo

May 3, 2017 in Family, International, Legal History | Permalink | Comments (0)

Tuesday, May 2, 2017

Gender Quotas for Judges on International Courts

Nienke Grossman, Shattering the Glass Ceiling in International Adjudication, 56 Va. J. Int'l L. 339 (2016)

The Article shows that women are found in dramatically low numbers on the benches of the majority of the world’s most important international courts, analyzes the causes of this phenomenon and proposes and evaluates solutions. It establishes that the number of women in the pool of potential judges does not appear to dictate how many women become international judges. It shows, too, that when selection procedures are closed and opaque, and there is no quota or aspirational target for a sex-balanced bench, women obtain international judgeships in disproportionately low numbers. On the other hand, when a quota or aspirational target exists, benches are more balanced. Finally, the Article suggests and evaluates concrete reforms to selection procedures on international courts to remedy this problem, including greater transparency and openness in selection procedures, aspirational targets for the participation of women on the bench and quotas. It is the first article to explore the relationship between selection procedures and sex representativeness outcomes on international courts.

May 2, 2017 in Gender, International, Judges | Permalink | Comments (0)

Monday, May 1, 2017

The New Trend for Studying Gender

Daily Telegraph, The New Trend For Studying Gender, Apr. 24, 2017 (link not available).

A rise in the discussion about gender has led to a range of new courses, from celebrity-endorsed women studies to the world's first queer history course. Alice Barraclough finds out what they offer.
 
Of course you don't need a master's degree in feminism to understand inequality between the sexes. But a postgraduate degree in gender studies - or indeed in sexuality or queer history - isn't just about understanding that inequality, but the theories behind it and how we can make a difference.
 
Over the past few years, gender studies has become an increasingly popular cross-disciplinary postgraduate course. It taps into subjects ranging from history and law, to literature, politics and even science. While graduates go on to work for NGOs, charities and advocacy groups, the courses are also popular with professionals who already work in both the public and private sectors, and wish to develop a deeper understanding of gendered practice.
 
The University of Oxford offers a MSt in women's studies while Cambridge offers an MPhil in gender studies. You can study for an MSc in gender and international relations at Bristol or an MA in women, violence and conflict at York.
 
Dr Ann Kaloski Naylor, lecturer at the Centre for Women's Studies, University of York, says students choose women's studies because they want to make a difference to the world, "especially (not exclusively) to the position of women, and feel that this is not only necessary but possible; they want to lead useful lives inspired by, and grounded in, scholarly thought".
 
But why, in 2017, are these courses gaining such interest? "There's definitely a renewed interest from young people. This is enhanced by social media, which has popularised feminism, in that when teenagers sense gender inequality and oppression there is somewhere easy to go to find out and to chat to others," says Dr Kaloski Naylor. "It's a 21stcentury version of 'consciousnessraising' groups, where many women (and some men) can discover that their own sense of injustice is shared, and that personal inequalities - for example, not being allowed to play football or netball, or being told to wear certain clothes - stem from much wider understandings of women and men. It's also clear that issues of abuse and violence motivate people of many genders, and our degree programmes and modules that address issues of violence and feminist cultural activism are really popular."
 
Violence against women is increasingly recognised as a global issue. From September, a one-year MSc in women, peace and security will run at the London School of Economics (LSE) - the first of its kind. What's more, actor and director Angelina Jolie will join former foreign secretary William Hague as a "professor in practice". Last month, Ms Jolie led a postgraduate women, peace and security class at LSE as part of the one-term module currently offered to postgraduate degree students. She spoke about her experience in the field and what motivated her work as UN special envoy.

May 1, 2017 in Education, International | Permalink | Comments (0)

Emerging Protections for Nursing Mothers in the Workplace

Travis R. Hollifield, Emerging Protections for Nursing Mothers in the Workplace

Working parents unquestionably have numerous, and often competing, priorities to manage. While balancing the needs of their careers with familial obligations, tensions between working parents and their employers can often arise. Regrettably, while both male and female parents can face difficult issues balancing work and childcare duties, certain persistent stereotypes and biases about a woman’s role in the workplace make some challenges unique to them. In the decades since the enactment of Title VII of the Civil Rights Act (Title VII) in 1964 and the Pregnancy Discrimination Act (PDA) in 1978, federal and state legislators have continued to address working women’s unique concerns and struggles in an attempt to achieve some semblance of equality of treatment in the labor force. Courts, in turn, have sought to apply the fruits of these legislative endeavors to factual circumstances that can present unique and vexing legal issues. This article focuses on one such issue, that of the emerging protections for nursing mothers in the workplace.

In recent years, courts have adjudicated claims involving allegations of discriminatory treatment based on the needs of new mothers who are lactating and need to express breast milk for their children during working hours. Three watershed moments in the development of legal protections for working and lactating mothers occurred in 2013 and 2015 respectively. First, in 2013, the Fifth Circuit Court of Appeals became the first federal appellate court to explicitly hold that lactation discrimination constitutes pregnancy and sex discrimination in violation of Title VII and the PDA. Second, in 2015, the U.S. Supreme Court recognized that working women who are pregnant or have pregnancy-related medical conditions may pursue a “failure to accommodate” theory against their employers under Title VII. Finally, and also occurring in 2015, the Equal Employment Opportunity Commission (EEOC) formally adopted the policy position that lactation is protected by Title VII/PDA. These seminal events addressing lactation discrimination evolved as follows.

 

The Fifth Circuit’s Lactation Discrimination Holding
In EEOC v. Houston Funding II, Ltd., 717 F.3d 425 (5th Cir. 2013)

The Duty to Accommodate Pregnant Workers
In Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015)

EEOC Declares Lactation is Protected by Title VII/PDA

FLSA Mandates Break Time and Facilities for Lactating Employees

Florida’s Civil Rights Act’s Added Layer of Protection

May 1, 2017 | Permalink | Comments (0)