Tuesday, September 17, 2013
Nicole B. Porter, Univ. of Toledo, "The Blame Game: How the Rhetoric of Choice Blames the Achievement Gap on Women," 8 FIU L. Rev. 447 (2013).
Available here. The abstract:
In 2013, fifty years after the Equal Pay Act guaranteed women equal pay for equal work, almost fifty years since Title VII made discrimination based on sex unlawful, thirty-five years since the Pregnancy Discrimination Act made it unlawful to discriminate against women because of pregnancy, and nineteen years after the Family and Medical Leave Act provided twelve weeks of unpaid leave for some caregiving reasons, there is still a significant achievement gap between men and women in the workplace. Women still make less money, and rise more slowly and not as high in workplace hierarchies. Why? The common narrative states that because these laws have given women access to formal equality for many years, the fact that women have not achieved equality in the workplace must be blamed on something else. Specifically, the “something else” relied upon by society, the media, employers, and courts, is that women’s own choices are to blame for the achievement gap. The blame game asserts that women’s relative lack of success in the workplace is caused by three interrelated choices: (1) women’s decision to not pursue high-pressure, high-status professions, or jobs that are seen as “men’s work”; (2) women’s unwillingness to negotiate on their own behalf; and (3) women’s decision to devote more time and effort to caregiving and homemaking tasks.
Monday, September 16, 2013
Laura Rothstein, Univ. of Louisville.
Available here. The abstract:
Association of American Law Schools ("AALS") Women in Legal Education
("WLE") was founded in 1970, a year before I began law school. In 1970
female students made up only about 8.6 % of the law students in American
law schools, the percentage of female faculty members was certainly
even lower, and the percentage of female law school deans, even smaller
This reflection is based on files from my years of being active in the WLE Section. I still have hard copies of the newsletters from 1984 to 1998. Younger members cannot imagine the days when hard copy was the only way to communicate. It was during that time that I was most involved in the WLE Section.
Jane Elaine Hasday, Univ. of Minnesota Law School.
Available here. The abstract:
This Essay asks why sex equality is outside the constitutional canon. While race discrimination is a canonical concern of constitutional law, the story of America’s struggles over and against sex discrimination is not widely taken to be a central, organizing part of our constitutional tradition — a defining narrative that exemplifies and expresses the nation’s foundational values and commitments. I offer three potential explanations for the exclusion of sex equality from the constitutional canon. First, the Supreme Court’s jurisprudence developed in ways that suggested that sex discrimination was not a core constitutional problem and concern, especially when compared to race discrimination. Second, the Court’s sex discrimination case law has focused narrowly on state action that draws explicit distinctions between women and men. The Court has little interest in reviewing facially neutral laws, no matter their contribution to women’s unequal status, so the Court hears few sex discrimination suits anymore. This paucity of case law contributes to the sense that conflicts over sex equality are no longer central to constitutional law, if they ever were. Third, the story of women’s resistance to sex discrimination may be less prominent in American constitutional law because this story is less prominent in American popular culture, and vice versa. The Essay concludes by exploring why sex equality may ultimately become part of the constitutional canon. The Court’s reading of the Equal Protection Clause to prohibit sex discrimination has become much less controversial since the 1970s. Moreover, new analogies have emerged in constitutional law, which over time have pushed sex discrimination closer to the core of the Equal Protection Clause. Courts, lawmakers, advocates, and scholars seeking constitutional protection from sexual orientation discrimination now routinely analogize sexual orientation to sex. The frequency and prominence of these analogies, which presuppose that struggles against sex discrimination are already central to our nation’s understanding of equality and equal protection, may help move sex into the constitutional canon at last.
Friday, September 13, 2013
I spoke today on the Baby Veronica case (at Akron Law’s program, Supreme Court Review). In that case, the U.S. Supreme Court, 5-4, decided that a Native American father was not entitled to the presumption of child custody under the Indiana Child Welfare Act because he had never had actual custody of his daughter. Mom gave the child up for adoption at birth and the baby lived “temporarily” with the putative adoptive parents while Dad served in Afghanistan. Following the ruling, the state court immediately awarded custody to the white adoptive parents, without the usual best interests hearing. Dad has refused to relinquish custody. Oklahoma Governor Mary Fallin ordered his extradition to South Carolina for the felony charges of interference with parental rights, saying that “as a Mother” she wanted a permanent resolution for the little girl.
I was struck by the fact that all 3 women on the Court supported Dad in this case. The women’s rights question seems weirdly skewed here. For an interesting perspective on why feminists should support Dad in this case, see Laura Briggs, The Feminist Defense of Baby Veronica's Dad and ICWA and and Why Feminists Should Care about the Baby Veronica CaseWhy Feminists Should Care About the Baby Veronica Case.
Thursday, September 12, 2013
Wednesday, September 11, 2013
We’re hearing a lot about women in business this week. Bank of America settled a $36 million lawsuit by women traders at its Merrill Lynch brokerage claiming gender discrimination from practices favoring men in promotions, client assignments, and other lucrative. A New York Times front-page exposé uncovered the intractable gender disparities at Harvard Business School. But why should we feel sorry about these women? (Many of whom at Harvard seem to spend a surprising amount of time thinking about getting their M.R.S.). Why should we be concerned about these elite, privileged women?
Because business is where the power is. Fundamentally, sex equality is about access to power. It’s the glass ceiling. It’s the old boys’ network perpetuated in the young boys’ network. These scenarios reveal that behind the corporate veil, the power brokers are still men. Business men involved in the Great Recession with its risky investments, mortgage practices, excessive compensation and bailouts.
The question is, what to do about it. The Merrill Lynch settlement threw some money at the women, about $8,000 each. The company will bring in an applied organizational psychologist to help revise its policies about broker teams and sharing client accounts. Harvard deans and professors aimed their reforms at the point of entry in the business profession, beginning with the students and classroom. They mentored female professors, transcribed class discussion to ensure proper subjective credit for comments by women, and offered classes to female students on assertive hand-raising. European corporate law is starting at the top with gender quotas requiring company boards to have 40% women. As Julie Suk explores, the theory is that women directors offer moderation, consensus, and caution. The equalized boards offer a structural, systemic reform rather than continuing to focus on individual behavior (think Price Waterhouse v. Hopkins circa 1989). These reforms seek to change the game, rather than simply asking men to play fair.
Tuesday, September 10, 2013
Welcome to the new Gender and the Law Blog. Your coeditors are John Kang and Tracy Thomas. John is Professor of Law at St. Thomas and he offers his perspective on masculinities and constitutional analysis. He is presently finishing a book called Manliness and the Constitution. In his spare time, he runs, reads nonfiction and argues with his children. Tracy is the Aileen McMurray Professor of Law at Akron and brings her feminist and litigator perspectives. Her work includes the annual edition of West’s Women and the Law, the book Feminist Legal History (with T.J. Boisseau), and her recent article on the misuse of women’s history in the pro-life movement. She spends her spare time chauffeuring. Let the blogging begin.