Tuesday, July 8, 2014
SCOTUS granted cert in EEOC v. Mach Mining, 738 F.3d 171 (7th Cir. 2013) involving an employer's procedural defense in a Title VII case in which the government alleged that the mining company had not hired any female miners since opening for business in 2006, despite having highly qualified applications. The Seventh Circuit ruled that "employers cannot challenge - and courts cannot review - the adequacy of the U.S. Equal Employment Opportunity Commission's (EEOC) informal pre-litigation efforts to bring employers into compliance with federal anti-discrimination laws."
The issue is "whether and to what extent a court may enforce the EEOC's mandatory duty to conciliate discrimination claims before filing suit. Title VII of the Civil Rights Act of 1964 directs the EEOC to try to negotiate [42 USC § 2000e-5(b)] an end to an employer's unlawful employment practices before suing for a judicial remedy. Mach Mining sought dismissal of the EEOC's suit on the ground that the agency failed to engage in good-faith conciliation before filing. The US Court of Appeals for the Seventh Circuit ruled that "an alleged failure to conciliate is not an affirmative defense to the merits of a discrimination suit."
EEOC General Counsel David Lopez stated that in the landmark ruling the Seventh Circuit "carefully applied the letter of the law." And it did so, Lopez explained, "in a way that promotes Title VII's goals, protects victims of discrimination, and preserves the EEOC's critical law-enforcement prerogatives. . . ." Title VII does require the EEOC to "endeavor to eliminate . . . alleged unlawful employment practice[s] by informal methods of conference, conciliation, and persuasion." However, the statute also plainly allows the Commission to sue the employer for discrimination if it "has been unable to secure from the respondent a conciliation agreement acceptable to the Commission."
One analysis of the underlying appellate decision calls it "truly a game changing decision" to hold that the alleged failure to conciliate is not an affirmative defense to the merits of a discrimination suit. It predicted the the "potential for long-lasting implications" if the EEOC "can force its will on employers without any meaningful recourse to determine whether the EEOC’s conciliation efforts were made in good faith.:
On a broad scale, it seems the law of labor negotiations and the duty to bargain in good faith with its judicial oversight is set against the hands-off law of mediation and settlement negotiations.
More on the case here.
Just in case you really believed that Hobby Lobby was a narrow decision, here is ample evidence to the contrary one week after the decision.
SCOTUS granted a temporary injunction to Wheaton College exempting it from filing the form that allows the government to cover the birth control. See Dahlia Lithwick, Quick Change Justice; WSJ, Polarized Reaction to Wheaton College Injunction.
Eden Foods, makers of organic foods, claims exemption from covering all birth control medicines. Hobby Lobby Fallout
Religious entities seek exemption from the federal order banning employment discrimination for sex and sexual orientation by federal contractors. Citing Hobby Lobby Religious Groups Ask Obama for LGBT Exemptions
For more analysis of the opinion itself, see NYT, Between the Lines of the Contraception Decision.
Tuesday, July 1, 2014
Some highlights on yesterday's Hobby Lobby case:
- SCOTUS Gets Hobby Lobby Horribly Wrong
- Several posts on Reproductive Rights Blog
- What Nuva Rings and Peyote Have in Common Today
- Why Today's Hobby Lobby Ruling Actually Hurts People of Faith
Some of my own thoughts:
1. This is a gender issue. Period.
- As Justice Ginsburg said: It's about "women's autonomous choice."
- The Court's distinction between contraception v. immunizations or blood transfusions is starkly sex-based. So its ok to discriminate against women, but not kids or Jehovah's Witnesses? There should be a challenge in there somewhere. I know, state action? Hybrid classification with other contraception covered.
- See Not That Anyone Cares, But Hobby Lobby
2. Good faith belief in other legal contexts usually requires some credible support. How can HL simply assert it has a religious belief that IUDs and morning after pills are abortive, when they are not? Elsewhere in the law--labor negotiations, putative spouse doctrine, termination of injunctions--good faith requires some factual basis upon which the party relied to form the good faith. Since religion has been used historically to discriminate against women, it is a very dangerous legal holding to give men carte blanche to excuse their sexism under the guise of religion without question.
3. Here's an interesting idea. Congress can amend RFRA to remove corporations from its protection. Lose the battle, but win the war. Senate Democrats Mull Response to Hobby Lobby Decision
Monday, June 30, 2014
1. Stop shopping at Hobby Lobby.
2. Stop working at Hobby Lobby.
3. Protest on the public way around Hobby Lobby stores. SCOTUS says you can. See McCullen.
4. Refuse, if an employer, to provide healthcare coverage for men's contraceptive health, V&V (vasectomy and Viagra).
5. Engage in a sex strike. Until your partner secures contraceptive healthcare coverage for you.
7. Travel back in time a century. You won't even notice the difference.
Thursday, June 19, 2014
The most recent step in the women farmers' litigation, Love v. Vilsack (Westlaw) denying a motion of African-American farmers to intervene.
From the decision:
Between 1997 and 2000, African–American, Native American, Hispanic, and female farmers filed four similar class action lawsuits alleging that the USDA engaged in widespread discrimination on the basis of race, ethnicity, or gender in the administration of its farm loan and benefit programs, and that it routinely failed to investigate complaints of such discrimination. SeePigford v. Glickman, Nos. 97–1978, 98–1693 (D.D.C. filed Aug. 28, 1997, July 7, 1998) (“Pigford I ”) (African–American farmers); Keepseagle v. Vilsack, No. 99–03119 (D.D.C. filed Nov. 24, 1999) (Native American farmers); Garcia v. Vilsack, No. 00–2445 (D.D.C. filed Oct. 13, 2000) (Hispanic farmers); Love v. Vilsack, No. 00–2502 (D.D.C. filed Oct. 19, 2000) (female farmers). Judge James Robertson, a former member of this Court, denied the plaintiffs' motions for class certification in this action and in Garcia v. Vilsack .SeeLove v. Veneman, 224 F.R.D. 240 (D.D.C.2004), aff'd in part, remanded in part sub nom. Love v. Johanns, 439 F.3d 723 (D.C.Cir.2006); Garcia v. Veneman, 224 F.R.D. 8 (D.D.C.2004), aff'd and remanded sub nom. Garcia v. Johanns, 444 F.3d 625 (D.C.Cir.2006). The defendant has, however, developed an administrative claims process for Hispanic and female farmers to resolve their claims of discrimination against the USDA. Participation in the administrative claims process is conditioned on dismissal of a farmer's legal claims against the USDA.
The Association seeks to intervene in this litigation.... [I]t seeks a declaration finding that “both the Equal Protection Clause and Due Process Clauses of the United States Constitution mandate that its members who are eligible ‘Pigford claimants' under the 2008 Farm Bill, but did not timely file claims are entitled to file claims, under the framework established for Hispanic and female farmers.”
The motion to intervene was denied.
For more details of the history of the women's lawsuit, see Women Farmers Litigation.
Thursday, June 5, 2014
Women lawyers earn less because they are billed out at significantly lower rates. Female Lawyers Can Work Longer and Harder but Will Still Be Paid Less. Why? Firms don't equally value women's work? Firms don't think clients equally value women's work? Or so clients can get the same work product for less? (think teachers in the 19th century)
Another report traces a similar phenomenon back to high school: A Woman With Perfect Grades is Worth the Same as a Man with a 2.0 Average
Thursday, May 22, 2014
Saurabh Vishnubhakat (Postdoc, Duke & NIH), has posted Gender Diversity in the Patent Bar, 14 John Marshall L. Rev. __ (2014). From the abstract:
This article describes the state of gender diversity across technology and geography within the U.S. patent bar. The findings rely on a new gender-matched dataset, the first public dataset of its kind, not only of all attorneys and agents registered to practice before the United States Patent and Trademark Office, but also of attorneys and agents on patents granted by the USPTO. To enable follow-on research, the article describes all data and methodology and offers suggestions for refinement. This study is timely in view of renewed interest about the participation of women in the U.S. innovation ecosystem, notably the provision of the Leahy-Smith America Invents Act directing the USPTO to study diversity, including gender diversity, among patent applicants, and of related research by the National Women’s Business Council on usage of the U.S. patent and trademark systems by U.S.-based female entrepreneurs. Analysis of gender data on the patent bar complements these studies and begins to provide a more complete picture of diversity in the U.S. patent system.
Tuesday, May 13, 2014
Theresa Beiner (Arkansas-Little Rock) has published Theorizing Billable Hours, 75 Mont. L. Rev. 67 (2014).
This article looks at the ethical and diversity implications of high billable hour requirements. While corporate counsel have increasingly demanded a diverse legal workforce and emphasized the need to lower the costs of outside counsel, law firms have not responded to these concerns in a manner that is producing results. Instead, women continue to drop out of law firm practice at higher rates than their male counterparts and the costs of legal services remain high. High billable hour requirements exacerbate both these problems and have implications as well for ethical lawyering. Using data from a variety of disciplines, the article shows that not only do high billable hour requirements make large law firms difficult places for women to succeed, but they also foster work environments that are inefficient and therefore cost clients more. This has implications on a lawyer’s ethical duty not to discriminate based on sex and not to charge an unreasonable fee, and also increases the potential of lawyers making mistakes. Studies of lawyers suggest that high billable hour requirements exacerbate the difficulties women have in practice, especially for those women who have family responsibilities. This leads to high dropout rates from law firm practice that hurt both law firms and their clients. Lowering billable hours will increase the possibility that women will succeed in these workplaces while making lawyers more efficient. Using studies of sleep deprivation and sleep restriction, this article explores what clients are getting for their money from sleep-deprived high billable hour lawyers. It is clear that both sleep deprivation and chronic sleep restriction impair the average person’s ability to function on many levels—including neurocognitive performance that has important implications for lawyering. In addition, studies of workplace productivity have shown that limiting working hours can actually increase productivity. Thus, limiting hours logically should produce more efficient and ethical lawyering while making law firms more feasible work environments for women.
Tuesday, February 25, 2014
Finding more help in "What Works for Women at Work" than in "Lean In."
We’re closing in on the anniversary of the publication of “Lean In: Women, Work, and the Will to Lead,” the ubiquitous women-at-work manifesto penned by Facebook COO Sheryl Sandberg, which has sold 1.5 million copies and will also become a movie. And while “Lean In” offers important feedback to women in pithy and useful phrases like “Don’t Leave Before You Leave,” the book has a bit of a rarefied air to it. It’s hard to imagine a single working-class mother, for instance, believing she has the kind of clout and privilege that Sandberg, who is worth more than $1 billion, enjoys
Sunday, February 16, 2014
Saturday, February 15, 2014
From my colleague, Will Huhn, Associate Director of the Constsitutional Law Center at Akron, one of four national centers established by Congress.
In the name of defending religious freedom, the Kansas House recently adopted a statute that would authorize any person or business to refuse service, employment, or employment benefits to same-sex couples. Is it constitutional?
[N]otice that the protection extends to "sincerely held religious beliefs ... regarding sex or gender." Not sexual orientation, but "sex or gender." It is difficult to believe that this law was written to justify gender discrimination, but that is how it is written. In fact, the word "sex" is also ambiguous. Is the law speaking of "sex roles" or "sexual acts"? Is it meant to protect "sincere religious beliefs" regarding the proper roles of men and women or proper and improper modes of consensual sexual conduct? ....
If the qualifying phrase relates solely to "employment benefits" then the scope of the law is very broad indeed, permitting gender discrimination across the board by individuals and private businesses in terms of whom they serve and whom they employ, so long as the person or business holds a "sincere religious belief" that persons of that gender are not supposed to engage in certain conduct or have certain privileges.
From NPR, Facebook Gives Users New Options to Identify Gender. I get moving away from a binary gender. But 50+ genders?? It almost makes gender obsolete. Oh....I get it.
Saturday, February 8, 2014
From Amy Schmitz (Colorado), Females on the Fringe: Considering Gender in Payday Lending Policy, 89 Chic. Kent L. Rev. (2014).
Payday lending may provide a much-needed safety net for some consumers in need of quick cash for emergencies. However, data suggest that most payday loan borrowers become repeat users caught in a cycle of high-cost debt. Furthermore, empirical evidence indicates consistent overrepresentation of women, including many single mothers, among payday loan borrowers. This takes a toll not only on these women and their families, but also on society as a whole. Indeed, context matters in payday lending debates. It is thus time to think creatively and consider contextualized programs that aim to increase women’s and all consumers’ safe borrowing options, provide education regarding those options, and ultimately assist them in escaping cycles of debt and poverty. This Article seeks to spark the dialogue regarding such contextualized policymaking.
Friday, February 7, 2014
Merck to Pay $100 Million in NuvaRing Contraceptive Settlement. "Merck & Co said on Friday it will pay $100 million to resolve all U.S. product liability lawsuits alleging it downplayed serious health risks involving its NuvaRing intrauterine contraceptive device." No worries Merck. This is much less than the $1.6 Billion Bayer paid for a similar case last year involving the pill Yaz. And shares are up.
Thursday, February 6, 2014
In Lehman Sisters, the authors persuasively make the case that women should not be better represented on corporate boards because they are less likely to take risks (an alleged gender-based difference), but because a diversity of views provides better management overall.
Would the crisis have happened if Lehman Brothers had been Lehman Sisters? Evidence on population gender differences in risk-aversion suggest not. Consistent with the idea that female managers need not be more risk-averse than men, we find that listed banks with more female directors did not engage in fewer risk-taking activities around the crisis and did not have lower risk than other banks. However, banks with more diverse boards had better performances, even in instrumental variable regressions. Our results suggest that more gender diversity is not necessarily associated with less risk. However, diversity may be valuable in crisis situations.
Monday, February 3, 2014
Caroline Mala Corbin at U of Miami has uploaded Corporate Religious Liberty: Why Corporations Are Not Entitled to Religious Exemptions. A longer version is available here. The abstract reads:
One of the main questions before the Supreme Court in Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius is whether large for-profit corporations are entitled to religious exemptions under the Free Exercise Clause or the Religious Freedom Restoration Act. In particular, the plaintiffs seek religious exemptions from the Affordable Care Act’s so-called “contraception mandate.”
This is an entirely novel claim. It is also without merit. The Free Exercise Clause and the Religious Freedom Restoration Act protect the religious practices of individuals and churches. They do not, and should not, extend to the for-profit corporate form for at least three reasons. First, corporate religious liberty makes no sense as free exercise is understood to (a) protect an individual’s relationship with the divine and (b) respect the inherent dignity of the individual. Furthermore, Citizens United v. Federal Election Commission provides no theoretical foundation for corporate religious liberty: The justifications for extending free speech protection to for-profit corporations do not translate into the free exercise context. Second, there is no precedent for the claim that for-profit corporations are entitled to religious liberty exemptions; on the contrary, precedent points in the other direction. Third, recognizing corporate religious liberty will benefit employers at the expense of their employees, who risk losing protection of the employment laws as well as their own free exercise rights.
Tuesday, January 28, 2014
I'm always a big fan of Williams' work. But I'm not thrilled with what she finds here. Frankly, it's a pretty depressing view of the work world. She finds that women still have to play the femininity card in order to be successful in the work place. Her research suggest that women need to soft sell their ideas and leadership in a "feminine" nurturing kind of gentle way rather than be critical or assertive. Or in another post, the suggestion is that women need to strike a power pose like Beyonce or Wonder Woman (seriously ? with or withou bustier?). When can women just be normal? That would be a revolution.
Saturday, January 18, 2014
My colleague, Will Huhn (Akron), explains here the implications of the Supreme Court's decision this week in Daimler AG v. Bauman. The Court in Daimler ruled that the federal courts in California lacked personal jurisdiction over the German corporation Daimler to adjudicate claims for human rights violations arising in Argentina.
What's the connection to the birth control mandate cases? In those cases the owners of two private, for-profit business corporations contend that their individual rights to freedom of religion "pass through" to the corporation -- that the corporations are in effect the "agents" of the principal shareholders, and that this is why the corporations have the right to deny their employees health insurance coverage for birth control.
In Daimler the Ninth Circuit Court of Appeals had held that MBUSA was the "agent" of Daimler AG, and that the substantial business presence of MBUSA in California could be imputed to Daimler AG. The Supreme Court was not persuaded by this agency analysis. (pp. 15-17) Instead the Court respected the separate corporate personhood of the parent company:
Even if we were to assume that MBUSA is at home in California, and further to assume MBUSA's contacts are imputable to Daimler, there would still be no basis to subject Daimler to general jurisdiction in California, for Daimler's slim contacts with the State hardly render it at home there. (p. 18)
It would be anomalous for the Court to adhere to corporate identity for purposes of personal jurisdiction and liability for tort, and yet to ignore corporate identity to give effect to the personal religious choices of stockholders. If corporations are legal fictions -- if they are in essence simply the shareholders -- then shareholders should be liable for corporate torts, debts, and taxes. Corporations are either separate and independent legal entities or they are not. For-profit business entities may or may not have the right to freedom of religion; but they are not the same "persons" as their stockholders, directors, officers, or employees.
Thursday, January 16, 2014
Um... not sure if this is a good thing, or a bad thing? Want Better Hedge Fund Returns? Try One Led by a Woman
“There is meaningful alpha to be gained from investing in women-owned and -managed funds,” Meredith Jones, a director at Rothstein Kass who wrote the report, said in an interview. “There appear to be both behavioral and biological factors that impact women’s ability to manage money and make them consistent.”
Women are different in behavior and biology in relation to money? Because they are less risk adverse. Is this even difference feminism?
Saturday, December 14, 2013
That tinkling sound you hear is the chipping away at the glass ceiling, little by little. This past week saw a woman rise to the corporate top of GM and the confirmation of two women to the D.C. Circuit.
The feel-good story of GM's new CEO, and recognition of its top female VPs has dominated the news. See Changing of the Guard in a Traditionally Male Industry. Though it seemed to require some justification. "There’s a strong business case for including more women in decision-making positions, executives and analysts say, especially when women are making more than half of new car purchases."
But this focus on "corporate feminism" is not all champagne and roses. See Why Corporate Feminism is Convenient for Capitalism.
Few women will sit in boardrooms in their lifetime, and adding a few "golden skirts" in places of high responsibility doesn't translate straight to a hastening improvement in women's rights and quality of life. As comforting as the idea of "trickle-down feminism" might be, it's never borne out in reality...
The problem with corporate feminism's obsession with individual stories of success, and "having it all," is that many women don't have much at all. Women have been disproportionately affected by austerity, with single mothers and pensioners particularly affected. A few more women may be MPs or CEOs, but three times as many young women are locked into low-paid jobs than were 20 years ago.