Monday, January 9, 2017
I have just published the essay Reconsidering the Remedy of Gender Quotas, Harv. J. Gender & Law (online) (Nov. 2016). It takes on the question of the legality of instituting a more permanent, structural reform for gender equality through the judicial mechanism of quotas.
Rather than stumbling along the path of continued sex discrimination by the ineffective application of judicial Band-Aids to systemic problems, it is time for alteration of the power structure itself. It’s time for the law to endorse the equal representation of women in all power venues in order to remedy—permanently—longstanding, resistant systemic sex discrimination.5 And the way to achieve this goal of gender parity might be quotas.
“Quota” is a dirty word. In U.S law and society, we are “quota-phobic,” vehemently resisting an idea alleged to be based on political correctness in place of merit. Quotas, however, offer a powerful systemic remedy that can reach entrenched bias and provide meaningful and tangible change - virtually overnight as Canadian Prime Minister Justin Trudeau's cabinet decision of 50/50 shows.
A quota remedy would require gender parity—proportional representation of women in positions of power. The proportion would match the gender distribution of the general population; so women as about 51% of the population should constitute 51% of the managers, boards, CEOs, legislatures, and law firm partners, as well as STEM majors and law students. Judges too, would then be 51% women (although Justice Ruth Bader Ginsburg suggested she would not stop there, opining that the Supreme Court would have the right number of women justices “[w]hen there are nine.”).
This article first demonstrates the longstanding ineffectiveness of other remedies for systemic sex discrimination and the power quotas potentially offer. It then discusses the use of gender quotas for European corporate boards, academic advisory boards, and political representatives to show the viability of gender quotas as a legal solution. Finally, it concludes that gender quotas as a judicially-imposed remedy would survive constitutional scrutiny under the Supreme Court's existing intermediate scrutiny standard.
Gender quotas have been highlighted in several places recently, including:
The Newsweek writers' settlement portrayed in the TV series (and book) "Good Girls Revolt"
The ABA Rule mandating diverse CLE panels
Friday, May 13, 2016
Business people tend to hate governments telling them what to do, and the quotas on female board members imposed on companies by a handful of European countries are no different. But here’s the thing: If a goal of the quotas is to bring more women into the top ranks of business, they seem to be working.
That’s the view of Rajeev Vasudeva, the CEO of Egon Zehnder, one of Europe’s largest executive search firms. Vasuveda said he’s no fan of quotas, but concedes they’re having an impact. “I’m not a great supporter of quotas but in this case it’s making difference,” he said in an interview. “It has changed the conversation—it clearly has been put on the agenda of companies.”
Norway was the first to introduce quotas for women in 2003, requiring that public companies fill at least 40% of their board seats or risk dissolution. Iceland, Spain and France followed with 40% targets—although with less severe penalties—and other countries have lower thresholds. Last year, Germany became the largest economy to impose a quota, mandating 30% of supervisory board seats be filled by women
Wednesday, December 2, 2015
From the announcement:
We are pleased to announce a new MRN Leadership Research Network (MRN-LRN) Sponsored Subject Matter eJournal - Female Leadership Challenges eJournal, sponsored by Women in Leadership Research Network at UNSW Business School.
FEMALE LEADERSHIP CHALLENGES eJOURNAL
View Papers: http://ssrn.com/link/Female-Leadership-Challenges.html
Editor: Renée B. Adams, Professor, University of New South Wales, Director, Financial Research Network (FIRN), Research Associate, European Corporate Governance Institute (ECGI).
Sponsor: The Women in Leadership Research Network connects finance, economics and law faculty at UNSW with other academics and organizations interested in fresh thinking and creative solutions to female leadership challenges.
Description: This eJournal includes working and accepted paper abstracts and other scholarly works, such as book chapters and review articles, on the topic of the barriers to and the consequences of female leadership. We are interested in the role of culture, stereotypes and household production in women's career progression. We are interested in how barriers to female leadership and selection shape female leadership outcomes. We are interested in the role policy has to play in overcoming these barriers. We welcome fresh thinking on female leadership challenges from any discipline, particularly work that takes causal identification seriously.
Professor, University of New South Wales (UNSW) - Faculty of Law
Associate Professor, UNSW Business School, School of Economics
PAULINE A. GROSJEAN
Associate Professor, UNSW Business School, School of Economics
HOW TO SUBSCRIBE
You can subscribe to the eJournal, by clicking on the "subscribe" link listed above.
Saturday, August 15, 2015
ELLEN REMMER had wanted to align her investments with her values for years, seeking to put her money into stocks and bonds that would have an impact beyond the returns. For her, this meant investing in organizations that either improved the lot of women and girls or helped the environment.
Doing so took longer than she expected. Even though it was her money, it was held in trust. She said it wasn’t easy to persuade the trusts’ advisers to change their investment policies. ****
In its annual survey, the Global Impact Investing Network found that a third of all respondents were interested in making investments that promote gender equality and women’s empowerment through both debt and equity investments in the United States and emerging markets. Some investors seek out female entrepreneurs and give them money. Others invest in companies like those that provide clean-burning cook stoves to women in Africa and Latin America.
Patricia Farrar-Rivas, a partner at Veris Wealth Partners, a wealth management firm that invests $800 million on an impact basis, said gender lens investing is now the most popular of its five impact strategies. (The others are aimed at environment and climate change, community and economic development, sustainable food systems and agriculture, and “sustainable mind-set and mindfulness” — or companies that take their time making investments.)
Despite this increased interest, gender lens investment can seem hard to do. “It’s an area where it’s difficult to gauge supply and demand because much of the demand doesn’t know the supply exists,” Mr. Bouri said.
Friday, August 7, 2015
Donald Trump's unforgettable performance in the GOP debate last night is now well publicized.
Among the several provocative comments he uttered, one is especially noteworthy. During an exchange with Megyn Kelly of Fox News, who had asked him to respond to charges that he was a misogynist, he snapped at her and made a vague threat.
Today's WaPo contains some discussion about Trump's views on women.
“I don’t know why, but I seem to bring out either the best or worst in women.”
So wrote Donald Trump in his 1997 book, “Trump: The Art of the Comeback.”At the time, the real-estate billionaire was dealing with the end of his second marriage, so a little bitterness might be expected. Yet, throughout Trump’s books — particularly in his three memoirs, “Trump: The Art of the Deal”(1987), “Trump: Surviving at the Top” (1990) and “The Art of the Comeback” — he writes at length on his personal relationships, his experiences with women in marriage and in the workplace, even his dating life.
A memorable excerpt from the WaPo piece, quoting The Donald:
“Women have one of the great acts of all time. The smart ones act very feminine and needy, but inside they are real killers. The person who came up with the expression ‘the weaker sex’ was either very naive or had to be kidding. I have seen women manipulate men with just a twitch of their eye — or perhaps another body part.” (“Trump: The Art of the Comeback”)
Thursday, August 6, 2015
Tuesday, May 12, 2015
We posted posted about the new decision Mach Mining v. EEOC upholding limited judicial review for the EEOC's conciliation process.
Here's more commentary about the case: WSJ, Legal Experts Weigh in on Supreme Court's EEOC Ruling
Business litigants in recent years have notched a number of victories in cases before Supreme Court. But Wednesday’s high court ruling in a dispute over the government’s handling of discrimination complaints gives employers little to cheer, according to legal experts.
While the Supreme Court handed business a narrow and technical victory – ruling that courts do have limited power to review how the Equal Employment Opportunity Commission handles discrimination complaints before it decides to sue an employer – some lawyers familiar with the issues say that the long-term gain is for employees.
“I think it’s unambiguously a win for the EEOC and complainants,” University of Colorado law professor Melissa Hart, who specializes in civil procedure and employment discrimination, told Law Blog on Wednesday.
Monday, May 4, 2015
From the WSJ:
Men and women have different experiences when it comes to Wall Street careers. And those differences fascinate Lily Fang.
Dr. Fang, an associate professor of finance on the Singapore campus of the business school Insead, has spent the past five years or so delving into how gender affects the career-development paths of stock-research analysts on Wall Street. What she and co-author Sterling Huang of Singapore Management University found was that the networking and personal connections that male analysts rely on so heavily to get ahead are much less useful for women in similar jobs.
Saturday, April 25, 2015
My colleagues and I have been discussing this issue. In the family law context, there is a rise of law firms that represent only male parties, often due to an affiliation with the father's rights movement.
We didn't come up with any answers, just flagged some of the questions:
Does the civil rights law apply? Are law firms "public accommodations" under the Civil Rights Act? They are defined as public accommodations under the ADA - any relevance? Is the licensing of lawyers sufficient state action? Maybe the commerce clause?
Don't lawyers have the right to choose their own clients? A First Amendment right of association? Or what about a religious right under Hobby Lobby?
What about ethical rules for lawyers against discrimination?
Here is an older law review article on the topic: Samuel Stonefield, Lawyer Discrimination Against Clients (1998)
Tuesday, April 21, 2015
AALS SECTION ON COMMERCIAL AND RELATED CONSUMER LAW
AALS SECTION ON WOMEN IN LEGAL EDUCATION
The AALS Section on Commercial and Related Consumer Law is pleased to announce a Call for Papers for its program co-sponsored by the Section on Women in Legal Education during the AALS 2016 Annual Meeting. The papers from the program will be published in the Columbia Journal of Gender and Law.
Female scholars have made pivotal contributions to the development of commercial and consumer laws and scholarship in the United States, especially in the past few decades. Not only have specific women’s voices played an important role, but distinctively feminist concerns have engendered changes in legal theory and policy. This panel will discuss the contributions that specific female legal academics have made to the field (as just a few examples, Elizabeth Warren and Jean Braucher). Also, it will reflect on how feminist concerns have influenced commercial and consumer law scholarship. Finally, it will also include scholarship focused on women’s experiences with consumer and commercial law.
The Committee invites submissions from scholars interested in presenting at the program and in publishing their papers with the Columbia Journal of Gender and Law. Two speakers will be selected from this call for papers. The panel is focused on “female perspectives,” broadly construed. The Section strongly encourages proposals from all genders.
There is no formal requirement as to the form or length of proposals. Preference will be given to proposals that are substantially complete and to papers that offer novel scholarly insights.
Per AALS rules, only full-time faculty members of AALS member law schools are eligible to submit a paper to a Section’s call for papers. Fellows from AALS member law schools are also eligible to submit a paper but must include a CV with their proposal. All panelists, including speakers selected from this Call for Papers, are responsible for paying their own annual meeting registration fee and travel expenses.
Deadline: AUGUST 15, 2015. We will make decisions shortly after that date. Please email submissions, in Word or PDF format, to the Program Committee c/o Jim Hawkins at firstname.lastname@example.org with “AALS Submission” in the subject line. Before sending, please remove all identifying information from the Word or PDF document.
Saturday, March 21, 2015
A female former manager and a current executive are suing a California subsidiary of Boston Scientific Corp. for $50 million, asserting that the medical device company discriminates against female sales representatives by assigning them to less profitable territories and giving them higher quotas and lower commissions than male counterparts.
Plaintiffs Denise Fretter, a regional sales manager in Ohio, and Maria Korsgaard, a former territory manager in Nevada, state in the suit that Boston Scientific Neuromodulation Corp., in Valencia, Calif., pays its female sales reps less than males, even when they outperform the men.
“BSNC maintains an unfair system of gender-stratified compensation,” Felicia Medina, a lawyer representing the plaintiffs in the class- and collective-action complaint, said in a statement. “In effect, BSNC bars female employees from better and higher-paying positions that have traditionally been held by male employees. Its employment practices are illegal, morally wrong, and they must come to an end."
Tuesday, March 17, 2015
A new $110 million lawsuit filed on Tuesday claims a U.S. division at Swiss drugmaker Novartis has routinely denied female employees equal pay and promotional opportunities, five years after the pharmaceutical giant was hit with a nine-figure jury verdict over similar claims.
The proposed class action suit filed in U.S. federal court in Manhattan says Texas-based Alcon Laboratories Inc, which was acquired by Novartis in 2010, maintains a "boy's club atmosphere" that is hostile to women and bars them from leadership positions.
An spokeswoman at Alcon, which specializes in eyecare products, deferred questions to Novartis Corp, which did not immediately return a request for comment.
A U.S. jury in 2010 ordered Novartis to pay more than $250 million in a separate class action that alleged widespread gender discrimination. At the time, it was the largest award in an employment discrimination case in U.S. history.
The company at the time said it would adopt reforms to prevent discrimination and retaliation against employees who complained.
Joan Williams, The Throwback Sexism of Kleiner Perkins, Harvard Business Review.
The high-profile gender discrimination lawsuit by Ellen Pao against the venture capital firm Kleiner Perkins is being discussed as if it’s emblematic of gender bias in tech. And in some ways, it is.
Pao’s attorney has argued that women were held to different standards from men. And that women were asked to do the “office housework”—such as being asked to take notes at a meeting, when taking notes precluded them from meaningful participation. The evidence presented so far also suggests that women at the firm do walk a tightrope between being seen as too passive and too harsh. Moreover, she claims, she was denied opportunities because she was pregnant. That’s three out of the four basic patterns of subtle bias I’ve identified in my research on professional women. Not bad for a day’s work.
But Pao v. Kleiner Perkins is not just about the kind of subtle stereotyping that’s common at many large tech companies. Much of what Pao describes is something quite different: an atmosphere straight from the blatant bias playbook
The Kleiner Perkins described by Pao fits this description. She reports being pressured into a sexual relationship with a male partner, Ajit Nazre. Another female partner whom Nazre pressured to have sex with him, Trae Vassallo, told an investigator hired by the firm that Nazre was “preying on female partners” and that she was constantly fending off his advances, in just the kind of sexualized atmosphere Ely’s 20-year-old study described. (Kleiner Perkins ultimately fired Nazre.) Another male partner told Vassallo she should be flattered by Nazre’s attention. A third gave her a sexually explicit book as a present for Valentine’s Day and invited her out to dinner, saying his wife was out of town. Other partners, on a business trip with Pao, discussed with a portfolio CEO and co-investor their delightful time with porn stars at the Playboy mansion, their sexual partner preferences, and more — “an adult cable show that involved sexual acts, they were discussing the Victoria’s Secret runway show, they were discussing older men they knew who were dating younger women, and they had a comment on Marissa Mayer being hot so Dan would let her on his board,” to quote Pao’s testimony. It all sounds more like the Anita Hill hearings or the Tailhook scandal than a modern-day lesson in subtle stereotyping.
Saturday, March 14, 2015
Riggins v. Polk County, 2015 WL 1037245 (11th Cir. Mar. 11, 2015)
David Riggins challenged, on equal protection grounds, a Polk County ordinance that grants women-owned and minority-owned business enterprises bidding for municipal contracts the opportunity to match the lowest qualifying bid if their original bid was within five percent of the lowest bid. ***
"Mr. Riggins, a white male, brought a pro se action under 42 U .S.C. § 1983 against Polk County, alleging race and gender discrimination in the bidding award of Polk County Quote 12–037. Mr. Riggins alleged in his amended complaint that he submitted the lowest qualified bid for Quote 12–037 on behalf of his company, D.C. Riggins, Inc. He attached to his initial complaint an “Invitation to Quote” sent from Polk County to D.C. Riggins, Inc., inviting the company to submit a bid for Quote 12–037 and instructing that the award would be made based on the overall low bid. Polk County Ordinance 10–005, however, provides a preference for women-owned and minority-owned business enterprises, which allows such businesses to match the lowest qualifying bid if their original bid was within five percent of the lowest bid. Mr. Riggins' complaint alleged that, by operation of Ordinance 10–005's price-matching preference, Quote 12–037 was awarded to the second-lowest bidder, a business that was given preference because it was owned by a woman. Mr. Riggins therefore asserted that Polk County discriminated against him based on his race and gender and that Ordinance 10–005 violated his equal protection rights."
The court held the case had to be brought by the company, and not the owner.
Saturday, January 10, 2015
Rebecca Tushnet, The Romantic Author and the Romance Writer: Resisting Gendered Concepts of Creativity, in DIVERSITY IN INTELLECTUAL PROPERTY, (Irene Calboli & Srividhya Ragavan eds., Cambridge Univ. Press, forthcoming 2015).
Dominant narratives of creativity regularly expect female-associated forms of creativity to be provisioned naturally without need for the economic incentives provided by exclusive rights, just like housework and childcare. Even as the concept of Romantic authorship has come under sustained analytic assault, its challengers often look elsewhere–to the kinds of creativity in which men are more likely to participate–to find models of situated, always-influenced authorship. In this chapter, I examine one variant of the problem, in which certain arguments about copyright discount the value of forms that are predominantly produced and enjoyed by women. But creative works in these oft-denigrated genres, such as media fandom, open up new possibilities in sexual and gender relations, and women learn to see themselves as valuable speakers by becoming creators. As a result, increasing the visibility of women’s creative works, including explicitly transformative works based on specific copyrighted predecessors, is an important part of rejecting the fetishization of Romantic authorship and valuing diverse kinds of creativity.
Friday, December 5, 2014
Notwithstanding the reference to Black Friday, the story, from the CBC, is still relevant:
As Black Friday approaches, here’s something that might make you see red: If you’re a woman, you may be paying more for a range of products than men are.
The practice is called gender pricing, where men and women are charged different amounts for similar products and services.
While some jurisdictions such as New York City have outlawed pricing discrimination based on gender, no laws in Canada prohibit the practice.
CBC’s Marketplacetested gender pricing at three of Canada’s largest retailers — Wal-Mart, Hudson’s Bay and Target — and found that similar products for men and women weren’t always the same price.
Wednesday, December 3, 2014
Germany’s top listed companies will be required to have 30% of their board positions filled by women under a law agreed today by Angela Merkel’s coalition parties.
The law, due to come into effect in 2016, aims to create greater gender equality in the workplace of Europe’s biggest economy where, despite having a female leader and 40% of the federal cabinet being female, women are significantly under-represented.
According to the The German Institute for Economic Research (DIW Berlin), just 6% of management board positions and 22% of supervisory board seats are held by women among the 30 companies on Germany’s blue-chip DAX index trading on the Frankfurt Stock Exchange.
Tuesday, December 2, 2014
For the history and legal briefing, see Young v. UPS at SCOTUSblog.
For UPS's voluntary actions that effectively implement the desired accommodations, see our prior post, Pregnant Workers Win Without Winning
Saturday, November 22, 2014
John Goldberg (Harvard), Jotwell, When is Sexual Abuse Within the Scope of Employment?, reviewing Martha Chamallas (Ohio State), Vicarious Liability in Torts: The Sex Exception, 48 Val. U. L. Rev. 133 (2013), available at SSRN.
Martha Chamallas’s Monsanto Lecture, Vicarious Liability in Torts: The Sex Exception, is timely and important, inviting renewed scholarly attention to the oft-neglected topic of vicarious liability.
Since the 1990s, courts have faced a steady stream of suits brought against schools, hospitals, religious institutions, and other entities for sexual abuse committed by employees. In addressing these suits, Chamallas argues, courts have adopted an unjustifiably narrow approach to vicarious liability.
Modern doctrine maintains that an employee’s on-the-job wrong will be imputed to her employer when the wrong is foreseeable, or involves the realization of risks characteristic of the employer’s enterprise. Under these tests, vicarious liability has at times extended to employees’ intentional acts of physical violence, as well as to negligence perpetrated by drunken, off-duty employees.
It is thus surprising, Chamallas argues, to find prominent cases in which courts decline to impose vicarious liability for sexual abuse. For example, the California Supreme Court refused to hold a hospital liable for its medical technician’s molestation of a young woman during the performance of an ultrasound, and also declined to hold a school district liable for a teacher’s abuse of a student during a school-sanctioned extra-curricular activity. According to Chamallas, modern legal tests for “scope of employment” are capacious enough to permit liability in cases such as these. Moreover, standard instrumental rationales for respondeat superior (“let the master answer”)—that it incentivizes appropriate precaution-taking by employers, better ensures compensation of victims, and fairly comports with the risks characteristic of the employer’s enterprise—arguably also favor liability. So why would courts decline to hold employers liable under the circumstances?
Wednesday, October 29, 2014
The diverse and robust pool of female founders and tech execs at Fortune’s 40 under 40 party proves positive for Silicon Valley’s future. Editing Fortune’s 40 Under 40 list is, every year, an education in ambition, disruption and extraordinary achievement. The process takes months of reporting, lots of debate and discussion and a healthy amount of handwringing as our deadline looms.
And then comes the fun. Every year, we hold a giant party for the 40 Under 40 and a few hundred other movers and shakers in the San Francisco area. This is always my favorite part of the process. Because our listers? They show up. This year, we had a record number join us, traveling from as far as India (Rahul Sharma, CEO of Micromax) and as close as upstairs (Brian Chesky, CEO of Airbnb, which hosted us in the lobby of the company’s headquarters in San Francisco’s SoMa district).
There were lots of local, Bay Area-based names, including Lyndon Rive, cofounder of SolarCity SCTY 3.82% , Josh Tetrick of plant-based food engineer Hampton Creek, Tristan Walker of Walker & Co/Bevel, Kabam’s Kevin Chou, Mason Morfit, president of ValueAct Capital (and youngest person on Microsoft’s board MSFT 1.26% ). Many more traveled to be there: SBE Entertainment Group’s Sam Nazarian, from Las Vegas; Nate Morris of waste-management disruptor Rubicon Global, in from Kentucky; Anthony Watson, CIO of Nike NKE 0.88% , who flew in from Beaverton, Ore; and President Obama’s deputy national security adviser Ben Rhodes, who was able to break away from his boss for a quick trip west. There was, of course, a healthy crew from New York, including VaynerMedia CEO Gary Vaynerchuk, NYSE president Tom Farley, Highbridge Principal Strategies’ Mike Patterson and Blackstone’s Peter Wallace.