Gender and the Law Prof Blog

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

Monday, April 16, 2018

Ninth Circuit En Banc Rules that Women's Salary Histories Cannot be Used to Justify Unequal Pay

ABA J, Salary History Doesn't Justify Paying Women Less, 9th Circuit Rules in Opinion Written by Late Judge

An en banc federal appeals court ruled Monday that salary history cannot be used to justify paying less to women in comparable jobs.

 

The San Francisco-based 9th U.S. Circuit Court of Appeals ruled that salary history is not relevant in a suit under the Equal Pay Act, report the Recorder, the Los Angeles Times and Courthouse News ServiceHow Appealing links to additional coverage and to the opinion.

 

The Equal Pay Act bars wage differences between male and female employees for comparable work—except in cases of seniority, merit, quantity or quality of production, or “any other factor other than sex.” The defendants had argued salary history was a factor “other than sex.”

 

The appeals court ruled that “a factor other than sex” is limited to legitimate, job-related factors such as experience, educational background, ability or prior job performance.

 

Prior salary, whether considered alone or with other factors, is not job-related, and relying on it perpetuates discrimination, the appeals court said.

 

Federal appeals courts are split on the issue, according to the National Law Journal. The U.S. Courts of Appeals for the Denver-based 10th Circuit and for the Atlanta-based 11th Circuit have held that prior pay can’t be considered alone as an exemption to equal pay laws. The Chicago-based 7th U.S. Circuit Court of Appeals has ruled salary history can be considered.

The decision is here at Rizo v. Yovino (9th Cir. en banc April 9, 2018)

There were three concurrences (5 judges of 11), with two of the concurrences reserving the option for businesses to use salary histories as a relevant, but not determinative, factor in pay decisions.  Three of the four women on the en banc panel joined a concurrence (only one of whom is a Republican appointee). 

For prior coverage of the earlier panel decision on this blog, see 

9th Circuit Grants En Banc Review for Decision Permitting Women to be Paid Less Than Men Due to Salary History (Sept. 2017)

EEOC Seeks Rehearing En Banc in 9th Cir Decision Finding Unequal Pay Based on Salary History Alone is not Gender Discrimination (May 2017)

Court Holds Salary Histories are Non-discriminatory Basis to Pay Women Less (May 1, 2017)

April 16, 2018 in Courts, Equal Employment | Permalink | Comments (0)

Neoliberalism and the Lost Promise of Title VII

Henry L. Chambers, Jr., Neoliberalism and the Lost Promise of Title VII, JOTWELL, reviewing Deborah Dinner, Beyond “Best Practices”: Employment-Discrimination Law in the Neoliberal Era, 92 Ind. L.J.  1059 (2017).

In Beyond “Best Practices”: Employment-Discrimination Law in the Neoliberal Era, Professor Deborah Dinner explores how neoliberalism of the late twentieth century has influenced Title VII’s interpretation and destroyed Title VII’s ability to transform the American workplace into one where employees are properly treated, fairly valued, and fully compensated. She suggests that neoliberalism’s focus on a minimal role for state intervention and on the individual worker as a completely realized market actor capable of protecting her interests through negotiation with an employer is problematic. It has led to an interpretation of Title VII that functionally expands employer prerogatives regarding terms of employment, limits employee power, and legitimates the economic inequality and class subordination that Title VII should attempt to eliminate. Consequently, even “best practices” that fully enforce Title VII “are insufficient to realize a labor market responsive to the needs of low-income workers for adequate wages, safe work conditions, and work hours and schedules that allow for fulfilling family and civic lives.”

 

The article is a Thing I Like Lots because it takes two seemingly unrelated topics – Title VII and neoliberalism – and explores how they are connected. Dinner notes neoliberalism is not a tight theory, but a general outlook that focuses on a free-market ideal that favors deregulation and individual autonomy. Accordingly, the article situates employment discrimination law inside of our American culture, recognizing that a law or its interpretation does not exist separate from the society in which it operates. Simply, Title VII – the statute considered most likely to bring substantive and procedural equality to the workplace – can be blunted by interpretations provided by courts and commentators operating in a neoliberal society. The article notes the roads not taken and laments the unmet possibilities of employment discrimination law. That is worthwhile to consider even for a reader who may tend to focus on employment discrimination doctrine rather than theory.

April 16, 2018 in Equal Employment, Theory | Permalink | Comments (0)

Tuesday, April 10, 2018

Lilly Ledbetter on Equal Pay Day

Lilly Ledbetter: My #MeToo Moment

Equal Pay Day — the day up to which the typical woman must work in a particular year to catch up with what the average man earned the previous year — always brings back a rush of memories. Not surprisingly, many of them I’d rather forget: the pit in my stomach, for example, that developed when I read the anonymous note left in my mailbox that told me I was being paid a fraction of what other, male supervisors at Goodyear were making. And when the Supreme Court denied me justice in my pay discrimination case.

(Some of them are happier memories, like when President Barack Obama signed into law the Lilly Ledbetter Fair Pay Act to ensure other women would not receive the same treatment.)

Sexual harassment isn’t about sex, just like pay discrimination isn’t just about pay. Both are about power. They are clear evidence that too many workplaces value women less. That was true for me in the 1980s and 1990s when I worked at Goodyear, and it is still true today.

April 10, 2018 in Equal Employment, Workplace | Permalink | Comments (0)

Friday, April 6, 2018

Holding Corporate Fiduciaries Liable to Shareholders for Sexual Misconduct

Daniel Jacob Hemel & Dorothy Lund, Sexual Harassment and Corporate Law, Columbia Law Rev. (forthcoming)

The year 2017 marked an inflection point in the evolution of social norms regarding sexual harassment. While victims of workplace harassment had long suffered in silence, the surfacing of serious sexual misconduct allegations against Hollywood producer Harvey Weinstein encouraged many more victims to tell their personal stories of abuse. These scandals have spread beyond Hollywood to the rest of corporate America, leading to the departures of several high-profile executives as well as sharp stock price declines at a number of firms. In the past year, shareholders at four publicly traded companies have filed lawsuits alleging that corporate directors and officers breached their fiduciary duties and/or violated federal securities laws in connection with sexual harassment scandals at those firms. More such suits are likely to follow in the months ahead. 

In this Article, we examine the role of corporate and securities law in regulating and remedying workplace sexual misconduct. We specify the conditions under which corporate fiduciaries can be held liable to shareholders under state corporation law for perpetrating sexual misconduct or allowing it to occur at their firms. We also discuss the circumstances under which federal securities law requires issuers to disclose sexual misconduct allegations against top executives and to reveal payments made to settle sexual misconduct claims. After building a doctrinal framework for analyzing potential liability, we consider the strategic and normative implications of using corporate and securities law as tools to address workplace-based sexual misconduct. We conclude that corporate and securities law can serve to publicize the scope and severity of sexual harassment, incentivize proactive and productive interventions by corporate fiduciaries, and punish individuals and entities that commit, conceal, and abet sexual misconduct in the workplace. But we also address the potential discursive and distributional implications of using laws designed to protect shareholders as tools to regulate sexual harassment. We end by emphasizing the promise as well as the pitfalls of corporate law as a catalyst for organizational and social change.

April 6, 2018 in Business, Equal Employment, Workplace | Permalink | Comments (0)

Expanding the EEOC's Enforcement Powers for Sexual Harassment

Kenneth Robert Davis, Strong Medicine: Fighting the Sexual Harassment Pandemic, Ohio State L. J. (forthcoming)

A pandemic of sexual harassment has stricken the country. A recent EEOC report shows that, depending on how the question is posed, between 25 and 85 percent of women respond that they have experienced harassment in the workplace. The report also states that 90 percent of incidents go unreported. Victims do not believe that their employers will be receptive to their complaints, and many fear censure or retaliation. The law is limited in its capacity to deter a pandemic that has psychological, sociological, and cultural causes. Nevertheless, the law has a role to play, particularly in the workplace. Title VII of the 1964 Civil Rights Act prohibits employment discrimination based on sex, and the courts have long recognized sexual harassment as a form of sex discrimination. The Act has established a framework focused on conciliation, and, where efforts at settlement fail, on litigation. Regrettably, this framework has failed to achieve its mission of deterrence. In Meritor Bank v. Vinson, the Supreme Court established the elements of hostile-work-environment claim. A plaintiff must prove that she was subjected to unwelcome, discriminatory words or conduct of a sexual or gender-related nature so severe or pervasive that they altered the conditions of her employment. In applying this standard, federal courts have rejected claims alleging highly offensive and even egregious misconduct. Several reasons account for the failure of current law to curtail sexual harassment in the workplace. One of the primary reasons is the law’s focus on conciliation and litigation. Under the current model, complainants file grievances with the EEOC, which seeks to settle disputes. If efforts at settlement fail, the current approach authorizes a federal court action. Settling cases may do little to deter abuses. After entering into a settlement agreement, an employer may slip back into complacency. Litigation also fails to promote deterrence because the current framework focuses on compensating victims.

 

To strengthen Title VII’s deterrent impact, this Article proposes that Congress supplement the current model by granting the EEOC expanded enforcement powers. The EEOC should have broad authority to initiate civil enforcement proceedings in federal court and in quasi-judicial enforcement proceedings. Rather than compensating victims, the purpose of such proceedings would be to identify instances of workplace harassment, and, where appropriate, sanction irresponsible employers. Because the EEOC, in such enforcement proceedings, would not seek relief on behalf of victims, the elements that establish injury would be superfluous. In such proceedings the EEOC should merely have to prove that discriminatory, sexual or gender-related words or conduct would be highly offensive to a reasonable person. By adopting the “highly offensive to a reasonable person” standard, Congress would maximize prevention of sexual harassment in the workplace.

April 6, 2018 in Equal Employment, Workplace | Permalink | Comments (0)

Wednesday, March 28, 2018

Limited Legal Recourse for Intersectional Age and Gender Discrimination in Employment

Joanne Song McLaughlin, Limited Legal Recourse for Older Women's Intersectional Discrimination Under the Age Discrimination in Employment Act

Older women compose a large share of labor force in the U.S. There are two federal statutes that can provide protection for older women against employers’ discriminatory behavior: the Age Discrimination in Employment Act (ADEA) and Title VII of the Civil Rights Act (Title VII). Theories and empirical evidence suggest that older women are more discriminated against for being old and female, but there is a concerning policy implication that current legislation does not provide adequate protection for older women. The main reason for this concern is that older women’s intersectional discrimination invokes age-plus-sex or sex-plus-age cause of action. However, the courts do not recognize this cause of action under the ADEA and they have mixed views on this issue under Title VII. This article discusses evidence of older women’s intersectional discrimination and the importance of recognizing this intersectionality in proof structure. It also reviews case laws and the effectiveness of the age discrimination laws on older women’s labor market outcomes. The findings indicate that the ADEA does not provide equal employment opportunities for older women. Older women’s legal recourse for their unique intersectional discrimination for being old and female is constrained under the ADEA and Title VII strictly due to legislative peculiarities in statutes intended to solve this exact problem.

March 28, 2018 in Equal Employment | Permalink | Comments (0)

Tuesday, March 27, 2018

A Legal Study of Equal Pay in the EU

Petra Foubert, The Enforcement of the Principle of Equal Pay for Equal Work or Work of Equal Value: A Legal Analysis of the Situation in the EU Member States, Iceland,Liechtenstein and Norway (July 2017)

Sixty years after the principle of equal pay for men and women for equal work or work of equal value was first laid down in Article 119 of the EEC Treaty (currently Article 157 of the Treaty on the Functioning of the EU), the EU today faces a gender pay gap that has remained constant at a relatively high level for decades. The most recent Eurostat data show an average figure of 16.3 % (for the year 2015) for the 28 EU Member States. Although there is a big difference between the countries with the lowest pay gap (Italy and Luxembourg, both with 5.5 % in 2015) and the country with the highest pay gap (Estonia, with 26.9 % in 2015), and although these figures represent the so-called "unadjusted" gender pay gap (i.e. not adjusted according to individual characteristics that may explain part of the difference), there are signs that all over Europe sex-based pay discrimination remains a problem that should not be underestimated.

March 27, 2018 in Equal Employment, International | Permalink | Comments (0)

Friday, March 23, 2018

ABA New Guidelines on Zero Tolerance for Sexual Harassment

ABA Unveils New Guidelines to Combat Sexual Harassment

“Zero Tolerance: Best Practices for Combating Sex-Based Harassment in the Legal Profession” is an updated version of a manual first developed by the ABA’s Commission on Women in the Profession in 2007.

 

This latest version focuses on issues of sexual harassment and bullying within the legal profession and provides more explicit policy advice and guidance for legal industry leaders to follow in order to help eradicate misconduct among their ranks.

 

“[Zero Tolerance] updates our understanding of workplace abuse and expands it to include non-sexual abusive behavior, such as bullying and protection for individuals who may be targeted because of their sexuality, gender identity, race and ethnicity, alone or in combination,” said the preface by Hill, who has accused U.S. Supreme Court Justice Clarence Thomas of sexual harassment. “The commission’s manual offers ABA members invaluable information that will benefit the profession.”

 

The new manual outlines sample policies that legal organizations can use in drafting their own policies to prohibit sexual harassment. It also outlines key elements of what a comprehensive policy against sexual harassment should include, as well as guidelines for complaint channels and reporting procedures.

 

The manual also suggests possible sanctions or disciplinary actions that could be used against a harasser or if there was a retaliatory response taken against the victim of such harassment.

 

“The legal profession must have zero tolerance of sexual harassment against any person working within our law firms, our justice system or our law schools,” wrote ABA president and Greenberg Traurig co-president Hilarie Bass in the manual’s foreword. “This book provides a roadmap for our profession to move forward to ensure that sexual harassment is something that the next generation of lawyers can describe as a challenge of the past that has been overcome.”

 

The publication of the updated “zero tolerance” manual comes on the heels of the adoption of a sexual harassment resolution by the House of Delegates at the ABA’s midyear meeting in Vancouver last month, which encouraged all employers in the legal profession to adopt and enforce policies and procedures that “prohibit, prevent, and promptly redress harassment and retaliation.”

March 23, 2018 in Equal Employment, Women lawyers | Permalink | Comments (0)

Wednesday, March 21, 2018

Before MeToo There was Catharine MacKinnon

 

MacKinnon

NYT, Before #MeToo, There was Catharine MacKinnon and her Book "Sexual Harassment of Working Women"

Catharine A. MacKinnon’s influential work of legal scholarship published in 1979, but it offers the clearest possible illustration of the dynamics that MacKinnon believed were central to the American workplace, a system in which women were judged by the standards imposed on wives and concubines, used and discarded similarly.

 

MacKinnon, whose work has helped shape thinking about harassment, wrote at a time when the trees were beginning to shake in a landscape that still looked a lot like Cheever’s. Women remained employed largely in their capacity to serve as secretaries, receptionists, nurses, typists, telephone operators, research assistants. In the book, MacKinnon draws on the observations of the sociologist Talcott Parsons, who noted that a woman in an “occupational organization” was essentially a “wife-mother,” tasked with ego-building, “housekeeping (tidying up, answering the phone, getting coffee)” and performing the attendant role of “sex object.” In 1976, aRedbook magazine survey examining sex at work brought a kind of loose statistical confirmation, with one in three respondents remarking that appearance was as important as any other qualification when it came to getting hired. MacKinnon cites one woman’s lament that the well-paid jobs always go to the prettiest girls. It was a woman’s fate to either endure the migratory hands of a male boss and earn a decent living, or wish she looked good enough to invite the indignities.

 

These arrangements made the sexual subjugation of women in offices and on factory floors inevitable. “Women tend to be economically valued according to men’s perceptions of their potential to be sexually harassed,” MacKinnon argues. “They are, in effect, required to ‘ask for it.’” These imbalances, built on the subordination of female labor to male desire, meant that coercion and compliance could never be disaggregated — a notion that only now, in the aftermath of so many harassment scandals, with replicating details, is finding its place in our collective recognition. MacKinnon and other feminists who are almost always tagged as “radical” reflexively saw what so many witnesses to the current revelations are still absorbing: Harassment has been endemic to the way we do business. It has been tireless and unyielding.

March 21, 2018 in Equal Employment, Gender, Legal History, Theory | Permalink | Comments (0)

Family Dollar Stores Class Action Pay Discrimination Suit Settles for $45 Million

Class Action Gender Pay Discrimination Case Settles for $45 Million

Family Dollar agreed to pay $45 million to a class of female store managers who sued the company claiming they had been paid less than male store managers.  Earlier this week, a federal court approved the class action settlement.  The pay discrimination claims arose under Title VII of the 1964 Civil Rights Act as well as the Equal Pay Act.

 

In 2002, nearly 50 female Family Dollar store managers filed charges of discrimination with the Equal Employment Opportunity Commission (EEOC).  These charges alleged that the company had paid them less than similarly situated male store managers.

 

Plaintiffs then filed their lawsuit in federal court where it was “vigorously litigated” over the next ten years.  Among the issues contested were whether the class action could proceed in light of the Supreme Court’s watershed ruling on class action issues in the Walmart v. Dukes case in 2011.

 

Eventually, the parties reached a settlement agreement in 2017 and the court held a fairness hearing after which it decided to approve the settlement on March 14, 2018.

 

Under the settlement terms, the class of female Family Dollar store managers will receive a total of $45 million dollars.  The money will be distributed among the class members through the court-appointed settlement administrator.  The attorneys for the class will receive 1/3 of this amount ($15 million) as well as approximately $1 million in litigation expenses.

 

In addition, Family Dollar is required to, among other things, review its compensation practices related to store managers and to consult with labor economists in doing so.

March 21, 2018 in Equal Employment | Permalink | Comments (0)

Monday, March 19, 2018

Getting Rid of Student Evaluations due to Proven Gender Bias

Kristina Mitchell, Student Evaluations Can’t Be Used to Assess Professors .

Our research shows they're biased against women.  That means using them is illegal.

***

new study I published with my co-author examines gender bias in student evaluations. We looked at the content of the comments in both the formal in-class student evaluations for his courses as compared to mine as well as the informal comments we received on the popular website Rate My Professors. We found that a male professor was more likely to receive comments about his qualification and competence, and that refer to him as “professor.” We also found that a female professor was more likely to receive comments that mention her personality and her appearance, and that refer to her as a “teacher.”

 

The comments weren’t the only part of the evaluation process we examined. We also looked at the ordinal scale ratings of a man and a woman teaching identical online courses. Even though the male professor’s identical online course had a lower average final grade than the woman’s course, the man received higher evaluation scores on almost every question and in almost every category.

 

This is frustrating, perhaps more so given that we certainly are not the first study to look at the ways that student evaluations are biased against female professors. But we might be among the first to make the case explicitly that the use of student evaluations in hiring, promotion, and tenure decisions represents a discrimination issue. The Equal Employment Opportunity Commission exists to enforce the laws that make it illegal to discriminate against a job applicant or employee based on sex. If the criteria for hiring and promoting faculty members is based on a metric that is inherently biased against women, is it not a form of discrimination?

 

It’s not just women who are suffering, either. My newest work looks at the relationship between race, gender, and evaluation scores (initial findings show that the only predictor of evaluations is whether a faculty member is a minority and/or a woman), and other work has looked at the relationship between those who have accented English and interpersonal evaluation scores. Repeated studies are demonstrating that evaluation scores are biased in favor of white, cisgender, American-born men.

 

This is not to say we should never evaluate teachers. Certainly, we can explore alternate methods of evaluating teaching effectiveness. We could use peer evaluations (though they might be subject to the same bias against women), self-evaluation, portfolios, or even simply weigh the evaluation scores given to women by 0.4 points, if that is found to be the average difference between men and women across disciplines and institutions. But until we’ve found a way to measure teaching effectiveness that isn’t biased against women, we simply cannot use teaching evaluations in any employment decisions in higher education.

March 19, 2018 in Education, Equal Employment, Law schools | Permalink | Comments (0)

Wednesday, March 14, 2018

MeToo, Time's Up, and Theories of Restorative and Transitional Justice

Lesley Wexler, Jennifer K. Robbennolt, Colleen Murphy, #Metoo, Time's Up, and Theories of Justice

Abstract:

Allegations against movie-mogul Harvey Weinstein and the ensuing #MeToo movement opened the floodgates to a modern day reckoning with sex discrimination in the workplace. High level and high profile individuals across industries have been fired, suspended, and resigned. At the same time, serious concerns have been raised about useful processes for non-privileged women, due process for those accused of misconduct, and the need for proportionate consequences. And there have been calls for both restorative and transitional justice in addressing this problem. But these calls have not been explicit about what sort of restoration or transformation is envisioned.

This article explores the meaning, utility, and complexities of restorative and transitional justice for dealing with sexual misconduct in the workplace. We begin by documenting the restorative origins of #MeToo as well as exploring steps taken, most prominently by Time’s Up, to amplify and credit survivors’ voices, seek accountability, change workplace practices, and encourage access to the legal system. We then take up the call for restorative justice by exploring its key components — including acknowledgement, responsibility-taking, harm repair, non-repetition, and reintegration — with an eye toward how these components might apply in the context of addressing sexual harassment in the workplace.

We conclude by looking more broadly to the insights of transitional justice. We identify some shared features of transitional societies and the #MeToo setting, including structural inequalities, a history of denial and the normalization of wrongful behavior, and uncertainty about the way forward. We then provide guidance for ongoing reform efforts. First, we emphasize the vital importance of including and addressing the interests of marginalized groups within the larger movement both because we need to know and acknowledge specific intersectional harms and also because doing so helps model the kinds of equal relationships that marginalized groups seek across other dimensions such as race, sexual orientation, gender orientation, and disability. Second, emphasize the need for holism and mixed types of responses in trying to spur societal change.

March 14, 2018 in Equal Employment, Theory, Workplace | Permalink | Comments (0)

Update on Work of Federal Judiciary Workplace Conduct Working Group on Sexual Harassment

Judicial Conference Receives Status Report on Workplace Conduct Review

Nearly 20 reforms and improvements have been implemented or are under development to help address workplace conduct concerns in the federal judiciary, James C. Duff, Chair of the Federal Judiciary Workplace Conduct Working Group, reported today at the biannual meeting of the Judicial Conference.

 

In introducing Duff before he delivered his report, Chief Justice John G. Roberts, Jr., who is the Conference's presiding officer, told the group, "I would like to reiterate what I stated in my year-end report. I have great confidence in the men and women who comprise the federal judiciary. I am sure that the overwhelming number have no tolerance for harassment and share the view that victims must have a clear and immediate recourse to effective remedies. The Work of this group will help our branch take the necessary steps to ensure an exemplary workplace for every court employee."

 

“Any harassment in the judiciary is too much,” Duff said in his report to the Conference. He told the Conference that the Working Group hopes to simplify and develop additional options, at both the national and local levels, for employees to seek assistance with workplace conduct matters. . . . 

 

Representatives of current and former law clerks and a cross-section of current judiciary employees met with the Working Group at its most recent meeting and had what Duff described as "an informative and productive discussion."

 

The Working Group also is receiving input via a mailbox on uscourts.gov, through which current and former judiciary employees can submit comments relating to the policies and procedures for protecting all judiciary employees from inappropriate workplace conduct.... 

 

The following either have been accomplished or are in progress:

  • Provided a session on sexual harassment during the ethics training for newly appointed judges in February.
  • Established an online mailbox and several other avenues and opportunities for current and former judiciary employees to comment on policies and procedures for protecting and reporting workplace misconduct.
  • Added instructive in-person programs on judiciary workforce policies and procedures and workplace sexual harassment to the curricula at Federal Judicial Center programs for chief district and chief bankruptcy judges this spring and upcoming circuit judicial conferences throughout the country this spring and summer.
  • Removed the model confidentiality statement from the judiciary’s internal website to revise it to eliminate any ambiguous language that could unintentionally discourage law clerks or other employees from reporting sexual harassment or other workplace misconduct.
  • Improve law clerk and employee orientations with increased training on workplace conduct rights, responsibilities, and recourse that will be administered in addition to, as well as separately from, other materials given in orientations.
  • Provide “one click” website access to obtain information and reporting mechanisms for both Employment Dispute Resolution (EDR) and Judicial Conduct and Disability Act (JC&D) claims for misconduct.
  • Create alternative and less formalized options for seeking assistance with concerns about workplace misconduct, both at the local level and in a national, centralized office at the Administrative Office of the U.S. Courts, to enable employees to raise concerns more easily.
  • Provide a simplified flowchart of the processes available under the EDR and JC&D.
  • Create and encourage a process for court employee/law clerk exit interviews to determine if there are issues and suggestions to assist court units in identifying potential misconduct issues.
  • Establish a process for former law clerks and employees to communicate with and obtain advice from relevant offices and committees of the judiciary.
  • Continue to examine and clarify the Codes of Conduct for judges and employees.
  • Improve communications with EDR and JC&D complainants during and after the claims process.
  • Revise the Model EDR Plan to provide greater clarity to employees about how to navigate the EDR process.
  • Establish qualifications and expand training for EDR Coordinators.
  • Lengthen the time allowed to file EDR complaints.
  • Integrate sexual harassment training into existing judiciary programs on discrimination and courtroom practices.
  • Review the confidentiality provisions in several employee/law clerk handbooks to revise them to clarify that nothing in the provisions prevents the filing of a complaint.
  • Identify specifically the data that the judiciary collects about judicial misconduct complaints to add a category for any complaints filed relating to sexual misconduct. The data shows that of the 1,303 misconduct complaints filed in fiscal year 2016, more than 1,200 were filed by dissatisfied litigants and prison inmates. No complaints were filed by law clerks or judiciary employees and no misconduct complaints related to sexual harassment.

March 14, 2018 in Equal Employment, Judges, Workplace | Permalink | Comments (0)

Tuesday, March 13, 2018

UK Survey on Women in the Law Shows Unconscious Bias, Worklife, Flextime and Male Networks Still Barriers to Equality

Largest Ever Survey on Gender Equality in Legal Profession

The largest international survey of women in the law has been released by the Law Society of England and Wales to mark International Women’s Day 2018, shedding light on the road to gender equality in the legal profession.

 

“As women solicitors practising in England and Wales outnumber men for the first time in history, people working in law across the world have spoken out about the challenges the profession faces in achieving gender equality,” said Law Society vice president Christina Blacklaws. . . .

 

"“While more and more women are becoming lawyers, this shift is not yet reflected at more senior levels in the profession. Our survey and a wider programme of work during my presidency in 2018-19 seek to understand progress, barriers and support remedies.

 

“Unconscious bias in the legal profession is the most commonly identified barrier to career progression for women, while flexible working is seen as a remedy by an overwhelming 91% of respondents to our survey.

 

“Interestingly, while half of all respondents said they thought there had been progress on gender equality over the last five years, there was a significant difference in perception by gender with 74% of men reporting progress in gender equality compared to only 48% of women.”

Key figures:

  • 7,781 people responded to the Law Society’s Women in the Law survey (5,758 women, 554 men and 1,469 unknown or other)
  • 74% of men and 48% of women reported progress on gender equality in the last 5 years (overall 50%)
  • Main barriers to career progression perceived as:
    - Unconscious bias (52%); however, only 11% said unconscious bias training is consistently carried out in their organisation
    - Unacceptable work/life balance demanded to reach senior levels (49%)
    - Traditional networks/routes to promotion are male orientated (46%)
    - Current resistance to flexible working practices (41%)
  • 91% of respondents said flexible working is critical to improving diversity 
    - 52% work in an organisation where flexible working is in place
  • 60% are aware of gender pay gap in their place of work
    - Only 16% see visible steps taken to address gender pay gap

March 13, 2018 in Equal Employment, International, Women lawyers | Permalink | Comments (0)

Guest Blogger: MeToo in the Legal Profession

#MeToo in the Legal Profession

Daniela Kraiem, Associate Director Women and the Law Program, American University Washington College of Law

 

Anita Hill testifying at the confirmation hearing of Clarence Thomas was one of the events that shaped my life as a lawyer, a feminist, and a human being.  As the country watched this intelligent, competent black woman give her testimony, I saw what it meant to speak truth to power.  I understood that power would not pin laurels on you for bravery, but would instead denigrate you and spit on you and tell you to your face that your experience was a lie.   I learned that action requires much more than bravery, it requires sacrifice.

I also understood, when Clarence Thomas responded that the proceedings had descended into a high-tech lynching just how heavy weight of intersectional oppression is, and how it is always deployed in the service of protecting power. What white supremacy cannot accomplish, patriarchy will. 

At that time, as a young waitress, I had endured my own ration of sexual harassment.  But it wasn’t until much later, until I graduated from law school and started to make my way as a young lawyer and experienced a few very sketchy, borderline moments that I think I grasped the depths of what Anita Hill was up against.

Lawyers expect our profession to provide us with a kind of shield.  We are powerful, privileged people, even if we are also female or gay or a person of color or all or none of the above.  Our identity as a member of the bar provides us with the ability move freely in the halls of power….until we are harassed by someone even more powerful. 

The harassers within the legal profession are among the most powerful people on the planet—bar none.  When you’re harassed as a lawyer, it’s often by a judge, a legislator, the partner of your firm, the CEO of the company or the big client.  A person with unparalleled resources, cultural capital to burn, and ability to use the law as both a shield and a cudgel against you.   

We operate in a profession where confidentiality and discretion are paramount, refusing assignments is difficult, and our reputations are our currency.  Harassers use and abuse the ethical and social conventions of our profession to prevent victims from speaking out and speaking up.  The result? Persistent gender-based inequality among lawyers that seems to have no discernable cause. 

Much of the conversation around #MeToo starts to bleed—quite rightly in some cases—into conversation about crimes, about assault, and about a culture of violence.  But sexual harassment is also fundamentally an economic issue, one that warps our profession.  The cost is not just to the victims, who must figure out how to earn a living, despite the hostile environment they’re operating in. The cost is to all of us.  How many of us have not applied for a job, or turned down a plum assignment because taking it would have put us into close contact with someone who either the whisper network or gut instinct said would not be safe?  Avoiding sexual harassment shapes our choices, delimiting our options.  The language of choice (“You chose to turn down the assignment”; “You choose the less prestigious clerkship”) masks a sick, systemic tolerance for discriminatory behavior.  It’s not a leak in the pipeline, it’s the gaping hole.

The #MeToo moment is an opportunity for change, not just in the general law, but in lawyers.  There are specific and concrete steps that we can take now to make our workplaces exactly that—places where we work.  Where we represent our clients, or draft legislation, or decide cases.  Not places where we have to think about our basic safety and security. 

In February, a group of us came together to discuss concrete steps for change at #MeToo: Preventing Sexual Harassment in the Legal Workplace (February 19, 2018, American University Washington College of Law), sponsored by the Women and the Law Program at AU. I was inspired by these women and daunted by the amount of work to be done, starting with:

(See also these remarks by Daniela Kraiem, or watch the entire panel discussion complete with introductions by Kendra Brown, closing remarks by Ann Shalleck, and Q&A).

We also need to lead the change in our own workplaces.  Because of the immense cultural and political power wielded by harassers in the legal profession, we have to pay special attention to the even wider power differential for those who work with us, but who are not also lawyers. Court reporters, paralegals, administrative assistants, law clerks, interns, interpreters, bailiffs, correctional officers.  If a harasser is willing to risk harassing someone who is in any other context not afraid to sue your ass, how much more complicated is it for someone without our professional badges and power suits to shield them? We, as lawyers, have an especial obligation to the people we work with—to listen and watch and ask and to believe them when they tell us that something is making them uncomfortable—or worse.  Because of the power we possess, ours is a heightened obligation to not be complicit.

In the wake of #MeToo, I’ve thought often of Anita Hill and the lessons her experience etched on us. I’m looking for ways to repay the immense debt that I, at least, owe her for speaking out when doing so meant that she walked alone.  Working to end harassment in the legal profession—the context in which Clarence Thomas harassed Anita Hill, and the context in which Anita Hill fought back--is the right place to begin.

March 13, 2018 in Conferences, Equal Employment, Guest Bloggers, Women lawyers, Work/life | Permalink | Comments (0)

Wednesday, March 7, 2018

Making the Case for Gender Quotas

Gender quotas are back in the news with the Oscars and the trending of "inclusion riders."  See posts here and here.  Not so long ago gender quotas were talked about with Canadian Prime Minister Justin Trudeau's 50% female cabinet, European corporate board quotas, and the United Nation's gender parity initiatives.

Quota is certainly a bad word.  But that doesn't mean its a bad idea.  To the contrary, I have argued that quotas, specifically gender quotas, can be legal.  And that such quotas are powerful remedies that offer the promise of structural change.  See Tracy A. Thomas, Reconsidering the Remedy of Gender Quotas, Harv. J. L. & Gender (online) (Nov. 2017).

The article first discusses the need for and the power of gender quotas.  They are worth examining because no other remedy packs as much potential for making concrete, meaningful, systemic change.  The article traces the other contexts, mostly international, where such quotas have been endorsed.  It then addresses the legal issues. Here is an excerpt:

 

III.  Making the Legal Case for Judicial Gender Quotas

* * *

A second legal question regarding the validity of gender quotas is whether ordering such gender-specific relief would violate constitutional parameters of equal protection as seen in the affirmative action cases. U.S. Supreme Court decisions in the race context seemed to have foreclosed most affirmative action remedies like quotas in education and employment. Conditioning state action based on race is said to be discriminatory and trigger strict scrutiny, thereby justifying little state action.“‘To be narrowly tailored, a race-conscious admissions program cannot use a quota system,’ but instead must ‘remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application.’” Race, however, can still be used as one factor in decisions like university admissions.

On the other hand, the European Court of Justice has upheld gender quotas against claims that they violate equality dictates. “[T]he ECJ's jurisprudence has reinforced the notion that gender quotas can only be narrowly justified by the goal of eradicating women's disadvantage.  Particularly when women's underrepresentation in certain positions is explained by prejudice, stereotype, or other practices associated with women's traditional exclusion from working life, quotas tend to be upheld.” Viewed this way, “[q]uotas are a mechanism for combating and undoing the history and present complex structures of women’s subordination.”

In the U.S., the question turns in large part on application of the Fourteenth Amendment’s Equal Protection Clause as to whether a gender quota as a judicial remedy would itself constitute discrimination. One key distinction between gender and race quotas is that the constitutional standards for sex discrimination have been distinguished from those for race. The Supreme Court has applied only intermediate, not strict, scrutiny to sex-based classifications. While arguments have been made over the years that sex is akin to race in its immutable and stereotypical function, and thus should demand the same level of strict scrutiny, the Court has stuck to its different standard for women. As a result, the Court has shown a greater tolerance for sex-based action, articulating a need to protect women or acknowledge gendered differences. And the constitutional standard has been interpreted by the Court to require women’s admission to the avenues of power.

What the intermediate standard of constitutional scrutiny might mean in the quota context is that sex-based action might be more tolerable than race-based action. Perhaps this is the silver lining of the double-standard of intermediate scrutiny. For the Court's gender jurisprudence has recognized “the transformative potential of affirmative action and” how it “best advances the antisubordination goal of the equal protection guarantee.”Courts would need to identify important (but not compelling) interests justifying the sex-based action. These important interests could be derived from women’s non-representative lack of power, continued subordination, lack of autonomy, and other systemic effects well-established in the feminist literature, and interests in equity, proportional representation, and balanced power which have driven global reforms.

This important objective of reversing gendered and discriminatory systems by mandating shared parity of power differentiates the case of gender quotas from the women-only policy struck down in Mississippi University for Women v. Hogan. There, a state university’s nursing program was open only to women.132 The state claimed that its single-sex admission policy “compensate[d] for discrimination against women and, therefore, constitutes educational affirmative action.” The Court noted, significantly, that such a justification could be an important governmental interest. “In limited circumstances, a gender-based classification favoring one sex can be justified if it intentionally and directly assists members of the sex that is disproportionately burdened.” However, in Hogan, the Court found that this compensatory remedial purpose was not in fact the state’s objective. “Mississippi has made no showing that women lacked opportunities to obtain training in the field of nursing or to attain positions of leadership in that field when the MUW School of Nursing opened its door or that women currently are deprived of such opportunities.” The Court concluded that, “[r]ather than compensate for discriminatory barriers faced by women, MUW's policy of excluding males from admission to the School of Nursing tend[ed] to perpetuate the stereotyped view of nursing as an exclusively woman’s job.” In addition, the Court found that “MUW's admissions policy lends credibility to the old view that women, not men, should become nurses, and makes the assumption that nursing is a field for women a self-fulfilling prophecy.” Thus, the constitutional infirmity with the all-women policy in Hogan was that it was not remedial and not aimed at reversing systemic inequality, but rather impermissibly perpetuated gendered stereotypes.

Where affirmative remediation is the legitimate objective, the Supreme Court has upheld quota-like gender preferences. In Johnson v. Transportation Agency, the Court upheld an affirmative action plan of a county employer granting promotion preference to a woman against challenge under Title VII. The county adopted the plan because “mere prohibition of discriminatory practices is not enough to remedy the effects of past practices and to permit attainment of an equitable representation of minorities, women and handicapped persons.” It’s “goal” (specifically designated as the softer term “goal” rather than “quota”) was to achieve “a statistically measurable yearly improvement in hiring, training and promotion of minorities and women” by the use of a “benchmark by which to evaluate progress,” working toward a long-term goal where its work force matched the gender composition of the area labor force, 36%. At the time, just 22% of the employees were women, two-thirds of them clerical, only 7% women in administration, 9% in technical, and none in the position of the skill craft worker challenged in the lawsuit. The Court upheld using the gender preference as one of the factors of employment, citing the statistical imbalance and underrepresentation of women. It did not, the Court said, “unnecessarily trammel the rights of male employees or create [ ]  an absolute bar to their advancement” because positions still remained available for men and candidates, both men and women, still had to be qualified for the position.

Taking these cases together, the Court has shown a willingness to consider quotas in the gender context. While it has not had the question presented directly, the Court has at least not closed the door to gender parity. Instead, as in any heightened constitutional scrutiny, it demands close and careful application of the constitutional standards to ensure that gender preferences are not mere pretexts nor avenues for future discrimination.

March 7, 2018 in Equal Employment, Theory | Permalink | Comments (0)

Is an Inclusion Rider a Quota? And so what if it is?

Frances McDormand's "Inclusion Riders" are Just a Quota System

University of Southern California communications professor Stacy Smith is credited with inventing the idea of inclusion riders, although she was careful to note that they are meant to increase diversity in supporting roles. As she toldVanity Fair last night, “It stipulates that in small and supporting roles, character should reflect the world we live in . . . If you get the Hollywood elite to adopt it in their contracts, it becomes baked in.”

 

This makes the idea sound quaint rather than what it is: a quota system. As the Vanity Fair article notes, the ideal inclusive breakdown today would mean: “50 percent gender parity, 40 percent inclusion for people of color, 5 percent LGBTQ, and 20 percent disabled.”

 

 

But one of the reasons inclusion riders haven’t been embraced by Hollywood is that they create new challenges, not least of which—as with all diversity initiatives—is who will be included in the inclusion category. As Goff later tweeted about such riders: “There are a host of categories folks may want to demand. Gender, age, race, sexual orientation, and disability are the beginning.” Efforts to impose diversity quotas are always prone to mission-creep because the moral hazards are baked in from the start.

 

And realistically, how broadly would inclusion riders reach? Why should they be limited to the performers on a production? Shouldn’t they also apply to the directors, the writers, the grips, and the best boys? (So problematic, btw.) There’s no logical reason why they wouldn’t. But practically speaking, they would set up a giant conflict with Hollywood’s many unions.

 

The unions would have to embrace the riders for them to be effective, otherwise, why wouldn’t some big-name actors simply use them as bargaining chips in their own contract negotiations (either by demanding them or promising not to demand them)? Should the guy holding the boom mic on the set of the umpteenth Fast and Furious movie lose his job to a protected inclusive class just so the big-money star could feel good about demanding diversity? Inclusion riders would pit the unions against the interests of their membership.

 

Finally, would diversity requirements be applied across the board? The Costumer Designer’s Guild is 80 percent female; would it be required to achieve gender parity by including more men among its ranks, as others have demanded the Art Directors Guild (73 percent male) should? Somehow, one suspects this street only runs one way.

 

If Hollywood wants to undertake diversity initiatives, then good for them. It’s not like the last couple of decades have been a golden age for cinema—how much worse could it get? But “inclusion riders” are nothing more an unworkable quota system that would create more problems than they would solve if they could even be implemented in the first place. Which they can’t. They’re just another piece of empty Hollywood posturing.

 

What Is An Inclusion Rider? Explaining Frances McDormand's Call to Action at the Oscars

Of course, with every step forward, there’s inevitably some pushback, and [lawyer] Kotagal has already seen some of that since McDormand’s speech, especially as people refer to the rider as a “quota.”

 

“It doesn’t say you have to hire somebody who fits this demographic group even if you don’t think they’re qualified,” she said. “And I think that quota is such a loaded and dangerous word in this society — it invokes this sense that somehow underqualified people are going to get my job.”

 

I certainly agree that "quota" is a pejorative term.  But that doesn't mean its a bad idea.  To the contrary, I have argued that quotas, specifically gender quotas, can be legal.  And that such quotas are powerful remedies that offer the promise of structural change.  See Tracy A. Thomas, Reconsidering the Remedy of Gender Quotas, Harv. J. L. & Gender (online) (Nov. 2017).

 

March 7, 2018 in Equal Employment, Pop Culture | Permalink | Comments (0)

Tuesday, March 6, 2018

Hollywood's Contractual Inclusion Rider Created by Communications Professor and Civil Rights Lawyer

Oscar-winner McDormand Wants an "Inclusion Rider"

 Few people watching Sunday night’s Oscar awards knew what Frances McDormand was talking about as she ended her Best Actress acceptance speech with an obscure bit of legalese: “inclusion rider.”

 

One exception was Kalpana Kotagal, a civil rights lawyer in Washington who has spent the last year or so crafting the concept with colleagues, but had no idea the novel method for increasing diversity in Hollywood would get such a high-profile shout-out.

 

The gist is this: powerful actors and film makers could use their star power to get a studio to hire more women, gay people, disabled people and people from racial minorities to the cast and crew by stipulating it as a rider in their contract.***

 

“I just found out about this last week,” McDormand, who won the Best Actress Oscar for her portrayal of a mother searching for her daughter’s killer in “Three Billboards Outside Ebbing, Missouri,” told reporters backstage during a ceremony notable for its activism.

 

Kotagal said she worked on creating model language for the rider with Stacy Smith, a communications professor at the University of Southern California who mentioned the “inclusion rider” idea in a 2016 talk on the lack of diversity in the film industry.

 

“The objective is to have the films that we see every day be a better reflection of the world that we live in,” Kotagal said, suggesting that casting directors look at a more diverse array of people when filling smaller speaking roles and background parts. “That means, for example, 50 percent women.

What's An Inclusion Rider? Here's the Story Behind Frances McDormand's Closing Words

"I have two words to leave with you tonight, ladies and gentlemen: inclusion rider."

 

Two simple words they may be, but when Frances McDormand closed her acceptance speech with them at the Academy Awards, not a whole lot of people had heard those terms paired that way. The big spike in Google searches for the phrase Sunday night reflects the frantic clatter of people across the world summoning those key words.

 

So, what is an inclusion rider, exactly?

 

Simply put: It's a stipulation that actors and actresses can ask (or demand) to have inserted into their contracts, which would require a certain level of diversity among a film's cast and crew.

 

For instance, an A-list actor negotiating to join a film could use the inclusion rider to insist that "tertiary speaking characters should match the gender distribution of the setting for the film, as long as it's sensible for the plot," Stacy L. Smith explained in a 2014 column that introduced the idea in The Hollywood Reporter.

 

Smith, who directs the Annenberg Inclusion Initiative at the University of Southern California, told NPR's Mary Louise Kelly she had "absolutely no idea" McDormand would bring up the concept at the Oscars. "But," Smith added, "talk about being elated and thrilled to hear those two words broadcast around the world."

 

Smith has pushed for years for more diverse representation in film — delivering a TED Talk on the topic while she was at it — and the inclusion rider has been a crucial arrow in her quiver.

 

"The goal really is to figure out: How do we move from all the lip service in Hollywood to actually see the numbers that we study every year move?" Smith said.

March 6, 2018 in Business, Equal Employment, Media, Pop Culture | Permalink | Comments (0)

Monday, March 5, 2018

Gender Sidelining Symposium

A terrific lineup of speakers at the upcoming Gender Sidelining Symposium

Gender Sidelining Symposium at California Western School of Law

 

Subtle, yet pernicious forms of unequal treatment exist wherein women may not experience adverse outcomes that are actionable under anti-discrimination or other laws, but nonetheless may find themselves hindered in their ability to advance and flourish. These myriad behaviors, policies, and practices lead to "Gender Sidelining"—a term recently coined by a group of law professors at California Western—whereby women experience obstacles that the law does not (and arguably should not) proscribe.

The Gender Sidelining Symposium on April 26-27, 2018 will highlight examples of and help us understand the process by which this phenomenon occurs. By bringing together academics and practitioners from a broad range of fields—employment and labor law, business law, criminal law, politics, and beyond—the symposium will take an innovative look at how existing social structures can lead to adverse treatment on the basis of gender when actions may not be motivated by gender-based animus or even by implicit bias.

March 5, 2018 in Conferences, Equal Employment, Gender, Theory | Permalink | Comments (0)

Wednesday, February 28, 2018

Nashville Sexual Harassment Law Would Protect Contract Workers as well as Employees

Sexual Harassment in Nashville Spurs a New Bill to Extend Protections to Artists

Lawmakers in Nashville, the throne of country music, have been paying attention [to #MeToo]. A new piece of legislation, introduced into the Tennessee House of Representatives and Tennessee Senate by Rep. Brenda Gilmore and Sen. Jeff Yarbro in late January, proposes extending the state's sexual harassment protections to include not only employees of a given business, but contract workers as well. Many in Music City's homegrown industry — recording artists, session players, songwriters, producers and more — fall into the latter category.

 

"Right now, it's very hard for [recording artists] to argue that they are employees in terms of sexual harassment laws," attorney Alex Little, who represents country singer Katie Armiger, told journalist Marissa R. Moss in a recent Rolling Stone Country investigation into the sexual harassment and assault often experienced by female artists during their promotional tours of radio stations. "In Tennessee, there is no reason legislatively [here] that the state legislature or congress can't step in and protect artists in the same way that employees are protected."

 

Little's quote was published just 13 days prior to Rep. Gilmore's introduction, on Jan. 29, of the HB 1984 bill into the Tennessee House. Both bills amend the Tennessee Code in the same way, defining a contract worker as:

... a person who meets all of the following criteria: (A) The person has the right to control the performance of the contract for services and discretion as to the manner of performance; (B) The person is customarily engaged in an independently established business; and (C) The person has control over the time and place the work is performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the employer's work.

 

"There's been significant reporting recently that shows that in some cases, female artists face a lot of predatory behavior just for trying to have their music heard," Sen. Yarbro writes in an email to NPR Music. "From what we've learned, if you're a female artist, harassment is something you learn to expect as you try to promote your work. That's unacceptable, and it's a problem we should try to solve.

 

"We know the music industry isn't a traditional workplace, so a lot of the ways we report harassment in traditional workplaces won't work. The legislation that Rep. Gilmore and I have proposed just makes it clear that everyone has a right to be safe in the workplace, regardless of whether their job fits the formalities of the current law."

 

Jennifer Shinall, an associate professor of law at Vanderbilt Law School in Nashville who specializes in employment law, tells NPR Music that the extension of "any kind of employment discrimination protection to something beyond the employment relationship, and to this contracting relationship is pretty groundbreaking--and it has the potential to be far-reaching."

February 28, 2018 in Equal Employment, Pop Culture | Permalink | Comments (0)