Gender and the Law Prof Blog

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

Wednesday, January 3, 2018

Taking Action Against Sexual Harassment; Concrete Solutions Begin to Emerge

NPR, Hollywood Women Launch Initiative to Stop Sexual Harassment

Some of Hollywood's most powerful women have teamed up to launch an initiative aimed at combating sexual harassment inside and outside their industry after an avalanche of allegations set in motion by the Harvey Weinstein scandal.

In a full-page open letter published in Monday's New York Times, 300 prominent actresses, female agents, writers, directors, producers and entertainment executives announced the campaign called "Time's Up."

The Time's Up initiative includes:

  • A $13 million legal defense fund to help women in blue-collar jobs and farm work
  • Drafting of legislation to punish companies that tolerate sexual harassment and to discourage nondisclosure agreements in such cases.
  • A push to reach gender parity in Hollywood studios and talent agencies; and a call for women walking the red carpet at the Golden Globes to wear black as a sign of protest and solidarity.

Anita Hill to Lead Hollywood Commission on Sexual Harassment

A commission headed by Anita Hill and composed of and funded by some of the most powerful names in Hollywood has been created to tackle widespread sexual abuse and harassment in the media and entertainment industries.

Called the Commission on Sexual Harassment and Advancing Equality in the Workplace, the initiative was spearheaded by Kathleen Kennedy, the president of Lucasfilm; Maria Eitel, the co-chair of the Nike Foundation; the powerhouse attorney Nina Shaw; and Freada Kapor Klein, the venture capitalist who helped pioneer surveys on sexual harassment decades ago.

The commission’s mission, according to a news release, is to “tackle the broad culture of abuse and power disparity.”

“The commission will lead the entertainment industry toward alignment in achieving safer, fairer, more equitable and accountable workplaces —particularly for women and marginalized people,” according to a statement released Friday evening.

NLJ, Hitting Workplace Harassers Where It Hurts

Employers can hit sexual harassers hard—in the pocketbook. There are a variety of channels by which to claw back compensation and benefits from bad-acting employees. The smartest employers have for years aimed those threats at employees who violate noncompete and trade secret protections. Now, they may want to toughen up their benefit plans and stock awards, because routine harassment training may not have the in terrorem effect that could come through broad-based forfeitures and clawback.

Chief Justice Roberts Says Courts Will Examine Protections Against Sexual Harassment

Chief Justice John G. Roberts Jr. announced an initiative Sunday to ensure there are proper procedures in place to protect law clerks and other court employees from sexual harassment, saying it is clear that the federal judiciary “is not immune” from a widespread problem.

The statement, in Roberts’s 2017 State of the Judiciary Report , follows the retirement last month of Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit.

January 3, 2018 in Equal Employment, Media, Pop Culture, Workplace | Permalink | Comments (0)

Saturday, December 30, 2017

Employers Think Men are More Ambitious Than Women

Employers Think Men are More Ambitious Than Women, Finds Survey

Bosses are five times more likely to view men as ambitious than women in the workplace, new research has found.


The YouGov survey for the Young Women’s Trust also revealed that men were perceived as more confident whereas women were deemed more “conscientious” at work.


Plus, two fifths of recruiters said men were more likely than women to ask for promotions and pay rises.


The survey was conducted on 800 employees with human resources decision-making responsibilities.


The findings also revealed that one in three of those surveyed believe that sexism exists in their workplace while one in eight of those who work at large companies say that sexual harassment has gone unreported at their organisation.


Furthermore, one in 10 were aware of a gender pay gap at their company, in which women are paid less than men for jobs at equal levels of seniority.


“Young women do not lack ambition but too often they are held back by employers who – knowingly or not – discriminate against them,” said Dr Carole Easton OBE, chief executive at Young Women’s Trust.

December 30, 2017 in Equal Employment, Workplace | Permalink | Comments (0)

Tuesday, December 19, 2017

Sexual Harassment: Why Now? And Where do we Go From Here?

Joanna Grossman, Reflections on America's Reckoning with Sexual Harassment

Many are surprised by the seemingly endless allegations of sexual misconduct. Is there an epidemic of harassment? No more than there ever was. Sexual harassment has been a pervasive problem in the American workplace, as well as in housing, education, the judicial system, on the street, and all other sectors of society, as far back as we look.


Two components of the modern story are “new,” however. First, women are showing greater willingness to come forward and report harassment. No matter how unwelcome sexual harassment is, study after study has shown that victims rarely file formal complaints after being harassed. Empirically, doing so is in fact the least likely response of a woman to an incident of sexual harassment at work. Victims tend to complain only about severe harassment, and only when they’ve exhausted all other avenues. As discussed below, women who have been sexually harassed forego complaining. They rightly fear retaliation from the harasser or their workplace, and they often worry about being socially ostracized at work and even about damaging the harasser’s career. At the same time, victims tend to be feel that complaining is futile—that no action will be taken that will make the victim’s situation better. The lack of hope for successful redress provides little by way of counterweight against the justifiable fear of adverse consequences.


Second, men facing credible accusations of harassment are suffering consequences. Employers have a long history of taking insufficient action—often no action—despite credible evidence of harassment. Some of their inaction can be explained by the infrequency of complaints, but even when they do investigate complaints, employers tend to be biased against finding evidence of discrimination, to recast harassment and discrimination as a problem of interpersonal conflicts that might justify intervention but not discipline, and to overlook misconduct when the harasser is too valuable to lose.


So why the current cascade of complaints?


We are experiencing a cultural moment. Despite the powerful deterrents to speaking out, women are coming forward, in droves, to tell their stories. It’s hard to explain why that moment is now, but the dam broke. It could be the power of the anti-Trump resistance movement, which has mobilized women around the country to organize, protest, and stand up for themselves. It could be the raunchy and disturbing nature of the allegations in the first few stories to break. It could be that the victimization of celebrities, at the hands of Harvey Weinstein and James Toback, brought the issue into our consciousness more clearly. It could be any combination of things. But whatever the catalyst, there can be no doubt that this chorus of voices, speaking out against sexual misconduct, is noteworthy.


Reporters keep asking me (and others) whether we are experiencing a cultural shift in dealing with sexual misconduct. Whether the moment becomes a shift will turn on how we react to it. The pervasiveness and severity of harassment women face at work is a symptom of broader dysfunction in our society. And the institutions that have allowed it to go unchecked are part of a system that has favored cosmetic preventative measures rather than effectiveness, and window dressing rather than effectiveness. True change will only come when institutional actors decide to hold themselves accountable for the way women are treated.

December 19, 2017 in Equal Employment, Workplace | Permalink | Comments (0)

The Judge Kozinski Sexual Harassment Saga: From Beginning to End

Initially, seven women -- three women law professors, including one former dean, and four women externs accuse US Court of Appeal Judge Alex Kozinski of sexual harassment 

Wash Post, Prominent Appeals Court Judge Alex Kozinski Accused of Sexual Misconduct

Seven Women Have Now Accused Judge of Sexual Harassment

NPR, Federal Appeals Judge Alex Kozinski Accused of Sexual Harassment

NYT, Federal Appeals Court Judge is Accused of Sexual Harassment


The first accuser, Heidi Bond's responded further on the details on her allegation.

Bond made two important suggestions for structural change to address the problem of sexual harassment in judicial clerkships.  

I want the law clerk handbook distributed by the judiciary to explicitly state that judges may not compel clerk silence on matters like the ones I have described here. I also believe that there should be a person, or persons, or an institution that clerks can turn to in order to find answers. I understand that there are reasons why no such institution exists now—judicial independence and confidentiality must be fiercely protected. I also believe that the judiciary is capable of coming up with a solution to this problem.

A type of ombuds office within the court administrative office might be a way to implement this.

Bond's additional recommendation: 

I want greater honesty regarding judicial clerkships. Law students are often told in glowing terms that a clerkship will be the best year in their career. They are never told that it might, in fact, be their worst—and that if it is their worst, they may be compelled to lie to others in the name of loyalty to their judge.

I also want law schools to start giving our best and brightest students accurate advice about clerkships. Students are often told that if they receive a clerkship offer from a judge, they must say “yes” without hesitation. I cannot imagine a situation more rife for abuse. Students should feel free to say no to any judge who triggers their discomfort for any reason.

However, Nancy Leong counseled against the potential consequences of steering women away from prestigious clerkships.


Additional women, including national reporter Dahlia Lithwick shared their metoo stories about Judge Kozinski.

Dahlia Lithwick, Judge Alex Kozinski Made Us All Victims and Acccomplices

Nine More Women Say Judge Subjected Them to Inappropriate Behavior Including Four Who Say He Touched or Kissed Them


Attorney Susan Estrich, also a feminist law scholar and professor at USC who wrote "Sex and Power" and "Sex at Work," represented Judge Kozinski.  She also formerly represented Roger Ailes in his sexual harassment case.  See NYT, The Curious Case of Susan Estrich


The case triggered much thought and commentary:

Dara Purvis, When Judges Prey on Clerks

Vivia Chen, Can We Get Rid of Alex Kozinski?  

Charlotte Garden, On Judge Kozinski and Open Secrets

Alison Frankel, Breaking the Law Clerks' Code of Silence: The Sexual Misconduct Claims Against Judge Kozinski

Catharine Crump, Clerkships are Invaluable for Young Lawyers. They Can Also be a Setup for Abuse.

Debra Weiss, Will Complaints of Inappropriate Sexual Conduct by Kozinski have any Impact Impact

Judge Alex Kozinski's Opinion in a 2001 Sexual Harassment Case is Alarming 


As a result:

An inquiry was initiated.  Chief Judge Initiates Judicial Review of Allegations Against Alex Kozinski

Judge Kozinski retired on December 18, 2017. Alex Kozinski Announces Immediate Retirement Following Accusations of Sexual Misconduct

Chief Justice Roberts amended the law clerk handbook.  Newly Amended Law Clerk Handbook Affirms Harassment Complaints are Permitted.  "Clerks are encouraged to bring such matters to the attention of an appropriate judge or other official," the handbook now says.

December 19, 2017 in Courts, Equal Employment, Judges, Workplace | Permalink | Comments (0)

Wednesday, December 13, 2017

MeToo is Working but MeToo is not Enough

MeToo is Working: New Data Shows Attitudes on Harassment are Changing

Two months after the New York Times published an earth-shattering exposé about Harvey Weinstein's history of alleged sexual harassment and assault, the #MeToo movement shows no signs of slowing down. Every day, it seems there's a new set of stories about men in power using sex as a weapon to humiliate and intimidate women (and sometimes other men). Now Time magazine has named "The Silence Breakers" as Person of the Year, crowning this surge of anger over sexual harassment as one of the most important stories of 2017.


It's been a big media story, but has all this righteous anger over sexism really penetrated the consciousness of everyday Americans? Has this genuinely rattled ordinary people and their views on gender and power? A new study out by the research firm PerryUndem provides a surprising and encouraging answer: Yes, the past year has seen something of a feminist awakening in the American public. It's not just about Weinstein or the revelations of the past two months. It's been a year in the making, as evidenced by the outrage over Donald Trump's election and the Women's March in January that was likely the largest single protest event in modern history.

MeToo is Not Enough

As we celebrate the #MeToo movement’s incredible accomplishments, including being recognized as Time Magazine’s “Person of the Year” a mere two months after becoming a viral hashtag, we must guard against the backlash that’s already brewing. Because the simple fact is that far from overreaching, the #MeToo movement has not yet gone far enough, in three important ways. 

  1. We are not paying enough attention to the more routine “complicity machines” that keep women silent.
  2. We are not yet connecting sexual harassment to other discrimination -- or the structures that make women chronically vulnerable to mistreatment.
  3. Men are not yet owning their $%#@.

A new focus on systems that aid and abet sexual misconduct, rather than solely the actions of individuals, could be a welcome opportunity for all of us to begin to locate ourselves in this cultural discussion.

December 13, 2017 in Equal Employment, Workplace | Permalink | Comments (0)

How the Legal World Built a Wall of Silence Around Workplace Sexual Harassment

Professor Minna Kotkin, How the Legal World Built a Wall of Silence Around Workplace Sexual Harassment

A secret about sexual harassment on the job is finally coming to light. It’s not that harassment is still rampant in some industries, recalling the worst of the “Mad Men” days. Or that networks of women quietly help to protect their co-workers from the worst offenders. The real secret is that our regulatory and judicial systems are complicit in protecting harassers from public exposure and opprobrium.***


Since 1986, when the Supreme Court first recognized that sexual harassment is a form of discrimination, employers and their attorneys have generally insisted that victims who receive financial settlements as a result of harassment allegations sign confidentiality agreements. In my three decades of research and litigation on harassment claims, corporate officials have always insisted that unless settlements are confidential, firms will be overwhelmed by a deluge of accusations, with every disgruntled employee looking for a payout.


A typical confidentiality clause prohibits the employee not only from revealing the amount paid to her but also from discussing the facts and allegations relating to the underlying events. Often, these clauses contain a “liquidated damages” provision: If the facts are revealed, the employee automatically owes the employer some astronomical sum. Liquidated damages generally include the amount paid in the settlement and sometimes much more, especially if the settlement amount was small. This keeps many victims of harassment from making their experiences known to others who might face the same dangers.


In some instances, confidentiality clauses might protect an employee as well as her employer: Some women don’t want it known that they have made a harassment complaint, believing that it will hamper their future career prospects. But, according to my research, most confidentiality clauses are one-way, preventing revelations about the employer; they don’t address what can be said about the employee.


One reason it takes so long for sexual discrimination cases to emerge is that these lawsuits are governed by a certain timeline. In 1998, the Supreme Court decided that an employee must first make an internal complaint and that employers must have policies to afford workers that opportunity. Many incidents are resolved at this stage, with financial compensation and a confidentiality agreement. These deals never become public, and there is no way of knowing just how many such agreements have been reached with a certain employer.


Except for its court filings (which may not name the harasser, since the action is against the company), the EEOC proceeds under guarantees of confidentiality. In fact, Title VII specifically mandates that the agency may not disclose to the public charges of employment discrimination or information about conciliation, with violations punished by fines up to $1,000 or imprisonment for up to a year. 


But despite the theoretical openness of court proceedings, much of what happens in litigation still remains secret. Less than 3 percent of employment discrimination cases go to trial, with a public verdict. Legal scholars and researchers estimate that close to 80 percent of the cases result in settlements, with the remainder dismissed before trial. Cases that settle are protected by confidentiality agreements, so we don’t know what the terms look like.


Another factor that contributes to secret settlements relates to how attorneys are paid for representing employees and the pressure they may place on their clients. Most employment lawyers work on a contingency-fee basis, receiving a percentage — usually one-third — of the settlement. When an employer offers a sum to make a case go away, it comes attached to a confidentiality clause; if the plaintiff refuses the clause, she gets nothing at all — and neither does her lawyer. Ethical standards enforced by state bar associations and courts require that settlement decisions be made by clients, but attorneys who want to collect their fees have every incentive to steer their clients toward accepting the confidentiality clause.

December 13, 2017 in Equal Employment, Workplace | Permalink | Comments (0)

Monday, December 11, 2017

Complicit Bias in Sexual Harassment

Michele Goodwin, Complicit Bias: Sexual Harassment and Communities that Sustain It

For all of the coverage about sexual harassment in recent weeks, reports lack an accounting for complicity and workplace cultural norms. They fail to probe why certain environments foster harassment while others do not. Sometimes news reports address why women do not come forward. Rarely do reports concentrate on why witnesses and co-workers do not come forward to shut down apparent and known harassment. I’m not talking about hypothetical situations. Rather, known instances of sexually inappropriate conduct goes unchecked by friends, co-workers, and bosses.


Unexamined are the challenging issues related to why other women (and men) who witness abuse do not speak up, even when they have the power to do so—such as seniority over their offending colleagues. For that matter, why do senior administrators and executives ignore reported instances of sexual harassment?


Many years ago, as a new law professor at a former institution, barely three months into my new tenure-track position, I observed a male colleague forcefully grab a female student’s arm and lick her at a law school fundraiser....By Monday morning, I reported the licking incident to my dean—who happened to be a woman. I expected that the dean would make an inquiry and investigate....By coming forward, I had not anticipated the enormous public backlash, the ultimate firing of the dean, the harassment that I would encounter, and the institution’s paralysis.



So, why had the institution put up with it for so long?


The short answer is fear. For colleagues who have worked together for many years—sometimes their families live in the same neighborhoods; their children school together or play sports on the same teams. They fear losing relationships and disrupting their lives.


However, there is also the fear of experiencing exactly what happened to me—retaliation for reporting. Deferring and deflecting is a way to divvy up who has to suffer the burden of speaking up. My colleagues avoided being lumped into the barrage of emails targeting me by not speaking up, while I took the brunt of it along with one other colleague who complained previously about another male colleague’s harassing behavior


So, why had the institution put up with it for so long?


The short answer is fear. For colleagues who have worked together for many years—sometimes their families live in the same neighborhoods; their children school together or play sports on the same teams. They fear losing relationships and disrupting their lives.


However, there is also the fear of experiencing exactly what happened to me—retaliation for reporting. Deferring and deflecting is a way to divvy up who has to suffer the burden of speaking up. My colleagues avoided being lumped into the barrage of emails targeting me by not speaking up, while I took the brunt of it along with one other colleague who complained previously about another male colleague’s harassing behavior

On a legal effort to hold these complict networks accountable, see RICO Claim Against Weinstein and Co-Conspirators in "Sexual Enterprise"

December 11, 2017 in Equal Employment, Workplace | Permalink | Comments (0)

MeToo is Really About Work, Not Sex

Rebecca Traister, This Moment Isn't (Just) About Sex. It's About Work

[I[n the midst of our great national calculus, in which we are determining what punishments fit which sexual crimes, it’s possible that we’re missing the bigger picture altogether: that this is not, at its heart, about sex at all — or at least not wholly. What it’s really about is work, and women’s equality in the workplace, and more broadly, about the rot at the core of our power structures that makes it harder for women to do work because the whole thing is tipped toward men.


Sexual assault is one symptom of that imbalance, but it is not the only one. ***


Because the thing that unites these varied revelations isn’t necessarily sexual harm, but professional harm and power abuse. These infractions and abuses are related, sometimes they are combined. But their impact, the reasons that they are sharing conversational and journalistic space during this reckoning, need to be clarified. We must regularly remind everyone paying attention that sexual harassment is a crime not simply on the grounds that it is a sexual violation, but because it is a form of discrimination.***


In other words, sexual harassment may entail behaviors that on their own would be criminal — assault or rape — but the legal definition of its harm is about the systemic disadvantaging of a gender in the public and professional sphere. And those structural disadvantages do not begin or end with the actual physical incursions — the groping, kissing, the rubbing up against. In fact, the gender inequity that creates the need for civil-rights protections is what has permitted so many of these trespasses to have occurred, so frequently, and for so long; gender inequity is what explains why women are vulnerable to harassment before they are even harassed; it explains why it’s difficult for them to come forward with stories after they have been harassed, why they are often ignored when they do; it clarifies why so many women work with or maintain relationships with harassers and why their reactions to those harassers become key to how they themselves will be evaluated, professionally. Gender inequity is cyclical, all-encompassing.


We got to where we are because men, specifically white men, have been afforded a disproportionate share of power. That leaves women dependent on those men — for economic security, for work, for approval, for any share of power they might aspire to. Many of the women who have told their stories have explained that they did not do so before because they feared for their jobs. When women did complain, many were told that putting up with these behaviors was just part of working for the powerful men in question — “That’s just Charlie being Charlie”; “That’s just Harvey being Harvey.” Remaining in the good graces of these men, because they were the bosses, the hosts, the rainmakers, the legislators, was the only way to preserve employment, and not just their own: Whole offices, often populated by female subordinates, are dependent on the steady power of the male bosses. ***


What’s more, to cross powerful men is to jeopardize not just an individual job in an individual office; it’s to risk far broader professional harm within whole professions where men hold sway, to cut yourself off from future opportunity. 


These are the economics of sexual harassment, but also, simply, of sexism.


What makes women vulnerable is not their carnal violability, but rather the way that their worth has been understood as fundamentally erotic, ornamental; that they have not been taken seriously as equalsthat they have been treated as some ancillary reward that comes with the kinds of power men are taught to reach for and are valued for achieving. How to make clear that the trauma of the smaller trespasses — the boob grabs and unwanted kisses or come-ons from bosses — is not necessarily even about the sexualized act in question; so many of us learned to maneuver around hands-y men without sustaining lasting emotional damage when we were 14. Rather, it’s about the cruel reminder that these are still the terms on which we are valued, by our colleagues, our bosses, sometimes our competitors, the men we tricked ourselves into thinking might see us as smart, formidable colleagues or rivals, not as the kinds of objects they can just grab and grope and degrade without consequence. It’s not that we’re horrified like some Victorian damsel; its that we’re horrified like a woman in 2017 who briefly believed she was equal to her male peers but has just been reminded that she is not, who has suddenly had her comparative powerlessness revealed to her.

December 11, 2017 in Equal Employment, Gender, Workplace | Permalink | Comments (0)

Friday, December 8, 2017

Congress Proposes MeToo Act Changing Complaint Process for Congressional Sexual Harassment

MeToo Legislation Aims to Combat Sexual Harassment in Congress

Sen. Kirsten Gillibrand, D-N.Y., is leading the effort in the Senate. She has previously disclosed that she has been harassed by unnamed male colleagues. She has also worked on combating sexual abuse in the U.S. military. "There is a serious sexual harassment problem in Congress and too many congressional offices are not taking this problem seriously at all," Gillibrand said.

  • Waive 30-day requirements each for counseling and mediation sessions before a formal complaint can be filed
  • Create a new, optional in-house victims' counsel position to provide legal advice and representation for complainants
  • Eliminate requirements that complainants to sign nondisclosure agreements as a condition for filing a complaint, although nondisclosures are still allowed as part of a negotiated settlement
  • Create an online system to initiate complaints
  • Require lawmakers to pay out of pocket for any settled claim where they are identified as the harasser. Other claims are still paid for by taxpayers
  • Require public disclosure of the employing office when a claim is settled and to disclose the settlement amount
  • Require an anonymous "climate survey" of congressional employees every two years
  • Extend all employer protections to interns, fellows and pages

December 8, 2017 in Equal Employment, Legislation | Permalink | Comments (0)

New Legislation Would Ban Employment Arbitration Clauses for Sexual Harassment

New Congressional Sexual Harassment Bill Would Stop Employers from Trying to Silence Accusers

Capitol Hill lawmakers on Wednesday introduced another bill to combat sexual harassment, addressing one of the legal mechanisms that employers often use to keep accusers silent.

The bipartisan legislation from Rep. Cheri Bustos (D-Ill.) and Sen. Kirsten Gillibrand (D-N.Y.) would ban employers from holding employees to forced arbitration clauses, which often prevent sexual misconduct survivors from speaking publicly about abuses in the workplace, and places power in the hands of the perpetrator.

Forced arbitration clauses can prohibit an accuser from going to court or dealing with the incident in other public means. They can include a private monetary settlement and/or a nondisclosure agreement. Victims often are forced out of their jobs, while the harasser remains.

“That is not a fair choice, and it is something that no one should have to put up with,” Gillibrand said at a press conference on Capitol Hill.

“To executives who think this should be an episode of ‘Mad Men,’ stop it, and stop it now,” Bustos said. “For the waitress, for the journalist, for the factory worker, for all the women who want to go to their job and do it well, we are to here to say, no more.”

The Senate bill is also backed by Sens. Lindsey Graham (R-S.C.), Lisa Murkowski (R-Alaska) and Kamala Harris (D-Calif.). The House version has support from Reps. Walter Jones (R-N.C.), Elise Stefanik (R-N.Y.), and Pramila Jayapal (D-Wash.).


Gillibrand and Rep. Jackie Speier (D-Calif.) recently introduced the Me Too Act, which aims to overhaul that complaint system and make it more transparent and less biased toward the perpetrator.

Bustos is also a co-sponsor on a House bill that would ban taxpayers from having to foot the bill for sexual harassment settlements on Capitol Hill.

December 8, 2017 in Equal Employment, Legislation | Permalink | Comments (0)

Monday, December 4, 2017

Sexual Harassment Cases Often Rejected by the Courts

Sandra Sperino, Sexual Harassment Cases Often Rejected by the Courts

Many actors, politicians and executives, including at NPR, are now facing sexual-harassment allegations in the court of public opinion.


But in actual courts, such cases filed by workers against their employers are very often dismissed by judges. The standard for harassment under the law is high, and only an estimated 3 percent to 6 percent of the cases ever make it to trial.


That stands in stark contrast to the large pool of people who say they have experienced sexual harassment. In surveys, a quarter to half of women say they've experienced sexual harassment at work. But only a small fraction — estimates range around 5 to 15 percent of women — report their complaints to their employers, largely due to fear of retaliation.


Legal experts say the high dismissal rate of sexual harassment cases also has a chilling effect.


University of Cincinnati professor Sandra Sperino has read roughly 1,000 sexual-harassment cases that were dismissed before they went to trial.


"You'll see case after case where a woman was groped at work and the court will dismiss the case as a matter of law, finding that's not sexual harassment," Sperino says.


In a 1986 decision, the Supreme Court said the behavior needs to be "severe or pervasive" in order to qualify as harassment, whether it's on the basis of sex or race. Sperino says judges' interpretations of what qualifies are out of step with common sense and standard office policies.

December 4, 2017 in Courts, Equal Employment, Violence Against Women | Permalink | Comments (0)

Severe or Pervasive Standard for Sexual Harassment Bars Many Claims

Sandra Sperino & Suja Thomas, Boss Grab Your Breasts? That's Not (Legally) Harassment

There remains a sense among Americans that the country’s legal system is well equipped to handle the harassment cases that will likely be brought as more women come forward with accusations, including against celebrities like Matt Lauer and Garrison Keillor. The country has laws protecting people against harassment in the workplace and courts in which those laws are supposed to be enforced. Several high-profile lawsuits — including Gretchen Carlson’s suit against the former Fox News chairman Roger Ailes, which was settled for $20 million — have reinforced this impression.But this notion is misleading. In fact, courts routinely dismiss cases brought by workers who claim their supervisors propositioned them, kissed them or grabbed their breasts. The judges declare that the conduct does not constitute harassment in a legal sense, and refuse to let the cases go to trial. How did we get here?


In the 1986 case Meritor Savings Bank v. Vinson, the Supreme Court held that Title VII of the Civil Rights Act prohibits harassment in the workplace based on sex, race, color, religion or national origin. Today, Meritor is viewed as a landmark case that officially recognized sexual harassment as an impermissible form of discrimination.


But in issuing its judgment, the Supreme Court used the words “severe or pervasive” to describe the level of seriousness that conduct must reach before meeting the legal definition of harassment. Those words are not found in Title VII. Instead they are a judicial interpretation of the statute — and have had lasting consequences.


Some conduct is clearly so serious that it always counts as harassment. For example, a supervisor raping an employee has consistently been viewed as “severe” enough to meet the bar. Supervisors who have subjected workers to sexual epithets and taunting every day for a long enough period meet the standard for “pervasive.” Other conduct, by contrast, is never going to meet the threshold — say, if a supervisor asks an employee out on a date once and does not treat her differently after she declines.


In the early and mid-1990s, the federal courts wrestled with the meaning of the “severe or pervasive” standard, and judges during that period created a very high bar for plaintiffs to meet. Unlike typical workers, these judges had lifelong job security and powerful positions. They also did not have the benefit of deliberating with a large group of people with different experiences as a jury does. These early cases have cast a long shadow, and today, some judges appear to simply be following the standards set by earlier courts. These standards have not aged well.

December 4, 2017 in Courts, Equal Employment, Violence Against Women | Permalink | Comments (0)

Monday, November 27, 2017

Systemic Solutions for Sexual Harassment: Legislation and Insurance Industry Change

Marci Hamilton, Listen Up: There is a Solution to the Sex Abuse and Harassment Epidemic Unfolding Before Your Eyes--and You will be Surprised at Who Must Step Up to Succeed 

There has been intense media coverage but surprisingly little if any attention paid to the experts on sex abuse, assault and harassment, who could inject facts into the discourse. There is actually a science of child sex abuse and sex assault. Instead, there has been a lot of hand-wringing by those who do not labor in this vineyard, and over-politicization of the issues to the point that you can’t see what you need to see. When a cable news show staffs its “panel of experts” to discuss these cases solely with political reporters and pundits, they are missing the mark.


There is a systemic solution to the sexual misconduct pandemic, and it requires the insurance industry to step up. The vast majority of these claims are in the civil arena, because so few prosecutions go forward with the “beyond a reasonable doubt standard.” (Prosecutors are elected officials who watch their win-loss ratios closely. The public would be shocked by how few of the cases involving sexual abuse and assault are ever prosecuted despite strong evidence, but that is another column for another day.) That puts the insurance system on center stage due to its power to coerce better practices with the threat of no or escalating coverage. It has been no friend to victims as it has implemented non-disclosure agreements, intimidated victims, and avidly lobbied against statute of limitations reform.


If the industry declines to reform its predator-friendly practices, it’s time for hearings on Capitol Hill, which would supplement the recent hearings to enact legislation and rules to govern sexual harassment in Congress. They should probably happen anyway, but if there is no major insurance reform to solve the problem, there is no choice but to subpoena the executives. In all likelihood, Congress and the state legislatures will need to coerce them to do the right thing. The insurance industry has the power to turn around at least the workplace on these issues if it starts demanding the kind of preventative practices only it can effectively enforce and punishes those who harbor perpetrators with escalating premiums and the threat of no coverage.


With respect to members of Congress, it’s not the insurance world that matters, but rather a corrupt federal system ensconced in federal law. Interestingly, it needs the same fixes as the insurance industry, though, so I will include it in the discussion below.


Here is where we need to start to bring industries, institutions, and Congress into line:


First, non-disclosure agreements in sexual misconduct cases violate public policy and should be made unenforceable. While it is reasonable to permit the parties to agree that the settlement number is confidential, the perpetrator and/or entity should not be permitted to gag the victim. Non-disclosure agreements have been the darlings of the insurance companies and a mandatory feature of the federal system. The congressional victim has one route: to enter a lengthy and dysfunctional process at the end of which, if there is a settlement, secrecy is forced on her.


I would expect the insurance industry to sic its lobbyists on members contemplating a paradigm shift in this arena and to fight any bill that neutralizes nondisclosure clauses. But this is one of those instances where the public disclosure is so obviously in the common good that lawmakers need to put cotton in their ears. Besides, perhaps my cynical expectation that the industry (and members of Congress) will fight for nondisclosure agreements to the detriment of the common good is misplaced. One can hope daily scandals will guide the industry and federal government to a moral compass that points toward policies that protect the vulnerable rather than the predators and their complicit institutions.


Second, eliminate the SOLs for sex abuse, assault, and harassment. Let the victims come forward when they are ready, not according to some artificial deadline. 99% of the women who have come forward against the list of men at the start of this article were barred from the judicial process. This is a cause the insurance companies have been fighting for decades—against their better interests. They don’t want SOLs to open up, because more perpetrators and at-fault institutions named, which increases their liability. Yet, it’s better for them to permit the SOLs to be liberalized, because it concretizes their liabilities and makes it possible to demand that a perpetrator be fired so that they can avoid future liability. With short SOLs, the cycle of misconduct, settlement, misconduct, settlement remains in place, which does not serve the industry’s ultimate ends.


Third, insurance companies (and Congress) need to institute workplace rules with teeth that are a pre-condition to coverage and/or service that halt the secrecy spiral:

  • To qualify for coverage or to maintain one’s status in Congress, there should be mandatory training, as in real training conducted by professionals and not in-house people, on the rules of sexual misconduct from abuse and assault to harassment. It should be made clear that no one gets a pass—not the perpetrator and not the bystander, or observer. There should be mandatory reporting internally and to the authorities when a crime has occurred. Reporters must be shielded from retaliation.
  • Employers and Congress should be required to pledge to discharge any employee who has engaged in sexual misconduct, and that determination follows an investigation. Recommendations for other jobs would be required to disclose the sexual misconduct. Failure to disclose would create liability for the company that discharged the predator.
  • Employers and Congress must institute meaningful zero tolerance policies for sexual misconduct that are worth the paper they are written on. Most companies have pro forma policies but in practice, as we have learned, supervisors are wont to ignore allegations if the man serves the organization’s interests, whether it be image, power, or money. If it turns out a company’s supervisor learned about sexual misconduct and ignored it, that should come with the heavy price of steeply increased premiums. The member of Congress who fails to disclose knowledge of sexual misconduct should be subject to mandatory censure.
  • There need to be annual sexual misconduct audits. If there is reason to be suspicious, the insurance company (or relevant committee in Congress) must investigate all allegations with special focus on any cover-up. Results are to be released to the public, not buried.
  • Policies related to off-premises business or institution-related activities need to be tightened up. If the employee is performing work for the organization or in its name off-premises, as was Charlie Rose at his home, the company should be liable for any misconduct and the insurance company on the hook. There need to be rigid rules about work off-premises (other than flex-time when there is no employee interaction). Charlie Rose’s and Weinstein’s off-premises activities couldn’t have happened but for the environment. They weren’t going to parade around nude and uncovered at work.


Fourth, as I discussed here, the defamation laws need to be rewritten to protect the victim who goes public. None of these guys should be permitted to rattle the saber of defamation like Cosby, Trump, or Moore. The first order of business in any such claim should be an expedited proceeding on the facts of the sexual misconduct. If the victim proves the acts occurred to a preponderance of the evidence, the perpetrator should be liable for treble damages and attorneys fees. The remedy will deter such lawsuits except for the most narcissistic predators.

November 27, 2017 in Equal Employment | Permalink | Comments (0)

Congress' Settlement and Awards Fund that Pays Victims of Sexual Harassment

  There's a Little-Known Fund that Goes to Victims of Sexual Harassment on the Hill. You Pay for It.

Since 1997, Congress has paid at least $15 million to settle complaints about sexual harassment, racial discrimination, and violations of the Americans With Disabilities Act under the umbrella of the Congressional Accountability Act (CAA) of 1995.


The payments made to Rep. Conyers’s alleged victim came out of his taxpayer-funded office budget. Generally, though, these payments aren’t made by members of Congress or their offices. They’re made by a special section of the Department of the Treasury established under Section 415 of the CAA — and ultimately by the American taxpayer.


The process by which victims of sexual harassment on the Hill seek justice is long and arduous — it takes up to three months before a formal complaint can be filed. If a settlement is reached, it’s kept secret. The source of the money in the fund is excluded from the standard appropriations budget made public by Congress each year. There’s no process by which voters — or potential employees — can find out who the harassers in office are, what they’ve been accused of, or if they’ve settled with victims before.


The fund used to settle violations of the CAA is perhaps just one of the several pockets of money throughout the government used to handle judgments made against government employees. As harassment accusations topple prominent men in mediacomedy, and Hollywood, it’s come under more scrutiny.


The Settlement and Awards Fund comes from an effort to hold Congress accountable for the federal laws that all other employers have to follow.


But as prominent men in other fields have faced snowballing accusations of sexual harassment, it’s instead shielded members of Congress from publicity.


In 1995, Congress passed the CAA, an effort to apply 12 federal laws to the legislative branch, including the Americans With Disabilities Act; the Fair Labor Standards Act, which requires that employers pay at least the minimum wage; and Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race, religion, national origin, color, or gender — including sexual harassment.

The CAA was, in part, a delayed legislative response to the Supreme Court's decision in Davis v. Passman (1979), implying a Bivens remedy for sex discrimination by Member of Congress from Louisiana, but with a 5-4 split and a dissent calling for Congressional immunity in employment matters absent a statutory extension of Title VII.  

November 27, 2017 in Equal Employment, Legislation | Permalink | Comments (0)

Tuesday, November 21, 2017

Five Key Points to Understanding the Gender Pay Gap

Five Ways to Win an Argument About the Gender Pay Gap

The 80.5 percent wage ratio figure, the most commonly used figure to measure the gender wage gap in the United States, is often derided as misleading, a myth, or worst of all, a lie. In this post, we argue that the figure is an accurate measure of the inequality in earnings between women and men who work full-time, year-round in the labor market and reflects a number of different factors: discrimination in pay, recruitment, job assignment, and promotion; lower earnings in occupations mainly done by women; and  women’s disproportionate share of time spent on family care, including that they—rather than fathers—still tend to be the ones to take more time off work when families have children. Just because the explanation of the gender wage gap is multi-faceted does not make it a lie.


When a phenomenon, such as the wage gap, can be explained by various factors, it does not mean the phenomenon doesn’t exist.  In fact, those explanations are the exact factors to look at when identifying interventions to solve the problem. Take another phenomenon for example: poverty. Black and Hispanic populations in the United States have higher poverty rates than the white population. When analyses control for education, place of residence, type of job, and many other factors, the remaining differences in poverty rates are smaller but not gone. It is not a myth or a lie, then, to say that black and Hispanic Americans are disproportionately more likely to live in poverty. Indeed, they are.

Here are five key facts to remember about the gender wage gap:

1) Other data series on weekly or hourly earnings are not necessarily more accurate than the annual figure.

2) The annual wage ratio of 80 percent is actually a moderate estimate of gender pay inequality. Women of color fare much worse.

If part-time workers were included, the wage ratio would be 73 percent, a gap of 27 percent

3) Women’s ‘choices’ are not necessarily choices.

4) There is no proof that being a mother makes a woman less productive on the job.

5) Discrimination is still a factor—a big one—in the gender wage gap.

November 21, 2017 in Equal Employment | Permalink | Comments (0)

Monday, November 13, 2017

Implicit Bias and Lack of Support as Factors in Women's Inequality in Employment

Tackling the "Thin File" That Can Prevent a Promotion

Recently, I have worked with a number of professional services firms committed to equality, diversity and inclusion. Many offer diversity training and leadership development programs, and many support affinity groups for traditionally underrepresented groups.


However, none has been able to crack what sometimes feels like a code set in stone: significantly increased diversity at the entry level, but very little change at the top.


This divide is particularly salient in law firms. At many law schools, more women than men graduate, leading to an increase in the proportion of female lawyers in the United States from about 3 percent in 1970 to almost 40 percent today. Similarly, about one-third of law school graduates are minorities, but fewer than 10 percent of equity partners are nonwhite and fewer than 20 percent are female. These numbers have been fairly stable for a while and have even backtracked in some instances.


However, there is reason for optimism. As a behavioral economist, I look for data, as it typically tells the tale. Instead of throwing money at the problem, we need to understand what is broken before we try to fix anything. For example, when looking at promotion data, the picture is clear: There is a promotion gap between white men and traditionally disadvantaged groups.


This may be the result of flawed promotion procedures at some firms where committees spend time guessing a candidate’s potential. These appraisals are fertile ground for biases, since people tend to predict the future by extrapolating from the past — and the past looks rather white and rather male.


What are the ways in which we can combat these biases in performance appraisals and narrow the promotion gap? One study we have underway at Harvard looks at whether potential bias will go away when we use data analytics to offer more concrete and more objectively measurable criteria for such traits as analytical skills, emotional intelligence, people skills or client interaction. Generally, the arsenal of evidence-based insights that help address flaws in the promotion process is steadily increasing. Still, fixing the process alone won’t be enough.


We will also need to tackle something called the “thin file,” a term I came across only recently. When explaining to me why a person was not promoted to partner, promotion committee members repeatedly said that a candidate simply didn’t have what it takes, based on a file summarizing his or her work over the past eight years.


The candidate had not been on enough, if any, important deals, and, making matters worse, had received little feedback over the years. Associates with these “thin files” tended to be minorities and women.


Although the promotion process might have some flaws, the flaws of the system had affected these candidates from the time they joined the firm as first-year associates. They were victims of what has become known as performance-support bias, in which some employees receive less support from the start.

November 13, 2017 in Equal Employment | Permalink | Comments (0)

Friday, November 3, 2017

Ford Shows How to Kill a Sexual Harassment Class Action

Reuters, Want to Kill a Sex Discrimination Class Action? Ford Case is Blueprint

Last week, U.S. District Judge Sharon Johnson Coleman of Chicago denied an emergency motion by lawyers representing 31 women who claim they were sexually harassed at two Ford Motors plants in the Chicago area. The women’s lawyers wanted to stop the Equal Employment Opportunity Commission from sending out notices to Ford workers who may be eligible for compensation under Ford’s $10 million agreement this summer with the agency. Judge Coleman concluded the women hadn’t met the extremely tough standard to justify court meddling with administrative decisions.


The judge’s three-page order seems perfectly straightforward – until you understand the implications of her decision. Coleman’s ruling will probably spell the end of the long-running sex discrimination class action, in which the two sides are deep in discovery on the women’s request for class certification.


As I’ll explain, both the women and Ford contend the EEOC claims process can’t be reconciled with the class action, the women in their emergency motion to block the EEOC notices and Ford in a motion to deny class certification. Judge Coleman hinted at sympathy for the women’s argument that Ford made a deal with the government to circumvent the class action, writing that the company “seems to be engaging in what might be considered gamesmanship.” But her ruling means Ford’s strategy worked, gamesmanship or not.


November 3, 2017 in Courts, Equal Employment | Permalink | Comments (0)

Tuesday, October 31, 2017

Relationship Status Discrimination Against Women in Academic Hiring

Lauren Rivera, When Two Bodies are (Not) a Problem: Gender and Relationship Status Discrimination in Academic Hiring, Amer. Soc. Rev. (Oct. 25, 2017)

Junior faculty search committees serve as gatekeepers to the professoriate and play vital roles in shaping the demographic composition of academic departments and disciplines, but how committees select new hires has received minimal scholarly attention. In this article, I highlight one mechanism of gender inequalities in academic hiring: relationship status discrimination. Through a qualitative case study of junior faculty search committees at a large R1 university, I show that committees actively considered women’s—but not men’s—relationship status when selecting hires. Drawing from gendered scripts of career and family that present men’s careers as taking precedence over women’s, committee members assumed that heterosexual women whose partners held academic or high-status jobs were not “movable,” and excluded such women from offers when there were viable male or single female alternatives. Conversely, committees infrequently discussed male applicants’ relationship status and saw all female partners as movable. Consequently, I show that the “two-body problem” is a gendered phenomenon embedded in cultural stereotypes and organizational practices that can disadvantage women in academic hiring. I conclude by discussing the implications of such relationship status discrimination for sociological research on labor market inequalities and faculty diversity.

October 31, 2017 in Education, Equal Employment, Family, Workplace | Permalink | Comments (0)

Tuesday, October 17, 2017

Discrimination 3.0: Women as Devalued Workers in the Gig Economy

Arianne Renan Barzilay & Anat Ben-David, Platform Inequality: Gender in the Gig Economy, 47 Seton Hall L. Rev. 393 (2017)

From the Intro:

Americans are making extra money renting out a spare room, designing websites, selling products they design themselves at home, or even driving their own car. This ‘on demand’ or so-called ‘gig economy’ is creating exciting opportunities and unleashing innovation but it’s also raising hard questions about workplace protections and what a good job will look like in the future. –Hillary Rodham Clinton


Laboring in the new economy has recently drawn tremendous social, legal, and political debate. The changes created by platform-facilitated labor are considered fundamental challenges to the future of work and are generating contestation regarding the proper classification of laborers as employees or independent contractors. Yet, despite this growing debate, attention to gender dimensions of such laboring is currently lacking. This Article considers the gendered promises and challenges that are associated with platform-facilitated labor, and provides an innovative empirical analysis of gender discrepancies in such labor; it conducts a case study of platform-facilitated labor using computational methods that capture some of the gendered interactions hosted by a digital platform.

These empirical findings demonstrate that although women work for more hours on the platform, women’s average hourly rates are significantly lower than men’s, averaging about 2/3 (two-thirds) of men’s rates. Such gaps in hourly rates persist even after controlling for feedback score, experience, occupational category, hours of work, and educational attainment. These findings suggest we are witnessing the remaking of women into devalued workers. They point to the new ways in which sex inequality is occurring in platform-facilitated labor. They suggest that we are beholding a third generation of sex inequality, termed “Discrimination 3.0,” in which discrimination is no longer merely a function of formal barriers or even implicit biases. The Article sketches Equality-by-Design (EbD) as a possible direction for future redress, through the enlisting of platform technology to enhance gender parity. In sum, this Article provides an empirical base and analysis for understanding the new ways sex inequality is taking hold in platform-facilitated labor.

October 17, 2017 in Business, Equal Employment | Permalink | Comments (0)

Monday, October 16, 2017

The Mansfield Rule for Gender Diversity in Hiring

ABA J, Law Firms Borrow a Concept from the NFL to Address a Lack of Diversity in their Leadership Ranks

The Mansfield rule was inspired by the National Football League’s Rooney rule—named after the late Pittsburgh Steelers owner Dan Rooney—which requires that at least one person of color be interviewed for head coach jobs. Arabella Mansfield was the first woman admitted to practice law in the United States, so the rule mandates that at least 30 percent of a firm’s candidates for leadership positions (defined as firm governance roles, equity partnerships, practice chair positions and seats on compensation committees) be women, attorneys of color or both.


According to a June press release, 44 major law firms will utilize the Mansfield rule, including two of the world’s largest firms by lawyer head count: Dentons and DLA Piper. Law firms that implement the rule over the next year will be “Mansfield certified” and can participate in a 2018 client forum, which will pair in-house lawyers with attorneys who are women or people of color for business development opportunities.


A group of partners from Am Law 200 law firms and a Stanford Law School student came up with the Mansfield rule idea at the 2016 Women in Law Hackathon. Besides the Diversity Lab, the hackathon was done in conjunction with the law school and Bloomberg Law. The original pitch only addressed women, and it only called for one woman to be considered for leadership choices.


According to Mark Helm, a Munger, Tolles & Olson partner who was part of the team that came up with the idea for the rule, it was modified to get more buy-in from law firms. If candidate pools have more women and people of color, he says, it might be easier to convince some decision-makers that the individuals could do the job in question.


“My firm has done relatively well with diversity, but at the same time I think it’s relative to other law firms,” he adds. “We all feel that the profession as a whole—including our firm—has a lot more to do.”


Indeed, in 2016 only 18.1 percent of equity partners were women, and 5.8 percent were racial or ethnic minorities, according to the National Association for Law Placement.


Rather than focus on current data about how many women and people of color are in leadership positions at law firms, the goal of the Mansfield rule project is to encourage the firms to be more mindful about their candidate pools, pipeline and succession planning, says Caren Ulrich Stacy, the Diversity Lab’s CEO. In a hackathon press release, the group is described as being focused on “innovative ways to close the gender gap and boost diversity in law firms and legal departments by leveraging data, behavioral science and design thinking.”    

See the previous post on the Mansfield Rule, The Mansfield Rule: Law Firms' Rooney Rule for Addressing Gender in Hiring

I have previously written about the Rooney Rule, and its limitations, as well as the benefits of targets like the Mansfield Rule.  See Tracy A. Thomas, Reconsidering the Remedy of Gender Quotas, Harvard J. Law & Gender Online (Nov. 2016).

October 16, 2017 in Business, Equal Employment | Permalink | Comments (0)