Gender and the Law Prof Blog

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

Friday, February 9, 2018

Justice Sotomayor: You Can't Fight the Facts of Women's Inequality

"You Can't Fight the Facts": Sotomayor Makes Case for Pay Equality

Justice Sonia Sotomayor this week homed in on pay inequality as one of the country’s biggest issues, as lawsuits are underway challenging the gender pay gaps at major companies and the Trump administration defends its scuttling of an expanded federal pay data rule.


In an appearance Wednesday at Brown University, Sotomayor was asked by a student what she considered the greatest challenges facing women.

“Women doing the same work still earn less than men. You can’t fight the facts. Pay equality is one of the biggest issues our nation faces,” Sotomayor said.


In November, the National Women’s Law Center and the Labor Council for Latin American Advancement sued the Trump administration’s Office of Management and Budget and the U.S. Equal Employment Opportunity Commission. They charged that government officials illegally blocked an Obama administration rule that would have required employers with 100 or more employees to report pay for their employees by race, gender and ethnicity.


The data rule was eliminated without explanation or opportunity for public comment, according to the lawsuit filed in U.S. District Court for the District of Columbia.***


Pay inequality wasn’t the only gender-related challenge on Sotomayor’s mind during the Brown discussion. She made a larger point about gender equality in the law:

“When I started, [law] firms of 300 and 400 had one or two female partners, and they were touting how progressive they were. What a joke, right? They told me that over time, we would reach equality. Well, I started in 1979, and there’s still only one-third women as federal judges, and we’re a lot of women in the profession. So, what’s happening?”

February 9, 2018 in Equal Employment, Judges, SCOTUS | Permalink | Comments (0)

Wednesday, February 7, 2018

Many Hurdles to Legal Remedies for Sexual Harassment

Legal Remedies for Sexual Harassment are Few and Far Between

Despite the torrent of attention being paid to sexual harassment and discrimination, the legal system in place to respond to related claims has not changed. Many have been inspired to seek legal action only to learn that it’s probably too late to file a lawsuit. Others are coming to attorneys seeking the swift consequences being dealt out to men in the public eye, and they are learning instead that in most cases, speaking up is just the first step in a difficult process that can last months or years — with no guarantee of a resolution.


“Attention to the issue always helps, but there is no silver bullet, no overnight change where suddenly this becomes easy,” says Emily Martin, general counsel for the National Women’s Law Center.


Her organization is administering the “Time’s Up” legal defense fund, an effort by celebrities and activists to connect those who have experienced workplace sexual misconduct with legal aid. Since the fund was announced on Jan. 1, more than 1,000 people have requested its assistance.


A spokeswoman for the Equal Employment Opportunity Commission (EEOC) says that agency, too, has been “inundated” with requests. At the San Francisco-based nonprofit Equal Rights Advocates, a new intake system is being installed to handle the increasing volume of harassment claims.***


But in many states, even if only a single year has passed, it’s too late. The federal deadline to file a written charge of discrimination with the EEOC — a required prerequisite for suing under federal anti-discrimination laws — is 180 days, sometimes extended to 300 days based on state law.


For those who find an attorney to take their case — something that’s far more difficult for low-wage and undocumented workers — the challenges ahead are significant, even if there’s documented proof, witnesses and other elements of a winnable lawsuit.


If victims are looking for new employment, Katz warns them that human resources departments are typically wary of people who have taken their former employers to court.


“Even if they have the most meritorious of claims, they will be perceived as unsuitable or not given real consideration,” Katz said.


It’s probably beneficial for victims to seek counseling or therapy — but first, their attorneys caution, they should know that what they say to a therapist can end up in the hands of their former employer and be used against them in court. When a person sues for emotional damages, the opposing counsel can request to examine their entire mental health history.

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

Tuesday, February 6, 2018

The 11th Circuit's Take on Workplace Bans Against Black Women's Natural Hair as Discrimination

D. Wendy Greene, Splitting Hairs: The 11th Circuit's Take on Workplace Bans Against Black Women's Natural Hair in EEOC v. Catastrophe, 71 Miami L. Rev. (2017)

What does hair have to do with African descendant women’s employment opportunities in the 21st century? In this Article, Professor Greene demonstrates that Black women's natural hair has much to do with their ability to obtain and maintain employment as well as their enjoyment of dignity, equality, and agency in contemporary workplaces. When Black women wear natural hairstyles like afros, locks, twists, braids, they are often subjected to harassment, demotions, discipline, termination and denial of employment for which they are qualified. However, when Black women have challenged natural hairstyle bans as race discrimination violative of federal laws like Title VII of the 1964 Civil Rights Act, federal courts have issued hair splitting decisions that decree: federal anti-discrimination law protects African descendants when they are discriminated against for adorning afros but statutory protection ceases once they grow their naturally textured or curly hair long or don it in braids, twists, or locks. Thus, generally, Black women subjected to discrimination because of their natural hair lack any form of legal redress. The 11th Circuit Court of Appeals recent decision in EEOC v. Catastrophe Management Solutions (2016) preserved this status quo by holding that an employer’s revocation of a job offer to an African American woman for refusing to cut off her dreadlocks did not violate Title VII because locks are not an “immutable” racial characteristic of African descendants presumably like an afro. 

Professor Greene explains that federal courts’ strict application of this “legal fiction” known as the immutability doctrine—and the biological notion of race that informs it—have greatly contributed to this incoherency in anti-discrimination law that triggers troubling, tangible consequences in the lives of Black women. Indeed, natural hairstyle bans effectively require Black women to wear straightened hairstyles, which Black women often achieve through costly, time-consuming, and physically damaging procedures like weaves, wigs, hair extensions, chemical relaxers and/or the application of extreme heat to their hair. Thus, workplace bans against natural hair are not a superficial matter; they can negatively impact Black women's physical, economic, and emotional well being. Moreover, Professor Greene argues that the 11th Circuit's recent dismissal of the EEOC’s case, which affirms the legality of straight hair mandates imposed upon Black women, exacerbates the “hyper-regulation of Black women’s bodies via their hair” in the 21st century workplace.

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

Tuesday, January 23, 2018

Legal Solutions and Restorative Justice for #MeToo

Lesley Wexler, #MeToo, Time's Up, and Restorative Justice

The impetus from #MeToo and in particular, the Alianza Nacional de Campesinas letter of solidarity representing 700,000 farmworkers, helped spawn the Time’s Up initiative which offers one set of possible answers. Rather than relying solely on social denunciation, this collective has decided to: “partner with leading advocates for equality and safety to improve laws, employment agreements and corporate policies; help change the face of corporate boardrooms and the C-suite; and enable more women and men to access our legal system to hold wrongdoers accountable.” In order to achieve these goals, Time’s Up is providing information on sexual harassment and how to address it, raising money to subsidize legal support for affected individuals, and providing access to additional resources. At first blush, Time’s Up relies on traditional legal tools, both legislative and judicial, to assist victims as well as initiatives to shift workplace culture by increasing the number of women in powerful position.


Interestingly, though, they may have something more radical in mind. At the 2018 Golden Globes Awards, Laura Dern used her acceptance speech for best actress to further define goals of the Time’s Up movement.***


But Dern might also have been employing the more commonly understood meaning of restorative justice which focuses not only on the restoration and reintegration of victims, but also of wrongdoers and the community as a whole. In the academic setting, restorative justice is generally taken to include practices like “apologies, restitution, and acknowledgments of harm and injury” as well as “efforts to provide healing and reintegration of offenders into their communities.” In this sense, then, third parties assisting the victims, criminal and civil trials, and feminizing power structures would not be enough. Rather restorative justice would also call for “direct communication . . . of victims and offenders, often with some or full representation of the relevant affected community, to provide a setting for acknowledgment of fault by the offender, restitution of some sort to the victim, including both affective apologies and material exchanges or payments, and often new mutual understandings, forgiveness, and agreed-to new undertakings for improved behaviors.” Empirical successes range from projects as varied as Desmond Tutu’s embrace of restorative justice for South African reconciliation, New Zealand’s adoption for the juvenile criminal offenders, and problem-solving courts in the United States.

January 23, 2018 in Equal Employment, Pop Culture | Permalink | Comments (0)

Monday, January 22, 2018

The Need for Gender Quotas in Irish Higher Education Institutions

Dr. Shivaun Quinlivan, Disrupting the Status Quo? Discrimination in Academic Promotions, 14 Irish Employment J. 68 (2017)

In June 2016 the HEA Report of the Expert Group: HEA National Review of Gender Equality in Higher Education Institutions (Gender Equality Review p.11) reported and stated that there was a need for “radical action” without which they could not guarantee that Higher Education Institutes (HEIs) would “ever be free of gender inequality”. This report was commissioned in the aftermath of the now high profile case of Sheehy Skeffington v National University of Ireland Galway (DEC-E2014-078) (hereinafter NUI Galway) and the controversy surrounding this decision. This article addresses the decision in Sheehy Skeffington v NUI Galway, the fallout from that decision and the recommendations of the Gender Equality Review as regards recruitment and promotion. In particular, this article looks at that recommendation considered most radical, yet also considered necessary, namely the introduction of mandatory gender quotas. This article seeks to assess why it was deemed necessary for the Expert Review Group to recommend the introduction of mandatory quotas and to posit the question: what happens if the HEIs do not comply with that recommendation?

January 22, 2018 in Education, Equal Employment, International | Permalink | Comments (0)

Friday, January 19, 2018

Class Action Suit Alleges Gender Bias of Law Firm in Treatment of Women Partners

Shareholders' $300m Suit Accuses Employment Firm Ogletre Deakins of Gender Bias

A nonequity shareholder at Ogletree, Deakins, Nash, Smoak & Stewart claims in a $300 million lawsuit that the defense-side labor and employment firm discriminates against female partners in pay, promotions and opportunities.


The would-be federal class action was filed Jan. 12 by shareholder Dawn Knepper, according to a press release, the Recorder and Bloomberg Big Law Business. Knepper is represented by David Sanford of Sanford Heisler Sharp, the same firm that filed gender bias suits against Chadbourne & Parke, and the now-disbanded firm Sedgwick.


On its website, Ogletree Deakins purports to foster diversity and inclusion, “but this rhetoric is largely hollow,” the suit says. “In reality, the firm has shirked its obligations under the law through its ‘do as I say not as I do’ practices.”


The suit says the firm doesn’t give female shareholders the appropriate credit for business they generate and the work they do, doesn’t give women the same development and training opportunities provided to men, and doesn’t select women for business pitches as often as men.


Compensation decisions are controlled by the firm’s predominantly male compensation committee and are approved by a vote of equity shareholders, about 80 percent of whom are men, the suit says. Men also dominate at the nonequity shareholder level, making up 58 percent of the group, according to the suit, which relied on statistics that were current as of last Dec. 31. ***


The suit seeks $100 million for underpayment, $100 million in compensatory damages, and $100 million in punitive damages. The suit alleges pay discrimination, gender bias and retaliation in violation of Title VII of the Civil Rights Act; violation of the federal Equal Pay Act; violation of California employment law; and unfair competition.


separate suit seeks a declaratory judgment that Knepper is not bound by any arbitration agreement.


January 19, 2018 in Equal Employment, Women lawyers | Permalink | Comments (0)

Thursday, January 18, 2018

Equal Work: A Comprehensive Survey of the Literature on Pay Discrimination, its Causes, and Some Practical Solutions

Joseph Seiner, JOTWELL, A Modern Approach to Pay Disparities in the Workplace, reviewing Stephanie Bornstein, Equal Work, 77 Md. L. Rev. (forthcoming 2018), available at SSRN.

In her article, Equal Work, Professor Stephanie Bornstein (Florida) does a superb job of providing a fresh approach to the continuing problem of pay discrimination in the workplace on the basis of gender and race. As Professor Bornstein correctly acknowledges, pay discrimination has remained an ongoing problem in our society for decades. Her article makes two extraordinarily useful contributions: first, it undertakes a comprehensive survey of the latest literature on pay discrimination and its causes, and second, it offers solutions that do not require legislative reform to chip away at this pervasive problem.



It is difficult to overstate the important contribution Professor Bornstein makes here with Equal Work. The vast collection of data on the topic and the exhaustive background information provided are by themselves quite impressive. However, the novel approach to helping fix the problem advocated by Professor Bornstein makes this work an invaluable contribution to the academic literature.

January 18, 2018 in Equal Employment | Permalink | Comments (0)

Thursday, January 11, 2018

Third Generation Gender Discrimination in the Workplace

Catherine Ross Duhnam, Third Generation Discrimination: The Ripple Effects of Gender Bias in the Workplace, 51 Akron Law Rev. 55 (2017)

This Article will begin by examining the [Ellen] Pao [Silicon Valley] and [Betty] Dukes [Wal-Mart] cases, focusing on the role of the decision-makers in the ultimate outcomes of those cases. The Article will then consider implicit bias as a concept, noting the interplay between implicit bias and gender-based stereotypes. Building on that understanding, the Article will explore generally the evolution of second generation discrimination as a legal theory, connecting that analysis back to Dukes’ and Pao’s cases. The Article will then explore the role of implicit bias in the court system, reviewing social science literature regarding the role of gender-based bias in the courtroom as it relates to female attorneys, female litigants, and the effect of certain “feminine traits” in the courtroom. The Article will argue that gender based implicit bias against female litigants plays out in the form of a Third Generation Discrimination, a term developed here, by layering on the biases of judges and juries. Third Generation Discrimination further undermines efforts by women seeking relief under Title VII for workplace discrimination based on claims that their employer allowed bias against them to curb their opportunities for advancement. Women will only succeed in implicit bias cases, such as those brought by Dukes and Pao, if the facts of the case are evaluated by those who can assess the case without regard to their own preconceptions about the role of women in the workplace and in society.

January 11, 2018 in Equal Employment, Theory | Permalink | Comments (0)

Wednesday, January 10, 2018

Fourth Circuit Allows Pay Gap Case to Move Forward over Dissent on State Sovereignty Grounds

EEOC Wins Battle Over Maryland Insurance Regulator Pay

A federal appeals court has put a pay discrimination suit against the Maryland Insurance Administration back in action.


A three-judge panel at the 4th U.S. Circuit Court of Appeals has ruled, 2-1, that the U.S. Equal Opportunity Employment Commission (EEOC) can move forward with a lawsuit alleging that the insurance regulatory agency may have paid female employees less than it paid male employees holding comparable jobs.


The EEOC has presented evidence in the case, EEOC v. Maryland Insurance Administration (Case Number 16-2408), suggesting that the agency paid three former fraud investigators who are women less than it paid four former fraud investigators with comparable credentials and experience who are men.


The EEOC showed that the female investigators ended up earning $45,503 to $50,300 per year. The male investigators earned from $47,194 to $51,561 per year.


A judge at the U.S. District Court in Baltimore granted summary judgment in favor of the Maryland Insurance Administration.


Two judges at the 4th Circuit, Circuit Judge Barbara Milano Keenan and Circuit Judge Henry Floyd, overturned the lower-court ruling and agreed to let the EEOC move ahead with the suit.

Judge Wilkinson dissent on state sovereignty grounds.

J. Harvie Wilkinson III, the third judge on the panel, voted to uphold the lower-court ruling. In a dissenting opinion, he blasted his colleagues for ignoring Maryland's sovereign rights.

"The majority refuses to so much as mention a state's sovereign interest in its own civil service," Wilkinson writes. "The place of state governments in our Republic has quite passed it by. Respect for states [as] states fails to merit even the slight courtesies of lip service."

Given that, legally, the United States still has a federal system, and states still have rights, the EEOC should not have brought such a marginal case against a state, Wilkinson writes.

"State workforces are highly regulated and regimented, and state law provides remedies for gender discrimination in all its forms," Wilkinson writes. "Simply put, state civil service systems are not hotbeds of gender bias, as this feeble suit makes all too clear."

The Maryland Insurance Administration suit puts Maryland's sovereign interest in its own workforce entirely in the hands of federal authorities, Wilkinson writes.

"Here, a federal agency is bringing suit, the federal courts are deciding the suit, and federal law is providing the applicable rule of decision," he writes. "In combination, this assertion of federal authority diminishes to an unacceptable extent the proper role of states in our constitutional system."

The majority opinion and the dissent are available here


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

Wednesday, January 3, 2018

3 Key Takeways from the Sexual Harassment Discourse

 Anna North, What I've Learned Covering Sexual Misconduct This Year

1. Workplace harassment is about work.

The current conversation around sexual harassment has been cast as a “sex panic” in some quarters, as writer Masha Gessen and others worry that in trying to curb harassment, Americans will end up “policing sex.” But it’s not sex that has countless people coming forward with stories of being forced out of jobs or entire industries. For many people who have shared their experiences as part of the groundswell that is #MeToo, the issue is abuse of power at work.

 2. Harassment is a systemic problem. It requires systemic solutions.

3.  To move forward, we have to focus on equality.


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

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)