Saturday, April 25, 2015
My colleagues and I have been discussing this issue. In the family law context, there is a rise of law firms that represent only male parties, often due to an affiliation with the father's rights movement.
We didn't come up with any answers, just flagged some of the questions:
Does the civil rights law apply? Are law firms "public accommodations" under the Civil Rights Act? They are defined as public accommodations under the ADA - any relevance? Is the licensing of lawyers sufficient state action? Maybe the commerce clause?
Don't lawyers have the right to choose their own clients? A First Amendment right of association? Or what about a religious right under Hobby Lobby?
What about ethical rules for lawyers against discrimination?
Here is an older law review article on the topic: Samuel Stonefield, Lawyer Discrimination Against Clients (1998)
Wednesday, April 22, 2015
Or so argues a recent book reviewed in the UK Daily Mail.....
George Clooney, Benedict Cumberbatch and Eddie Redmayne may have all taken the plunge recently — but they are a diminishing band of brothers, for the number of men marrying in the West has plunged in recent decades.
The state of matrimony is not just ailing. It is dying out faster than a mobile phone battery.
According to the Office for National Statistics, marriage in Britain is at its lowest level since 1895. In 2011, there were just 286,634 ceremonies — a 41 per cent free fall from 1972, when 480,285 couples tied the knot.
For an army of women, Mr Right is simply not there, no matter how hard they look for him. And the reason? When it comes to marriage, men are on strike.
Why? Because the rewards are far less than they used to be, while the cost and dangers it presents are far greater.
‘Ultimately, men know there’s a good chance they’ll lose their friends, their respect, their space, their sex life, their money and — if it all goes wrong — their family,’ says Dr Helen Smith, author of Why Men Are Boycotting Marriage, Fatherhood And The American Dream.
‘They don’t want to enter into a legal contract with someone who could effectively take half their savings, pension and property when the honeymoon period is over.
Wednesday, April 15, 2015
Walk into a toy store, and you are likely to see toys specifically designed and marketed for boys or girls — without very much overlap. With pink and blue color coding, and princess and action-hero designs, manufacturers seem to be using more and more gender messaging to sell their toys.
Should toys be more gender-neutral?
Room for Debate asked the question, “Why Should Toys Come in Pink and Blue?”
Friday, April 3, 2015
It seems absurd for a man to be writing on the issue of women and self-esteem, yet the reality is, men do and will continue to play a role in how women see themselves—especially fathers. How we treat our daughters and our partners sets an example for how young ladies grow up thinking it is okay to be treated. As the father of three young women, I think this issue needs to be discussed.
Tuesday, March 31, 2015
Prof. Nancy Dowd at the U of Florida had asked me to post this:
The Supreme Court Clinic of the University of Texas School of Law is planning to file an amicus brief in support of a cert petition in a family law/gender discrimination case and is seeking legal scholars to sign onto the brief as amici. The cert petition was filed on behalf of an unwed father who was prevented from objecting to the adoption of his newborn son. The father and the mother of the child were not married. Before the child was born the father filed a petition in state court seeking to establish paternity and also to establish custody, parent time, and child support. He also registered with Utah’s putative father registry with a sworn and notarized form, agreed to a court order of child support, and offered to assist the mother with her pregnancy-related expenses. Due to his lawyer’s oversight, unfortunately, he failed to timely file an affidavit attesting to his ability to provide for the child and setting forth his plans for care of the child, as required by Utah statute. Adoption proceedings were initiated when his son was three days old. When the adoptive parents notified the father of their intent to adopt his son without his consent, the father moved to intervene in the adoption proceeding. The adoptive couple opposed the father’s motion to intervene, based on the father’s failure to file the affidavit attesting to his ability to provide for the child and setting forth a plan for the child’s care. The court held that the father’s failure to file that affidavit left him with no rights at all regarding his three-day old son, and that this default could not be cured by a late filing. Accordingly, the father’s newborn child was placed for adoption over his objections, solely because he failed to file an affidavit, as required by state law, attesting that he was able and willing to take custody of the child and setting forth his plans for care of the child. Utah law requires unwed fathers, but not unwed mothers, to file such an affidavit before they can assert any claim to parental rights. The father challenged the affidavit requirement in state court on federal and state constitutional grounds, claiming that requiring unwed fathers but not unwed mothers to file such an affidavit was a violation of the Equal Protection Clause. He also raised a substantive due process challenge to the affidavit requirement. The district court rejected his claims and the Supreme Court of Utah affirmed. On the equal protection claim, the Utah Supreme Court acknowledged that requiring an unwed father, but not an unwed mother, to file an affidavit about future support plans is a sex-based classification triggering intermediate scrutiny, but applied a lower level of scrutiny because it found that the affidavit requirement was not particularly burdensome. Under this lower standard, the court held that the different treatment was constitutional because the affidavit requirement was a way to make unwed fathers demonstrate their commitment to the child’s best interests, while unwed mothers demonstrated such a commitment simply by carrying the child to term. According to the Utah Supreme Court, the affidavit requirement put the parents on “equal footing” regarding a demonstrated commitment to the wellbeing of the child. Professor Eugene Volokh of UCLA has filed a cert petition on behalf of the father, arguing that once an unwed father has made himself known, sought to establish his rights to the child, filed a petition for custody and an agreement to court ordered child support, imposing the additional requirement of an affidavit setting forth a care plan on the father but not the mother is a violation of the Equal Protection Clause. The University of Texas School of Law’s Supreme Court Clinic plans to file an amicus brief in support of the petition, urging the Court to grant the case. We are seeking family law scholars and gender discrimination law scholars to sign on to the brief as amici, urging the Court to grant cert. Amicus briefs filed at the cert stage are a very important tool for convincing the Court that the issues raised in the case are important and that the case warrants the Court’s attention. Our current plan is to file a brief outlining the demographic trend toward more out-of-wedlock births and thus the importance of the issue of the constitutional standard for gender-based differences in the treatment of unwed fathers and unwed mothers. We will then explain that this case raises two important issues that the Court has left open in its prior equal protection decisions about fathers and mother and that it tried unsuccessfully to resolve in Flores-Villar v. US several years ago. In particular, the case raises the questions of (1) the constitutionality of gender-based distinctions between unmarried mothers and unmarried fathers that do not help clarify paternity and (2) what “substantial connection to the child” means in the context of a newborn baby. More concretely, this case presents the very important issue whether a state can impose on the unmarried father of a newborn baby a burden to prove his willingness and ability to provide for a child even though he has diligently asserted his paternity and sought custody of the child, when it imposes no equivalent burden on the unmarried mother of the child. Finally, we will argue that the gender-based differences in this statutory scheme lack a rational basis because they rely on outmoded and inaccurate stereotypes about mothers and fathers. At this stage, we are looking for signatories to help refine and elaborate on these arguments. The sooner we have involved signatories, the better we can represent their views and promote their interests. The amicus brief is due on April 13, 2015, and the Clinic needs to give notice of its intent to file by this Friday, April 3, 2015 – and needs signatories by then. Anyone interested in being part of this effort can get more information (including an outline of the proposed brief) by emailing Clinic Director Lynn Blais at firstname.lastname@example.org, or calling her at 512-232-1334.
The U.S. Supreme Court recently decided Young v. UPS. By a vote of 6-3, the Court ruled on procedural grounds that summary judgment was inappropriate and Young should have been allowed to try the facts of the case.
Joanna Grossman (Hofstra) & Deborah Brake (Pitt), Forceps Delivery:The Supreme Court Narrowly Saves the Pregnancy Discrimination Act in Young v. UPS, Justia.com
The majority opinion, written by Justice Breyer, split the baby. It rejected the interpretations offered by both parties. With respect to Young’s interpretation, Breyer wrote that pregnant women were not entitled to “most favored nation” status, under which they could demand an accommodation that was offered to any other worker. This, the majority wrote, was too broad a reading of the second clause. (At least Justice Alito, who otherwise took a more narrow approach to clause two, avoided the oddly abstract and impersonal “most favored nation” terminology and instead referred to “most favored employees.”) With respect to UPS’s interpretation, the majority reasoned that such an interpretation would collapse the second clause into the first, in violation of an important principle of statutory construction. And even more damningly, this reading would have allowed the employer’s policy in Gilbert—which covered all sicknesses and accidents—to be upheld despite the incontrovertible fact that the PDA was enacted expressly to overrule that opinion.
The majority, instead, crafted a new approach to applying the Second Clause of the PDA, which, it claims, “minimizes the problems [of the parties’ interpretations], responds directly to Gilbert, and is consistent with longstanding interpretations of Title VII.” The Court’s approach makes use of the so-called McDonnell-Douglas test, which is used to smoke out discriminatory intent by employers accused of unlawful disparate treatment. Under that test, a plaintiff must first make out a prima facie case, demonstrating that she was treated differently from someone similarly situated but outside the protected class.
Liz Morris, & Joan Williams, What Young v. UPS Means for Pregnant Workers and Their Bosses, Harvard Business Review.
The U.S. Supreme Court case decided this week makes it significantly more likely that pregnant women denied workplace accommodations will succeed in their legal claims against the employers who denied them.
The Court’s decision in Young v. UPS holds that there may be some situations in which employers can accommodate some groups of employees, without also accommodating pregnant employees, but then creates a test so strict that it in effect eliminates employers’ ability to do just that
Tuesday, March 24, 2015
Legal History Blog, Dinner and Divorce and the Fathers' Rights Movement. Deborah Dinner's (Wash U) latest piece. From the abstract:
A vast literature documents the history of the women’s and gay liberation movements in the late twentieth century, but we still know little about how heterosexual men navigated dramatic change in the legal regulation of families. This Article provides the first legal history of the fathers’ rights movement. It analyzes how middle-class white men responded to rising divorce rates by pursuing reform in both family law and welfare policy. This history offers novel insight into the relationship between the private law of divorce, which regulates largely middle-class families, and public welfare state policies, which have the greatest effect on poor families. This Article challenges the assumption that these private and public family law systems operate in parallel, showing instead that they are interdependent.
Through the mid-twentieth century, marriage shaped the relationship not only between men and women but also between middle-class men and the state: men supported children and wives in exchange for legal protection of male familial authority. In the 1960s and 1970s, escalating divorce rates and the emergence of no-fault divorce laws upset this balance. By the mid-1980s, activists and federal and state legislators forged a new political compromise: fathers’ rights activists conceded ongoing child support obligations in exchange for greater access to custody upon divorce. This “divorce bargain” catalyzed a shift from common law presumptions favoring maternal custody to statutory recognition of joint custody. In so doing, it reinforced private rather than public responsibility for children living in nonmarital families.
The divorce bargain promoted formal equality and sex neutrality within private family law, but also entrenched gender and class inequalities. The bargain failed to challenge women’s disproportionate responsibility for childrearing within marriage, yet enabled men to use custody rights as leverage in child support and spousal maintenance negotiations. In addition, tying paternal responsibilities to custody rights advanced middle-class men’s caregiving interests but hurt those of low-income fathers who could not afford to pay child support. The state vilified these men as “deadbeat dads” who did not merit legal protection. The history of fathers’ rights advocacy for the divorce bargain, therefore, reminds us not to confuse liberalism with equality.
Keith Cunningham-Parmeter (Willamette), (Un)equal Protection: Why Gender Equality Depends on Discrimination, 109 Northwestern Law Review 1 (2015).
From the abstract:
Most accounts of the Supreme Court’s equal protection jurisprudence describe the Court’s firm opposition to sex discrimination. But while the Court famously invalidated several sex-based laws at the end of the twentieth century, it also issued many other, less-celebrated decisions that sanctioned sex-specific classifications in some circumstances. Examining these long-ignored cases that approved of sex discrimination, this Article explains how the Court’s rulings in this area have often rejected the principle of formal equality in favor of broader anti-subordination concerns. Outlining a new model of equal protection that authorizes certain forms of sex discrimination, (Un)Equal Protection advocates for one particular discriminatory policy that could dramatically promote gender equality in the decades to come. Fatherhood bonuses — laws that give families additional parental leave when fathers stay at home with their newborns — have the potential to drastically reorder gendered divisions of labor and expand women’s workplace opportunities. Countries that have experimented with fatherhood bonuses have seen women with children spend more time in paid work, advance in their careers, and earn higher wages. Applying these international models to the American context, this Article explains why fatherhood bonuses would fit comfortably within our constitutional framework, which authorizes discriminatory policies when such policies support women’s public participation. (Un)Equal Protection concludes by proposing a model for fatherhood bonuses in the United States that would encourage more men to perform care work, thereby advancing the goal of gender equality for both sexes.
Friday, March 20, 2015
While the legal wrestling continues over gay marriage, lawyers for Gov. Robert Bentley told the U.S. Supreme Court that same-sex marriage is a social experiment that undermines the rights of children.
The governor filed a friend of the court brief Tuesday ahead of April arguments regarding gay marriage.
Bentley's lawyers said marriage is a natural reality and that same-sex marriage destroys the "rights of children to be connected to their biological parents."
Alabama made similar arguments in a Mobile court case that ended with a federal judge declaring the state's gay marriage ban unconstitutional. The Alabama Supreme Court on March 3 ordered probate judges to stop giving marriage licenses to gay couples.
Friday, March 13, 2015
The single most disturbing story coming out of the media and sports world last week was the horrific online abuse levied at Gabby Schilling, daughter of former Red Sox pitcher, Curt Schilling.
The story was first reported by Schilling on his 38 Pitches Blog.
Curt's daughter Gabby is also a pitcher, and they found out last week that she was accepted to Salve Regina University, where she will play softball.
Proud father Curt, who is active on social media and particularly on Twitter (@gehrig38) posted a Tweet that read "Congrats to Gabby Schilling who will pitch for the Salve Regina Seahawks next year!!"
But trolls started to attack Schilling:
I post those Tweets here not to be sensationalistic, but because they have to be seen to understand how deeply and viscerally disturbing they are.
Wednesday, March 11, 2015
An Irish Catholic bishop said on Monday that homosexuality — like Down’s syndrome or spina bifida — was not part of God’s plan, and that same-sex couples with children were “not necessarily parents.” In an interview with the NewsTalk Breakfast radio program, Elphin Bishop Kevin Doran argued that voters should reject an upcoming referendum to legalize same-sex marriage because LGBT couples could not procreate.
Hear the interview here (scroll down to bottom).
Tuesday, March 10, 2015
I'm working on a final chapter of a book on 19th century feminism and family law. In concluding and drawing some parallels to modern times, I find myself searching for better words to use for the "stay-at-home" mom.
The 1950s term is mostly "housewife." Slate suggested we should reclaim the term "homemaker."
What other terms have been used over time?
What other terms could we be using? "Domestic goddess" seems popular on Facebook. "Domestic engineer"? It seems there must be better terminology to both describe and respect this role.
Thursday, March 5, 2015
You can come, but you can't leave.
A unanimous jury found Korean immigrant detainee and domestic violence survivor Nan-Hui Jo guilty Tuesday of child abduction charges filed by her child’s father and alleged abuser, Jesse Charlton. Now, Nan-Hui is also facing deportation and permanent separation from her child immediately after the hearing.
Nan-Hui Jo fled the U.S. to South Korea in 2009 with her then one-year-old daughter Vitz Da (known as Hwi) to escape abuse by Vitz Da’s American father Charlton, an unstable Iraq war veteran diagnosed with PTSD. For years, Nan-Hui raised her daughter in Korea during which time Charlton, unbeknownst to Nan-Hui, filed child abduction charges against her. When Nan-Hui traveled to Hawaii last summer to consider schools for the American-born Hwi and perhaps re-connect her daughter with Charlton if it was safe, she was immediately arrested and sent to jail.
On Friday, a federal court temporarily halted the Obama administration’s policy of detaining migrant mothers with children seeking asylum in the United States.
The American Civil Liberties Union (ACLU) filed a lawsuit in December alleging that the Department of Homeland Security (DHS) locked up women with children who were seeking asylum under their new “no release” policy, often inprison-like conditions for months at a time. The policy was adopted as part of the Obama administration’s “aggressive deterrence strategy” in response to the influx of Latin American migrants who crossed the southern border last year, as a way to deter future migrants from making the trek. The ACLU stated that in years past, detainees who were able to express “credible fear” that they would be persecuted in their homelands were released on bond or on their own recognizance.
Friday, February 27, 2015
The South Korean Constitutional Court recently held that prohibitions against adultery were unconstitutional. From the NYT:
South Korea’s Constitutional Court on Thursday struck down a 62-year-old law that made adultery an offense punishable by up to two years in prison, citing the country’s changing sexual mores and a growing emphasis on individual rights.
By contrast, the U.S. Supreme Court has so far refused to make an analogous statement. Check out the Mother Jones article (a bit outdated, though) .
A counter to the perspective expressed in the previous post, there's the HRC case against conversion therapy:
Research shows that young people experience conversion therapy as a form of family rejection, and LGBT youth who experience family rejection face increased health risks. In one study, such youth were 8.4 times more likely to report having attempted suicide, 5.9 times more likely to report high levels of depression, and 3.4 times more likely to use illegal drugs compared with peers who had not experienced such rejection. On the other hand, family acceptance has been shown to be an important protective factor that can help to prevent suicide behavior and mental health issues. Providers who engage in conversion therapy under the veneer of state license can mislead families about the risks involved, leading to negative psychological outcomes and irreparable damage to family cohesiveness. This legislation is needed to protect families from these damaging practices.
OKLAHOMA CITY — A bill guaranteeing the right of parents to seek therapy for “same-sex attraction” for their minor children cleared the Oklahoma House of Representatives Committee on Children, Youth and Family Services on Tuesday.
House Bill 1598 author Sally Kern, R-Oklahoma City, turned aside a question about whether such therapies might “push” young people toward self-destructive behavior.
“In our schools, in our movies, the kids are being pushed in the direction that they’re born homosexual and they can’t change,” Kern said. “This bill will allow children who are struggling with these feelings … to go and have some counseling to get both sides of the issue to find out why they’re struggling with this.”
Kern agreed that nothing currently in state law prevents parents from sending their children to such counseling, but she said HB 1598 is a “pre-emptive” measure against legislation banning so-called “conversion therapy.”
Thursday, February 12, 2015
Galen Sherwin, ACLU Women's Rights Project, Would You Like Some (More) Sexism With That?
There's been a great deal of interest in the case I blogged about last week, in which Angela Ames, a Nationwide Insurance worker alleged that she was denied a place to pump breast milk when she returned to work from maternity leave, and then was forced to resign by her supervisor.
In addition to the righteous outrage over the facts of her case, there has also been quite a bit of confusion and disbelief that this could have actually happened as well as some misleading headlines. We thought it would be useful to walk through in more detail exactly what the courts did –and did not do – in her case, and how they managed to ignore blatant sex discrimination.***
"Just Go Home And Be With Your Babies"
The district court's response to the "just go home and be with [her] babies" was similar. The court reasoned that this was not evidence of sex discrimination because it was "based on Ames's gender-neutral status as a new parent," further explaining that "[b]eing a parent is not gender-specific as this class also includes men and women who will never become pregnant."
It's true, men are parents too – and it's also true that men can lactate under certain circumstances. But it's nearly impossible to imagine someone actually saying this to a new father on his first day back at work.
In reality, both things happen overwhelmingly to women. Emma Cueto observes on Bustle, "Welcome to America! Where gender binaries are completely biologically determined and totally absolute when we're refusing to recognize trans people, but as soon as it's time to give women rights in the workplace we can't wait to talk about male lactation."
Waiting Three Days to Pump – Not Intolerable?
The part of the district court decision that the appeals court agreed with was that Angela had not done enough to protest her treatment before resigning. The district court found that although the conditions at work may have been "less than ideal and, arguably, unpleasant," they were not "intolerable"– and the appeals court agreed, finding that "Nationwide's several attempts to accommodate Ames show its intent to maintain an employment relationship with Ames, not force her to quit." As Tracy Thomas writes on the Gender and the Law blog, "Really? If you say so."
Let's remember that when Angela asked to use the lactation room, she was told she would have to wait three days for badge access. As any woman who has breastfed knows, you simply cannot wait three days to pump – waiting even three hours can lead to serious pain and risk of infection.
A few thoughts:
1. Sherwin says: "As Amanda Marcotte wrote on Slate, 'The fact that the original court latched onto [nursing humor] such a silly argument suggests an unwillingness to take Ames' case seriously from the get-go, which casts a pall over the entire ruling.'" This is really the crux of the problem. The courts still just don't get it.
2. The US Supreme Court in Cleveland Board of Education v. LaFleur, encountered in 1973 a similar remark from a supervisor for a woman to just "go home and have your babies." There, the court found it to be sex discrimination, though in a roundabout procedural due process kind of way by imposing mandatory maternity leaves on teachers from the 4th month of pregnancy until one year after the birth of their child, with no right to reinstatement. Had the Court ruled on equal protection grounds of sex discrimination, as argued by the plaintiff, perhaps we wouldn't still be hearing the same thing happening in workplaces 42 years later.
Thursday, January 29, 2015
....there are two problems with what President Obama said about paid parental leave in his State of the Union: First, he called it “maternity leave.” And, second, that statement quoted above is all he said.
In the press release from last week, “parental leave” was the chosen phrase. Critically, it was gender-neutral. As President Obama said tonight, "it’s time we stop treating childcare as a side issue, or a women’s issue.” And as the CAP report points out, parental leave isn’t a women’s issue either, “men increasingly want to be caregivers.” It also clarifies, “As family demographics shift, parents of young children are not the only types of workers with significant caregiving responsibilities.” Specifically, the report is referring to the realities of “care for elders” and “same-sex families,” where maternity leave would not apply even if it were guaranteed.
And President Obama should have said more. He could have brought up that men do increasingly want to be caregivers, that paid parental leave should be given equally to men and women, that paid parental leave could have important economic benefits, like reducing employee turn over when men and women seek to change jobs to have children, that paid parental leave isn’t something that only elite workers have earned.
President Obama’s announcement last week may have been a wonderful surprise to federal workers and their families, and even to Americans everywhere eager to see universal paid parental leave become a reality. But the announcement set high expectations for what else President Obama could have said on the topic tonight. A one-liner about “maternity leave,” left us all hanging.
How did that happen? It started during the Great Depression as "a source of 'fiscal stimulus,' if you will," says Arizona State University's Chris Herbst, an associate professor in the school of public affairs.
The Works Project Administration first ran the day cares. The idea was to employ teachers and to also watch kids so that their unemployed parents could look for jobs. When women replaced deployed soldiers in the domestic workforce during World War II, the government funded a major expansion.
That all ended with the war, and though in the early 1970s Congress approved a similar program, Herbst says aides convinced President Nixon to veto it.
Tuesday, January 27, 2015
From the New Yorker: America's Family-Leave Disgrace
What do Papua New Guinea, Oman, and the United States of America have in common? They are the only three countries in the world with no paid-maternity-leave law. When you point out the deficiencies of the United States in this regard, somebody often replies, “This isn’t Scandinavia; we can’t impose cuddly capitalism”—the M.I.T. economist Daron Acemoglu’s phrase—“and still enjoy economic growth.” Granted, we’re not Sweden, but neither are we Romania, Uganda, Bolivia, or any of the hundred and eighty-five other countries that, according to a 2014 report from the U.N.’s Institute of Labor, provide their citizens with paid leave to care for a new child. Ninety-eight of those countries offer paid leave for fourteen weeks or more. In his State of the Union address on Tuesday, President Barack Obama vowed to make family leave and sick days a priority in the final two years of his Presidency. He has work to do. In the United States, where all sorts of powers are commonly attributed to the private sector, many people might imagine that employers take up the slack. But the majority of U.S. employers do not offer paid family leave, for the simple reason that they don’t have to.