Tuesday, May 26, 2015
Deborah Brake, On NOT "Having it Both Ways" and Still Losing: Reflections on Fifty Years of Pregnancy Litigation Under Title VII, 95 Boston U L. Rev. 995 (2015)
From the abstract:
This article . . . reflects on the past fifty years of conflict and struggle over how to treat pregnancy discrimination under Title VII. Pregnancy has played a pivotal role in debates among feminist legal scholars and women’s rights advocates about the limitations of both the equal treatment and special treatment anti-discrimination frameworks. The article’s title references the much-discussed Wendy W. Williams cautionary note that if we cannot have it “both ways” we need to decide which way we want to have it - a warning Williams followed with an argument for the equal treatment approach. The Pregnancy Discrimination Act (PDA), which amended Title VII in 1978, largely tracks the equal treatment model, setting a floor tying the treatment of pregnant women to that of other workers with similar health-based work restrictions. The model’s greatest promise was that it would avoid the backlash that would otherwise ensue if Title VII required employers to treat pregnancy more favorably than they treated other medical conditions. Equal treatment proponents framed their preferred approach as taking the long view, ensuring that as the boats of other workers rose, so too would those of pregnant employees. In the intervening years, this cautious optimism has not panned out. This article explores what lies beneath judicial resistance to pregnancy discrimination claims, and considers the future of the PDA after the Supreme Court’s decision (which was issued shortly before this article went to press) in Young v. UPS. It wraps up with a look at the recent pregnancy discrimination scholarship, contending that the rift posited between pro-maternity and anti-stereotyping discourses might be breached by greater attention to fostering egalitarian masculinities in relation to caretaking.
It's what the early 20th century equality feminists feared from social feminism and protective labor laws.
In Chile, a law requires employers to provide working mothers with child care. One result? Women are paid less.
In Spain, a policy to give parents of young children the right to work part-time has led to a decline in full-time, stable jobs available to all women — even those who are not mothers.
Elsewhere in Europe, generous maternity leaves have meant that women are much less likely than men to become managers or achieve other high-powered positions at work.
Family-friendly policies can help parents balance jobs and responsibilities at home, and go a long way toward making it possible for women with children to remain in the work force. But these policies often have unintended consequences.
Thursday, May 21, 2015
Jill Lepore, To Have and to Hold, New Yorker
This spring marks the fiftieth anniversary of the case that went forward instead: Griswold v. Connecticut. (“We became the footnote to the footnote,” Trubek told me.) In Griswold, decided in June, 1965, the Supreme Court ruled 7–2 that Connecticut’s ban on contraception was unconstitutional, not on the ground of a woman’s right to determine the timing and the number of her pregnancies but on the ground of a married couple’s right to privacy. “We deal with a right of privacy older than the Bill of Rights,” Justice William O. Douglas wrote in the majority opinion. “Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.”
Tuesday, May 19, 2015
Rona Kaufman Kitchen (Duquesne), Holistic Pregnancy: Rejecting the Theory of the Adversarial Mother, 26 Hastings Women's L.J. (2015).
From the abstract:
In its zealous effort to protect the lives and health of unborn children, the law frequently views the expecting mother with suspicion. In its most extreme form, the law regards the potential mother as a potential murderess. This perspective does not reflect the nature of pregnancy, it undermines the autonomy of loving mothers, and it is detrimental to children. Regardless of whether there is any conflict between mother and fetus, the State presumes the mother to be a threat to her fetus and subjugates her rights as a result. The State interferes with the mother’s autonomy, bodily integrity, parental rights, and physical freedom. This overreach of authority has disastrous consequences for mothers, children, and families. This article proposes a reconceptualization of pregnancy that reflects maternal and scientific understandings of pregnancy. Further, it offers a path toward recognition of the pregnant woman as an expecting mother.
Friday, May 15, 2015
From the NYT:
When they become parents, many couples want to share child-care responsibilities equally, says Sarah Schoppe-Sullivan, a professor of human development and family science at Ohio State University. But in a recent study, she found that moms shoulder much more of the additional work when a baby is born — and, perhaps more surprising, that parents aren’t necessarily aware of the discrepancy.
Along with her co-authors Jill Yavorsky and Claire Kamp Dush, Dr. Schoppe-Sullivan analyzed data on how 182 straight, dual-income couples spent their time before and after they had a child.
And, the results:
They found big differences between the couples’ estimates of how they spent their time and the evidence provided by the time diaries. Men and women both thought they spent about 30 more hours per week on paid work, housework, and child care combined after they had a child than they had before. But according to the time diaries, women actually spent about 21 hours more. Men added just 12.5 hours.
Tuesday, May 12, 2015
Parenting an infant is a time-consuming activity that changes the rhythm of daily life. But it is especially fascinating that new parents, and particularly men, perceive the work of parenthood to be even more time-consuming than it actually is. Parenthood does result in increased work, but men and women are not actually working 30 hours more per week after their babies are born. Women come close – working 21 more hours per week after the birth of their first child. Men do much less than they – or their wives – perceive: parenthood only adds 13 hours of work for men.
It is possible that fathers will become more involved in physical childcare and engagement as the babies grow into running and talking toddlers. But we would argue that men and women should openly confront the workload inequities that develop in their child’s first nine months because renegotiating the division of labor once routines are established is really difficult.
Furthermore, if these inequities are not addressed early, some women may feel compelled to leave or reduce their hours in the labor force, diminishing their own career opportunities as well as the family’s ability to save for college and retirement. In turn, women’s “opting out” of paid work may result in men’s opting out of even more family work. Thus, children may miss out on the benefits of involved fathering for their social, emotional, and cognitive development.
Monday, May 11, 2015
To their kids, all fathers must eventually seem conservative. And old-fashioned, and perhaps even boring. But, politically speaking, is there a uniquely conservative way to be a dad? Weekly Standard senior writer Jonathan V. Last has edited an essay collection by 17 conservative writers, policy wonks and entertainers, all offering advice and reflections on the business of fatherhood.
Number One on that list:
1. Be a man — a manly man! “Fatherhood isn’t just manliness,” Last writes in the collection’s introductory essay. “It’s the purest form of the good side of manliness, the side that brings light into the world. . . . If we are failing as a nation, it may be because we’re failing at manliness. And if we are failing at manliness, it’s probably because we’re failing at fatherhood.” By fatherhood, Last explains, “I refer to the raising and caring for, as opposed to the siring of, children. . . . The single worst thing men have done over the last two generations is to abandon their families.”
Raising and caring for children? That sounds downright liberal to me.
Sunday, May 10, 2015
Mother's Day. The feminist's friend or foe?
- Mother's Day's Dark History
- Why the Founder of Mother's Day Turned Against It
- Mother's Day is Steeped in Radical, Religious Feminism
- Ann Maria Reeves Jarvis
- The Mother's Day Myth: How we "Thank" Mothers for their Free Labor
- Mother's Day: The Creation, Promotion and Meaning of a New Holiday in the Progressive Era
Wednesday, April 29, 2015
Today gay marriage is obviously the big issue. And there a lot of articles and commentaries about it.
Here are a couple that I chose. The Most Awkward Moments during oral argument, discussed here.
From the NYT.
From the Fox News.
A commentary by Toobin in the New Yorker; he thinks the Court will decide in favor of gay marriage.
An editorial by the conservative National Review.
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).