Tuesday, September 23, 2014
Emily Bazelon, NYT, Mother in Jail for Helping her Daughter have an Abortion
On Sept. 12th, Jennifer Whalen, a 39-year-old mother of three in the rural town of Washingtonville, Pa., went to jail to begin serving a 9-to-18-month sentence. Whalen’s crime was, in effect, ordering pills online that her older daughter took in the first several weeks of an unplanned pregnancy, when she was 16, to induce a miscarriage. The medication was a combination of mifepristone (formerly called RU-486) and misoprostol. The drugs have been available from a doctor with a prescription in the United States since 2000 and are used around the world to induce miscarriage.***
On the night before Whalen went to jail, I drove to Pennsylvania to meet her. We sat at a conference table in the office of her lawyer, who was present for the 90-minute conversation. For most of the time we spent together, she sat hunched forward, arms wrapped around herself. She was dreading the prospect of leaving her 11-year-old daughter and her husband at home, she said, as well as her older daughter, now 19, who still lives with the family. (The oldest child, a 20-year-old son, lives nearby.) “I’m scared,” Whalen said of serving her sentence. “And I’m hurt because I can’t be with my family.”
A New York City family court ruled on Sept. 12 that a Staten Island man could use Facebook to serve his ex-wife with a legal notice about child support. According to the New York Post, Staten Island Support Magistrate Gregory Gliedman noted in his decision that it was the first such decision in New York or the United States in general (excluding situations in which the person being served was overseas).
Tuesday, September 16, 2014
Courtney Joslin (Davis) has posted Federalism and Family Status, Indiana L.J. (forthcoming).
The myth of family law’s inherent localism is sticky. In the past, it was common to hear sweeping claims about the exclusively local nature of all family matters. In response to persuasive critiques, a narrower iteration of family law localism emerged. The new, refined version acknowledges the existence of some federal family law but contends that certain “core” family law matters — specifically, family status determinations — are inherently local. I call this family status localism. Proponents of family status localism rely on history, asserting that the federal government has always deferred to state family status determinations. Family status localism made its most recent appearance (although surely not its last) in the litigation challenging Section 3 of DOMA.
This Article accomplishes two mains goals. The first goal is doctrinal. This Article undermines the resilient myth of family law localism by uncovering a long history of federal family status determinations. Although the federal government often defers to state family status determinations, this Article shows that there are many circumstances in which the federal government instead relies on its own family status definitions.
Sunday, September 14, 2014
A former New York Mets senior vice president, who was fired last month by the club, sued the organization on Wednesday alleging that she was discriminated against on the basis of her sex, and ultimately fired for becoming pregnant while unmarried. Leigh Castergine, who joined the Mets organization in 2010, was the head of ticket sales when, the suit says, she was fired by team COO Jeff Wilpon because he was “morally opposed” to Castergine having a child out of wedlock.
[T]he National Women’s Law Center and law firm Jenner & Block submitted an amicus brief on behalf of 123 Members of Congress in the Supreme Court pregnancy discrimination case, Young v. United Parcel Service, Inc.; the brief highlights the plain language, legislative history and intent of the Pregnancy Discrimination Act (PDA), which Congress passed in 1978. In Young, the Supreme Court will decide for the first time whether the PDA requires an employer to provide light duty to a worker if she needs it because of pregnancy, when the employer provides light duty to workers with similar limitations in ability to work arising out of disability or on-the-job injury. The brief argues that the plain language and legislative history of the PDA demonstrate that an employer may not deny accommodations for medical needs arising out of pregnancy that it provides to other workers based on a similar inability to work.
In 2006, Peggy Young, a pregnant UPS delivery driver in Landover, Maryland, was instructed by her medical provider to avoid heavy lifting during her pregnancy. Although UPS routinely accommodates employees who need light duty because they have a disability or an on-the-job injury—and even when they lose their commercial driver’s license because of a D.U.I. conviction—it forced Young to take a leave of absence for the rest of her pregnancy, causing her to lose her wages and her health insurance coverage. Young sued UPS, but two lower courts ruled against her, finding that the company’s refusal to accommodate pregnancy when it accommodated the medical needs of other workers with similar limitations in ability to work did not constitute pregnancy discrimination
More than 120 members of Congress urged the Supreme Court on Thursday to recognize that pregnant workers are entitled to reasonable accommodations such as light duty, saying it's needed to ensure that expecting mothers are not forced out of their jobs.
In a friend-of-the-court brief, the Democratic lawmakers — 99 from the House, including Minority Leader Nancy Pelosi, and 24 senators — said UPS delivery driver Peggy Young of Lorton, Virginia, was unfairly treated by her employer when it asked her to take unpaid maternity leave rather than provide a less strenuous position as her doctors advised.
Tuesday, August 26, 2014
The concept of alimony, also referred to as “maintenance” in some countries, dates back thousands of years and was first referenced in texts in ancient Babylon. Though gender roles and traditional marriage definitions have evolved greatly since then, the traditional meaning of alimony has remained largely the same. A marriage ends and one party pays the less financially solvent party some sort of means of support. In ancient times when it was not feasible for women to obtain meaningful work or to remarry easily due to cultural norms, alimony served as an important form of security. But today, in an age in which women serve in the cabinet and are now obtaining college degrees at higher rates than men, the idea that women (who receive alimony at much higher rates than men) should be awarded a post-divorce allowance from a spouse strikes many as outdated and an embarrassment to feminist principles.
Thursday, August 21, 2014
Chinese men in rural villages are paying $3200 to families (parents, usually) to sell their daughters in rural Vietnam for marriage.
Their marriages were arranged for cash, but some of the Vietnamese women who have found unlikely Prince Charmings in remote Chinese villages say they are living happily ever after.
"Economically, life is better here in China," said Nguyen Thi Hang, one of around two dozen women from Vietnam who have married men in Linqi.
Thursday, August 14, 2014
When they can't even wait until you are actually pregnantly disabled to fire you.
In Cadenas v. Butterfield Health Care II, Inc. (N.D. Ill. 7/15/14), a federal court asked the question of whether an employer could terminate a pregnant employee on the basis of its inability to accommodate her future pregnancy-related job restrictions. Even though the employee won this battle, the employer really won the war.
What can we learn from this case?
- It is okay not to accommodate a pregnant employees’ restrictions, as long as there is no evidence of providing accommodations to other employees with similarly debilitating medical conditions. Given the scope of the definition of “disability” under the ADA, coupled with the ADA’s reasonable accommodation requirements, this might be a high hurdle to overcome, this case notwithstanding. Also, don't forget about the EEOC's recent sweeping Enforcement Guidance on this issue.
- If a pregnant employee tells you that she will be unable to perform at some point in the future, wait until that time to terminate her. This employer could have saved itself a headache of a lawsuit by waiting five weeks to fire Cadenas. Of course, winning a lawsuit is relative, and if you could made the argument that employer won this case because it limited its potential exposure for economic damages to five weeks' back pay, I would not disagree with you.
Tuesday, July 29, 2014
Kristin Collins (Boston U) has posted A Short History of Sex and Citizenship: The Historians' Amicus Brief in Flores-Villar v. US.
The historians’ amicus brief that accompanies this essay was submitted to the Supreme Court in Flores-Villar v. United States, an equal protection challenge to federal statutes that regulate the citizenship status of foreign-born children of American parents. When the parents of such children are unmarried, federal law encumbers the ability of American fathers to secure citizenship for their children, while providing American mothers with a nearly unfettered ability to do the same. The general question before the Court in Flores-Villar – and a question that the Court has addressed in sum and substance on two other occasions during the last thirteen years – was whether the gender asymmetry in this statutory scheme is consistent with constitutional sex-equality principles. The goal of the historians’ amicus brief in Flores-Villar was to explain to the Court how this ostensibly obscure citizenship law is part of a larger historical phenomenon: the persistence of gender-based sociolegal norms in determining citizenship. The introductory essay provides an overview of the account provided in the brief and discusses how generic conventions shaped the amicus brief’s presentation of the history of sex-based citizenship laws.
Saturday, July 26, 2014
[T]he task of feeding children on an inadequate budget falls primarily to women. That women still do the majority of household labor is well known, but usually it’s discussed in the context of middle-class obsessions like leaning in and the mommy wars, not in the context of growing poverty.
McMillan shows just how heavily domestic duties weigh on food-insecure women—both the practical and menial labor of getting dinner on the table, and also the emotional labor required to negotiate with hungry kids.
Thursday, July 24, 2014
At Jotwell, Ruthanann Robson's essay, Empiricism and Equality: Studying Fathers' Rights, reviews Kelly Behre's article Digging Beneath the Equality Language: The Influence of the Fathers' Rights Movement on Intimate Partner Violence Public Policy Debates and Family Law Reform, 21 W&M J. Women & L. (forthcoming). John previously noticed this article too. Robson concludes:
Behre’s article is worth reading for its “deep dig” into the reality, rhetoric, and social science of “fathers’ rights.” Gender equality in family law remains worthy of our attention. But Behre’s article is also worth reading for its applicability to issues involving “reverse discrimination,” “color-blindness,” or formal equality, in which similar empirical underpinnings promote continued subordination. Digging beneath the equality rhetoric does not only unearth profound differences in the meanings of equality, it may also surface a dirty study.
Thursday, July 17, 2014
Most commentators . . . think that authorities went way too far in arresting Harrell. It angers me, as a citizen, to see the police overreach this way. How is it benefiting this child to be put in the custody of social services? And since I'm a parent, Harrell’s arrest scares me: How can I appropriately parent my child when doing something that seems relatively safe, if out of fashion, can get you arrested?
"We all parent our children different," she said. "That's our right. You're gonna choose something for your child that I'm not gonna choose for my child."
Tuesday, July 1, 2014
The question presented is whether an employer must provide workplace accommodations to a pregnant employee similar to those it provides to temporarily disabled employees?
In Brief: Peggy Young "is a driver for United Parcel Service, Inc. (UPS). She had asked UPS for a 'light duty' assignment after her doctor recommended that she not lift more than twenty pounds while pregnant. UPS denied her request, even though it had a practice of giving light duty assignments to other employees who were temporarily unable to perform their jobs. As a result of UPS’s denial, Young was forced to take unpaid leave and lost her medical coverage for the period during which she gave birth, until she was able to return to work at UPS two months later."
The Fourth Circuit CoA affirmed a grant of summary judgment to the employer holding that neither the Pregnancy Disrimination Act nor the Americans with Disabilities Act requires an employer to provide accomodations.
Thursday, June 26, 2014
Bill Would Help Rape Survivors Terminate Rapists' Parental Rights. A few years ago, one of my students proposed this topic for his thesis paper. I didn't believe that this was a real issue. I asked him to document the existence of the problem he was purporting to solve in the paper by finding me the exact laws he had seen referenced in the media. And sure enough, he was right. Given the state of the law on unwed fathers that require more than biology for a legally-enforced social relationship, other than child support, it seem farfetched that the law would support criminal parents but not other unwed fathers.
Tuesday, June 24, 2014
From the WSJ, Obama Calls for Family-Friendly Workplace Policies
President Barack Obama on Monday called for paid parental leave and other family-friendly policies, part of a broader effort to win more flexibility for workers.
"There is only one developed country in the world that does not offer paid maternity leave," Mr. Obama told a summit on working families hosted by the White House. "And that is us. And that is not the list you want to be on by your lonesome."
Mr. Obama stopped short of offering a federal plan that would grant paid leave, instead offering modest steps such as directing federal agencies to implement existing flexible workplace policies, urging Congress to enact a law mandating "reasonable accommodations" for pregnant women and releasing funds to help workers access child care while in training.
Monday, June 23, 2014
From the New Republic:
he Swedes get up to 16 months of paid leave after the birth of a newborn, extra tax credits to defray the cost of child-rearing, plus access to regulated, subsidized day care facilities that stay open from 6:30 in the morning until 6:30 at night. TheDanes and French benefit from similar arrangements. These programs are available to everybody, regardless of income, and the vast majority of working parents take advantage of them.
Here in the U.S., most of us can only dream of such programs. And it’s probably going to stay that way for a while. Local and state governments have introduced some initiatives of their own, but it’s taking a lot of time and confined to limited parts of the country. On Monday, the White House is co-hosting a meeting of academics, advocates, and business leaders to talk about work and family.
The Europeans pay much higher taxes than we do—in Scandinavia, for example, the tax burden approaches or even exceed 50 percent of national income. Governments across the ocean also have more control over business, particularly when it comes to the treatment of employees. This doesn’t seem to faze the European public. “We don’t mind paying high taxes as we and our children benefit,” oneStockholm parent told researchers a few years ago, expressing the prevailing sentiment. “We would not want to live a country where taxes may be lower but the benefits are less and you don’t get to spend time with your children when they are young.” You don’t hear such argument in the U.S. The prevailing assumptions (even among some liberals, I’m sure) is that the taxes and regulation to support such generous work-family policies would spoil the business environment and cripple the economy—creating a gentler society, perhaps, but also a less prosperous one.
Actually, I don't think that the chief objection by Americans pertains to the latter. I think that Americans (of either gender) simply don't like the idea of the government taking their money, even for good reasons. The mindset bespeaks a deep distrust of government (and correspondingly, an intense love for a certain kind of political freedom) and probably goes all the way back to the country's origins.
Thursday, June 12, 2014
New York Mets second baseman Daniel Murphy headlined a White House discussion on working fathers today, nine weeks after an uproar over his decision to miss the first two games of the season for the birth of his first child.
Daniel Murphy, the Mets second baseman who was slammed by some boneheaded sports radio guys for taking his contractually obligated paternity leave, was at the White House on Monday speaking at a forum on working fathers. He offered rousing support for family leave. "When [my son] Noah asks me one day, 'What happened? What was it like when I was born?' I could have answered, 'Well, Stephen Strasburg hung me a breaking ball that day, son. I slammed it into the right field corner,” Murphy told the audience. But instead, he continued, he can tell his son, “I am the one who cut his umbilical cord.”
In Tragedy Highlights Holes in Supervised Visits System, Prof. Jamie Abrams (Louisville), last month's guest blogger, applies masculinity theory to the context of a father's supervised visits in a child custody in Kentucky.
Other states wrestle with it, too, said Jamie Abrams, an assistant professor of law at the University of Louisville, who thinks this case could be a prime example in an emerging school of thought — that actions by the court can play a part in an individual's lashing out in what is known as a "hypermasculine" act of violence.
"Courts are good at assessing risk of child abuse or domestic abuse, but these types of incidents are different: They are retaliatory of the loss of their parenting rights," she said. "The more rights that are taken away from (noncustodial parents), the more intense and angered they are. It's a very dangerous situation.
Tuesday, June 3, 2014
Looking forward to reading this. Jill Elaine Hasday (Minnesota), has just published, Family Law Reimagined (Harvard University Press 2014).
From the book jacket:
One of the law’s most important and far-reaching roles is to govern family life and family members. Family law decides who counts as kin, how family relationships are created and dissolved, and what legal rights and responsibilities come with marriage, parenthood, sibling ties, and other family bonds. Yet despite its significance, the field remains remarkably understudied and poorly understood both within and outside the legal community.
Family Law Reimagined is the first book to explore the canonical narratives, stories, examples, and ideas that legal decisionmakers repeatedly invoke to explain family law and its governing principles. These stories contend that family law is exclusively local, that it repudiates market principles, that it has eradicated the imprint of common law doctrines which subordinated married women, that it is dominated by contract rules permitting individuals to structure their relationships as they choose, and that it consistently prioritizes children’s interests over parents’ rights.
In this book, Jill Elaine Hasday reveals how family law’s canon misdescribes the reality of family law, misdirects attention away from the actual problems that family law confronts, and misshapes the policies that legal authorities pursue. She demonstrates how much of the “common sense” that decisionmakers expound about family law actually makes little sense.
Family Law Reimagined uncovers and critiques the family law canon and outlines a path to reform. The book challenges conventional answers and asks questions that judges and lawmakers routinely overlook. It calls on us to reimagine family law.
Monday, June 2, 2014
Barnali Choudhury, Queen Mary University, London, has uploded Gender Diversity on Boards: Beyond Quotas. The abstract reads:
Worldwide there is a growing interest in increasing the number of women on boards. While quotas have been proposed in many countries as a way to address this problem, several countries, including, Germany have rejected this approach. Nevertheless, it is apparent that change is needed as women continue to represent minorities on boards of some of the largest companies.
Moreover, increasing the number of women on boards can be beneficial to firms. While it is not clear whether there is a positive relationship between increasing the number of women on boards and firm profitability, it is clearer that women make positive contributions to the board decision-making process. As a result, increasing the number of women on boards improves the quality of decisions made by the board.
Given the benefits increased numbers of women on boards can produce for companies and countries’ lacklustre interest in quotas, this article canvasses methods by which boards can increase female representation without relying on quotas. As such, it looks to practices adopted by American football teams, Australian mentoring programs, and U.K. disclosure rules. It also examines existing workplace norms and practices which inhibit female labour participation. In doing so, it proposes alternative approaches by which Germany, and other countries can increase gender diversity on boards.