Gender and the Law Prof Blog

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

Tuesday, October 10, 2017

CAL Passes Bill to Codify Obama-Era Title IX Guidance for Campus Sexual Assault

California Senators Want to Codify Obama-Era Title IX Guidance on Campus Sexual Assault

With the stroke of a pen, Education Secretary Betsy Devos rescinded Obama-era Title IX guidance—effectively undoing nearly half a century of policy and advocacy work that helped to protect women and girls from sexual assault and advance equal access to education. The Department of Education’s updated guidance on Title IX allows schools to mediate rather than adjudicate sexual assault cases, revokes the suggested timeline for investigations and revises the suggested “preponderance of evidence” standard for sexual assault cases to make room for schools to enforce “clear and convincing evidence” standards.

 

Colleges and universities have been swift to respond, speaking out against the new interim guidance and pledging to uphold the old standards by following the procedures with which they were imbued under the Obama-era guidance. In a statement on Friday, UC Berkeley said it “stands firmly in support of the profoundly important policies enacted in recent years that seek to ensure a more efficient and fair system for all parties in cases of sexual harassment and sexual violence.” Penn State stated that it was their goal “to keep our reporting mechanisms and supportive services for responding to incidents of sexual and gender-based harassment and discrimination as effective and accessible as possible.” Washington University announced that “regardless of decisions at the federal level” they “have no intention of turning back on our commitment or resolve.”

 

These responses are undeniably uplifting and important—but laws are only as good as their enforcement. Without the proper mechanisms for effective enforcement that the previous guidance provided, it is hard to say whether schools will hold themselves accountable to the law or let their promises ring empty. Rather than hope for the best, California Senator Hannah-Beth Jackson (D-Santa Barbara) authored a bill that would enshrine into California law the Obama guidelines that guaranteed girls and women equal access to education.

 

SB 169 sends a message that the state does not want to sit idly by as the federal government attempts to propel women’s rights into the past. “In California, we will not go back,” Jackson said in a statement on Friday. “Both houses of the Legislature made a clear bipartisan statement by passing my bill, SB 169, to protect the Obama-era guidelines that strike an appropriate balance that were put in place during his tenure. We will not back down from the progress we have made on sexual assault and sexual violence.”

 

SB 169 passed with a 28-10 vote and is awaiting a signature from Governor Jerry Brown (D)

October 10, 2017 in Education, Legislation, Violence Against Women | Permalink | Comments (0)

Monday, October 9, 2017

New legislation: The Women, Peace and Security Act

The Women, Peace and Security Act Guarantees Women a Seat at the Table

New legislation making its way to President Trump’s desk would guarantee women a seat at peace and security decision-making tables.

 

The Women, Peace and Security Act—passed by the Senate in August and the House in October—mandates that federal agencies make women’s participation a priority internally and in their work on-the-ground in conflict zones around the world. The legislation, which strengthens an Obama-era executive order on women’s participation in peace and security processes, gives Congress oversight of its implementation.

 

The WPS Act is five years in the making, but it has passed at a uniquely critical time. The Trump administration—one of the most male-dominated in modern history—has already shown a tendency to erase women from strategic frameworks related to peace and security. And around the world, while tensions rise, women remain vastly underrepresented at peace-making tables and in security forces.

 

Allison Peters, former Director of Policy and Security Programs at Inclusive Security and foreign policy and defense adviser in the U.S. Senate, penned an op-ed for USA Today presenting the comprehensive case for the historic legislation:

 

Critics might note that the U.S. is dealing with numerous foreign policy challenges and security threats and argue that focusing on women’s participation would be a “soft” distraction from these priorities. However, research shows us time and again that gender diverse groups are more likely to effectively prevent and resolve conflicts in the long-term.

 

Here is the the actual text of the bill that passed and the legislative history.

 

October 9, 2017 in International, Legislation | Permalink | Comments (0)

Monday, September 25, 2017

Rethinking the Legislative History of Title VII and Sex Discrimination

Arianne Renan Barzilay, Parenting Title VII: Rethinking the History of the Sex Discrimination Prohibition, 28 Yale J.L. & Feminism 55 (2016)

It is a pillar of employment discrimination law that Title VII’s prohibition of “sex” discrimination lacks prior legislative history. When interpreting the meaning of sex discrimination protection under Title VII, courts have stated that it is impossible to fathom what Congress intended when it included “sex” in the Act. After all, the sex provision was added at the last minute by the Southern arch conservative congressman Howard “Judge” Smith in an attempt to frustrate the Civil Rights Act’s passage. Courts have often interpreted the sex provision’s passage as a “fluke” that has left us bereft of prior legislative history that might guide judicial interpretation. It is not surprising, then, that Title VII’s sex discrimination prohibition has been rather narrowly construed. 

This Article rethinks this received narrative and emphasizes its implausibility in light of the pre-Civil Rights Act contributions feminists made to the national discourse on sex discrimination. It considers not only scholarship on Equal Rights Feminists’ role in passing Title VII’s sex provision, but also scholarship on the often-overlooked Working-Class Social and Labor Feminists. The Article also explores the contestations between these two groups over the meaning of sex discrimination. It provides a more complex narrative of the provision’s parentage than the one previously recognized. 

The Article reframes the narrative by broadening the scope of inquiry in two ways: first, by focusing on Working-Class Social and Labor Feminists’ agitation for equality in the workplace, and second, by looking further back in time in order to reconceptualize debates over workplace equality as formative of the discourse on sex discrimination. The Article begins with early twentieth century contestations over protective labor legislation and argues that Working-Class Social Feminists supported labor regulation based not merely on sex stereotypes, but on their understanding of labor regulation as a means to combat sex discrimination. It continues through the New Deal, when an early sex anti-classification provision was inscribed in federal law by Social Feminists to provide equal pay for men and women. It examines the debates over workplace sex discrimination that reverberated in the decades following World War II and persisted through the early 1960s—when Congress passed the Equal Pay Act and the President’s Commission on the Status of Women issued its report. The Article considers these developments as part of feminists’ sustained efforts to combat sex discrimination, and as stage-setters for the sex provision’s passage. It claims that Working-Class Social and Labor Feminists’ long agitation for women’s equality de-facto constitutes decades’ worth of legislative history for the sex provision. When Congress voted to include “sex” discrimination in Title VII, it was already well aware of its robust meanings, thanks in large part to these feminists’ efforts to ameliorate systemic disadvantages facing women in the workforce. 

Working-Class Social and Labor Feminists’ actions and ideology should be considered important influences on the context of the sex provision’s birth. As law is the dynamic and indeterminate product of human interaction, its interpretation must account for the complexity of the legacies that infuse it with meaning. To this end, after re-conceiving the history of the sex provision’s birth, the Article suggests this history may provide a richer notion of Title VII sex discrimination, one that emphasizes structural features of the market and requires employers to take affirmative measures to offset the features that often result in discrimination.

September 25, 2017 in Equal Employment, Legal History, Legislation, Theory | Permalink | Comments (0)

Tuesday, September 19, 2017

Senate Bill Appropriates Money for International Gender Equality

 

The Senate appropriations bill, Senate Bill 1780, the "Department of State, Foreign Operations and Related Programs Appropriates Act, 2018," includes provisions for "gender equality," defined to include women's leadership, protection against violence and extremism, and for the Malala type efforts in Pakistan/Afghanistan and Boko Haram.  

 

Gender Equality

Sec. 7059. (a) Gender Equality.—Funds appropriated by this Act shall be made available to promote gender equality in United States Government diplomatic and development efforts by raising the status, increasing the participation, and protecting the rights of women and girls worldwide.

(b) Women’s Leadership.—Of the funds appropriated by title III of this Act, not less than $50,000,000 shall be made available to increase leadership opportunities for women in countries where women and girls suffer discrimination due to law, policy, or practice, by strengthening protections for women’s political status, expanding women’s participation in political parties and elections, and increasing women’s opportunities for leadership positions in the public and private sectors at the local, provincial, and national levels.

(c) Gender-Based Violence.—

(1) (A) Of the funds appropriated by titles III and IV of this Act, not less than $150,000,000 shall be made available to implement a multi-year strategy to prevent and respond to gender-based violence in countries where it is common in conflict and non-conflict settings.

(B) Funds appropriated by titles III and IV of this Act that are available to train foreign police, judicial, and military personnel, including for international peacekeeping operations, shall address, where appropriate, prevention and response to gender-based violence and trafficking in persons, and shall promote the integration of women into the police and other security forces.

(2) Department of State and United States Agency for International Development gender programs shall incorporate coordinated efforts to combat a variety of forms of gender-based violence, including child marriage, rape, female genital cutting and mutilation, and domestic violence, among other forms of gender-based violence in conflict and non-conflict settings.

(d) Women, Peace, And Security.—Funds appropriated by this Act under the headings “Development Assistance”, “Economic Support Fund”, “Assistance for Europe, Eurasia and Central Asia”, and “International Narcotics Control and Law Enforcement” should be made available to support a multi-year strategy to expand, and improve coordination of, United States Government efforts to empower women as equal partners in conflict prevention, peace building, transitional processes, and reconstruction efforts in countries affected by conflict or in political transition, and to ensure the equitable provision of relief and recovery assistance to women and girls.

(e) Women And Girls At Risk From Extremism.—

(1) ASSISTANCE.—Of the funds appropriated by this Act under the heading “Economic Support Fund”, not less than $19,000,000 shall be made available to support women and girls who are at risk from extremism and conflict, and for activities to—

(A) empower women and girls to counter extremism;

(B) address the needs of women and girls adversely impacted by extremism and conflict;

(C) document crimes committed by extremists against women and girls, and support investigations and prosecutions of such crimes, as appropriate;

(D) increase the participation and influence of women in formal and informal political processes and institutions at the local level and within traditional governing structures;

(E) support reconciliation programs between impacted minority, religious, and ethnic groups and the broader community;

(F) develop and implement legal reforms and protections for women and girls at the national and local government levels; and

(G) create and sustain networks for women and girls to collectively safeguard their rights on a regional basis.

(2) CLARIFICATION AND NOTIFICATION.—Funds made available pursuant to paragraph (1)—

(A) are in addition to amounts otherwise available by this Act for such purposes; and

(B) shall be made available following consultation with, and subject to the regular notification procedures of, the Committees on Appropriations.

(f) Coordination.—Funds made available for the purposes of this section shall be administered in coordination with the Ambassador-at-Large for Global Women’s Issues, Department of State, and the Senior Coordinator for Gender Equality and Women’s Empowerment, USAID.

 

And see Sec. 7042

Boko Haram.—Funds appropriated by this Act that are made available for assistance for Cameroon, Chad, Niger, and Nigeria—

(1) shall be made available for assistance for women and girls who are targeted by the terrorist organization Boko Haram, consistent with the provisions of section 7059 of this Act, and for individuals displaced by Boko Haram violence; and

(2) may be made available for counterterrorism programs to combat Boko Haram.

 

September 19, 2017 in International, Legislation | Permalink | Comments (0)

Thursday, September 7, 2017

Women on Corporate Boards: A Comparative Appraisal of Italian Law

Paola Monaco &  Angelo Venchiarutti,  Women on Corporate Boards: An Appraisal of Italian Law, European Business Law Review (forthcoming).

Abstract

Both within and outside Europe, the number of women sitting on corporate boards is very low. In spite of the rising number of women earning post-graduate degrees in law, business and administration, only a minority of them ends up sitting on companies’ corporate boards. Against this context, the aim of this article is to study the Italian approach to this problem, and to set it against the framework of the solutions adopted in Europe. The articles starts by analyzing the initiatives carried out by the European Union with the goal of promoting equal treatment between genders on corporate boards. After the survey of the soft and hard measures undertaken by some European countries to tackle gender imbalance on boards, the paper will analyze the legislative reform recently adopted by the Italian Parliament. The conclusion will focus on the effectiveness of European positive actions to tackle gender inequality in corporate boards.

September 7, 2017 in Business, International, Legislation | Permalink | Comments (0)

Wednesday, May 17, 2017

Comparing Legislative versus Judicial Abortion Laws

Noya Rimalt, When Rights Don't Talk: Abortion Law and the Politics of Compromise,  28 Yale J. Law & Feminism 328 (2017)

This Article draws attention to the significance of rights-talk in shaping proper abortion legislation. It engages with ongoing debates regarding the wisdom of Roe v. Wade’s judicially imposed, strict rights-based approach to legal abortion. As the issue of abortion remains extremely controversial in American politics, it has been argued that the Supreme Court’s rights-based rhetoric, coupled with its “undemocratic” judicial imposition of a resolution to the issue, played a central role in triggering the ongoing conflict over abortion. Legal scholars often rely on comparative examples in an attempt to argue in favor of legislative and conciliatory policy solutions to the issue of abortion.

This Article questions the superiority of legislative solutions to abortion by providing a critical comparative account of abortion legislation that seems to exemplify precisely the sort of compromise-based solution advocated by critics of Roe v. Wade’s judicially created right to abortion. It critically analyzes the give-and-take process in the Israeli legislature that gave birth to the country’s abortion law. The Article argues that the Israeli case study provides a cautionary tale of a legal system in which abortion regulation was decided exclusively by legislators, rather than judges, which resulted in legislation devoid of any concept of individual rights.

The Article concludes by exploring a number of additional comparative examples outside of Israel. Focusing specifically on Canada, Germany, and France, it illustrates how a broad comparative perspective is useful in drawing attention to the roles of courts and legislatures in shaping abortion policies, as well as to the disguised costs of abortion compromises.

May 17, 2017 in Abortion, International, Legislation | Permalink | Comments (0)

Friday, May 12, 2017

State Lawmaker Faces Expulsion over Online Misogyny

New Hampshire State Lawmaker Accused of Online Misogyny Faces Expulsion

The New Hampshire state Legislature is deciding whether to discipline one of its members for his role in setting up a misogynistic online forum.

 

Two-term Republican Rep. Robert Fisher, 31, was identified last month by The Daily Beast as the creator of the Reddit community The Red Pill, which champions so-called "pickup artists" and blames feminism for societal woes. (The forum takes its name from a scene in the 1999 film The Matrix in which Keanu Reeves' character, Neo, is offered a choice between a red pill, which represents reality, and a blue pill, which represents illusion.)

Testifying before a state House committee Tuesday, Fisher argued that his online statements revealed by the Daily Beast investigation — including comments deriding women's intelligence, detailing ways for men to dodge rape accusations and questioning whether rape itself was wholly bad — have been misreported and misconstrued.

He has never "hated women," Fisher assured the Legislative Administration Committee and criticized the journalism that brought his comments to light.

The committee has until next week to make a recommendation. The state House will vote on the committee's decision June 1.

May 12, 2017 in Legislation | Permalink | Comments (0)

Friday, May 5, 2017

NYC Passes Legislation Banning Employers' Use of Salary Histories

 Employers in New York City Won't Be Able to Ask for for Your Salary History Anymore

Mayor Bill de Blasio, a Democrat, signed a bill on Thursday that makes it unlawful for those involved in the hiring process to inquire about what an applicant currently makes -- a measure that takes aim at the gender pay gap.

 

"This is about fixing a broken history. This is about overcoming years and years of discrimination that held people back," de Blasio said at the signing ceremony.

 

More than 20 states, from California to Georgia to Vermont, are considering similar legislation that would bar employers from asking about a job applicant's pay history, according to the National Conference of State Legislatures. New York City joins Massachusetts and Philadelphia, which already have those laws on the books.

 

Such bills look to address a real problem. Women earned 79.6 cents for every dollar men made in 2015, according to data released by the Census Bureau last year.

 

A court decision last week has also renewed calls for local action. The 9th U.S. Circuit Court of Appeals overturned a lower court and ruled that employers are allowed to pay women less than men based on salary history if they have a legitimate business reason for using that information. [See the prior blog about the case here.]

 

Democratic members of Congress hope to take federal steps to address the issue too, even though they're the minority in both houses.

 

The Paycheck Fairness Act, which has been introduced by Sen. Patty Murray of Washington and Rep. Rosa DeLauro of Connecticut, would strengthen provisions in the Equal Pay Act of 1963. Part of the bill bans employers from asking about a job candidate's pay history during the interview process. [For recent scholarship on the PFA see the prior blog post here.]

NY state has proposed a similar bill:

2017 New York Assembly Bill No. 2040, New York Two Hundred Thirty-Ninth Legislative Session, Apr. 4, 2017  

Section 1. Legislative intent. The legislature hereby finds that New York should lead the nation in preventing wage discrimination.
 
The wage gap between men and women is one of the oldest and most persistent effects of inequality between the sexes in the United States.
 
The 1963 Equal Pay Act and the 1964 Civil Rights Act in the United States established the legal right to equal pay for equal work and equal opportunity. Yet half a century later, women are still subjected to wage gaps and paid less then men.
 
The concept of comparable worth attacks the problem of gender-based wage discrimination by mandating that jobs characterized by similar levels of education, skill, effort, responsibilities, and working conditions be compensated at similar wage levels regardless of the gender of the worker holding the job.
 
The goal of pay equity is to raise the wages for undervalued jobs held predominantly by women. Today, women make only 77 cents per every dollar earned by a man for a comparable job, a gender wage gap of 23 percent.
 
This translates into thousands of dollars of lost wages each year for each female worker, money that helps them feed their families, save for a college education and afford decent and safe housing.
 
Pay disparities affect women of all ages, races, and education levels, but are more pronounced for women of color. Minority womenmake as little as 54 cents per dollar for a comparable job held by a man.
Female-dominated jobs pay twenty to thirty percent less than male-dominated jobs classified as comparable in worth and more than one half of all women work in jobs that are over seventy percent female.
 
Women are more likely to enter poverty in old age for several reasons: A lifetime of lower wages means women have less income to save for retirement, and less income that counts in their Social Security or pension benefit formula.
 
The current life expectancy for women means they will, on an average of three years, outlive men. Yet they will have to stretch their retirement savings, which are less to begin with, over a longer period of time.
 
The existence of pay inequity is a manifestation of deep-seated sex discrimination that prevents both equality of pay for women and equality of opportunity for both sexes.
 
More women in the United States are obtaining college degrees and increasing their participation in the labor force and family-friendly legislation, including the Equal Pay Act, Family and Medical Leave Act, and Pregnancy Discrimination Act, and policies such as flex time and telecommuting, have increased options to create a win-win situation for women and their employers.
 
Despite the progress, women continue to suffer the consequences of inequitable pay differentials: in 2010, the average college-educated woman working full-time earned $47,000 a year compared to $64,000 for a college-educated man.
 
During 2012, median weekly earnings for female full-time workers were $691, compared with $854 per week for men, a gender wage gap of 19 percent.
 
Fair pay strengthens the security of families and eases future retirement costs while also strengthening the American economy. In order to achieve fair pay, policymakers must enact laws that prevent gender based wage discrimination from when women enter the labor force.

In order to do so, it is necessary to prevent employers to base a woman's pay based on her previous pay history.
 
Because the pay is already based on gender discrimination, allowing pay history to be requested by employers is equivalent to maintaining a standard of lower pay for women performing similar jobs as men. This practice of asking for pay history must be outlawed

May 5, 2017 in Equal Employment, Legislation | Permalink | Comments (0)

Thursday, May 4, 2017

Reviving Paycheck Fairness: The Factor-Other-Than-Sex Defense

Deborah Brake, Reviving Paycheck Fairness: Why and How the Factor-Other-Than-Sex Defense Matters, 52 Idaho L.Rev. (2016)

Ever since the Supreme Court’s short-lived decision in Ledbetter v. Goodyear Tire Company, the equal pay movement has coalesced around the Paycheck Fairness Act as the legal reform strategy for addressing the gender wage gap. The centerpiece of the Act would tighten the Factor Other Than Sex defense (FOTS) to require the employer’s sex-neutral factor to be bona fide, job-related for the position in question, and consistent with business necessity. Even without the Paycheck Fairness Act, some recent lower court decisions have interpreted the existing Equal Pay Act to set limits on the nondiscriminatory factors that can satisfy the FOTS defense, effectively incorporating a business necessity standard to assess the strength of the employer’s justification for the pay disparity.

This move to heighten judicial scrutiny of the FOTS defense is not without controversy. Some critics of the Paycheck Fairness Act have charged that requiring an employer to use a bona fide, business-justified factor to defend a pay disparity would turn the equal pay claim into a disparate impact claim, leaving it unmoored from its doctrinal and normative foundations. Others question whether the strategy goes far enough to make a difference in plaintiffs’ poor success rates, since it does nothing to relieve the problem of courts requiring strict similarity between comparators, a problem that would remain as a roadblock to proving a prima facie equal pay case. This article surveys recent developments in the Equal Pay Act case law interpreting the FOTS defense and considers how these developments compare to the changes proposed in the Paycheck Fairness Act. It then argues that the Supreme Court’s recent pregnancy discrimination decision in Young v. UPS, which uses unjustified impact to infer discriminatory intent, can help respond to the criticism of the proposed changes to the FOTS. The Court in Young took a similar step in incorporating a business necessity test to smoke out employer intent in a disparate treatment framework. Finally, the article defends judicial scrutiny of the employer’s business justifications for unequal pay as a way to ensure that the equal pay laws move beyond a narrow understanding of pay discrimination as conscious animus to encompass implicit bias. In addition to making the equal pay claim more likely to succeed in litigation, the tightening of the FOTS defense brings to the forefront the core issue in the politics of pay equality: the legitimacy of market explanations for paying women less to do substantially equal work.

May 4, 2017 in Equal Employment, Legislation | Permalink | Comments (0)

Monday, May 1, 2017

Court Holds Salary Histories are Non-Discriminatory Basis for Paying Women Less

Employers Can Pay Women Less Than Men Based on Salary History, 9th Circuit Holds

The San Francisco-based 9th U.S. Circuit Court of Appeals ruled Thursday that an employer can pay a woman less than a man for the same work if he was paid more in his previous job and the employer used prior salaries as a measure in a reasonable business policy, the San Francisco Chronicle reports.

 

In the ruling in Rizo v. Yovino (PDF), the 9th Circuit cited and upheld its earlier ruling in a similar case in 1982. In that matter, Kouba v. Allstate Insurance Co., the appeals court said that an employee’s prior salary can be considered “a factor other than sex” under the federal Equal Pay Act if the employer can show that doing so “effectuate[s] some business policy” and is done “reasonably in light of [its] state purpose as well as its other practices.”

 

In that case and in the current one, the appeals court remanded the matter for the trial court to evaluate the business reasons put forth by the Fresno County school system in setting the salaries.

 

The case was brought by Aileen Rizo, who was hired by Fresno County schools in 2009 as a math consultant, a management position. She had previously worked as a schoolteacher in Arizona for 13 years and in Fresno County got a starting salary of $62,733, almost $10,000 more than at her last job, but at the bottom of the scale in her new one.

 

In 2012, Rizo learned in lunchtime conversation with colleagues that a man who had just been hired in the same position as hers was getting approximately $79,000 a year, and subsequently learned that others in the job, all men, made more than she did. She sued. ***

 

One prominent critic says the decision feeds rather than stems pay discrimination against women.

 

“This decision is a step in the wrong direction if we’re trying to really ensure that women have work opportunities of equal pay,” Deborah Rhode, who teaches gender equity at Stanford Law School, told the Associated Press. “You can’t allow prior discriminatory salary setting to justify future ones, or you perpetuate the discrimination.”

 

Daniel Siegel, Rizo’s lawyer, told the Associated Press that the case could reach the U.S. Supreme Court because other appeals courts have decided differently on the issue.

The decision is completely tone deaf as to understanding systemic and structural discrimination.   

For the recent legislative trend to enact laws to specifically prohibit the use of salary histories, see:

Philadelphia First City to Ban Salary Histories as Perpetuating Gender Discrimination

Equal Pay Legislation Banning Salary History Questions is Based in Data

May 1, 2017 in Equal Employment, Legislation | Permalink | Comments (0)

Friday, April 28, 2017

Montana Legislature Rejects ABA Ethics Rule Prohibiting Discrimination and Harassment

Montana Legislature Says ABA Model Rule on Discrimination and Harassment Violates First Amendment

A joint resolution passed Wednesday by the Montana state legislature condemns the ABA’s Model Rule 8.4(g) as a violation of Montanans’ First Amendment rights.

 

The model rule, passed by the House of Delegates at the 2016 Annual Meeting, makes it a violation of professional responsibility to discriminate or harass on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. The rule was controversial both within and outside the ABA, although the Standing Committee on Ethics and Professional Responsibility worked to address concerns raised by other ABA sections.

 

Those changes may not have been enough for the Montana legislature, whose Joint Resolution No. 15 says the model rule infringes on the First Amendment rights of people licensed to practice law in Montana, and “seeks to destroy the bedrock foundations and traditions of American independent thought, speech, and action.”

 

The resolution is also critical of the Montana Supreme Court, which invited public comment on the model rule in October. The resolution says public comment was overwhelmingly opposed, but the court “relentlessly pursues adoption” of the rule by extending the time to consider it. This, the legislature said, overreaches the high court’s authority to regulate the conduct of attorneys—it says “the word ‘conduct’ clearly does not include the concept of ‘speech’”—and usurps the legislature’s power to make laws.

 

“Contrary to the ABA’s world view, there is no need in a free civil society, such as exists in Montana, for the cultural shift forced by the proposed rule, and even if such a need did exist, the Supreme Court has no constitutional power to enact legislation of any sort, particularly legislation forcing cultural shift,” the resolution says.

 

The resolution is at least the second statement of opposition to Model Rule 8.4(g) from a state government. In December, Texas Attorney General Ken Paxton issued an opinion saying the rule violates attorneys’ right to free speech and would not hold up in court. That opinion was submitted to the Montana Supreme Court for consideration.

 

The model rule has also been criticized by First Amendment scholar and UCLA law professor Eugene Volokh. He reiterated Wednesday at the Volokh Conspiracy that he believes the rule is so broad that it captures protected political speech, and that harassment and discrimination is better dealt with through employment law.

 

 

 

April 28, 2017 in Constitutional, Legislation, Women lawyers | Permalink | Comments (0)

Tuesday, March 7, 2017

NV Prepares to Ratify ERA

Nevada is About to be the First State in More Than Three Decades to Ratify the Equal Rights Amendment

Nevada is about to do something no state has done in three-and-a-half decades: Ratify the Equal Rights Amendment.

Dusting off a decades-old debate about whether to enshrine women's rights in the Constitution is of questionable value to the amendment's prospects, say analysts. But that doesn't mean it's a meaningless gesture, and its revival certainly says a lot about the women's rights movement in 2017.

Even if Nevada becomes the 36th state to ratify the amendment, its entry into the Constitution is a loooong shot. The deadline to ratify the amendment ended long ago — in 1982 to be exact. And even if Congress reopened it, it's not clear any other state is seriously interested in playing along.

The amendment has been introduced in Congress off and on ever since, but its fell flat. States haven't bothered to touch it.***

A quick history/civics recap: Changing the Constitution is one of the most difficult things in all of governing, but Equal Rights Amendment supporters have come tantalizing close. In 1972, after a decade or so of debate, Congress passed it and sent it to the states for ratification. (Under one process to change or add a constitutional amendment,  38 states -- or three-quarters -- must ratify it, whether via their legislatures or a state convention.)

Congress gave the states an entire decade for 38 states to get that done. In the end, 35 did.

The amendment has been introduced in Congress off and on ever since, but its fell flat. States haven't bothered to touch it.

Until now. The Democratic-controlled Nevada State Senate passed it mostly along party lines on Wednesday. The Democratic-controlled State Assembly will pick it up from there, where it's expected to sail through on party lines.

"It's like a no-brainer. Equal Rights Amendment," said state Nevada Sen. Pat Spearmen (D), the author of the bill. "Equal rights. That's what it is. It's just equal rights."

Nevada's governor is a Republican, and he hasn't commented on the amendment. But Democrats in Nevada say the parliamentary logistics of this mean the legislation doesn't need Gov. Brian Sandoval's signature.

Most Republicans in the state legislature aren't impressed. Their objections to the amendment in 2017 are similar to objections in the '70s and '80s: It could require women to enlist in the draft. It's not necessary. It's symbolic.

"An equal rights amendment that doesn’t have exclusions to protect families is something I can’t support," state Sen. Beck Harris, a Republican and the sole woman to vote against the amendment, told the Reno Gazette-Journal.

March 7, 2017 in Constitutional, Gender, Legislation | Permalink | Comments (0)

Monday, February 27, 2017

OH Bill Proposes Ending Exemption for Marital Rape

Akron Beacon J., Ohio Bill Outlawing Marital Rape Gets No GOP Support, Again

As an assistant prosecutor in Summit County, Greta Johnson made a habit of asking females on the witness stand if they had married their alleged rapists.

 

“And that just seemed crazy to me. But it was a question I had to ask,” Johnson said. “I remember occasionally thinking, what if they were married? Would that have changed the situation?”

 

The situation? Maybe not. Justice for the crime? Maybe.

 

In Ohio, husbands or wives can rape their spouses so long as there is no force or threat of force. The “spousal exemption” means husbands can drug and rape wives, and avoid a first-degree felony rape charge.

 

“As a former prosecutor,” said Johnson, who now represents part of Akron in the Ohio House, “I would argue that you could still try to prosecute under the forced rape statute, but unfortunately drugging and raping your spouse in Ohio is not illegal.”

 

In her first term, Johnson introduced House Bill 234. It would have done away with this “spousal exemption” in Ohio’s criminal code. The bipartisan, bicameral Ohio Criminal Justice Recodification Committee explored this and agreed.

 

But the 2015 bill died in a Republican-controlled committee, receiving no more than initial testimony from its Democrat sponsors, Johnson and Rep. Teresa Fedor of Toledo.

 

Johnson suspects the bill failed for partisan reasons. Obstructing legislation offered by minority parties is common practice in Ohio’s history of making laws.

 

But GOP members also pushed back on a provision of the bill that eliminated Ohio’s 20-year statute of limitations on rape and sexual assault cases. Johnson still thinks rape should be categorized with murder and aggravated murder as crimes that have no shelf life for prosecution.

 

“I’ve always called rape murder of the soul. It changes people in fundamental ways. Nobody will ever be the same,” Johnson said. “The only thing [my clients] wanted was something I could never offer, which is the day before [the rape] happened.”

 

But with more pragmatism in her second term, Johnson have compromised by dropping the provision on statute of limitations and instead crafted a cleaner bill that focuses on the marital rape exemptions.

February 27, 2017 in Legislation, Women lawyers | Permalink | Comments (0)

Tuesday, January 31, 2017

OH Proposes Legislation to Extend Domestic Violence Laws to Dating Relationships

Victims of Dating Violence Could Finally Get Legal Protection in Ohio

Closing what many regard as a gaping loophole in Ohio's domestic-violence laws has become a top priority for state legislators.

Currently, only Ohio and Georgia do not offer specific legal options for victims of dating violence, such as civil-protection orders.

A protection order from a judge can legally prevent contact between a victim and perpetrator, including ordering that person to move out of a home that a couple shares. It also can grant child custody and require the offender to relinquish any firearms.

But currently, such orders are limited to family members.

"It's not necessarily about definitions; it's about the relationship and what type of violence arises out of that relationship," said Rep. Emilia Sykes, a Columbus Democrat given an unusual co-sponsorship of a prime bill in the GOP-dominated Ohio House.

"Our statutory law has not caught up to that here in Ohio, so that leaves victims in this state unprotected for the purposes of obtaining civil-protection orders, simply because they don't meet that very specific and narrow definition of domestic violence."

 

January 31, 2017 in Legislation, Violence Against Women | Permalink | Comments (0)

Friday, July 29, 2016

Studies Show Women Legislators Get More Work Done

The Research is Clear: Electing More Women Changes How Government Works

Hillary Clinton clinching the Democratic nomination is, on one level, a symbolic breakthrough. Yesterday we lived in a country where no woman had ever won a major political party’s presidential nomination. Today that's no longer true. This is a huge and momentous step forward.

 

But it’s not purely symbolic. As more and more women start to occupy the White House and Congress, we should expect them to govern differently.

 

Political science research has found this over and over again: Women legislators are more likely to introduce legislation that specifically benefits women. They’re better at bringing funding back to their home districts. And, to put it bluntly, they just get more shit done: A woman legislator, on average, passed twice as many bills as a male legislator in one recent session of Congress.

 

Women bring a different background to Congress. They face different obstacles to success — and sometimes more obstacles to winning office. That shapes how they govern and what issues they choose to focus their time on.

July 29, 2016 in Legislation | Permalink | Comments (0)

Thursday, June 16, 2016

Senate Overwhelming Votes to Require Women to Register for Draft

Senate Overwhelming Votes to Require Women to Register for the Draft

The Senate voted to require women to register for the draft when they turn 18, just like men, as part of a large military authorization bill Tuesday. The new provision, passed by the Senate 85 to 13, is still far from becoming law, but comes at a time when the U.S. military has gradually lifted previous restrictions on women serving in combat roles in the armed forces.

The vote signals a changing national—and political—mood on the issue, particularly by conservative lawmakers, with the staunchest conservative wing of the Republican party still actively opposing the change.

For a related prior post, see 9th Circuit Hears Challenge to Men Only Draft

For the legal history of the draft and other military exclusions, see Jill Hasday, Fighting Women: The Military, Sex, and Extrajudicial Constitutional Change, 93 Minnesota L.Rev. 1 (2008).

June 16, 2016 in Legislation | Permalink | Comments (0)

Monday, May 23, 2016

MD Passes Equal Pay Law

Wash Post, The Thing Americans Don't Want to Talk About Might be Holding Women Back

On Thursday, Maryland became the latest state to protect a worker’s right to ask colleagues one of the most taboo questions in American society: How much money do you make?

 

With Gov. Larry Hogan's signature on the equal pay law, the state joined at least a dozen others that explicitly shield compensation-curious workers from employer retaliation. The move to boost pay transparency comes four months after President Obama laid out new rules that would require companies with more than 100 employees to report to the government salary data based on race, gender and ethnicity, drawing ire from some in the business community.

 

Advocates hope the simultaneous efforts pushing employers to scrutinize their own wage breakdowns — and guarding the employees who choose to discuss them — will help reduce pay disparities between white men, women and employees of color in similar jobs.

May 23, 2016 in Equal Employment, Legislation | Permalink | Comments (0)

Thursday, May 12, 2016

New MD Contraceptive Equity Act Insures Coverage of Birth Control

NWLC Blog, Victory for Birth Control in Maryland

The Maryland Contraceptive Equity Act of 2016 makes sure that women have insurance coverage of the specific birth control that their health care provider prescribes without out-of-pocket costs and requires insurance plans to cover up to six months of birth control dispensed at once....

 

While the federal Affordable Care Act’s (ACA) birth control benefit eliminated many cost barriers to birth control, even women eligible for this benefit may face difficulties getting coverage without cost of the specific birth control recommended by their health care providers.

 

That is because the ACA requires coverage without out-of-pocket costs of at least one item within each birth control method category for women, but plans can still use medical management techniques within a birth control method category, such as imposing costs on some pills while covering others without cost. Women often go without preventive health care because of costs, even small costs.  So, if a plan is still charging for the specific birth control a woman has chosen with her health care provider, that cost can be a barrier to accessing the care she needs.  The Maryland Contraceptive Equity Act of 2016 ensures that women have coverage without cost-sharing of the specific birth control recommended by their health care provider, facilitating women’s access to birth control and enabling them to use it more consistently.

May 12, 2016 in Healthcare, Legislation, Reproductive Rights | Permalink | Comments (0)

Monday, May 2, 2016

CA Proposes Equal Gender Pricing Bill

CA Senator Wants to Pass "Equal Gender Pricing Bill"

“It is unfair that female products are priced higher than men’s,” declared [Ben] Hueso. “Why are retailers pulling extra money from women when data already shows that they earn about 84 cents for every dollar men earn? This needs to change. It’s about time we stand up to the retailers and fight for equal product pricing for all.”

 

His bill would force the companies to “eliminate price discrepancies on like products for men and women.” The companies also need “to notify customers of their right not to be charged differently for comparable merchandise.”

 

“All consumers, regardless of their gender, should pay the same price for the same product. Pink packaging or gender-based marketing is no justification for charging more,” stated Richard Holober, executive director of the Consumer Federation of California. “Anything less than an equal price is discrimination and blatantly unfair.”

 

If passed, companies must change their pricing within 30 days.

May 2, 2016 in Legislation | Permalink | Comments (0)

Tuesday, December 15, 2015

SC Legislator Proposes Informed Consent Law for Viagra

Really.  2015-16 Bill 4544: Erectile Dysfunction-South Carolina Legislature.

Applying limitations on women's reproductive rights equally to men. 

H/t Ann Bartow.

December 15, 2015 in Abortion, Legislation | Permalink | Comments (0)