Wednesday, March 14, 2018
On March 30, state Sen. Jeff Jackson, a Democrat, filed a bill that would change this horrific law. (He filed a similar bill with two Republican co-sponsors in 2015.) The text of SB 553 is short and to the point, reading, in part: "a person may withdraw consent to engage in vaginal intercourse in the middle of the intercourse, even if the actual penetration is accomplished with consent and even if there is only one act of vaginal intercourse."
Currently, the bill sits in the Senate's Rules Committee, where it is likely to be tabled. Jackson tells Broadly he plans to refile the bill again next year. "This really shouldn't be a controversial matter," he says. "North Carolina is the only state in the country where no doesn't really mean no. Right now, if a woman tells a man to stop having sex he is under no legal obligation to do so, as long as she initially consented. If sex turns violent, the woman has no right to tell the man he must stop."
Jackson says he first encountered this loophole when he worked as a criminal prosecutor, when his office was forced to dismiss a rape charge because of these circumstances. "Very few legislators are aware that this is the current state of our law," he says. "They're very surprised when I tell them. Most of my conversations have been educating our members about this plainly unacceptable loophole in our rape law. I have not had any members defend the loophole. Every legislator I've spoken to agrees we need to fix this. . . .
While North Carolina may be the only state where women explicitly can't withdraw consent after sexual intercourse has begun, most other states see this as a gray area. Only South Dakota, Connecticut, California, Illinois, Maine, Maryland, Kansas, and Minnesota affirmatively recognize that consent can be withdrawn at any time during sex; Illinois is the only one that's made it law.
Tuesday, February 27, 2018
Massachusetts Sen. Elizabeth Warren and Nevada Rep. Jacky Rosen introduced legislationTuesday that would require public companies to publicly report allegations of sexual harassment and other types of harassment in the workplace.
The Democrats argue investors are entitled to know the specifics of harassment allegations — and any settlements public companies have made. The legislation, called the “Sunlight in Workplace Harassment Act,” was first reviewed by BuzzFeed News before its introduction.
If passed, Warren and Rosen’s legislation would require public companies to annually report the number of settlements they entered related to sexual harassment and the total amount of money spent on them. It would also require reports on settlements made based on complaints related to race, religion, sex, gender identity, genetic information, sexual orientation, national origin, disability, service-member status, or age discrimination.
The bill would also require the companies to report the “average length of time” for an employer to resolve a complaint regarding sexual harassment. But the bill specifically prohibits the disclosure of the names of employees involved in the settlements.
“What the #MeToo movement has taught us is that we're not going to change the culture where this misconduct is brushed aside or openly tolerated in workplaces across America without more transparency on how these issues are being handled.”
Tuesday, February 13, 2018
The UK Labour Party has long utilised All-Women candidate shortlists in an aim to ensure that female representation in the House of Commons increases. This has always been controversial, however it has been responsible for a noted increase in the number of female MPs in general and female Labour MPs in particular. Here, Mary Nugent and Mona Lena Krook dispel some of the myths around All-Women Shortlists, and show that gender quotas do not pose a threat to "merit," and that the diversity they have fostered has brought about a number of important democratic outcomes.
Tuesday, January 30, 2018
The House passed a bill on Monday night that protects amateur athletes from sexual abuse by enforcing mandatory reporting regulations and extending the statute of limitations for child victims.
The bill, which was sponsored by Sen. Dianne Feinstein (D-Calif.), came up for a vote one week after Larry Nassar was sentenced in what was the largest sexual abuse scandal in sports history. Congress agreed to use the Senate’s version of the bill to speed up its passage; it passed with a vote of 406-3. It just needs President Donald Trump’s signature to be made into law. ***
The bill has a three-pronged approach to protecting athletes and regulating governing bodies of amateur athletics.
First, it requires coaches, trainers and others to report any sexual abuse allegation to the police within a 24-hour period. Several women said they reported Nassar to MSU representatives and others as early as 1997, but Nassar’s abuse was allowed to continue because no one adhered to mandatory reporting regulations.
Secondly, the legislation extends the statute of limitations to up to 10 years after a victim realizes he or she was abused. It’s not uncommon in child sexual abuse cases for survivors to have a delayed realization of the abuse they endured. Many of Nassar’s victims did not realize they had been abused until other women came forward with their stories.
Lastly, the bill limits athletes under the age of 18 from being alone with an adult who isn’t their parent. Nassar often abused young girls while he was alone with them during medical visits, and many survivors said the isolation of elite gymnasts allowed the abuse to continue. ***
Thursday, December 14, 2017
Women in Ohio would be prohibited from receiving abortions because of a fetal Down syndrome diagnosis under a bill that passed the state senate on Wednesday and is heading to Republican Governor John Kasich’s desk.
Lawmakers voted 20-12 in favor of the law, which criminalizes abortion if the physician has knowledge that the procedure is being sought due to a diagnosis of Down syndrome, a genetic disorder caused when abnormal cell division results in an extra full or partial copy of chromosome 21.Doctors would lose their medical licenses in the state and face a fourth-degree felony charge under the law if they were to perform an abortion with that knowledge. Mothers would not face criminal charges.
The bill makes Ohio the third state to pass a law outlawing abortions due to fetal anomalies. Similar laws were passed in Indiana and North Dakota. The Indiana provision was struck down by a U.S. District Judge in September after a lawsuit filed by the American Civil Liberties Union.
A bill banning abortion after a fetal diagnosis of Down syndrome has cleared the Ohio General Assembly and will now go to Gov. John Kasich's desk.
Three Republicans, including Gayle Manning of North Ridgeville and Matt Dolan of Chagrin Falls, voted with Democrats against the bill.
Kasich, who has signed 18 abortion restrictions into law since 2011, told cleveland.com last month he generally supported the idea but wanted to see the legislation before deciding how to act.
Friday, December 8, 2017
Sen. Kirsten Gillibrand, D-N.Y., is leading the effort in the Senate. She has previously disclosed that she has been harassed by unnamed male colleagues. She has also worked on combating sexual abuse in the U.S. military. "There is a serious sexual harassment problem in Congress and too many congressional offices are not taking this problem seriously at all," Gillibrand said.
- Waive 30-day requirements each for counseling and mediation sessions before a formal complaint can be filed
- Create a new, optional in-house victims' counsel position to provide legal advice and representation for complainants
- Eliminate requirements that complainants to sign nondisclosure agreements as a condition for filing a complaint, although nondisclosures are still allowed as part of a negotiated settlement
- Create an online system to initiate complaints
- Require lawmakers to pay out of pocket for any settled claim where they are identified as the harasser. Other claims are still paid for by taxpayers
- Require public disclosure of the employing office when a claim is settled and to disclose the settlement amount
- Require an anonymous "climate survey" of congressional employees every two years
- Extend all employer protections to interns, fellows and pages
Capitol Hill lawmakers on Wednesday introduced another bill to combat sexual harassment, addressing one of the legal mechanisms that employers often use to keep accusers silent.
The bipartisan legislation from Rep. Cheri Bustos (D-Ill.) and Sen. Kirsten Gillibrand (D-N.Y.) would ban employers from holding employees to forced arbitration clauses, which often prevent sexual misconduct survivors from speaking publicly about abuses in the workplace, and places power in the hands of the perpetrator.
Forced arbitration clauses can prohibit an accuser from going to court or dealing with the incident in other public means. They can include a private monetary settlement and/or a nondisclosure agreement. Victims often are forced out of their jobs, while the harasser remains.
“That is not a fair choice, and it is something that no one should have to put up with,” Gillibrand said at a press conference on Capitol Hill.
“To executives who think this should be an episode of ‘Mad Men,’ stop it, and stop it now,” Bustos said. “For the waitress, for the journalist, for the factory worker, for all the women who want to go to their job and do it well, we are to here to say, no more.”
The Senate bill is also backed by Sens. Lindsey Graham (R-S.C.), Lisa Murkowski (R-Alaska) and Kamala Harris (D-Calif.). The House version has support from Reps. Walter Jones (R-N.C.), Elise Stefanik (R-N.Y.), and Pramila Jayapal (D-Wash.).
Gillibrand and Rep. Jackie Speier (D-Calif.) recently introduced the Me Too Act, which aims to overhaul that complaint system and make it more transparent and less biased toward the perpetrator.
Bustos is also a co-sponsor on a House bill that would ban taxpayers from having to foot the bill for sexual harassment settlements on Capitol Hill.
Tuesday, November 28, 2017
Victims of domestic violence would get protections under bills introduced last week by Democrats in the House of Representatives and Republicans in the Senate.
The Democrats' bills would protect the wages and benefits for victims of domestic violence and prohibit landlords from discriminating against victims.
The Republican legislation would protect the confidentiality of the victims by prohibiting the disclosure of addresses in voter records or release of school records to parents who are the subject of personal protection orders. Another bill would exempt victims from jury duty.
"This is a package of bills that will conceal where a victim of domestic violence lives so they can't be stalked," said Sen. Rick Jones, R-Grand Ledge, one of the sponsors of the GOP package of bills. "Most states are doing this now and you have to deal with all the different ways you can find people."
Monday, November 27, 2017
Since 1997, Congress has paid at least $15 million to settle complaints about sexual harassment, racial discrimination, and violations of the Americans With Disabilities Act under the umbrella of the Congressional Accountability Act (CAA) of 1995.
The payments made to Rep. Conyers’s alleged victim came out of his taxpayer-funded office budget. Generally, though, these payments aren’t made by members of Congress or their offices. They’re made by a special section of the Department of the Treasury established under Section 415 of the CAA — and ultimately by the American taxpayer.
The process by which victims of sexual harassment on the Hill seek justice is long and arduous — it takes up to three months before a formal complaint can be filed. If a settlement is reached, it’s kept secret. The source of the money in the fund is excluded from the standard appropriations budget made public by Congress each year. There’s no process by which voters — or potential employees — can find out who the harassers in office are, what they’ve been accused of, or if they’ve settled with victims before.
The fund used to settle violations of the CAA is perhaps just one of the several pockets of money throughout the government used to handle judgments made against government employees. As harassment accusations topple prominent men in media, comedy, and Hollywood, it’s come under more scrutiny.
The Settlement and Awards Fund comes from an effort to hold Congress accountable for the federal laws that all other employers have to follow.
But as prominent men in other fields have faced snowballing accusations of sexual harassment, it’s instead shielded members of Congress from publicity.
In 1995, Congress passed the CAA, an effort to apply 12 federal laws to the legislative branch, including the Americans With Disabilities Act; the Fair Labor Standards Act, which requires that employers pay at least the minimum wage; and Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race, religion, national origin, color, or gender — including sexual harassment.
The CAA was, in part, a delayed legislative response to the Supreme Court's decision in Davis v. Passman (1979), implying a Bivens remedy for sex discrimination by Member of Congress from Louisiana, but with a 5-4 split and a dissent calling for Congressional immunity in employment matters absent a statutory extension of Title VII.
Tuesday, November 21, 2017
In Last Year, 40 Lawmakers in 20 States Publicly Accused by 100 People of Sexual Misconduct or Harassment
Since last year, at least 40 lawmakers – nearly all men – in 20 states have been publicly accused by more than 100 people of some form of sexual misconduct or harassment, a USA TODAY NETWORK analysis found.
The total, which doesn’t include confidential or anonymous complaints or government staffers who have been accused of sexual misdeeds, reflects unprecedented levels of scrutiny on statehouses across the country.
Swift action has been taken against high-profile men, including Hollywood producer Harvey Weinstein, and others accused of sexual harassment. There have been varying degrees of punishment for lawmakers.
Two weeks ago, Kentucky House Speaker Jeff Hoover resigned from his leadership position amid growing pressure over a report that he settled a sexual harassment complaint made by a staff member.
Florida's Senate president earlier this month ordered an investigation into allegations that Sen. Jack Latvala, who is running for governor, made inappropriate comments or touched six women. Latvala has denied the claims.
Earlier this year, Rep. Mark Lovell, a freshman Tennessee lawmaker, resigned amid allegations of sexual harassment. The resignation followed last year's expulsion of former Rep. Jeremy Durham, who had inappropriate sexual contact with at least 22 women, according to an attorney general's investigation.The ways lawmakers have handled sexual harassment and assault allegations has left some experts looking for change.
“The consequence must fit the transgression,” said Jennifer A. Drobac, an Indiana University law professor and expert on sexual harassment cases. “You have to withdraw the privileges, kick them out of Congress or out of the statehouse. Take away the privileges of their employ and their health care benefits.”
Debbie Dougherty, a professor in the Department of Communication at the University of Missouri who has written several reports on sexual harassment, said the latest wave of sexual harassment allegations against powerful men follows a slow but steady stream of similar accusations against officials at FOX News, Uber and the National Park Service.
“It’s like a stone rolling downhill. You see some and then you see some more and then you see a lot,” said Dougherty.
“The problem has been ignored and minimized for so, so many years that I think we’re just seeing the tip of the iceberg.”
Monday, November 20, 2017
An amendment to the tax reform bill working its way through Congress would deny businesses the ability to write off sexual harassment settlements as business expenses.
The Senate tax bill, passed by the Senate Finance Committee Thursday, includes an amendment that says businesses cannot deduct settlements, payouts, attorney fees or other expenses related to sexual harassment or sexual abuse, if such payments are subject to a nondisclosure agreement.
The amendment was proposed by New Jersey Democratic Senator Bob Menendez.
The proposal could affect sexual harassment settlements in a couple of ways. Businesses would no longer be allowed to write off legal settlements, fines and other expenses associated with sexual assault and harassment as "ordinary and necessary business expenses." And by denying these deductions, the amendment would make it costlier for companies to cover up misconduct.
"Right now a company can secretly settle allegations of sexual harassment in the workplace, silencing the victim and making it harder for other victims to come forward to seek justice," wrote Juan Pachon, spokesperson for Menendez, in an email to CNNMoney. "To add insult to injury, these same corporations can actually take a tax break for those payouts. Senator Menendez believes it's wrong for corporations who fail to protect their employees from sexual harassment to be able to write it off as an 'ordinary business expense."
Daniel Hemel, assistant professor of law at the University of Chicago law school, says the amendment's specific mention of non-disclosure agreements seems intended to disincentivize them -- a move that stops short of banning their use altogether.
"This is a pretty soft punishment if you're trying to deter closed agreements," he says. "I would think of this as largely symbolic legislation, but not exclusively so. It may change the way that some subset of sexual harassment cases are handled. But look, if an employer has a very strong preference for a closed agreement, then the tax deduction is unlikely to convince them to have an open agreement."
So at the end of the day businesses can still right off the settlements as long as they have an open, transparent agreement.
The question is what impact what tax restrictions might have on settlements. The availability of the deductions could actually helps victims at it increases or leverages the available monies employers have to settle the cases and provide compensation to victims.
Tuesday, October 10, 2017
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)
Monday, October 9, 2017
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.
Monday, September 25, 2017
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.
Tuesday, September 19, 2017
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.
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.
(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.
(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.
(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
(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.
Thursday, September 7, 2017
Paola Monaco & Angelo Venchiarutti, Women on Corporate Boards: An Appraisal of Italian Law, European Business Law Review (forthcoming).
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.
Wednesday, May 17, 2017
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.
Friday, May 12, 2017
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.
Friday, May 5, 2017
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
Thursday, May 4, 2017
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.