Gender and the Law Prof Blog

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

Monday, March 27, 2017

Comparative Perspectives on the International Regulation of Abortion

Siobhan Mullally and Claire Murray, Regulating Abortion: Dissensus and the Politics of Rights, 25 Social & Legal Studies: An International Journal (2016)

This special issue brings together comparative perspectives on the regulation of abortion. It examines the sociopolitical contexts within which proposals to expand access to abortion for women are won and lost. Women’s claim to a right to safe and legal abortion services is relatively new in the language of human rights; yet, it is one that continues to ‘trickle up’ and to ‘download’ across diverse jurisdictions. As the essays in this volume acknowledge, however, the universalized power of law, and the turn to law to secure a vindication of rights, brings with it certain risks. These risks of ignoring context and the messy processes of implementation are highlighted in the essays collected together in this volume.

March 27, 2017 in Abortion, International, Reproductive Rights | Permalink | Comments (0)

The Feminization of Migration and Threats to Women's Health and Safety

Berta E. Hernandez-Truyol, Globalizing Women's Health & Safety: Migration, Work & Labor

Abstract

Worldwide, women's equality remains elusive in the social, political, civil, economic and cultural spheres. Such reality presents a challenge in the movement of persons across state borders because, globally, the world is experiencing a feminization of migration. In turn, the feminization of migration effects threats to the health and safety of migrant women, whose well-being is in peril at all stages of the migration journey – from the country of origin, to the transit states, to the receiving state – from smugglers and official actors alike. Because the globalization discourses exclude the movement of persons and focus on the movement of goods and services, migrants become invisible. This work suggests a paradigmatic shift in the way institutions engage migration – from a system that treats migrants as disposable people and focuses on legality of presence to a human rights-inspired one that centers on migrants' well-being and dignitary interests. In support of this shift, this essay employs the overarching frameworks of glocalization and of marginableness to fill the existent void in the current conversations on migration. Three premises are foundational in the discussion: one, woman is not a monolithic category and its meaning is culturally dependent so it is imperative not to exclude any "woman;" two, there is no monolithic migrant woman and some, such as LGBT migrants, face mutidimensional challenges; and, three, the human rights system utilized is not the existent one but rather one reimagined without it being tethered to its western, heteronormative, patriarchal, colonialist, racialized, sexist origins. Such a reimagined human rights paradigm provides the foundation for migrants' protections in their perilous journeys.

March 27, 2017 in International | Permalink | Comments (0)

Friday, March 24, 2017

Judicial Interactions at SCOTUS Oral Arguments are Highly Gendered

Tonja Jacobi & Dylan Schweers, Justice, Interrupted: The Effect of Gender, Ideology and Seniority at Supreme Court Oral Arguments, 103 Virginia L. Rev. (forthcoming 2017).

This Article studies how the justices compete to have influence at oral argument, by examining the extent to which the Justices interrupt each other; it also scrutinizes how advocates interrupt the Justices, contrary to the rules of the Court. We find that judicial interactions at oral argument are highly gendered, with women being interrupted at disproportionate rates by their male colleagues, as well as by male advocates. Oral argument interruptions are also highly ideological, not only because ideological foes interrupt each other far more than ideological allies do, but we show that conservatives interrupt liberals more frequently than vice versa. Seniority also has some influence on oral arguments, but primarily through the female justices learning over time how to behave more like male justices, avoiding traditionally female linguistic framing in order to reduce the extent to which they are dominated by the men.

For another report reaching a similar conclusion, see Study Shows Male Justices Interrupt Female Justices More During Oral Argument

March 24, 2017 in Courts, Gender, SCOTUS | Permalink | Comments (0)

Would Gorsuch Follow Supreme Court Precedent on Pregnancy Discrimination

Gillian Thomas, Would Gorsuch Follow Supreme Court Precedent Rejecting Discrimination?

A former law student’s allegations that U.S. Supreme Court nominee Judge Neil Gorsuch last year told a University of Colorado Law School class that women often “use” their employers for maternity coverage, only to quit after giving birth—and accordingly, that female applicants should be questioned about their pregnancy plans—are jaw-dropping, if true. As Emily Martin of the National Women’s Law Center wrote this week in U.S. News & World Report, such opinions contravene a body of sex-discrimination law going back nearly 50 years.

 

Judge Gorsuch was questioned briefly at a confirmation hearing Tuesday about the alleged statements, and not surprisingly, he denied making them. The statements have been corroborated by a second student in the class and contemporaneous documents produced by the original complaining student, but they also have been disputed by other students.

 

Members of the Senate Judiciary Committee should be alarmed by Gorsuch’s refusal to go beyond merely defending his classroom statements and give a full-throated repudiation of pregnancy discrimination, which remains one of the most pervasive barriers to working women nearly 40 years after enactment of the Pregnancy Discrimination Act.

 

There is an even more fundamental legal principle at stake, though, about which Gorsuch remained silent. Gorsuch allegedly told his students that employers not only can rely on stereotypes in making employment decisions—that is, by assuming that a woman will quit once she becomes a mother—but that they should (so that they can “protect themselves”). But the Supreme Court has found, time and again, that it is illegal to rely on a stereotype about a group in making a decision about an individual employee. Does Gorsuch agree? We still don’t know.

 

In the 1978 case City of Los Angeles v. Manhart, the Supreme Court found illegal an employer’s pension plan that required female workers to contribute more to the plan than their male colleagues because actuarial calculations showed that women generally lived longer than men. The plan violated Title VII of the Civil Rights Act of 1964—the federal law outlawing employment discrimination because of race, national origin, color, religion, and sex—because, the Court explained, the law “precludes treatment of individuals as simply components of a racial, religious, sexual, or national class. If height is required for a job, a tall woman may not be refused employment merely because, on the average, women are too short.” Admonished the Court: “Even a true generalization about the class is an insufficient reason for disqualifying an individual to whom the generalization does not apply.”

 

A decade later, the Court ruled that a Big Eight accounting firm’s rejection of a female candidate for partner because she was “macho” and needed “a course at charm school” had violated Title VII: “[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.” Soon after, the Court invalidated a battery manufacturer’s policy that prohibited women of childbearing age from holding any job involving contact with lead, which could be toxic to fetuses. (Those risky jobs also, not surprisingly, paid more than others at the company.) That policy, the Court ruled, assumed that any fertile woman was a potential mother, regardless of whether she was sexually active, used birth control, or wanted children. Again, ascribing group characteristics to the detriment of an individual employee—even for allegedly benevolent reasons—was found to violate anti-discrimination principles.

 

In the five decades since Title VII was enacted, myriad other stereotypes have been recognized by courts as motivating illegal discrimination.

For elaboration on the point about Manhart and generalized stereotypes that are true, see my chapter on the case in US Feminist Judgments: Rewritten Opinions of the Supreme Court (Kathy Stanchi, Linda Berger, & Bridget Crawford, eds) (Cambridge Univ. Press 2016). 

March 24, 2017 in Constitutional, Judges, Pregnancy, Reproductive Rights, SCOTUS | Permalink | Comments (0)

New Books: Sex and the Constitution

Geoffrey Stone, Sex & the Constitution (2017)

From the publisher:

 

Beginning his volume in the ancient and medieval worlds, Geoffrey R. Stone demonstrates how the Founding Fathers, deeply influenced by their philosophical forebears, saw traditional Christianity as an impediment to the pursuit of happiness and to the quest for human progress. Acutely aware of the need to separate politics from the divisive forces of religion, the Founding Fathers crafted a constitution that expressed the fundamental values of the Enlightenment.

 

Although the Second Great Awakening later came to define America through the lens of evangelical Christianity, nineteenth-century Americans continued to view sex as a matter of private concern, so much so that sexual expression and information about contraception circulated freely, abortions before “quickening” remained legal, and prosecutions for sodomy were almost nonexistent.

 

The late nineteenth and early twentieth centuries reversed such tolerance, however, as charismatic spiritual leaders and barnstorming politicians rejected the values of our nation’s founders. Spurred on by Anthony Comstock, America’s most feared enforcer of morality, new laws were enacted banning pornography, contraception, and abortion, with Comstock proposing that the word “unclean” be branded on the foreheads of homosexuals. Women increasingly lost control of their bodies, and birth control advocates, like Margaret Sanger, were imprisoned for advocating their beliefs. In this new world, abortions were for the first time relegated to dank and dangerous back rooms.

 

The twentieth century gradually saw the emergence of bitter divisions over issues of sexual “morality” and sexual freedom. Fiercely determined organizations and individuals on both the right and the left wrestled in the domains of politics, religion, public opinion, and the courts to win over the soul of the nation. With its stirring portrayals of Supreme Court justices, Sex and the Constitution reads like a dramatic gazette of the critical cases they decided, ranging from Griswold v. Connecticut (contraception), to Roe v. Wade (abortion), to Obergefell v. Hodges (gay marriage), with Stone providing vivid historical context to the decisions that have come to define who we are as a nation.

Also of related interest might be Leigh Ann Wheeler, How Sex Became a Civil Liberty (Oxford 2012).

March 24, 2017 in Books, Constitutional, Reproductive Rights | Permalink | Comments (0)

Thursday, March 23, 2017

Reinventing Antidiscrimination Law

Nancy Levit, June Carbone, Naomi Cahn, Gender and the Tournament: Reinventing Antidiscrimination Law in the Age of Inequality, Texas L. Rev. (forthcoming)

Since the 1970’s, antidiscrimination advocates have approached Title VII as though the impact of the law on minorities and women could be considered in isolation. This article argues that this is a mistake. Instead, Reinventing Antidiscrimination Law attempts to reclaim Title VII’s original approach, which justified efforts to dismantle segregated workplaces as necessary to both eliminate discrimination and promote economic growth. Using that approach, this Article is the first to consider how widespread corporate tournaments and growing gender disparities in the upper echelons of the economy are intrinsically intertwined, and how they undermine the core promises of antidiscrimination law. The Article draws on a pending case challenging the “rank and yank” evaluation system at Microsoft, as well as social science literature regarding narcissism and stereotype expectations, to illustrate how consideration of the legitimacy of competitive pay for performance schemes is essential to combating the intrinsically gendered nature of advancement in the new economy.

March 23, 2017 in Equal Employment, Theory | Permalink | Comments (0)

Tuesday, March 21, 2017

Remembering Judge Shirley Hufstedler - One of the Famous Firsts

Robert Percival, The Judge Who Climbed Mountains, 69 Stanford L. Rev. (March 2017)

Shirley and Seth Hufstedler loved to climb mountains. The week before the U.S. Department of Education opened its doors in 1980, a profile of them reported that their “favorite hobby is mountain climbing” and noted they had made five trips to the Nepalese Himalayas. When interviewed decades later, Shirley Hufstedler fondly recalled how she and Seth “walked up and down mountains all over the world.

 
Those were not the only mountains Shirley Hufstedler climbed. To ascend to the highest ranks of the legal profession she had to overcome enormous obstacles then facing women who pursued a legal career. Although the dream of making a woman’s first ascent to the Supreme Court ultimately eluded her, she blazed a trail for those who followed.***

Judge Hufstedler opened her own one-woman law practice. Her big break came when a former professor invited her to help defend the state of California in the Arizona v. California water rights dispute being heard by the Supreme Court. Her brief-writing work on the case quickly earned widespread admiration, though she was not at the counsel table when the case was argued before the Supreme Court.

 

California Governor Pat Brown took notice of Shirley Hufstedler’s extraordinary legal talent and appointed her to the Los Angeles County Superior Court in 1961. She then was the only woman out of 120 judges on that court. She quickly established herself as a valuable member of the court, pioneering a procedure for issuing tentative decisions that helped reduce the court’s enormous backlog of cases. When asked whether she felt like she had to do anything special to fit into a male-dominated world, Judge Hufstedler replied: “No, I just did my job. And I think doing my job and doing it capably was adequate to be able to help everybody else make a judgment that they didn't have a fox in the hen house.” 

 


In 1966 Governor Brown elevated her to become an Associate Judge on the California Court of Appeal. Two years later, President Lyndon Johnson appointed her to the U.S. Court of Appeals for the Ninth Circuit. Judge Hufstedler was only the second woman ever to serve as a judge on a U.S. Court of Appeals [after Florence Allen] and the only woman serving at the time.

March 21, 2017 in Judges, Legal History, Women lawyers | Permalink | Comments (0)

Following the Changes in the Supreme Court's Abortion Law

Mary Ziegler,  The New Negative Rights: Abortion Funding and Constitutional Law after Whole Woman's Health:

The Hyde Amendment, a ban on the Medicaid funding of abortion, is once again at the center of the abortion wars. For the most part, critics of the Hyde Amendment argue that it authorizes discrimination against poor women. Using original archival research, this Article show that the amendment has had a far greater impact.

In popular debate, proponents of the Hyde Amendment helped to forge an idea of complicity-based conscience that has recently transformed fights about everything from same-sex marriage to contraceptive access. Constitutionally, the fight for the Hyde Amendment also revolutionized the rights-privilege distinction in constitutional law. In abortion-funding cases, the Court held that there was no constitutional problem with laws that created practical obstacles to abortion access so long as the obstacles themselves were not controlled or created by the state. This approach has resonated outside the context of abortion law.

The Court’s recent decision in Whole Woman’s Health v. Hellerstedt makes a challenge to the Hyde Amendment realistic and compelling. The cases upholding the Hyde Amendment regard as constitutional any burden on a woman’s right to choose that is neither created nor controlled by the government. Whole Woman’s Health explicitly rejected this approach, looking instead at how the formal terms of law interact with forces beyond the government’s control. For this reason, the Article shows that Whole Woman’s Health undermines the core premises of the Hyde Amendment and creates an opening for those seeking to revisit the distinction between negative and positive rights.

Mary Ziegler, Liberty and the Politics of Balance: The Undue Burden Test after Casey/Hellerstedt:

The Supreme Court’s recent decision in Whole Woman’s Health v. Hellerstedt represents the Supreme Court’s most important intervention in the constitutional politics of abortion. However, as this Article shows, Hellerstedt does not represent the clean break some commentators identify. Instead, the decision comes at the end of a decades-long movement-countermovement conflict about the meaning of an unconstitutional undue burden on a woman’s right to choose abortion.

Positioning Hellerstedt in historical context matters because doing so underscores the Court’s ongoing responsiveness to popular views of what the Constitution says about abortion. The history studied in the Article also reveals what should happen in the next front of the abortion wars, when the Court considers fetal-protective, rather than woman-protective, antiabortion laws. To maintain the delicate balance created by Casey, the Court should require evidence that both fetal-protective and woman-protective abortion regulations are substantially related to their stated goal.

 

March 21, 2017 in Abortion, Constitutional, Legal History, SCOTUS | Permalink | Comments (0)

Writing on Abortion

Carol Sanger, Why, What, and Now: Writing on Abortion

I’ve just written a book called About Abortion: Terminating Pregnancy in 21st Century America. For years I hadn’t wanted to work on the issue of abortion because from an advocacy standpoint post-Casey v. Planned Parenthood, it meant being in a defensive posture, responding to whatever state legislatures had dished out. From a professorial perspective, abortion is most often taught in Con Law, usually in the sequence of privacy cases. This makes for interesting doctrinal lessons, but locating Roe v. Wade chronologically between Griswold v. Connecticut and Bowers v. Hardwick fails to capture abortion as a distinctively woman’s experience – and a highly regulated one at that.***

 

Nonetheless, my project was on, and I began with the question: Why, as we creep ever closer to the half-century mark of Roe v. Wade, is abortion still regarded as so unsettled, perhaps not illegal but certainly criminal-like? What makes this quasi-criminal status possible? I wanted to present the case that to the extent women feel guilty, ashamed, or reticent to speak about an abortion at the level of personal experience, they might be heartened to know that there is an entire structure of American law and culture aimed at bringing about just that result. Regulations that make abortion feel like a criminal act abound: mandatory ultrasounds and waiting periods; legislatively drafted statements that physicians must read to their patients; adoption brochures, and disclosure about paternal financial obligations. Each of these is intended to bring home to women that before they terminate an unwanted pregnancy they should think again, look harder, and not be so selfish.  

March 21, 2017 in Abortion, Books | Permalink | Comments (0)

Monday, March 20, 2017

When Laws Held that Women (but not Men) Lost American Citizenship by Marriage

That Time American Women Lost Their Citizenship Because They Married Foreigners

In March of 1907, Congress passed the Expatriation Act, which decreed, among other things, that U.S. women who married non-citizens were no longer Americans. If their husband later became a naturalized citizen, they could go through the naturalization process to regain citizenship.

 

But none of these rules applied to American men when they chose a spouse.

 

"It's as though she walks under his umbrella. He puts his arm around her and poof! she's a citizen," says Linda Kerber, a professor who teaches gender and legal history at the University of Iowa. "She has had the good sense to come out from these monarchies and opt for an American. She's a sensible woman, we adore her."

 

"Whereas an American-born woman who marries a foreign man, oh my goodness, she is disloyal," Kerber said.

 

When Mackenzie v. Hare — a case challenging the expatriation act that involved a woman married to a British citizen — reached the Supreme Court in 1915, the justices upheld the law, arguing that the women chose to marry knowing this was a consequence so they weren't being forced to expatriate. Then World War I began and hundreds of women found themselves affected by the law.

 

Once American women got the right to vote in 1920, they started lobbying lawmakers, pushing them to recognize that their citizenship should not be tethered to that of a husband. "There's a big scramble in those first two years for members of Congress to get on the good side of women and to get women to join their constituency," Kerber said. Eventually Rep. John Cable, of Ohio, introduced a bill to address the disparity. He may have been motivated by a nearing bid for re-election.

 

The Cable Act of 1922, also known as the Married Women's Independent Nationality Act, said women kept their citizenship if they married a man who could become a citizen even if he opted not to. "It sounds as though the Cable Act fixed it, if they married a man eligible for citizenship," Kerber says. However, "there's a lot of fine print."

 

These expatriated women had to petition the government to regain their citizenship, and their husband's status still played a role in theirs: if he wasn't eligible for citizenship, she could be denied. And if she lived on foreign soil for two years, she could lose her citizenship. 

See also Linda Kerber, chap. 1, No Constitutional Right to be Ladies: Women and the Obligations of Citizenship

Leti Volpp, chap. 3, Expatriation by Marriage: The Case of Asian American Women, in Feminist Legal History: Essays on Women and Law (Tracy A. Thomas & TJ Boisseau, eds).

 

March 20, 2017 in Family, International | Permalink | Comments (0)

EEOC Enforcement Guidance on Employer Questioning about Pregnancy

In light of the article Amid Charges By Former Law Student On Gender Equality, Former Clerks Defend Gorsuch, here's a summary by the Equal Employment Opportunity Commission on what the existing state of the law is (and which a future SCOTUS could change) regarding employer treatment based on existing or intended pregnancy.

Questions and Answers about the EEOC's Enforcement Guidance on Pregnancy Discrimination and Related Issues

These Questions and Answers address the EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues (Guidance) originally released on July 14, 2014, and recently updated in light of the Supreme Court's decision in Young v. United Parcel Serv., Inc., --- U.S. ---, 135 S. Ct. 1338 (2015). The updated Guidance is available at http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm.***

1. What workplace actions are prohibited under the PDA?

Under the PDA, an employer cannot fire, refuse to hire, demote, or take any other adverse action against a woman if pregnancy, childbirth, or a related medical condition was a motivating factor in the adverse employment action. The PDA prohibits discrimination with respect to all aspects of employment, including pay, job assignments, promotions, layoffs, training, and fringe benefits (such as leave and health insurance).***

3. May an employer ask an employee or applicant whether she is pregnant or if she intends to become pregnant soon?

Although Title VII does not prohibit employers from asking applicants or employees about gender-related characteristics such as pregnancy, such questions are generally discouraged. The EEOC will consider the fact that an employer has asked such a question when evaluating a charge alleging pregnancy discrimination. Adverse decisions relating to hiring, assignments, or promotion, that are based on an employer's assumptions or stereotypes about pregnant workers' attendance, schedules, physical ability to work, or commitment to their jobs, are unlawful.

March 20, 2017 in Constitutional, Pregnancy, SCOTUS | Permalink | Comments (0)

Petition for Cert on Required CAL Disclosures for Pregnancy Crisis Centers as Violating Free Speech

Petition for Certiorari, National Institute of Family & Life Advocates v. Becerra

QUESTION PRESENTED

The State of California enacted a law called the “Reproductive FACT Act.” The State admits its purpose is targeting “crisis pregnancy centers” based on their viewpoint that “discourag[es]” abortion. The Act forces pro-life religious licensed centers to post notices that encourage women to contact the State to receive information on free or low cost abortions. The Act also burdens pro-life religious unlicensed centers’ speech by requiring them to place extensive disclaimers in large fonts and in as many as 13 languages in their ads, which significantly burdens their ability to advertise. But the Act exempts most other licensed medical and unlicensed non-medical facilities, such as abortion providers, hospitals, and other healthcare facilities, as well as federal health care providers. The Ninth Circuit candidly admits that it upheld the Act amidst a “circuit split” with decisions by the Second and Fourth Circuits over how to scrutinize regulations of speech by medical professionals on controversial health issues. The ruling also conflicts with a recent decision by the Eleventh Circuit.

 

The question presented is: Whether the Free Speech Clause or the Free Exercise Clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

The Ninth Circuit's decision below is here.

March 20, 2017 in Abortion, Constitutional, SCOTUS | Permalink | Comments (0)

Friday, March 17, 2017

Thinking through the Impact and Application of the Supreme Court's Decision in Whole Woman's Health

Mary Ziegler, The New Negative Rights: Abortion Funding and Constitutional Law after Whole Woman's Health:

Abstract

The Hyde Amendment, a ban on the Medicaid funding of abortion, is once again at the center of the abortion wars. For the most part, critics of the Hyde Amendment argue that it authorizes discrimination against poor women. Using original archival research, this Article show that the amendment has had a far greater impact.

In popular debate, proponents of the Hyde Amendment helped to forge an idea of complicity-based conscience that has recently transformed fights about everything from same-sex marriage to contraceptive access. Constitutionally, the fight for the Hyde Amendment also revolutionized the rights-privilege distinction in constitutional law. In abortion-funding cases, the Court held that there was no constitutional problem with laws that created practical obstacles to abortion access so long as the obstacles themselves were not controlled or created by the state. This approach has resonated outside the context of abortion law.

The Court’s recent decision in Whole Woman’s Health v. Hellerstedt makes a challenge to the Hyde Amendment realistic and compelling. The cases upholding the Hyde Amendment regard as constitutional any burden on a woman’s right to choose that is neither created nor controlled by the government. Whole Woman’s Health explicitly rejected this approach, looking instead at how the formal terms of law interact with forces beyond the government’s control. For this reason, the Article shows that Whole Woman’s Health undermines the core premises of the Hyde Amendment and creates an opening for those seeking to revisit the distinction between negative and positive rights.

Mary Ziegler, Liberty and the Politics of Balance: The Undue Burden Test after Casey/Hellerstedt:

Abstract
The Supreme Court’s recent decision in Whole Woman’s Health v. Hellerstedt represents the Supreme Court’s most important intervention in the constitutional politics of abortion. However, as this Article shows, Hellerstedt does not represent the clean break some commentators identify. Instead, the decision comes at the end of a decades-long movement-countermovement conflict about the meaning of an unconstitutional undue burden on a woman’s right to choose abortion.

Positioning Hellerstedt in historical context matters because doing so underscores the Court’s ongoing responsiveness to popular views of what the Constitution says about abortion. The history studied in the Article also reveals what should happen in the next front of the abortion wars, when the Court considers fetal-protective, rather than woman-protective, antiabortion laws. To maintain the delicate balance created by Casey, the Court should require evidence that both fetal-protective and woman-protective abortion regulations are substantially related to their stated goal.

March 17, 2017 in Abortion, Constitutional, SCOTUS | Permalink | Comments (0)

EEOC Settles Sex Discrimination Suit with Damages and Prophylactic Remedies

Nestle Waters NA to Pay $300,000 to Settle Sex Discrimination Lawsuit

Water Company Denied Position to Veteran Manager Because of Her Gender, Then Eliminated Her Job Due to 'Consolidation,' Federal Agency Charges

 

TAMPA, Fla. -- Nestlé Waters North America, a Stamford, Conn.-based division of Nestlé Waters, the world's largest bottled water company, will pay $300,000 and furnish significant relief to resolve a sex discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

 

According to the lawsuit, Nestlé violated federal anti-discrimination laws when it failed to select Dawn Bowers-Ferrara, a 20-year Nestlé veteran finance and budgeting manager, to the position of Florida Zone business manager because of her gender. Instead, the EEOC said, Nestlé selected a male employee for the newly created position, even though he failed to meet the minimum requirements for the role according to Nestlé's own job description. Nestlé then terminated Bowers-Ferrara's employment because of a "consolidation." Out of 14 Florida zone managers and zone manager supervisors, Bowers-Ferrara was the only female (and the only person) who lost her job as a result of the "consolidation."

 

Sex discrimination violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit against Nestlé in U.S. District Court for the Middle District of Florida, Tampa Division (EEOC v. Nestle Waters North America, Case No. 8:15-cv-2197-RAL-TGW (M.D. Fla.)) after first attempting to reach a pre-litigation settlement though its conciliation process.

 

In addition to the $300,000 in monetary relief to Bowers-Ferrara, the three-year consent decree resolving the suit also requires Nestlé to provide her with 12 months of outplacement services. Nestlé is also required to develop and implement an anti-sex discrimination policy and to provide annual training regarding all forms of sex discrimination, including sex stereotyping, to its ReadyRefresh Florida managers and employees. The bottled water company must post notices throughout Florida regarding the settlement and report to EEOC bi-annually on its compliance with the consent decree, including its handling of complaints of sex discrimination.

March 17, 2017 in Equal Employment | Permalink | Comments (0)

Thursday, March 16, 2017

Ambivalence and Embrace of Women's History Month

In a recent blog I wrote for NYU Press, I ruminated about my work in "women's" legal history, and my reluctant embrace of "women's history month." See Tracy Thomas, The Legal History of Elizabeth Cady Stanton, From the Square.

More aspirationally, my goal was that the book [Elizabeth Cady Stanton & the Feminist Foundations of Family Law] might help to mainstream women’s history. Women’s history has been confined to a niche area of study, a segregated “other” type of law and history that is deemed ancillary—and subordinate and irrelevant to, the dominant understanding. Even beginning in grade school, when I thrilled to read the girls’ biographies of famous women like Maria Mitchell and Elizabeth Blackwell, the girls’ books covered in burnt orange were segregated from the boys’ books bound in olive green and shelved separately in the school library. Long before the debate over pink and blue toy aisles in Target, the world of knowledge for me had been demarcated by sex.

 

That stark image of women’s historical segregation has stayed with me, and expanded as I studied women’s fiction in colleges and now women’s history in law.  Yet the more one read’s women’s legal history, the more it is clear that women’s experience was not in fact this segregated or hidden from the popular understanding.  For example, Stanton’s work was done in the New York state legislature, the leading national reform organizations, the leading national newspapers out of New York, and in decades of national lecture tours. This history was not hidden under a bush or in private diaries in an upstairs attic.  It was public, known, with a clear record trail – and forgotten. Of course those in power are the ones to create history in the topics they chose to write about, remember, and revere.

 

We have a women’s history month to help us make sure we give due attention to the missing pieces.  To pause in the dominant patriarchal view of history and law and find there are many other missing pieces that remain to be told and analyzed; narratives that significantly alter our accepted understanding of law and history.  It remains jarring, however, that women’s history is considered important only 1/12th of the year.  While I resist that marginalization, I resist even more the absence of women’s history in the discussion.  Thus I join in the celebration of women’s history month.  In my own work, the goal for what I teach and write is to mainstream women’s history so that it is no longer merely segregated into one month, but integrated as the default norm.

 

March 16, 2017 in Books, Legal History | Permalink | Comments (0)

Constitutions, Gender and Freedom of Expression: The Legal Regulation of Pornography

Katharine Gelber & Adrienne Stone, Constitutions, Gender and Freedom of Expression: The Legal Regulation of Pornography

The constitutions of democratic states universally contain protection for freedom of expression or a closely related right, such as freedom of ‘speech’ or ‘opinion’. Although feminist thought has much to offer the study of this right, with some notable exceptions, feminist thought has not focused as much on freedom of expression as it has on some other constitutional questions, such as rights to equality, privacy and reproductive freedom, and legal regulation of the family.

A glaring exception to this ‘gap’ between feminist legal thought and freedom of expression arises in relation to the legal regulation of ‘pornography’ The question of whether freedom of expression protects pornography from regulation has been among the most important — and certainly high profile — forums for the engagement of constitutional law with feminist ideas.

In this chapter, we examine this debate through three lenses. First we turn to the philosophical foundations of the arguments for and against the regulation of pornography. Next we turn to the influence on law (specifically the constitutional law of Canada) of the feminist argument for the regulation of pornography. The Canadian case law on this question provided a sharp contrast with the constitutional law of the United States. We trace the sources and nature of this difference, showing in particular the force of the feminist critique of pornography in Canadian constitutional law and reflecting on the differences between American and Canadian law on this question. Lastly, we broaden our comparative lens to consider other jurisdictions noting that the feminist critique of pornography has had little effect beyond the constitutional law of Canada (though some analogous ideas are evident in German law) and conclude by noting some fruitful avenues for future research.

March 16, 2017 in Constitutional, International | Permalink | Comments (0)

Feminists' Role in Creating NY's New Human Trafficking Intervention Courts

Amy Cohen & Aya Gruber, Governance Feminism in New York's Alternative "Human Trafficking Intervention Courts"

In New York’s new Human Trafficking Intervention Courts (HTICs), mostly female defendants are prosecuted for prostitution-related offenses and then offered social services in lieu of more traditional criminal justice sentences. These alternative problem-solving courts represent a reconceptualization of the status of prostitution defendants in the New York criminal court system: formerly regarded as low priority, quality-of-life offenders, they are perceived by the HTICs as presumptive victims of gender-based violence. This chapter explores the role that feminists, holding a range of views on commercial sex, played in the creation of these new courts even as it argues that virtually no feminist position — liberal, abolitionist, sex worker — should condone the arrest of women for selling sex. It explores how some feminists embraced the courts as depoliticized providers of services while others made strategic decisions to work with the new courts despite clear ideological misgivings. As such, the chapter argues, the HTICs raise questions endemic to all governance feminism projects: when and why is it worth it to compromise feminist aims?

Co-author Amy Cohen also has a second article on the history of the New York prostitution courts. Trauma and the Welfare State: A Genealogy of Prostitution Courts in New York City, Texas L. Rev. (forthcoming).

At least since the early twentieth century, informal specialized prostitution courts have tried to double as social welfare agencies. For this reason, prostitution courts illustrate in particularly explicit ways how public welfare administration and criminal court administration share similar ideas and practices and how these ideas and practices reinvent themselves over time. The article traces three moments of prostitution court reform in New York City: the New York Women’s Court that opened in Manhattan in 1910, the Midtown Community Court that opened in Manhattan in 1993, and four new prostitution courts that opened in New York City in 2013. It examines how court reformers in each moment use informal procedure to promote social welfare, social control, and individual responsibility, and it ties each approach to changing conceptions of the American welfare state. Ultimately, the article argues that the genealogy of prostitution courts illuminates for the present how court reformers are using the language of trauma to negotiate the welfare logics of today.

See also Mae Quinn, Ann Moscowitz Kross and the Home Term Part: A Second Look at the Nation's First Criminal Domestic Violence Court, 41 Akron L.Rev. 733 (2008)

March 16, 2017 in Courts, Human trafficking | Permalink | Comments (0)

Tuesday, March 14, 2017

Legal Writing Associations Launch "Full Citizenship Project for Law Faculty" to Correct Gender Disparities Among Law Faculty

 

 

On International Women's Day, Advocacy Groups Launch “Full Citizenship Project for Law Faculty”

Professional associations unite to support full institutional citizenshipan effort to correct gender and related disparities among law faculty

The Legal Writing Institute (LWI) and the Association of Legal Writing Directors (ALWD) announce the launch of a new initiative aimed at correcting gender and related disparities among U.S. law faculty.  Organizers chose International Women’s Day (March 8) to launch the “Full Citizenship Project for All Law Faculty” because of the professional status challenges that continue to plague skills-based and academic support law faculty, who are predominantly women.

As law faculty status and salaries decrease, the percentage of women faculty increases. Based on available data, roughly—and only—36 percent of tenured or tenure track faculty are female, whereas 63 percent of clinical faculty and 70 percent of legal writing faculty are female. This disparity is due to faculty teaching in skills-based areas often being denied the opportunity to earn the same security of position and academic freedom that traditional law faculty enjoy. Yet security of position and academic freedom are needed for a robust classroom and innovative teaching in all areas of law.

The Full Citizenship Project kicks off the start of a campaign to raise awareness about the challenges facing many of the many women and men who teach in skills-based positions. “The goal of this project is to gain support among all law school administrators and faculty for our view that no justification exists for subordinating one group of law faculty to another based on the nature of the course, the subject matter, or the teaching method,” said Kim D. Chanbonpin, President of the Legal Writing Institute. “We believe these rights are now necessary more than ever before to ensure that law students and the legal profession benefit from the myriad perspectives and expertise that all faculty bring to the mission of legal education.”

The first step of this project involves gathering signatures from across the country endorsing the Full Citizenship Statement, which has already been adopted by these organizations and by the Society of American Law Teachers Board of Governors. A copy of the Full Citizenship Statement is available here.

We invite all interested parties—both within and beyond the legal academy—to endorse the Statement by signing here. The signature campaign begins on International Women’s Day (March 8) and will end on Equal Pay Day (April 4). Organizers plan to report and present the results of the project to interested organizations, including the American Association of Law Schools, the American Bar Association, and the American Law Deans Association. More information about the Citizenship Project is available on the LWI website.

Kim D. Chanbonpin

President, The Legal Writing Institute

The John Marshall Law School

312-386-2856

kchanbonpin@jmls.edu 

-OR-

Mary Bowman

Associate Professor of Law, and

Director of the Legal Writing Program

Seattle University School of Law

206-979-3301

bowmanm1@seattleu.edu

March 14, 2017 | Permalink | Comments (0)

Job Segregation as the Cause of Continued Unequal Pay and Some Employer Strategies to Redress

Tesla's Sexism Case Exposes a Major Reason for the Gender Gap

Despite progress, the U.S. labor market continues to be segregated by gender, one of the most significant factors contributing to the gender wage gap. The majority of women work in jobs primarily done by other women, such as nursing, and an even larger share of men work in jobs primarily done by other men, such as engineering. And, female-dominated jobs tend to pay much less, often despite similar skill requirements, than male-dominated ones. In fact, renowned economists Francine Blau and Lawrence Kahn estimate that about half of the overall gender wage gap in the economy is due to job segregation: Women make 80 cents for every dollar earned by a man, but of the 20 percentage points that stand between women and equal pay, about 10 percentage points are due to this segregation in the labor market (the rest of the gap is due to a combination of factors like education, time in the workforce, and yes, discrimination).*

 

Fortunately, some high-tech companies are taking the lead, voluntarily revealing the gender or racial composition of their workforce (like Facebook and Google), conducting internal pay audits (like Pinterest and Redfin), and spending money to bring women’s pay up (Salesforce and Intel).

Research from the Institute for Women’s Policy Research points to some lessons tech companies can learn before they ever reach the courtroom. Basic and relatively easy company practices that improve pay and promotion outcomes, such as posting all job openings, using panels (rather than a single supervisor) to determine pay increases and promotions, and making expectations for jobs clear and transparent to all are a great first step.

March 14, 2017 in Business, Equal Employment | Permalink | Comments (0)

Paying Female Coroner Half of What County Paid Male Coroner Not Discrimination but Honest Decision

Amos v. Vigo County Coroner, 2017 WL 914777 (S.D. Ind. Mar. 8, 2071) [Westlaw link only]

Because of the necessity of adding $50,000 to the budget . . . , implementation of the property tax cap, and the realization that the Vigo County coroner was being paid more than other counties' coroners, the Council adopted a budget in the fall of 2012 that reduced the coroner's base salary from $45,579 (Dr. Kohr's salary) to $21,270. Dr. Amos ran unopposed for Coroner in the 2012 election, and took office on January 1, 2013.***

 

In sum, because Defendants have presented legitimate, non-discriminatory reasons for lowering the Coroner salary, and since Dr. Amos has not presented any evidence that Defendants' stated reasons for decreasing the Coroner salary were pretextual, Defendants are entitled to summary judgment on Dr. Amos' claim. The Court will not second-guess Defendants' decision, absent any evidence whatsoever that Defendants did not believe those reasons were legitimate. See O-Regan v. Arbitration Forums, Inc., 246 F.3d 975, 984 (7th Cir. 2001) (“[W]e ‘do not sit as a kind of ‘super-personnel department’ weighing the prudence of employment decisions made by firms charged with employment discrimination' ... ‘On the issue of pretext, our only concern is the honesty of the employer's explanation.’ ... And there is no indication in the record that [the employer] did not honestly believe [its actions were correct]”) (citation omitted); see also Pitasi v. Gartner Group, Inc., 184 F.3d 709, 718 (7th Cir. 1999) (in order to show pretext, it is insufficient for employee “to show that his employer [acted] for incorrect or poorly considered reasons. He must establish that the employer did not honestly believe the reasons it gave for [its actions]”); Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 697 (7th Cir. 2006) (finding insufficient evidence of pretext and stating “it is not our role to determine the competency of or interfere in employment decisions simply where we believe an employer has made a poor choice. Federal courts have authority to correct an adverse employment action only where the employer's decision is unlawful, and not merely when the adverse action is unwise or even unfair”). Additionally, glaringly absent is any evidence showing Defendants' actions were motivated by the fact that Dr. Amos is a female. [See alsoFiling No. 35-1 at 15-17 (Dr. Amos testifying that she is not aware of any documentation indicating that the Coroner salary decision was based on her gender, that she is not aware of any witnesses or individuals who would support her “core contention that the salary was fixed at a lower level because of [her] gender,” and that her only support for her gender discrimination claim is “third or fourth hand” rumors).]

March 14, 2017 in Equal Employment | Permalink | Comments (0)