Thursday, July 17, 2014
Carmen Gonzalez (Seattle) and Angela Harris (UC Davis) have posted Presumed Incompetent: The Intersections of Race and Class for Women in Academia:
Abstract:On March 8, 2013, the Berkeley Journal of Gender, Law & Justice hosted an all-day symposium featuring more than forty speakers at the University of California, Berkeley School of Law to celebrate and invite responses to the book entitled, Presumed Incompetent: The Intersections of Race and Class for Women in Academia (Gabriella Gutiérrez y Muhs, Yolanda Flores Niemann, Carmen G. González & Angela P. Harris eds., 2012). Presumed Incompetent presents gripping first-hand accounts of the obstacles encountered by female faculty of color in the academic workplace, and provides specific recommendations to women of color, allies, and academic leaders on ways to eliminate these barriers. The symposium held at Berkeley continued the conversation begun in the book through a series of concurrent and plenary panels, poetry readings, and keynote addresses. Selected papers from the symposium were published in both the Berkeley Journal of Gender, Law & Justice and the Seattle Journal for Social Justice (SJSJ). This introduction discusses and contextualizes the papers published in the Berkeley Journal of Gender, Law & Justice. These papers reflect the exhilarating breadth and depth of the discussions that took place during the symposium. Like the papers published in SJSJ, they enhance our understanding of the hierarchies of the academic workplace, and offer additional tools to promote a more equitable and inclusive campus environment.
Tuesday, July 15, 2014
Kim Shayo Buchanan has uploaded "When Is HIV a Crime?" on SSRN. The abstract reads:
HIV criminalization is difficult to justify on the grounds advanced for it: public health and moral retribution. This Article engages with a third, underexamined rationale for HIV criminalization: sexual autonomy. Nondisclosure prosecutions purport to ensure “informed consent” to sex. However, almost all other forms of sexual deception — including deceptions that may jeopardize the partner’s health — are lawful; rape law expressly accommodates an expectation that men may lie to get sex from women. Neither public health nor retributive considerations adequately justify singling out HIV from other, permitted forms of sexual deception. Moreover, most HIV transmission and nondisclosure takes place between men, but a large majority of prosecutions involve men accused of nondisclosing to women. The inconsistency of HIV laws with their ostensible rationales, their arbitrary inclusions and exclusions, and the striking disparities in HIV prosecutions all tend to raise suspicion that discriminatory impulses may be at work.
Criminal laws and their implementation tend to frame HIV as a crime that matters most when it disrupts expectations that non-drug-injecting heterosexuals should be immune to anxiety about HIV. They situate HIV as fairly benign when contained within stigmatized populations such as gay men, intravenous drug users, Africans and sex workers. When HIV-positive people transgress these boundaries and cause heterosexual men and women to worry about HIV, though, this transgression is often punished as a crime, even when the behavior poses no transmission risk. HIV laws and their implementation raise concern that discriminatory fallacies about race, gender and sexuality may shape perceptions of whether, when and why HIV is a crime.
Parliament's art should be subject to a "gender-audit" amid concerns that the paintings and sculptures are too "white and male", a report endorsed by all three party leaders has found.
The All Party Parliamentary Group for Women said that the art in Westminster is "off-putting" for female MPs and warns that the language, culture and ceremonies of Parliament are too "masculine".
The Houses of Commons is ranked 65th in the world for female representatives behind Rwanda, Cuba, Angola and the majority of Latin American and Scandinavian nations.
The report recommends a series of radical steps to redress the balance, including gender quotas and a zero-tolerance approach to "raucous, ill-mannered" and "testosterone-fuelled" behaviour.
July 14, 2014
(Washington, D.C.) Today, the U.S. Office of Equal Employment Opportunity Commission (EEOC) issued its first comprehensive Enforcement Guidance on Pregnancy Discrimination and Related Issues since 1983. The guidance outlines the fundamental requirements of the Pregnancy Discrimination Act (PDA) that an employer may not discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions; and that women affected by pregnancy, childbirth or related medical conditions must be treated the same as other persons in their ability or inability to work. The guidance also includes the application of the Americans with Disabilities Act (ADA) as amended in 2008.
An excellent compilation of blogging from last week on women's rights including contraception, abortion, sexual assault, pregnancy, and breastfeeding, here at Blogs Looks at Women's Rights after Hobby Lobby, State Abortion Restrictions and More.
According to new research published in Archives of Sexual Behavior, the attitude that women shouldn’t be having sex can at least partly be traced back to the idea that women are supposed to be economically dependent on men. The researchers suggest that this link may drive conservative religious communities’ insistence on sexual purity....
The researchers conclude that this outdated attitude toward women’s pregnancy risks and financial needs hasn’t totally gone away, despite the fact that modern contraception, legal abortion rights, and greater workplace equality have created an entirely different society.
“The beliefs may persist due to cultural evolutionary adaptive lag, that is, because the environment has changed faster than the moral system,” the paper concludes. “Religious and conservative moral systems may be anti-promiscuity because they themselves arose in environments where females depended heavily on male investment.”
Sunday, July 13, 2014
Saturday, July 12, 2014
From the Atlantic:
When Mark and Pam Crawford took their family to Great Wolf Lodge, a water adventure park, for a week’s vacation, their seven-year-old made a request.
“Since we don’t know anybody,” S asked her parents, “can I be a boy?”
The Crawfords, who adopted S at the age of two, had seen signs for years that she did not think of herself as female.
The Department of Social Services had told the Crawfords their child was born with an intersex condition, meaning the baby’s gender was unclear. S's genitals had been surgically reconstructed to look more female.
From the Reproductive Rights Blog, Senate Judiciary Committee to Hold Hearing on Women's Health Care Protection Act
The Senate Judiciary Committee will hold a hearing on S.1696, The Women’s Health Protection Act: Removing Barriers to Constitutionally Protected Reproductive Rights on July 15. The hearing will be live streamed on the Committee's website.
Via the Center for Reproductive Rights:
The Women's Health Protection Act would prohibit laws and regulations that single out the provision of abortion services for restrictions that are more burdensome than those imposed on medically comparable procedures, do not significantly advance women's health or the safety of abortion services, and make abortion services more difficult to access. The bill currently has 34 co-sponsors in the Senate and 121 in the House. It includes a list of regulations that are per se violations, which you can read here. . . .
[T]he US supreme court's Hobby Lobby decision left most women's groups livid. Terry O'Neill, president of the National Organization for Women, called it "a shocking disregard for women's health and lives." The co-president of the National Women's Law Center, Marcia Greenberger, said the ruling gave companies "a license to harm their female employees in the name of religion."
But the Independent Women's Forum (IWF) - a conservative women's group with at least a quarter-million dollars in financial ties to Rush Limbaugh - called the decision "undoubtedly good news". The group's director of cultural programs, Charlotte Hays, told a crowd outside the court, "This is a great day," and called the ruling a victory "for anyone who believes in freedom of conscience." This from the same woman who has written that women shouldn't be astronauts and that rape culture on college campuses is all "inflated numbers" and "hysteria".
This latest crop of female anti-feminists - powerful, Washington-based organizations like IWF and Concerned Women for America - want to repeal the Violence Against Women Act and argue that pay inequity doesn't exist. These organizations, along with a handful of popularwriters and authors, want to convince women that it's men who are the underserved sex. They want to convince you that inequality is just a trade-off.
(Reuters) - A federal judge in New York has allowed a pregnancy discrimination case against a luxury retailer to go forward, in a decision that helps clarify the length of time that women who recently gave birth are still protected under pregnancy discrimination laws.The case involves Katherine Albin, a former clerk at a Thomas Pink clothing store in Manhattan, who alleged that she was turned down for a promotion to store manager because she had recently returned from maternity leave.In a lawsuit filed in June 2013, Albin alleged that she was rejected for the job, which went to an applicant with less experience and who was unlikely to become pregnant due to her age. Albin alleged violations of Title VII of the Civil Rights Act of 1964 and the Pregnancy Discrimination Act.The two sides have sparred over whether Albin was still a member of a "protected class" -- or one protected by particular antidiscrimination laws -- when she was passed over for the promotion about seven months after her child was born. In its motion to dismiss the case, LVMH Moet Hennessy Louis Vuitton, which owns Thomas Pink, argued that Albin did not fall within the protected pregnancy class because she gave birth to her child seven months before she ultimately quit the job after being passed over for promotion.U.S. District Judge Paul Oetken on Tuesday declined to grant LVMH's motion to dismiss, ruling that Albin had sufficiently shown she may have been protected by antidiscrimination laws because the event that she claimed triggered the discrimination -- her request to be considered for a promotion -- occurred less than four months after she gave birth. She was eventually turned down for the promotion three months later.Case law in the 2nd U.S. Circuit Court of Appeals suggests that the circuit has developed a "loose line" of four months from a child's birth that women can still be considered a protected class for pregnancy discrimination, Oetken wrote.
Thursday, July 10, 2014
“I believe that Goldman Sachs maintains a culture of bias against women. I have witnessed firsthand Goldman Sachs’ pervasive boys’ club culture. I also believe that having children has negatively affected my opportunities for advancement,” wrote one Lisa Albanese, a former vice president in the equities division who says that she was never promoted to the managing director level despite her status as a top performer. “In order to be successful at Goldman Sachs, I had to tolerate offensive language from male co-workers and a boys’ club atmosphere.”
Chen-Oster reports that she was sexually assaulted by a male co-worker at a staff dinner in 1997 and then discouraged from reporting it to human resources. Years later, after taking maternity leave, she says she found all her juiciest assignments handed off to male colleagues. “If Goldman Sachs were a better place for women to work and I thought that I would not be treated differently from men, I would seek a career there,” she writes.
“In my experience, entertaining clients at strip clubs was considered routine for Goldman in the U.S.,” writes Katalin Tischhauser, who worked on the convertible bond desk in London. She describes a visit to a conference in New Orleans in 2001 where her American colleagues took clients to a strip club and paid the strippers to entertain them. According to the complaint, the firm began discouraging new associates from taking clients to strip clubs in 2005 but did so with a nod and a wink, telling them that if they went, they should simply not expense it.
[T]he Daily Beast published a thought-provoking post–Hobby Lobbypiece by Jay Michaelson pondering why women are losing legal battles while gay people keep winning. Michaelson gives 10 reasonable hypotheses, but leaves out the two most overwhelmingly obvious possibilities. The first is that Justice Anthony Kennedy likes gay rights more than women’s rights. The second is that feminism, as insidiously framed by the Christian right, is all about sex—while LGBTQ equality has become a battle not for sex, but for dignity.
A stunning new Senate report shows nearly half of schools haven’t looked at a single case of rape and 20 percent don’t investigate all the incidents they report to the feds.
More than 40 percent of U.S colleges and universities have not conducted a single sexual assault investigation in the past five years, according to a new survey released by Senator Claire McCaskill (D-MO) Wednesday.
“That is hard to believe, and obviously very problematic,” McCaskill said. These schools, she continued, were either “in denial or incompetent” with regard to sexual assault on campuses.
Yes, still more on Hobby Lobby. For women, this is a game-changing decision with both significant legal and practical consequences. It's not going to go away quietly.
Congress takes action. NYT, Democrats Push Bill to Reverse Supreme Court Ruling on Contraceptives
Tuesday, July 8, 2014
Could the 1964 Civil Rights be used to protect LGBT rights? Maybe:
Exactly 50 years after President Lyndon Johnson signed the Civil Rights Act of 1964, the law is being interpreted to protect LGBT workers.
The Civil Rights Act prohibits various forms of discrimination on the basis of race, color, religion, sex, or national origin. The question for LGBT advocates is whether Title VII of the Civil Rights Act, which in part prohibits workplace discrimination on the basis of sex, also applies to gay, lesbian, bisexual, transgender, and gender-nonconforming workers.
It's not Thursday, but a throwback is nevertheless appropriate today.
Supreme Court Justice Ruth Bader Ginsburg says there will be enough women on the Supreme Court when all nine justices are female.
“So now the perception is, yes, women are here to stay. And when I’m sometimes asked when will there be enough [women on the Supreme Court]? And I say when there are nine, people are shocked. But there’d been nine men, and nobody’s ever raised a question about that,” she said.
Ginsburg made the remark at the 10th Circuit Bench & Bar Conference that was held at the University of Colorado in Boulder in October.
And from Oct. 2010, Justice Ginsburg Says Nine Women on Supreme Court Would be Enough
SCOTUS granted cert in EEOC v. Mach Mining, 738 F.3d 171 (7th Cir. 2013) involving an employer's procedural defense in a Title VII case in which the government alleged that the mining company had not hired any female miners since opening for business in 2006, despite having highly qualified applications. The Seventh Circuit ruled that "employers cannot challenge - and courts cannot review - the adequacy of the U.S. Equal Employment Opportunity Commission's (EEOC) informal pre-litigation efforts to bring employers into compliance with federal anti-discrimination laws."
The issue is "whether and to what extent a court may enforce the EEOC's mandatory duty to conciliate discrimination claims before filing suit. Title VII of the Civil Rights Act of 1964 directs the EEOC to try to negotiate [42 USC § 2000e-5(b)] an end to an employer's unlawful employment practices before suing for a judicial remedy. Mach Mining sought dismissal of the EEOC's suit on the ground that the agency failed to engage in good-faith conciliation before filing. The US Court of Appeals for the Seventh Circuit ruled that "an alleged failure to conciliate is not an affirmative defense to the merits of a discrimination suit."
EEOC General Counsel David Lopez stated that in the landmark ruling the Seventh Circuit "carefully applied the letter of the law." And it did so, Lopez explained, "in a way that promotes Title VII's goals, protects victims of discrimination, and preserves the EEOC's critical law-enforcement prerogatives. . . ." Title VII does require the EEOC to "endeavor to eliminate . . . alleged unlawful employment practice[s] by informal methods of conference, conciliation, and persuasion." However, the statute also plainly allows the Commission to sue the employer for discrimination if it "has been unable to secure from the respondent a conciliation agreement acceptable to the Commission."
One analysis of the underlying appellate decision calls it "truly a game changing decision" to hold that the alleged failure to conciliate is not an affirmative defense to the merits of a discrimination suit. It predicted the the "potential for long-lasting implications" if the EEOC "can force its will on employers without any meaningful recourse to determine whether the EEOC’s conciliation efforts were made in good faith.:
On a broad scale, it seems the law of labor negotiations and the duty to bargain in good faith with its judicial oversight is set against the hands-off law of mediation and settlement negotiations.
More on the case here.
Just in case you really believed that Hobby Lobby was a narrow decision, here is ample evidence to the contrary one week after the decision.
SCOTUS granted a temporary injunction to Wheaton College exempting it from filing the form that allows the government to cover the birth control. See Dahlia Lithwick, Quick Change Justice; WSJ, Polarized Reaction to Wheaton College Injunction.
Eden Foods, makers of organic foods, claims exemption from covering all birth control medicines. Hobby Lobby Fallout
Religious entities seek exemption from the federal order banning employment discrimination for sex and sexual orientation by federal contractors. Citing Hobby Lobby Religious Groups Ask Obama for LGBT Exemptions
For more analysis of the opinion itself, see NYT, Between the Lines of the Contraception Decision.