Gender and the Law Prof Blog

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

Monday, April 4, 2016

NY Adopts Paid Family Law as of 2018

Slate, New York Just Established the Best Paid Family Leave Policy in the Country

All workers in New York state will soon be eligible for a guaranteed 12 weeks of paid family leave, one of Gov. Andrew Cuomo’s legislative priorities, which passed Thursday in a long-debated budget agreement.

 

Beginning in 2018, all full- and part-time employees who’ve been working at their jobs for at least six months will have access to up to eight weeks of leave at half their salaries. The policy, which will be funded by employees through payroll deductions, will gradually phase up over four years to 12 weeks and a maximum of two-thirds of the state’s average wage. It also guarantees job protection for all workers who take leave, even those who work for businesses with fewer than 50 employees, which are not subject to the federal Family and Medical Leave Act.

 

With this new policy, New York joins California, New Jersey, and Rhode Island on the elite list of U.S. states that offer guaranteed paid leave to hang out with a new baby, bond with an adopted or foster child, or care for a sick family member. Rhode Island offers four weeks of partial pay and New Jersey and California offer six, placing New York far ahead of the pack, though it still trails most other countries in the world when it comes to maternity leave.

April 4, 2016 in Family, Pregnancy, Work/life | Permalink | Comments (0)

Thursday, March 31, 2016

New Issue Journal of Women's History

Journal of Women's History (Spring 2016)

      Editorial Note

Law, Marriage, and Women’s Agency: Studies from the Anglo-American and Iranian Worlds

pp. 7-12 | DOI: 10.1353/jowh.2016.0009

Articles

Revisiting Ecclesiastical Adultery Cases in Eighteenth-Century England

pp. 13-37 | DOI: 10.1353/jowh.2016.0000

“Woman and Her Needs”: Elizabeth Oakes Smith and the Divorce Question

pp. 38-59 | DOI: 10.1353/jowh.2016.0002

Gender, Space, and Ritual: Women Barristers, the Inns of Court, and the Interwar Press

pp. 60-83 | DOI: 10.1353/jowh.2016.0004

Business and Politics as Women’s Work: The Australian Colonies and the Mid-Nineteenth-Century Women’s Movement

pp. 84-106 | DOI: 10.1353/jowh.2016.0006

Women Writing Women: Early Iranian Feminism and the Memoir of Tāj us-Saltanih

pp. 107-130 | DOI: 10.1353/jowh.2016.0007

Rejecting Reproduction: The National Organization for Non-Parents and Childfree Activism in 1970s America

pp. 131-156 | DOI: 10.1353/jowh.2016.0008

Book Reviews

The History of Marriage through the Lens of Case Studies

pp. 157-165 | DOI: 10.1353/jowh.2016.0010

Enterprising Women

pp. 166-171 | DOI: 10.1353/jowh.2016.0001

Lost Stories of Women’s Alliances and Networks

pp. 172-181 | DOI: 10.1353/jowh.2016.0003

Contributors

pp. 182-184 | DOI: 10.1353/jowh.2016.0005

March 31, 2016 in Legal History, Scholarship | Permalink | Comments (0)

Wednesday, March 30, 2016

SCOTUS's Weird Call for Supplemental Briefing in Women's Contraception Coverage Case

A Puzzling Order in a US Supreme Court Case on Obamacare

Something strange is afoot at the U.S. Supreme Court. The justices issued a highly unusual order Tuesday for the parties in Zubik v. Burwell, one of this term’smost-watched cases.

How to Make Sense of the Baffling Order the Supreme Court Just Handed Down on Birth Control

The order instructs the parties in Zubik and a bevy of related cases to “file supplemental briefs that address whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees” (“petitioners” in this case, refers to the employers who object to birth control). In case that instruction is not clear, the order also offers an example of a possible regime that may survive review in the Supreme Court:

[T]he parties should consider a situation in which petitioners would contract to provide health insurance for their employees, and in the course of obtaining such insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds. Petitioners would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit any
separate notice to their insurer, to the Federal Government, or to their employees. At the same time, petitioners’ insurance company—aware that petitioners are not providing certain contraceptive coverage on religious grounds—would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan

SCOTUS Asks Objectors to Contraceptive Opt-Out: Show us Better Alternatives

 

March 30, 2016 in Healthcare, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Coming Soon in Books: 100 Years of the 19th Amendment

    100 Years of the Nineteenth Amendment:  An Appraisal of Women’s Political Activism (Oxford U. Press)

Holly J. McCammon and Lee Ann Banaszak, editors

Table of Contents

  1. Introduction, by Holly J. McCammon and Lee Ann Banaszak                        

Part I  Women's Participation in Electoral Politics:  100 Years of Change and Continuity

  1. Disappointed Hopes? Female Voters and the 1924 Progressive Surge, by J. Kevin Corder and Christina Wolbrecht
  1. From Seneca to Shelby: Intersectionality and Women's Voting Rights, by Celeste Montoya
  1. The Evolution of Women's (and Men's) Partisan Attachment, by Heather L. Ondercin
  1. What's Happened to the Gender Gap in Political Participation? How Might We Explain It?, by Nancy Burns, Kay Lehman Schlozman, Ashley Jardina, Shauna Shames, and Sidney Verba
  1. Women in State Legislatures from the Gilded Age to the Global Age, by Susan Welch
  1. 100 Years since Woman Suffrage: Managing Multiple Identities among Latina Congressional Leaders, by Jessica Lavariega Monforti

Part II  Women's Political Engagement in Extra-Institutional Politics:  A Century of Activism        

  1. U.S. Women's Groups in National Policy Debates, 1880-2000, by Kristin A. Goss
  1. "Feminism Means More than a Changed World…It Means the Creation of a New Consciousness in Women": Feminism, Consciousness-Raising, and Continuity between the Waves, by Laura Nelson
  1. Women, Leadership, and the Environmental Movement, by Holly J. McCammon, Allison McGrath, David Hess, and Minyoung Moon
  1. American Mothers of Nonviolence: Action and the Politics of Erasure in Women's Nonviolent Activism, by Selina Gallo-Cruz
  1. Women in White Supremacist Movement in the Century after Women's Suffrage, by Kathleen Blee
  1. Women Occupying Wall Street: Gender Conflict and Feminist Mobilization, by Heather Hurwitz and Verta Taylor
  1. After Suffrage Comes Equal Rights? ERA as the Next Logical Step, by Tracey Jean Boisseau and Tracy A. Thomas                                                                     

March 30, 2016 in Books, Constitutional | Permalink | Comments (0)

Tuesday, March 29, 2016

Tort Reform of Noneconomic Loss as Gender Discrimination

Slate, Directly Accountable: A Stark Ohio Case Shows How Tort Reform Harms Victims of Sexual Assault

The jury that heard Simpkins’ case awarded her more than $3.6 million, $3.5 million of which was intended to compensate her for depression, PTSD, and other “pain and suffering” that she experienced as a result of the rape. There was just one problem: In Ohio, non-economic damages—which compensate for things such as disability, disfigurement, and trauma—are capped in most cases at $250,000. Now, Simpkins and her lawyer are trying to get the capsdeclared unconstitutional as they apply to minors who are victims of sexual abuse. Their latest brief argues, among other things, that the limits are “arbitrary and unreasonable, and thus a denial of due process,” and that “the effect of the statute is to clearly alter the jury’s finding that she suffered a catastrophic injury. … By arbitrarily overruling that finding, [the cap] violates Jessica Simpkins’ right to a trial by jury.” Ohio’s Supreme Court is expected to rule any day now. 

 ***

 When tort reform reconfigures a state’s legal landscape, women are the most affected. “[W]hile overall men tend to recover greater total damages, juries consistently award women more in noneconomic loss damages than men,” [Lucinda] Finley has written. “Noneconomic loss damage caps therefore amount to a form of discrimination against women and contribute to unequal access to justice or fair compensation for women.” Republican legislators and courts generally don’t limit “economic damages,” which compensate victims for lost wages or concrete medical expenses—but that category only serves to replicate the wage inequalities that women, and people of color, already suffer in the marketplace. Meanwhile, a deeper gender divide is also at work. Finley argues: 

Several types of injuries that are disproportionately suffered by women—sexual assault, reproductive harm, such as pregnancy loss or infertility, and gynecological medical malpractice—do not affect women in primarily economic terms. Rather, the impact is felt more in the ways compensated through noneconomic loss damages: emotional distress and grief, altered sense of self and social adjustment, impaired relationships, or impaired physical capacities, such as reproduction, that are not directly involved in market based wage earning activity. Many of these most precious, indeed priceless, aspects of human life are virtually worthless in the market. … [N]oneconomic loss damages become the principal means by which a jury can signal its sense that these types of harm are serious and profound and provide a woman plaintiff with what it regards as adequate compensation.
Finley's work cited in the article is The Hidden Victims of Tort Reform: Women, Children, and the Elderly, 53 Emory L.J. 1263 (2004)
 
See also Martha Chamallas & Jennifer Wriggins, The Measure of Injury: Race, Gender, and Tort Law (2010)
 
 

March 29, 2016 | Permalink | Comments (0)

Monday, March 28, 2016

Bibliography of Legal Commentary on Zubik Contraceptive Mandate Arguments

The Origins of the Undue Burden Standard for Assessing Abortion Regulations

Meaghan Winter, Slate, Roe v. Wade Was Lost in 1992: How "Undue Burden" Has Eroded the Right to Choose

Remembering the day Planned Parenthood v. Casey (1992) was decided:

“We conclude that the central holding of Roe should be reaffirmed,” O’Connor read that June morning in 1992. Miller, by then the head of communications for the newly formed Center for Reproductive Law and Policy, was awed. Here was the first woman ever to sit on the Supreme Court asserting women’s right to abortion. “Oh my God, did we just win?” Miller remembers thinking. “How it that possible?”

 

But O’Connor kept reading. In “reaffirming” Roe, the court had also mostly upheld four of the five restrictions put in place by the Abortion Control Act, only invalidating the spousal notification law. Abortion remained legal, but the judges introduced two caveats. One was that the states had a compelling interest in protecting unborn life from the “outset of pregnancy”—a stark departure from Roe, which held that states had no such interest until after the first trimester. The other was that states would be able regulate abortion unless their laws “unduly burden” a woman’s right to choose abortion.

 

Miller, who is now the president of the National Institute for Reproductive Health, remembers her mind spinning. What was an “undue burden”? How could the Pennsylvania restrictions stand if Roe stood too?

And citing my work on the backstory of  Akron v. Akron Center for Reproductive Health (1983)  where Justice O'Connor first articulated the undue burden standard in dissent.  See Tracy A. Thomas, Back to the Future of Regulating Abortion in the First Term, 28 Wisc. J. Law,  Gender & Society 47 (2013).  

One attorney described the multipart ordinance as “a Christmas tree,” with everything possible hanging off it: a parental consent rule, a mandatory waiting period, and “informed consent” counseling. The attorneys designed it to be a national model. After Kapper proposed the law, experts from cities all over the U.S descended on Akron for four public hearings held over several weeks. Tracy Thomas, associate dean at University of Akron School of Law, later recounted how hundreds of divided locals watched John Willke of National Right to Life, a hero of the anti-abortion movement, present a slideshow of fetal life. (It’s hard to imagine now, but disturbing audiences with images of fetuses was then a cutting-edge tactic.) Gynecologists slated to appear at the hearings were so angered by the anti-abortion advocacy that they walked out without testifying. Shouting erupted in the hallway outside the hearing room.

 

Viewers watching an anti-abortion representative from Akron on the Today show might have been impressed with what seemed to be the anti-abortion movement’s grassroots organizing skills. But its advocacy wasn’t as homegrown as it appeared.

O'Connor took the position, in part, offered by Prexident Reagan's solicitor general, Rex Lee, adopting the deferential balancing approach of "undue burden."  See LeeAmicusBriefAkron.  The "unduly burdensome" standard had appeared in prior Supreme Court abortion decisions by Justices Powell (Maher v. RoeBelliotti v. Baird II (1979)) and Blackmun (Belliotti v. Baird (1976), but O'Connor converted it into a litmus test, rather than a conclusion.  And she utilized the test in order to uphold much government regulation, rather than strike down legislation, as the Court had previously used it in three out of four cases except funding.  Powell explicitly rejected the undue burden test in Akron, writing the majority opinion invalidating the 17 provisions of the Akron law on informed consent, waiting periods, and hospital regulations, suggesting that he did not intend his previous unduly burdensome language to be used as the constitutional standard.   

 

March 28, 2016 in Abortion, Constitutional, Legal History, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Monday, March 21, 2016

SCOTUS Coming Up: A Transnational Perspective on Religious Liberty and the Contraceptive Mandate

Douglas NeJaime & Reva Siegel, Conscience Wars in Transnational Perspective: Religious Liberty, Third-Party Harms, and Pluralism

Abstract:     

Those who believe contraception, abortion, and same-sex relationships are sinful are increasingly seeking religious exemptions from laws protecting these practices. This essay examines the spread of culture-war conscience claims in the United States and across borders.
 
Religious liberty claims asserted in these culture-war contexts differ from claims for the accommodation of religious ritual observance in ways that warrant principled legal response. When a person of faith seeks an exemption from legal duties to another in the belief that the citizens the law protects are sinning, granting the religious exemption can inflict material and dignitary harms on those whom the law protects. Employing cross-borders comparisons to illustrate, we argue that religious accommodation of such claims serves pluralist ends only when the accommodation is structured to shield other citizens from harm. Our analysis includes the U.S. Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores and its forthcoming decision in Zubik v. Burwell and reaches beyond U.S. borders to the European Court of Human Rights, including its decision in Eweida and Others v. United Kingdom.

 

March 21, 2016 in International, Reproductive Rights | Permalink | Comments (0)

SCOTUS Coming Up: Little Sisters Case Goes Too Far

Doug Laycock, Wash Post, How the Little Sisters of the Poor Puts Religious Liberty at Risk

Zubik v. Burwell is the Supreme Court’s name for the set of cases more often identified with the Little Sisters of the Poor, a religious order that is also a party to the case. I filed an amicus brief in Zubik on behalf of the Baptist Joint Committee for Religious Liberty. I had never before filed a brief in support of the government in a case about the free exercise of religion. ****

The second, and even more dangerous argument: These organizations say that because the government exempted the insurers of churches and their integrated auxiliaries, it is required to exempt the insurers of all other conscientious objectors as well. Otherwise, it discriminates between two groups of religious organizations.

This argument is a mortal threat to an essential and widespread source of protection for religious liberty. There are thousands of specific religious exemptions in U.S. law. If legislators and administrative agencies cannot enact a narrow religious exemption without it being expanded to become all-inclusive, many of them will not enact any religious exemptions at all. And they will start repealing the exemptions they have already enacted.

 

March 21, 2016 in Religion, Reproductive Rights, SCOTUS | Permalink | Comments (0)

SCOTUS Coming Up: Why the Contraception Mandate Survives Strict Scrutiny

Caroline Mala Corbin, The Contraception Mandate Accommodation: Why the RFRA Claim in Zubrik v. Burwell Fails

The Affordable Care Act requires that health care plans include all FDA-approved contraception without any cost sharing. In Hobby Lobby v. Burwell, for-profit businesses with religious objections successfully challenged this “contraception mandate.” In this term’s Zubik v. Burwell, it is religiously affiliated nonprofits like Baptist universities and Catholic Charities challenging the contraception benefit. But there is a major difference: these religiously affiliated nonprofits are exempt from the contraception mandate. Once they certify that they are religiously opposed to contraception and notify either their insurance carriers or the Department of Health and Human Services, the responsibility for contraception coverage shifts to private insurance companies. The nonprofits do not have to provide, pay for, or even inform their employees or students of the separate coverage.

Despite the ability to opt out of contraception coverage, many nonprofits complain that the religious accommodation itself imposes a substantial religious burden in violation of the Religious Freedom Restoration Act (RFRA). According to these nonprofits, providing notice of their objections triggers the provision of contraception to their employees and students, thus making them complicit in sin. Their RFRA claim cannot succeed. RFRA requires that the contraception regulations impose a substantial religious burden and fail strict scrutiny, and neither requirement is met. First, filing paperwork to receive an exemption is not a substantial burden on the nonprofits’ religious exercise. The nonprofits’ claims to the contrary are based on a mistake of law, and while court must defer to the nonprofits’ interpretation of religious theology, courts should not defer to their interpretation of federal law. Second, the contraception mandate passes strict scrutiny: it advances compelling government interests in women’s health and equality, and the accommodation provided to objecting nonprofits is the least restrictive means of accomplishing those interests.

March 21, 2016 in Constitutional, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Friday, March 18, 2016

Books (Coming Soon): The Feminist Foundations of Family Law

The book jacket!  Publication is one step closer!  

For a preview of the first chapter, see Tracy A. Thomas, The "Radical Conscience" of Nineteenth-Century Feminism

See also Tracy A. Thomas, The Origins of Constitutional Gender Equality in the Nineteenth-Century Work of Elizabeth Cady Stanton, 7 ConLawNOW (2016)

ECSBookJacket

 

March 18, 2016 in Abortion, Books, Family, Legal History | Permalink | Comments (0)

Thursday, March 17, 2016

Judge Garland on Women's Rights

Is Merrick Garland a Feminist?

Time will tell, but his moderate record and service under Justice Brennan speak volumes about his ability to think objectively, which will almost certainly help in the way of making strides forward for women.

Huff Post, Merrick Garland's Abortion Stance is a Big Question Mark

The ninth Supreme Court justice could determine the fate of reproductive rights for millions of American women -- but Merrick Garland, President Barack Obama's nominee to fill the vacancy on the court, has not specified where he stands on abortion or whether he would uphold the decision made in the landmark abortion rights case Roe v. Wade

 

Garland, a relatively moderate federal appeals judge in Washington, D.C., has never decided a case that has clarified his views on the subject. As USA Today pointed out on Wednesday, "During 19 years at the D.C. Circuit, Garland has managed to keep a low profile. The court's largely administrative docket has left him without known positions on issues such as abortion or the death penalty."

Time, Merrick Garland: The Abortion Rights Sphinx

Yet nobody seems to know what Judge Garland thinks about abortion. He won’t have a say in the current abortion case, but his position could be important for future abortion rulings.

 

Demographically, it seems likely that Garland is probably pro-choice: he’s not super-conservative, he’s Jewish, and he’s the father of two daughters (and Judges with daughters are more likely to rule in favor of women’s rights). But nobody knows for sure.

What Can Employers Expect from a Justice Garland?

“Judge Garland has not been called upon to decide many civil-rights-related claims of great significance. It is difficult to label him as inclined either towards or against such claims, given that the panels on which he sat in such cases were generally unanimous.

 

“When, however, Judge Garland participated in a divided ruling, it was generally in favor of the plaintiff.

A search of Westlaw shows that most commentary by and on Judge Garland in the legal literature is on administrative law, as would be expected given the DC Circuit's caseload, and antitrust law (from his practice days). 

 

March 17, 2016 in Judges, SCOTUS | Permalink | Comments (0)

CFP: Gender Displacement in the Refugee Crisis

Signs: Journal of Women in Culture and Society Special Issue on "Displacement"

Call for Papers: Displacement

Signs: Journal of Women in Culture and Society invites submissions for a special issue titled “Displacement,” slated for publication in spring 2018.

The current refugee crisis gives new urgency to questions of gendered displacement. The United Nations’ most recent statistics place the number of registered Syrian refugees at 4.7 million, 50.7 percent of whom are women and over half of whom are children under eighteen. During the same period, tens of thousands of Central American women and children have crossed the Rio Grande into the United States. Feminists have already responded to concerns about sexual violence in refugee camps and during refugees’ journeys and to the gendered response to the crisis on the part of receiving states (i.e., demographic concerns surrounding gender ratios of migrants admitted). What are the larger questions of “displacement” that require an interdisciplinary and transnational feminist lens?

This special issue of Signs seeks submissions reflecting multifaceted, innovative, and interdisciplinary approaches to the question of displacement, as well as the potential for attention to displacement to address and transform central questions in feminist theory, including how feminists approach larger questions of space, place, and subjectivity. Feminist scholars have a long history of engagement with the question of displacement; across disciplines, feminist scholars have described, theorized, and critiqued gendered forms of displacement and how these displacements have shaped and reshaped geopolitics, national borders, political discourses, narrative form, and ethnic and racial formations both contemporarily and historically. Questions of place and belonging have long been at the heart of cultural work in literature, theater, visual culture, and the arts. We invite submissions on the theme of displacement widely conceived and at multiple scales—the subjective, the family, the city; regional, national, transnational, and global.  Possible subjects include:

  • How humanitarian and state responses to displaced persons depend on, reinforce, or transform gendered, racial, and sexual norms.
  • Visual and narrative representations of displacement in relation to gendered and racialized subjectivities.
  • Cultural representations of displacement, migration, belonging, and exile. Critical and historical investigations and comparisons of feminist ideas of these subjects.
  • Reverberations of historical displacements in the contemporary world.
  • Claims to space and place as forms of resistance to displacement or as the basis for social movements (i.e., landless movements, right to the city).
  • Dispossession and displacement as central to neoliberalism, capitalist development, colonization, and slavery. How are dispossession and displacement related?
  • How experiences of displacement reshape constructions of “home” or the nation.
  • Critical assessments of homophobic and gender-based violence as sources of displacement.
  • Gendered figurations of internally and externally displaced persons as threats to national sovereignty or borders. The production of new forms of intimacy through displacement or the creation of new social movements through and in response to displacement.
  • The way that ethical norms and perspectives ignore or undervalue the importance of gender and gendered perspectives with regard to displacement.

Pieces that critically examine or call into question distinctions between migrants, refugees, and internally displaced persons are also welcome.

Signs particularly encourages transdisciplinary and transnational essays that address large questions, debates, and controversies without employing disciplinary or academic jargon. We welcome essays that make a forceful case for why displacement demands a specific and thoughtfully formulated interdisciplinary feminist analysis and why it demands our attention now.  We seek essays that are forceful, passionate, strongly argued, and willing to take risks.

The deadline for submissions is September 15, 2016. Denise Horn, Assistant Professor of Political Science and International Relations at Simmons College, and Serena Parekh, Associate Professor of Philosophy at Northeastern University, will serve as guest editors of the issue.

Manuscripts may be submitted electronically through Signs’ Editorial Manager system at http://signs.edmgr.com and must conform to the guidelines for submission available at http://signsjournal.org/for-authors/author-guidelines/.

h/t Law & Humanities Blog

March 17, 2016 in Call for Papers, International | Permalink | Comments (0)

Friday, March 11, 2016

Books: ACLU Lawyer Pens "Because of Sex" on Histories of Workplace Discrimination

Gillian Thomas, Because of Sex: One Law, Ten Cases, and Fifty Years That Changed American Women's Lives at Work

Because of Sex takes readers through ten landmark sex discrimination cases that helped dismantle a “Mad Men” world where women could only hope to play supporting roles, where bosses’ leers and propositions were as much a part of the air women breathed as cigarette smoke, and where pregnancy meant getting a pink slip. Readers will meet Ida Phillips, denied an assembly line job because she had a preschool-age child; Kim Rawlinson, who fought to become a prison guard—a “man’s job”; Mechelle Vinson, who endured sexual abuse by her boss before “sexual harassment” even had a name; Ann Hopkins, denied partnership at a Big Eight accounting firm because the men in charge thought she needed "a course at charm school”; and most recently, Peggy Young, forced off her UPS delivery route while pregnant because she asked for a temporary reprieve from heavy lifting.

 

Gillian is a Senior Staff Attorney with the American Civil Liberties Union’s Women’s Rights Project.  She previously litigated sex discrimination cases at the U.S. Equal Employment Opportunity Commission and Legal Momentum (formerly NOW Legal Defense and Education Fund). 

NYT, Book Review "Because of Sex," by Gillian Thomas

Thomas’s “Because of Sex” has many such stories — important reminders that laws have an impact that often exceeds lawmakers’ initial intentions. One strength of the book is her acute awareness of how people have responded to chance accidents, improbable circumstances and unimagined consequences. In fact, it was an 11th-hour amendment to Title VII, brought by Howard Smith, a segregationist congressman, that would ban discrimination in employment “because of sex.” As ­Thomas puts it, “Today most American working women would probably be surprised to know that they have an unrepentantly racist, male octogenarian to thank for outlawing sex bias on the job.”

 

Like Fred Strebeigh’s “Equal” (2009), “Because of Sex” is both meticulously researched and rewarding to read. The ­cases Thomas discusses put the muscle on the new law’s bones. Smith’s last-minute amendment created a blank slate: Congress had not given any clues to what sex equality might look like. Women’s refusal to accept the status quo would determine the law’s meaning.

 

Thomas is a gifted storyteller, and the changing circumstances of these women’s lives as their cases drag on, along with the unpredictability of the courts, give her plenty to work with. She provides lots of head-shaking moments. Surely, you say to yourself, that couldn’t have been legal — such as when a city utility required women to contribute 15 percent more to their pension fund because they lived longer than men. [See Department of Water & Power v. Manhart, 435 U.S. 702 (1978)]

 

March 11, 2016 in Books, Equal Employment | Permalink | Comments (0)

Thursday, March 10, 2016

Study Shows Bias in Student Evaluations Against Women Law Faculty of Color

Meera Deo (Thomas Jefferson), A Better Tenure Battle: Fighting Bias in Teaching Evaluations, 31 Columbia J. Gender & Law 1 (2015).

This Article draws from the first systematic, comprehensive, mixed-method empirical law faculty diversity study to investigate how challenges in the classroom and bias in teaching evaluations affect female law faculty of color. The in-depth interviews of female law faculty of color are systematically analyzed using Atlas.ti software, finding that students directly challenge particular faculty in class, sometimes through verbal and even physical abuse, and write insensitive and irrelevant race- and gender-based comments on anonymous teaching evaluations. These encounters often have negative effects on the professional trajectory of women of color law professors, most notably when these individuals seek promotion and tenure. Instead of supporting these discriminatory barriers to advancement, legal institutions should do away with student evaluations altogether, modify them, or supplement them with more rigorous and less discriminatory forms of evaluation. This is the way to fight bias in teaching evaluations.

March 10, 2016 in Law schools, Race | Permalink | Comments (0)

Gendering Disability Law

Michelle Travis (San Francisco), Gendering Disability to Enable Disability Rights Law, Cal. L. Rev. (forthcoming)

Abstract:     

This Article expands the social model of disability by analyzing the interaction between disability and gender. The modern disability rights movement is built upon the social model, which understands disability not as an inherent personal deficiency but as the product of the environment with which an impairment interacts. The social model is reflected in the accommodation mandate of the Americans with Disabilities Act of 1990 ("ADA"), which holds employers responsible for the limiting aspects of their workplace design. This Article shows that the limitations imposed upon impairments result not only from physical aspects of a workplace but also from other identity-based stereotypes, biases, and oppressions, which affect how disability is both experienced and perceived.

This Article advances the social model's aspirations by specifically challenging the existing gender-neutral view of the causes and consequences of disability. This analysis reveals how ignoring gender has enabled masculine norms to become embedded into the ADA's substantive and procedural approaches to defining and remedying disability discrimination in the workplace. This inattention to gender has not only imposed serious social and economic consequences on women with disabilities, but it has also rendered legally invisible many non-prototypic members of the disabled community. This analysis illustrates how attending to other social identities may advance the social model, deepen our understanding of disability discrimination, and empower disability rights law to serve a broader group of individuals within the disabled community.

 

March 10, 2016 in Gender, Workplace | Permalink | Comments (0)

Wednesday, March 9, 2016

Dean Berkeley Law Sued for Sexual Harassment

Wash Post, Dean of Berkeley Law Sued for Sexual Harassment

The complaint was filed Tuesday against Berkeley Law School Dean Sujit Choudhry and the University of California Board of Regents.

 

Choudhry’s executive assistant, Tyann Sorrell, claims in the lawsuit that when Choudhry became dean in July 2014, he began kissing and touching her and giving her unwanted bear hugs, according to court documents.***

 

The complaint states that university officials reduced the dean’s salary by 10 percent for one year and required him to write a letter of apology to Sorrell.

 

Sorrell claims in the lawsuit that a university official later told her he had “seriously considered terminating the dean but that the reason he had decided not to was because it would ruin the dean’s career, that is, destroy his future chances for higher appointment,” according to Fox affiliate KTVU.

 

March 9, 2016 in Equal Employment | Permalink | Comments (0)

CFP: The US Feminist Judgments Project: Rewriting the Law, Writing the Future

 

THE U.S. FEMINIST JUDGMENTS PROJECT:

REWRITING THE LAW, WRITING THE FUTURE

Call for Papers and Presentations

Deadline April 15, 2016

We are seeking proposals for papers to be presented during the U. S. Feminist Judgments Project conference October 20-21, 2016 at the Center for Constitutional Law  at The University of Akron School of Law in Akron, Ohio. We are also seeking proposals for “snapshot” presentations to be included in the final plenary of the conference. The conference is co-sponsored by The University of Akron School of Law and the University of Nevada, Las Vegas – William S. Boyd School of Law.

This conference will celebrate the 2016 publication of U.S. Feminist Judgments: Rewritten Opinions of the United States Supreme Court. That volume brought together more than fifty feminist legal scholars and lawyers to rewrite, using feminist reasoning, significant Supreme Court cases from the 1800s to the present day. (For more information, see the project website here.) Illustrating the value of this method of practical scholarship, the volume demonstrates that different processes and different outcomes would have been possible had decision makers applied feminist theory and methods in critical Supreme Court cases despite the restrictions of stare decisis.

The conference is designed to provide the appropriate setting and the essential participants for a structured conversation that explores and assesses the effects of feminist methods and theories on real-world judicial decision making. We expect the conference will identify common core principles and propose directions for future scholarship.

To this end, we seek proposals for papers that incorporate feminist theory and methods or report on research that furthers feminist thought. The organizers view feminism and feminist theory broadly as covering issues of inequality related to gender and gender norms, but also intersectional dynamics related to race, sexual orientation, immigration status, socioeconomic class, and disability.

Potential topics cover a broad range, including women in the judiciary, women in the legal profession, women and rhetoric, women in politics, empirical studies involving gender or gender norms, feminist theory, reproductive freedom, pregnancy, reproduction, families, sex, sexuality, violence against women, employment, sexual harassment, or affirmative action. We welcome with enthusiasm proposals from faculty in disciplines other than law, and we would especially appreciate proposals from new voices in feminism and feminist theory.

Our hope is to build on the insights of the U.S. Feminist Judgments book and to explore new avenues of inquiry for feminist legal scholarship. We hope to provide a supportive atmosphere to foster scholarship and networking among teachers, scholars, and others who are interested in gender equality and the law.

The conference will include plenary sessions related specifically to the U.S. Feminist Judgments book as well as sessions that will be more general in focus, concurrent sessions drawn from this Call for Papers, and a closing panel also drawn from this Call for Papers. The closing panel will be a brainstorming session to consider future directions for scholarly and practical projects that relate to gender equality, the judiciary, future Feminist Judgments projects, or all of the foregoing.

Concurrent Sessions – Paper Proposals

The concurrent sessions will feature presentations on any topic related to gender equality issues, with preference given to presentations related to the topics of women in the judiciary, women in the legal profession, women and rhetoric, women in politics, empirical studies involving gender or gender norms, feminist theory, reproductive freedom, pregnancy, reproduction, families, sex, sexuality, violence against women, employment, sexual harassment, or affirmative action. We will organize the presentations into panels based on the subject matter of the proposals.

Interested persons should submit a brief written description of the proposed paper (no more than 1000 words) and a resume. Please let us know in the proposal which of the above categories or what other, non-listed category best fits your proposal. Please use the subject line “U.S. Feminist Judgments Project October Conference Paper Proposals” and e-mail these materials to Maria Campos (maria.campos@unlv.edu) by April 15, 2016.  We will notify selected speakers by June 1, 2016.

Brainstorming Presentations – Snapshot Proposals

The final plenary session of the conference will feature snapshots, or very brief presentations, of ideas for future projects that will advance gender equality in the law. Each selected participant will be limited to five minutes to present her or his idea or project. The presentations will be followed by audience feedback and comments. We welcome proposals for this brainstorming session on any topic related to gender equality.

Interested persons should submit a brief written description of the proposed presentation (no more than 300 words) and a resume. Please use the subject line “U.S. Feminist Judgments Project October Conference Snapshot Proposals” and email these materials to Maria Campos (maria.campos@unlv.edu) by April 15, 2016. We will notify selected speakers by June 1, 2016.

Eligibility

Anyone interested in issues of law and gender equality is eligible to submit a proposal, including full-time faculty members, fellows, visitors, and adjuncts who teach in undergraduate or graduate schools; judges; practitioners; government officials; and business, community, and non-profit leaders. The conference is free and open to the public.

There is no publication commitment associated with the conference. Presentation abstracts will be made available on the website of the Center for Constitutional Law at The University of Akron, and by mutual agreement of interested authors and journal editors, remarks may be published in a special symposium issue of ConLawNOW, the online companion journal run by the Center for Constitutional Law.

There is no registration fee for the conference but proposers and panelists must pay all of their own expenses associated with conference attendance. There will be a conference-negotiated rate at a local hotel. The University of Akron is located approximately 15 minutes from the Akron-Canton Airport and approximately 40 miles southeast of Cleveland Hopkins International Airport.

Please direct questions regarding this Call for Papers and Presentations to Kathy Stanchi (kstanchi@temple.edu), Linda Berger (linda.berger@unlv.edu), and Bridget Crawford (bcrawford@law.pace.edu).

March 9, 2016 in Call for Papers | Permalink | Comments (0)

Tuesday, March 8, 2016

Erin Andrews Wins $55m in Hotel Stalking Case

Worst legal defense ever:  Andrews was not harmed by the voyeurism and subsequent repeated online postings because such sexualization helped her broadcasting career.  Catharine MacKinnon was right.

NYT, Erin Andrews Awarded $55 Million in Lawsuit Over Nude Video at Hotel 

 A jury awarded the Fox sportscaster Erin Andrews $55 million in her lawsuit against a Nashville hotel and a stalker after she was secretly videotaped naked several times in 2008, according to reports.

 

Ms. Andrews had sued for $75 million, accusing the companies that manage the Nashville Marriott, West End Hotel Partners and Windsor Capital Group, of negligence leading to emotional distress and invasion of privacy, according to court documents. Ms. Andrews had also sued the Illinois man who filmed her, Michael David Barrett.

 

 The jurors found Mr. Barrett, who pleaded guilty and served more than two years in prison for traveling across state lines to videotape Ms. Andrews multiple times, responsible for 51 percent of the blame, according to The Associated Press. The hotel companies were found to be responsible for about $27 million

 

 During her testimony last week, Ms. Andrews, who worked for ESPN at the time the secret videos were taken, said that she had been constantly reliving the ordeal and that she felt “so ashamed” after discovering that nude images of her were available on the Internet.

 

 “This happens every day of my life,” she said. “Either I get a tweet, or somebody makes a comment in the paper, or somebody sends me a still of the video to my Twitter, or somebody screams it at me in the stands. And I’m right back to this.”

 

 Ms. Andrews contended that the hotel should have told her that a man had inquired if she was staying at the hotel.

 

 “This could’ve been stopped,” she testified. “The Nashville Marriott could’ve just called me and said, ‘We’re putting this man that requested to be next to you, is this O.K.?’ And I would’ve called the cops and we would’ve gotten him. I’m so angry. I’m so mad.”

 Boston Globe, No Matter the Verdict, Erin Andres Living Through Unrelenting Pain from Stalker and Skepticism

During the trial this week, the approach of the Marriott’s attorneys has been to suggest that the nude video didn’t negatively affect Andrews’s career. One lawyer pointed out that she had picked up endorsements from Reebok, Degree deodorant, Florida orange juice, and Mountain Dew after it happened. She has also been a contestant, and host, on “Dancing with the Stars.” Andrews acknowledged that her income has increased in the years since the video came out.

 

The video didn’t harm her career. It did something worse. It harmed her. Steve Andrews said that despite her success, his daughter hasn’t been the same since the incident.

 

“She is afraid,’’ he said. “My daughter has been scared for eight years. For eight years she has been terrified that there is something else out there — that there is someone else looking for her,” he said. “She doesn’t trust anymore. She is a shell of the person she was before this happened.”

 

Erin Andrews said it has affected her relationships. She lives with boyfriend Jarret Stoll, an NHL player with the Minnesota Wild, and says he has been supportive. But she said he doesn’t understand why she remains paranoid and feels guilty at times.

 

“[Stoll] didn’t know me before this happened,’’ she said. “[It’s hard to] try to explain to someone who has questions about why I have trust issues, why I am insecure, why I am humiliated, embarrassed, obsessive about checking the Internet, he doesn’t understand.

March 8, 2016 | Permalink | Comments (0)

What Academic Freedom Does, and Does Not, Protect

Wash Post, Does Academic Freedom Protect Professors Who Promote Outrageous Falsehoods?

Challenging conventional wisdom is one thing; saying things that are historically inaccurate, inflammatory and racist is another. How much does academic freedom actually cover? If a history professor says something fundamentally wrong about a historical fact — such as misidentifying who staged the Sept. 11, 2001 terrorist attacks — is that person’s views covered by academic freedom or is that a question of professional competence? What if a poetry professor says the same thing? 

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While the real protections offered under the principle vary from campus to campus, faculty work is at least founded on the idea that there’s room to express even unpopular ideas or beliefs. But are arguably unacademic opinions — inflammatory falsehoods that have no apparent basis in fact — also covered? A recent case at Oberlin College raises questions about whether all ideas are created equal when it comes to academic freedom.

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For the American Association of University Professors, the distinction is one of disciplinary expertise and professional competence, said Hans-Joerg Tiede, associate secretary in the department of academic freedom, tenure and governance. If, for example, a physics professor declared on Twitter that the Sept. 11 attacks were a hoax, AAUP would advocate for the professor’s right to free speech in extramural utterances (it doesn’t distinguish between free speech in person or online). But if the physics professor declared that the world is flat, denying all scientific evidence to the contrary, that could call into question his or her professional fitness.

“There’s a somewhat strange consequence that the less something relates to your discipline, the more protected you are on a general level,” Tiede said. “The closer something is to your area of expertise, you must in some sense be more careful that what you say doesn’t create concerns.”

 

 

 

March 8, 2016 in Education, Law schools | Permalink | Comments (0)