Sunday, November 2, 2014
NEW HAVEN — A sexual harassment case that has been unfolding without public notice for nearly five years within the Yale School of Medicine has roiled the institution and led to new allegations that the university is insensitive to instances of harassment against women. The case involves a former head of cardiology who professed his love to a young Italian researcher at the school and sought to intervene in her relationship with a fellow cardiologist under his supervision. A university committee recommended that he be permanently removed from his position, but the provost reduced that penalty to an 18-month suspension.
This is a bit dated by cyberspace standards (it happened about two weeks ago), but for interested readers, there was a Chronicle of Higher Ed article about sexual harassment in philosophy departments, especially at Colorado. Here's a blog excerpt from Nous (the philosophy blog):
Today’s Chronicle of Higher Education has a long article (may be paywalled) on the University of Colorado Department of Philosophy’s issues with sexual misconduct and climate for women, with remarks from people inside and outside the department.
They wanted to help solve their field’s longstanding problems over the treatment of women and find ways to improve the climate on their own campus. But instead, the philosophy department’s decision to invite an outside review has left it struggling to survive after the investigators concluded it was rife with “inappropriate, sexualized unprofessional behavior.”…
Philosophy professors worry that the reaction to the review—completed last fall by a panel of the American Philosophical Association’s Committee on the Status of Women—may now destroy the department. Even the head of that national committee says Boulder’s philosophers are right to be concerned. “I don’t expect a department that has a deeply cold climate for women, and has had for years, to be able to clean it up in a year and without a fair amount of pain,” says Hilde Lindemann, a philosophy professor at Michigan State University. “But I dare say they are fighting for their lives.”…
The three female philosophers who visited Boulder early last fall as part of the review interviewed professors, students, and administrators. The committee issued its scathing 15-page report in November. It said that women had filed 15 complaints with the university’s Office of Discrimination and Harassment since 2007 and that female graduate students reported feeling anxious and demoralized. Many incidents of alleged harassment, the report said, occurred off campus and after hours while faculty members and graduate students socialized over alcohol. Female faculty members reported working from home to avoid their male colleagues.
Almost no one here recognized the portrait of the department.
Saturday, November 1, 2014
Susan Hanley Duncan (Louisville) has published The Devil is in the Details: Will the Campus SAVE Act Provide More or Less Protection to Victims of Sexual Assault [WL only], 40 J. College & Univer. Law 443 (2014). From the Introduction:
Campus violence, especially sexual harassment which includes sexual violence, remains a major issue facing colleges and universities today. Colleges and universities must not abrogate their legal obligations to law enforcement; they have a shared responsibility under federal civil rights laws to proactively provide safe environments for students to live and learn. Despite several laws addressing the problem, guidance from federal agencies, and greater education efforts, the statistics still reflect a sad reality-young people in colleges and universities, especially young women, are not safe. The White House Council on Women and Girls released a report in January 2014, Rape and Sexual Assault: A Renewed Call to Action, which portrayed a frightening landscape of sexual violence on college campuses, in the military, and among certain defined populations including LGBT individuals and Native American women.More needs to be done now. To that end, President Obama and Congress recently revised legislation hoping these modifications would make college and university campuses safer. In addition, the President formed a White House Task Force to Protect Students from Sexual Assault, a task force of senior administration officials to provide him with recommendations within ninety days on the topic of best practices for preventing and responding to sexual assault and rape. In addition, he requested that the task force explore how well universities and colleges are complying with the law, and provide him with ideas on how to increase transparency with enforcement and encourage better collaboration between governmental agencies enforcing the law.This renewed focus on campus sexual assaults comes at the same time the new Campus Sexual Violence Elimination Act (Campus SaVE Act) goes into effect on March 7, 2014. This new law seeks to increase transparency, accountability, and education surrounding the issue of campus violence, including sexual assaults, domestic violence, dating violence and stalking. The law remains hotly debated within victim advocate circles and college and university administrators as to whether it will help victims or reduce their protections under Title IX. All the interested parties agree, however, that the law leaves many questions unanswered and are anxiously watching the negotiated rulemaking process in hopes for more clarity.
Roger W. Reinsch (Minnesota-Duluth) and Sonia Goltz (Michigan Tech), You Can't Get There From Here: Implications of the Wal-mart Dukes Case for Addressing Second Generation Discrimination, 9 Northwestern J. Law & Social Policy 264 (2014). From the abstract:
In Wal-Mart v. Dukes, the Supreme Court determined the plaintiffs had not shown, based on the evidence, that there were questions of law or fact common to the class. The allegedly discriminatory decisions had been made by individual supervisors at different stores who had been given discretion by Wal-Mart to make pay and promotion decisions. The Court stated the problem was that there was no specific evidence that all the discretionary decisions were made in a manner that reflected gender bias. This case not only reversed decades of court acceptance of social framework evidence in employment litigation but also insulates businesses from class action suits by imposing a huge barrier to class certification.
This Article first reviews the Wal-Mart v. Dukes decision with respect to how it adversely affects the viability of class action suits that have historically provided recourse for individuals who are less able to pursue individual claims of discrimination. This Article then examines implications of Dukes and other decisions for the court’s ability to address the problem of second-generation discrimination. In particular, we focus on the difficulties created by requiring the application of a clearly defined policy and practice to all cases involved. Finally, this Article suggests that given that policy and practice continue to be a requirement for class certification, one could meet this requirement by reframing classes using a theory analogous to the “fraud on the market” doctrine employed in securities cases. In other words, organizations that have a policy of nondiscrimination but allow individual managers to make employment decisions any way the managers please could be viewed as perpetuating a type of “fraud-on-the-employment market” in which plaintiffs have relied on a material misstatement of fact when accepting their positions.
Slate, Disagree in Good Faith?: Sonia Sotomayor Pushes Other Supreme Court Justices Past Their Comfort Zones, reviewing Joan Biskupic’s new biography of Sotomayor, Breaking In
Joan Biskupic’s new biography of Sonia Sotomayor, Breaking In, opens with a telling story from the justice’s first year on the Supreme Court. At a party celebrating the end of the term, Sotomayor decided to shake up the staid affair. After the law clerks put on a series of “tame” skits, she informed them that their performance “lacked a certain something.” She signaled a clerk, who produced a stereo. When Latin music began filling the room, before the clerks, her colleagues, and 200 staff members, the newest member of the court began to salsa.
That would certainly have been enough to make the occasion memorable, but Sotomayor wasn’t done. One by one, Biskupic writes, “she beckoned the justices” to join her. They were resistant, she was determined. “I knew she’d be trouble,” Justice Antonin Scalia quipped when the dance off was over.
Friday, October 31, 2014
Political-correctness 101 dictates that we should avoid gendered versions of job titles: We’re meant to use “server” instead of “waitress”, “actor” for women as well as men. (Thank God the nineteenth-century “doctoress” never caught on.) But sometimes, for valid and non-sexist reasons—like talking about the wage gap—writers need to identify a group of professionals by their gender. Writers who are keen not to offend face a conundrum. “Female” seems like a safe descriptor—“female boss,” “female lawyer,” etc.—but some complain it’s too “clinical.” “Lady” has made something of a come-back as a sort of retro descriptor—“Lady journo,” “lady blog”—but sounds condescending outside of a specific, ironic context. In The Guardian last week, sub-editor Maddie York points out that another word is catching on as an adjective: “woman.” According to York, “‘Woman’ and its plural seem to be taking over the role of modifier, so that now, there is no such thing, as far as much of the media is concerned, as a female doctor, a female MP or a female chef. Instead you hear or read about a woman doctor, a woman MP and so on.”
This is definitely an overstatement, but she has a point: When I started looking for it, I found that the opposite of “male boss” is often not “female boss” but “woman boss.” The BBC contrasts “women managers” with “male” ones. And the Harvard Business Review says: “Only 16% of Republicans prefer a woman boss … young people (18 to 34) are more likely to want a male boss.”
Or so argues one commentator. From the Jurist:
The Constitution provides no citizen of any gender or orientation a Constitutional right to marriage. The Constitution is silent on the issue of marriage. It is not mentioned, and therefore it is not a power delegated to the federal government to regulate. For lawyers, judges and in particular, Supreme Court justices, the inquiry on this issue should end there—right where silence demands judicial inaction.
Thursday, October 30, 2014
The North Dakota Supreme Court on Tuesday reversed a Fargo-based district judge’s ruling that had blocked a 2011 state law limiting drug-induced abortions, letting the law stand despite three of the court’s five justices saying it violates the U.S. Constitution.
Justices were split on whether the law was unconstitutional under both the state and federal constitutions.
The Supreme Court was evenly split on whether the law violated the state constitution, with Justices Mary Muehlen Maring and Carol Ronning Kapsner finding it did and Chief Justice Gerald VandeWalle and Justice Dale Sandstrom finding it didn’t. Justice Daniel Crothers concluded the state constitutional issue didn’t need to be decided.
Maring, Kapsner and Crothers found the law violated the U.S. Constitution, while VandeWalle found that it wasn’t unconstitutional at the federal level. Sandstrom opined that the federal question didn’t belong before the state Supreme Court.
Tuesday’s opinion hinged on the North Dakota Constitution’s requirement that at least four members of the Supreme Court be in agreement to declare a statute unconstitutional.
For those brave enough to tackle a 103-page opinion and double pluralities, the opinion MKB Management v. Burdick is here.
She The People, WaPo, With Supreme Court Case Pending, UPS Reverses Policy on Pregnant Workers
This week United Parcel Service sent a memo to employees announcing a change in policy for pregnant workers: starting January 1, the company will offer temporary light duty positions not just to workers injured on the job, which is current policy, but to pregnant workers who need it as well.
“UPS takes pride in attaining and maintaining best practices in the area of equal opportunity and employment, and has elected to change our approach to pregnancy accommodations,” a memo sent to workers reads.
Hang on a minute. Isn’t this is the very stance that UPS is arguing against in the upcoming, high-profile Supreme Court case, Young v UPS?
Indeed it is.
UPS’ change of policy was not only announced to its workers on Monday, it was announced to the world in the brief they filed at the Supreme Court just days ago.
The change of policy, UPS attorneys argue in the brief, doesn’t mean they were wrong when they denied temporary light duty to one-time UPS driver Peggy Young, of Landover, Md., when she became pregnant and her doctor recommended she take a hiatus from lifting heavy boxes until after giving birth.
In the brief, UPS attorneys explain it this way: “While UPS’s denial of [Young’s] accommodation request was lawful at the time it was made (and thus cannot give rise to a claim for damages), pregnant UPS employees will prospectively be eligible for light-duty assignments.”
The UPS move came as a surprise to many workers’ rights advocates and to Young’s attorneys.
“UPS is highlighting the injustice of its own position,” said Sam Bagenstos, one of Young’s attorneys. “In the future, they want to give people like her fair treatment. But they’re still denying her recompense for the unfair treatment that they gave her.”
The move, he said, “shows that what Peggy Young has been asking for all along is common sense.”
Erin Sheley (GW) has posted Double Jeopardy: The Condemned Woman as Historical Relic, 24 Law & Lit. 211 (2014)
This article explores how Sir Walter Scott's fictional condemned women serve as relics through which a history of evolving British legal authority becomes present and legible. It argues that Scott's treatment of gender aestheticizes a particular concept of and reaction to the condemned woman in the context of the common law tradition generally. Using the backdrop of eighteenth century penal practice, it also shows how Scott establishes the female condemned body as an object necessarily fixed in time in order to contemplate legal change through a historically controlled process. The first part of the article considers the late eighteenth century movement to abolish the punishment of burning at the stake for women convicted of treason, and the extent to which competing understandings of chivalry reified an entire history of penal practice into the body of the burned woman. The second part argues that the interrelations between archaic practice and evolved norm which characterize the precedent-based common law system are dramatized in the fixed, idealized bodies of Constance de Beverly and Rebecca of York through which Scott acknowledges the implicit need for legal change over time, while simultaneously legitimizing adherence to a chivalric tradition.
Wednesday, October 29, 2014
The diverse and robust pool of female founders and tech execs at Fortune’s 40 under 40 party proves positive for Silicon Valley’s future. Editing Fortune’s 40 Under 40 list is, every year, an education in ambition, disruption and extraordinary achievement. The process takes months of reporting, lots of debate and discussion and a healthy amount of handwringing as our deadline looms.
And then comes the fun. Every year, we hold a giant party for the 40 Under 40 and a few hundred other movers and shakers in the San Francisco area. This is always my favorite part of the process. Because our listers? They show up. This year, we had a record number join us, traveling from as far as India (Rahul Sharma, CEO of Micromax) and as close as upstairs (Brian Chesky, CEO of Airbnb, which hosted us in the lobby of the company’s headquarters in San Francisco’s SoMa district).
There were lots of local, Bay Area-based names, including Lyndon Rive, cofounder of SolarCity SCTY 3.82% , Josh Tetrick of plant-based food engineer Hampton Creek, Tristan Walker of Walker & Co/Bevel, Kabam’s Kevin Chou, Mason Morfit, president of ValueAct Capital (and youngest person on Microsoft’s board MSFT 1.26% ). Many more traveled to be there: SBE Entertainment Group’s Sam Nazarian, from Las Vegas; Nate Morris of waste-management disruptor Rubicon Global, in from Kentucky; Anthony Watson, CIO of Nike NKE 0.88% , who flew in from Beaverton, Ore; and President Obama’s deputy national security adviser Ben Rhodes, who was able to break away from his boss for a quick trip west. There was, of course, a healthy crew from New York, including VaynerMedia CEO Gary Vaynerchuk, NYSE president Tom Farley, Highbridge Principal Strategies’ Mike Patterson and Blackstone’s Peter Wallace.
THERE is much to be unhappy about in Iran. Depression, drug addiction and cancer are at record rates, while divorce is nearing Western levels. But most worrying are new attempts to control women. Restrictions in Iran may not rival Saudi Arabia—Iranian women are permitted to drive and openly socialise with male friends—but a political debate has broken out about how they should conduct themselves in public. It has gained more urgency after a spate of acid attacks against women in Isfahan, Iran’s third city, this month, apparently for not conforming to Iran’s Islamic dress code. In another blow, on October 25th Iran said it had executed Reyhaneh Jabbari, a 26-year-old woman who killed a man she said was trying to sexually abuse her.
Tuesday, October 28, 2014
Linda McClain at Balkinization on the Puerto Rico same-sex marriage decision and the gendered origins of "traditional marriage."
Instead, that evolution well illustrates marriage’s trajectory from (as Ninth Circuit Judge Marsha Berzon put it in her recent concurrence in Latta v. Otter ) “a profoundly unequal institution [that] imposed distinctively different rights and obligations on men and women” to a more “genderless” relationship of mutuality and equality.
To illustrate the consistency of Puerto Rico’s marriage policy, the federal district court observes that, in 1899, when “royal decree brought Puerto Rico within the ambit of the Spanish Civil Code,” that Code governed marriage and the “rights and obligations of husband and wife.” The court traces Puerto Rico path to becoming a “possession” of the United States, observing that the underlying definition of marriage did not change. Thus, marriage, in the 1902 Civil Code, is “ a civil institution that emanates from a civil contract by virtue of which a man and a woman are mutually obligated to be husband and wife, and to fulfill for one another all the duties that the law imposes.”
But what were those duties imposed by law? The court attaches to its opinion a translation of an excerpt from the 1899 Civil Code, which include certain “rights and responsibilities” of husband and wife: “The husband must protect his wife and the latter obey the husband.” (Art. 57); “The wife is obliged to follow her husband wherever he may establish his residence” (Art. 58); “The husband is the representative of his wife. The latter cannot, without his permission, appear in a suit in person nor through a solicitor” (Art. 60). The husband is also “the administrator of the property of the conjugal partnership,” unless otherwise stipulated (Art. 59).
These provisions of the Civil Code, rooted in Spanish influence, have parallels in the English common law system of coverture, a system that, as the Supreme Court explained in Planned Parenthood v. Casey, is “no longer consistent with our understandings of the family, the individual, or the Constitution.” Challenging the idea of a consistent marriage policy is the fact that these hierarchical provisions no longer appear in the current version of the Civil Code. Instead, the “duties” of spouses “imposed by law” now take a mutual, gender neutral form: “The spouses shall protect themselves and satisfy their needs in proportion to their conditions and fortune” (Section 282); “The spouses shall decide by mutual agreement where to establish their domicile and residence for the attainment of the best interest of the family” (Section 283); “Both spouses shall be administrators of the community property, except when otherwise stipulated . . .” (Section 284); and “[E]ither of the spouses may legally represent the conjugal community” (Section 286).
These changes are similar to the abrogation of the common law model of marriage. They show how the law of marriage evolves over time. Thus, the “traditional marriage” to which Judge Juan M. Pérez-Giménez appeals has already departed in many ways from “tradition.
National Law J., Survey: Profession Still Struggling for Equal Opportunity
Legal careers have changed greatly since 2000 but the profession is still struggling to establish race and gender equality, according to a joint survey released by the American Bar Foundation and the National Association for Law Placement.
But “After the JD III: Third Results of a National Study of Legal Careers” also indicates that most lawyers remain moderately or extremely satisfied with their choice to pursue law. They represent 76 percent of respondents in surveys conducted in 2012, 2007 and 2003.
“You might think after the recession that people would dial back on that answer, but it’s pretty much the same,” American Bar Foundation director Robert Nelson said of the satisfaction number.
The so-called “Wave 3” survey, released Thursday, was based on 2012 interviews of 2,862 lawyers who passed the bar in 2000. That’s a 53 percent response rate for the 5,353 surveys sent to a pool of lawyers who had responded to either or both of the earlier surveys. The three surveys comprise a long-term study of a nationally representative group of lawyers at different stages in their careers.
The surveys collectively show striking gender differences in lawyers’ earning power. According to the latest survey, the income gap between men and women was 5 percent after two or three of practice, 15 percent after seven years and 20 percent after a dozen years of practice.
Most of that gap occurs in the private sector. Women in public sector jobs earned 96 percent to 98 percent of what men did in comparable jobs.
“It’s certainly nothing new [but] it’s profound that we have not made much progress on that front in the legal profession,” Nelson said.
Women, along with racial and ethnic minorities, are more likely to experience social isolation and firms can do more to integrate them into the fabric of the enterprise, he said. Women and minorities also are less likely to inherit a book of business from a senior partner than is the case for white males. “That seems to be the critical dynamic,” Nelson said.
Joseph Seiner (South Carolina), Title VII and Tort Law: A New Perspective at Jotwell reviews Martha Chammallas (Ohio State), Two Very Different Stories: Vicarious Liability under Tort and Title VII Law.
In her paper, which is a working draft and part of the Ohio State Law Journal symposium, Torts and Civil Rights Law: Migration and Conflict, Professor Chamallas takes on the daunting task of analyzing how the Supreme Court’s use of agency principles have helped develop employment discrimination doctrine. Professor Chamallas does a superb job of explaining how the Court has used common-law tort principles to help create the theory of vicarious liability in workplace cases. She explains how the use of agency principles has diminished the scope of liability under Title VII, and she further analyzes how this erosion has played out in the case law. Most importantly, however, her paper “challenges the logic and the wisdom of borrowing tort and agency law to craft liability rules for Title VII” and calls on Congress to act swiftly to correct the situation. The paper thus does an excellent job of not only identifying the problem of integrating tort law into employment cases—it provides a workable remedy for resolving the issue.
Monday, October 27, 2014
The story, and the excerpt:
RALEIGH, N.C. — An exclusive WRAL News poll shows North Carolinians are evenly divided about whether legislative leaders should fight to keep the state’s same-sex marriage ban in place, despite court rulings that have found it unconstitutional.
Saturday, October 25, 2014
From the program for the 2014 American Society of Legal History conference coming up Nov. 6 in Denver. Here are the presentations related to gender and the law. It is really great to see so many talks in this field.
On the panel "Gender in US Legal History"
Chair/Commentator: Serena Mayeri, University of Pennsylvania Law School
Kimberly A. Reilly, University of Wisconsin-Green Bay, “For Love or Money: Loss of Services Suits and the Transformation of Wives’ Household Labor, 1870-1920”
Larissa Werhnyak, University of Iowa, “To Make the World Safe For Men: The Anti-Heart Balm Campaigns of the 1930s”
Jeffrey D. Gonda, Syracuse University, “On a Different Home Front: Black Women & Shelley v. Kraemer, 1944-1948”
Lauren MacIvor Thompson, Georgia State University, “'An Outrage to Common Sense': Legal and Medical Conceptions of Female Disability in the Women's Rights Movement, 1870-1930”
On the panel "Contesting Custody, Creating Rights: Family Law and Equality Claims in Late 20th-Century America"
Chair:Commentator Karen M. Tani, University of California-Berkeley School of Law
Deborah Dinner, Washington University School of Law, “The Divorce Bargain: The Fathers’ Rights Movement and the Dual System of Family Law”
Serena Mayeri, University of Pennsylvania Law School, “Unmarried Fathers, Sex Equality, and Marital Supremacy, 1970-1983”
Marie-Amelie George, Yale University, “The Custody Crucible: The Centrality of Lesbian Mother Custody Cases in Gay Rights”
On the panel "Women Acting Locally, Women Acting Globally: Female Activists Trying to Shape a Modern World Across the 20th Century"
Chair/Commentator: Nupur Chaudhuri, Texas Southern University
Susan Hinely, Stony Brook University, “The Theory and Practice of International Justice in the Pre-War Suffrage Movement”
Kathleen Banks Nutter, Smith College, “‘Abundant life for all’: American YWCA Workers in Turkey, 1920-1935”
Gwen Jordan, University of Illinois-Springfield, “Building Transnational Coalitions of Women of Color During the Cold War: The Work of Edith Sampson and the National Council of Negro Women”
And presentations included on other panels:
Katrina Jagodinsky, University of Nebraska-Lincoln, "The Legal Pluralisms of Indigenous Women and their Daughters, 1854-1934”
Donna Schuele, University of California-Irvine, “California's Women's Rights Movement: The Promise and Perils of the 14th Amendment”
Nan Goodman, University of Colorado-Boulder, “'I hear no things laid to my charge': Oral and Written Discourse in Anne Hutchinson's Trial Transcript”
Sarah Bakkali, Université Panthéon-Assas (Paris II), “Female Impotence in Medieval Canon Law”
Alison L. Lefkovitz, NJIT/Rutgers University-Newark, “Husbands and Wives at Risk: Sexual Access, Household Labor, and Backlash, 1963-1984”
Evelyn Atkinson, University of Chicago (student), “The Telegraph Cases: Law, Gender, Family, and Corporate Responsibility in the Late 19th Century"
But to the professor Kevin Allred and 32 students at Rutgers University, Beyoncé is something more—a feminist, a gay icon, and a powerful political figure.
Allred teaches a wildly popular women’s studies course, Politicizing Beyonce: Black Feminism, US Politics, & Queen Bey.
The class is at capacity, and the room is cramped—especially because Allred encourages students to bring their friends. But that doesn’t stop them from rocking out to Beyonce’s greatest hits.
“They usually sign up because they're big fans of Beyoncé's music, but they quickly start to make connections beyond just being fans," Allred says.
Allred, 33, says he’s been a huge fan of Beyoncé for a long time, but he didn’t think of her as a political actor until he came across an essay by Yale Professor Daphne Brooks that linked the singer to black, female disempowerment. ***
In Allred’s course, Beyonce’s music is paired with black, feminists texts, another love of his.
“That way, students are getting an education in the history of black feminist theory in the US, just using Beyoncé as the focal point,” he says. “I let them be pretty fan-oriented on the first day, but urge them for the remainder of the semester to push past that and engage academically.”