Gender and the Law Prof Blog

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

Tuesday, September 12, 2017

Can a Man Sue for Pregnancy Discrimination?

Can a Male Employee Sue for Pregnancy Discrimination?

Congress enacted the Pregnancy Discrimination Act of 1978 which amended Title VII of the Civil Rights Act of 1964 and made it unlawful sex discrimination for an employer to discriminate on the basis of pregnancy, childbirth, or any related medical conditions.

 

However, there is currently little case law on whether or not a male can bring a claim of employment discrimination under the Pregnancy Discrimination Act, based solely on his wife’s pregnancy.

 

At what point, if at all, is it considered employment discrimination when an expecting father or partner is denied particular benefits or is subjected to adverse employment actions that an expecting mother may not be?

 

Fired for Accompanying His Pregnant Wife to a Doctor’s Appointment

 

In a recent tragic case, a Mississippi man committed suicide after he was fired for taking a day off to accompany his wife, who had been diagnosed with a high-risk pregnancy, to a pregnancy-related appointment.

 

His estate filed a complaint against his employer alleging that he was fired because of his sex and his wife’s pregnancy. Estate of Pennington v. Southern Motion, Inc., 2017 BL 313057 (N.D. Miss. Sept. 06, 2017).

 

Pregnancy Discrimination Must Be Based on Sex

 

The court turned to precedent and found that the only two cases to address this issue, Nicol v. Imagematrix, Inc., 773 F. Supp. 802, 56 FEP Cases 1533 (E.D. Va. 1991) and Griffin v. Sisters of Saint Francis, Inc., 489 F.3d 838, 100 FEP Cases 1416 (7th Cir., 2007), held that in order for a male to properly bring an employment discrimination claim based on pregnancy, he must allege that he was discriminated against because of his sex.

 

What makes this case unique compared to most sex discrimination cases is that the estate did not allege that the male frame builder was treated less favorably than female frame builders. Instead, it argued that he was “treated less favorably than male employees whose wives were not pregnant.” It unsuccessfully attempted to bring an associational claim, which depends on unlawful discriminatory hostility arising out of a relationship.

 

Two-Step Associational Discrimination Claim

 

The court found that the estate couldn’t bring its claim because a successful associational claim of sex discrimination in this case must be based on two arguments. It must allege 1) that the male was fired because of his partner’s pregnancy, and 2) that a female would not have been fired because of her partner’s pregnancy.

 

In other words, the discrimination in this case must be based on the male’s relationship with his pregnant wife and it must be based on the male’s sex, which the estate didn’t allege.

 

Although the court found that the man’s estate couldn’t go forward with its complaint, it will be allowed to refile an amended complaint to fully plead the associational claim against the employer.

Isn't this a Family Medical Leave Act claim?  Of retaliation for caring for a sick/pregnant family member?  Unless the FMLA didn't apply because he worked for a small employer.

September 12, 2017 in Equal Employment, Pregnancy | Permalink | Comments (0)

A Study of Gender Bias in Teaching Evaluations

Friederike Mengel, Jan Sauermann, Ulf Zolitz, Gender Bias in Teaching Evaluations

Abstract

 

This paper provides new evidence on gender bias in teaching evaluations. We exploit
a quasi-experimental dataset of 19,952 student evaluations of university faculty [in the Netherlands] in a context where students are randomly allocated to female or male instructors. Despite the fact that neither students’ grades nor self-study hours are affected by the instructor’s gender, we find that women receive systematically lower teaching evaluations than their male colleagues. This bias is driven by male students’ evaluations, is larger for mathematical courses and particularly pronounced for junior women. The gender bias in teaching evaluations we document may have direct as well as indirect effects on the career progression of women by affecting junior women’s confidence and through the reallocation of instructor resources away from research and towards teaching.

From the paper: 

Our results show that female faculty receive systematically lower teaching evaluations than their male colleagues despite the fact that neither students’ current or future grades nor their study hours are affected by the gender of the instructor. The lower teaching evaluations of female faculty stem mostly from male students, who evaluate their female instructors 21% of a standard deviation worse than their male instructors. While female students were found to rate female instructors about 8% of a standard deviation lower than male instructors.

 

When testing whether results differ by seniority, we find the effects to be driven by junior instructors, particularly PhD students, who receive 28% of a standard deviation lower teaching evaluations than their male colleagues. Interestingly, we do not observe this gender bias for more senior female instructors like lecturers or professors. We do find, however, that the gender bias is substantially larger for courses with math-related content. Within each of these subgroups, we confirm that the bias cannot be explained by objective differences in grades or student effort. Furthermore, we find that the gender bias is independent of whether the majority of instructors within a course is female or male. Importantly, this suggests that the bias works against female instructors in general and not only against minority faculty in gender-incongruent areas, e.g., teaching in more math intensive courses.

 

The gender bias against women is not only present in evaluation questions relating to the individual instructor, but also when students are asked to evaluate learning materials, such as text books, research articles and the online learning platform. Strikingly, despite the fact that learning materials are identical for all students within a course and are independent of the gender of the section instructor, male students evaluate these worse when their instructor is female. One possible mechanism to explain this spillover effect is that students anchor their response to material-related questions based on their previous responses to instructor-related questions.  

September 12, 2017 in Education, Family | Permalink | Comments (0)

New Movie on Ruth Bader Ginsburg, "On the Basis of Sex"

Armie Hammer Joins Felicity Jones in Ruth Bader Ginsburg Biopic  

Armie Hammer will start opposite Felicity Jones in On the Basis of Sex, the biopic of renowned Supreme Court Justice Ruth Bader Ginsburg.

Participant Media is behind the drama, which will be directed by Mimi Leder from a script by Daniel Stiepleman, who is also Ginsburg’s nephew.Sex focuses on Ginsburg, played by Jones, as she teams up with her husband, Marty Ginsburg (Hammer) to bring the first landmark gender discrimination case before the Supreme Court.

The movie is eyeing a fall shoot in Montreal.

The feature is slated for release in 2018, in line with Ginsburg's 25th anniversary as a Supreme Court Justice. Focus Features is distributing domestically.

 

Felicity Jones Replacing Natalie Portman in Ruth Bader Ginsburg Biopic 

Felicity Jones is set to star as Ruth Bader Ginsburg in a biopic about the Supreme Court justice's life.

On the Basis of Sex will be directed by Mimi Leder (The LeftoversShameless) and follows Ginsburg as she fights for equal rights throughout her entire law career, which began at Harvard University and Columbia Law School and led to Washington.

At one time, Natalie Portman was considered to play Ginsburg in the feature, which was written by Daniel Stiepleman and was placed on the 2014 Black List. 

 

September 12, 2017 in Media, Pop Culture, SCOTUS, Women lawyers | Permalink | Comments (0)

Monday, September 11, 2017

Second Federal Court of Appeals Holds Breastfeeding is Covered under Title VII

Patrick Dorrian, Breast-Feeding Alabama Police Officer Proved Sex, Leave Bias

An Alabama police officer was within her rights to quit when she was denied a desk job so she wouldn’t have to wear a ballistic vest that may have rendered her unable to breast-feed, a federal appeals court ruled.

 

Stephanie Hicks can keep her jury win on her constructive discharge claim because lactation is a medical condition related to pregnancy under federal sex discrimination law, the U.S. Court of Appeals for the Eleventh Circuit held on an issue of first impression for the court ( Hicks v. City of Tuscaloosa , 2017 BL 314674, 11th Cir., No. 16-13003, 9/7/17 ). Hicks is a former employee of the Tuscaloosa Police Department.

 

The Sept. 7 ruling is “very significant” because with it the Atlanta-based Eleventh Circuit became the second federal appeals court to recognize that “breastfeeding is covered under Title VII” of the 1964 Civil Rights Act, Galen L. Sherwin said Sept. 8. The New Orleans-based Fifth Circuit previously reached the same conclusion in 2013, she said.

 

Sherwin is a senior staff attorney with the American Civil Liberties Union’s Women’s Rights Project, which supported Hicks as an amicus in the case. The New York-based lawyer said the Eleventh Circuit’s holding is also novel in two other important ways.

 

The court recognized that employers may be required to provide work accommodations to breast-feeding employees if they provide such accommodations to similarly situated non-breast-feeding workers, she told Bloomberg BNA. In other words, employers must treat accommodation requests from breast-feeding or lactating workers on the same terms as they treat other similar accommodation requests.

September 11, 2017 in Courts, Equal Employment, Family | Permalink | Comments (0)

Dept of Education to Ensure Due Process for those Accused of Sexual Assault under Title IX

 Wash Post, Devos Decries "Failed System" on Campus Sexual Assault, Vows to Replace It

“We must do better because the current approach isn’t working,” she said.

Christina Hoff Sommers, Protecting Due Process in Sexual Assault Cases on Campus, Chronicle of Higher Ed.

used to wonder what was worse: Republican politicians ignoring women’s issues or Republican politicians talking about them. The recent speech by Secretary of Education Betsy DeVos is a welcome exception: Her address on the need to reform campus sexual-assault procedures was empathetic and judicious. She offered a way forward that should appeal to fair-minded people across political and cultural divides.

"One rape is one too many," she said. But, she added, "One person denied due process is one too many."

She acknowledged the suffering of both victims of sexual assault and those falsely accused of assault: "Every survivor of sexual misconduct must be taken seriously. Every student accused of sexual misconduct must know that guilt is not predetermined." Those are non-negotiable principles, and she promised to revamp the current system for adjudicating cases of campus sexual assault, which she called "broken."

That broken system was created by a letter from a little-known public official. No one in the House or Senate voted for it, and no judge reviewed it. The public was not notified in advance and did not discuss it before it was issued. On April 4, 2011, Assistant Secretary of Education Russlyn Ali sent out her now-famous "Dear Colleague" letter to colleges across the country.

The letter advised them to determine guilt in sexual-assault cases by the lowest standard possible — a preponderance of evidence — and to "minimize the burden on the complainant." It said nothing about the rights of the accused. Informal measures for resolving "he said, she said" confrontations were ruled out of order. "In cases involving sexual assault," Ali instructed, "mediation is not appropriate even on a voluntary basis."

Ali thought college administrators were doing too little to protect students from the reported epidemic of sexual violence and harassment on campus. I have argued elsewhere that these reports were exaggerated, and that most college officials did take the problem seriously, but I don’t question her sincerity. I do question her judgment and her right to regulate by fiat. Secretary DeVos was right to say, "Instead of working with schools on behalf of students, the prior administration weaponized the Office for Civil Rights to work against schools and against students."

Colleges were panicked by Assistant Secretary Ali’s "Dear Colleague" letter and rushed to meet the new requirements. They revamped their disciplinary committees and hired Title IX officers to run programs with titles like the Office for Sexual and Gender-Based Dispute Resolution. According to Emily Yoffe, Harvard has 55 full- and part-time Title IX coordinators. Princeton has 41.

Fearing Title IX investigations and loss of federal funding, many colleges set up extrajudicial sex courts, where defendants could be found guilty of a crime even if there was a 49.9 percent chance that they were innocent. At last count, more than 150 lawsuits have been filed since 2011 by students (mostly young men) alleging unfair treatment in a campus sexual-assault proceeding.

See also, prior post, Harvard Law Profs Call for DOE to Revise Title IX Campus Assault Policy

September 11, 2017 in Education, Violence Against Women | Permalink | Comments (0)

Friday, September 8, 2017

9th Circuit Grants En Banc Review for Decision Permitting Women to be Paid Less Than Men Due to Salary History

ABA J, 9th Circuit to Reconsider Ruling Permitting Women to be Paid Less Than Men in Some Circumstances

The full 9th U.S. Circuit Court of Appeals will revisit a panel’s ruling that men may be paid more than women based on salary histories, Law.com reported Thursday.

In April, a three-judge panel of the San Francisco-based court ruled (PDF) that the Equal Pay Act does not forbid employers from paying a woman less than a man for the same work if the man had made more money in a prior job and the employer had used that as a factor in setting salaries.

But the U.S. Equal Employment Opportunity Commission appealed that ruling, saying it created a split from other federal appeals courts and would perpetuate the gender pay gap. (The American Association of University Women says women make, on average, 80 percent of what men make for the same work.) The 9th Circuit granted that request and has scheduled oral arguments for early December.

The case was brought by Aileen Rizo, a math consultant for a school district in Fresno County, California. Rizo came to the district from a teaching position in Arizona, where she had earned nearly $10,000 less than the $62,733 Fresno County agreed to pay her.

But then she spoke to her colleagues, who said a newly hired man in the same job was being paid $79,000 a year. She later learned that all of her male colleagues earned more than she did. Rizo complained to human resources, but the county took no action. In court, it argued that Rizo’s salary would have been the same for a man who came from the same job, because it was determined by a policy that adds 5 percent to the candidate’s prior salary to determine starting pay.

Under the Equal Pay Act, employers may pay employees unequally if the unequal treatment is based on a factor other than sex, including seniority. The panel’s ruling had cited a 1982 ruling, also from the 9th Circuit, saying prior salary can be a factor other than sex if the employer can show that its policy “effectuate[s] some business policy” and was implemented reasonably in light of its stated purpose.

The panel had remanded the case to trial court, so it could investigate the business purpose for Fresno County’s salary policies.

For prior posts on this case, see:

EEOC Seeks Rehearing En Banc in 9th Cir Decision Finding Unequal Pay Based on Salary History Alone is not Gender Discrimination (May 2017)

Court Holds Salary Histories are Non-discriminatory Basis to Pay Women Less (May 1, 2017)

September 8, 2017 in Courts, Equal Employment | Permalink | Comments (0)

New Book: Unequal: How America's Courts Undermine Discrimination Law

Sandara Sperino & Suja Thomas, Unequal: How America's Courts Undermine Discrimination Law (Oxford Press)

It is no secret that since the 1980s, American workers have lost power vis-à-vis employers through the well-chronicled steep decline in private sector unionization. American workers have also lost power in other ways. Those alleging employment discrimination have fared increasingly poorly in the courts. In recent years, judges have dismissed scores of cases in which workers presented evidence that supervisors referred to them using racial or gender slurs. In one federal district court, judges dismissed more than 80 percent of the race discrimination cases filed over a year. And when juries return verdicts in favor of employees, judges often second guess those verdicts, finding ways to nullify the jury's verdict and rule in favor of the employer. 

Most Americans assume that that an employee alleging workplace discrimination faces the same legal system as other litigants. After all, we do not usually think that legal rules vary depending upon the type of claim brought. The employment law scholars Sandra A. Sperino and Suja A. Thomas show in Unequal that our assumptions are wrong. Over the course of the last half century, employment discrimination claims have come to operate in a fundamentally different legal system than other claims. It is in many respects a parallel universe, one in which the legal system systematically favors employers over employees. A host of procedural, evidentiary, and substantive mechanisms serve as barriers for employees, making it extremely difficult for them to access the courts. Moreover, these mechanisms make it fairly easy for judges to dismiss a case prior to trial. Americans are unaware of how the system operates partly because they think that race and gender discrimination are in the process of fading away. But such discrimination still happens in the workplace, and workers now have little recourse to fight it legally. By tracing the modern history of employment discrimination, Sperino and Thomas provide an authoritative account of how our legal system evolved into an institution that is inherently biased against workers making rights claims.

September 8, 2017 in Books, Courts, Equal Employment | Permalink | Comments (0)

Gender and Law Talks at Legal History Conference

Here are the presentations on gender and law and the upcoming annual conference of the American Society of Legal History.  The full preliminary program is here.

Lauren Thompson, Kennesaw State University, “Not for Physicians to Decide”: Medicine, Law, and Mary Ware Dennett in the Early Birth Control Movement

Cookie Woolner, University of Memphis, “Framing Women in Harlem”: Regulating Black Women’s Sexuality in the Prohibition Underworld

Katherine Luongo, Northeastern University, Mens Rea as a Cultural Matter: Adjudicating Witch-Killings in Nigeria and Tanzania

Stephanie Jones-Rogers, University of California, Berkeley, Women, American Slavery, and the Law

Luisa Stella de Oliveira Coutinho Silva, Universidade de Lisboa, Women in Colonial Paraíba: A Feminist Postcolonial Study of Brazilian Legal History, 1580s–1822

Hannah Francis, Rice University, The Impact of American Law on Free Women of Color in Nineteenth Century New Orleans

Jeffrey Gonda, Syracuse University, “All the Feeling of Being a Lady Had Been Crushed”: Black Women and Jim Crow Transportation in the 1940s

 

Roundtable: Making Reproductive Rights Law from Griswold to Whole Woman’s Health 

Chair: Kate Shaw, Cardozo Law School

Reva Siegel & Linda Greenhouse, Yale Law School, The Story of Roe v. Wade

Serena Mayeri, University of Pennsylvania, The Story of Planned Parenthood v. Casey

Cary Franklin, Yale Law School, The Story of Whole Woman’s Health v. Hellerstedt

Khiara Bridges, Boston University School of Law, The Story of Harris v. McRae

 

September 8, 2017 in Conferences, Legal History | Permalink | Comments (0)

Thursday, September 7, 2017

Sex Segregation in Sports as a Public Health Issue

Nancy Leong & Emily Bartlett, Sex Segregation in Sports as a Public Health Issue

This Article adds a critical yet previously unaddressed dimension to the growing debate about the merits of sex segregation in sports by approaching sex segregation in sports as a public health issue. Participation in sports has consequences for women’s health, ranging from physical fitness to disease prevention to self-esteem to mental wellness to eating disorders. Critically, sex segregation in sports both reduces women’s participation in sports and changes the nature of the sports in which women participate, both of which have implications for the myriad health issues we discuss. The Article argues that analysis under the Equal Protection clause of governmentally-imposed sex-segregation must incorporate these consequences. Even where the government has plausible reasons for segregating sports by sex, those reasons may not be sufficient to survive intermediate scrutiny when the health issues are taken into account. The Article does not argue that sports should never be segregated by sex. Rather, it argues that the correct analysis must take into account all the relevant considerations, including those affecting health.

See also a prior post The Case Against Segregated Women's Sports

September 7, 2017 in Constitutional, Healthcare, Sports | Permalink | Comments (0)

Women on Corporate Boards: A Comparative Appraisal of Italian Law

Paola Monaco &  Angelo Venchiarutti,  Women on Corporate Boards: An Appraisal of Italian Law, European Business Law Review (forthcoming).

Abstract

Both within and outside Europe, the number of women sitting on corporate boards is very low. In spite of the rising number of women earning post-graduate degrees in law, business and administration, only a minority of them ends up sitting on companies’ corporate boards. Against this context, the aim of this article is to study the Italian approach to this problem, and to set it against the framework of the solutions adopted in Europe. The articles starts by analyzing the initiatives carried out by the European Union with the goal of promoting equal treatment between genders on corporate boards. After the survey of the soft and hard measures undertaken by some European countries to tackle gender imbalance on boards, the paper will analyze the legislative reform recently adopted by the Italian Parliament. The conclusion will focus on the effectiveness of European positive actions to tackle gender inequality in corporate boards.

September 7, 2017 in Business, International, Legislation | Permalink | Comments (0)

Gender Quota Laws for Political Representation in Latin America

Lucia Martelotte, 25 Years of Quota Laws in Latin America

Abstract

In the last two decades, the majority of Latin American countries approved quota laws with the goal of reducing gender inequalities in the political arena and guaranteeing the effective fulfilment of women's political rights. The functioning and effectiveness of these mechanisms vary according to the design of the regulations and their linkages to the electoral system. In spite of advances, important challenges remain. In light of this, the debate on the political participation of women has evolved from quotas to parity. However, the discussion must not be approached from a purely numeric perspective or restricted to the public sphere; other dimensions of women's autonomy (physical and economic) must be taken into account. It is only once the conditions necessary for women to exercise their full autonomy are in place that achieving gender parity in democracy will be possible.

September 7, 2017 in International | Permalink | Comments (0)

Wednesday, September 6, 2017

New Book Podcast: Elizabeth Cady Stanton and the Feminist Foundations of Family Law

Women's Rights and Fiscal Justice: Tax Policy from a Human Rights Perspective

Chiara Capraro, Women's Rights and Fiscal Justice

This article makes the case for tax policy to be considered from a human rights perspective. In a context of increasing economic inequality and austerity programmes cutting back on services and social protection measures, it is critical for human rights advocates to take up tax as an issue for the full realisation of human rights. In particular, given the gendered consequences of lack of funding to realise human rights, tax policy is of particular importance to women's rights advocates and feminists globally. Whether it is the impact of indirect taxes on women’s income, how tax policy influences labour market participation for women or the consequences for women’s rights of large scale corporate tax dodging, our advocacy would benefit from a deeper understanding of tax as human rights issue.

September 6, 2017 in International | Permalink | Comments (0)

How Popular Feminism is Commercial and Individualized

Popular Feminism in the Digital Age: How the Personal has been made Commercial

The relationship of feminism to the beauty industry and women's magazines, in other words, has a complex history.

 

Still, as I listened to Elaine Welteroth, the editor-in-chief of Teen Vogue, speak to the Sydney Writers' Festival in June this year, it occurred to me that today's popular feminism would be unrecognisable to many of the Miss America protesters half a century ago.

 

For Welteroth, an African-American former beauty editor at Teen Vogue, women's magazines and beauty products are feminism now.

 

"Beauty and style are just really great platforms to open up important conversations," she said.

 

Welteroth has been widely celebrated for commissioning stories ranging from Trump gaslighting America and abortion rights to cultural appropriation at the Coachella music festival and the difficulties of being intersex. ***

 

In my PhD research, I've looked at the origin of the phrase "the personal is political". Gloria Steinem once said crediting someone for coming up with it would be as absurd as assigning credit to someone for inventing the term "World War II".

 

Still, its first use in a publication is commonly cited as being the headline of an article by the member of New York Radical Women I mentioned earlier, Carol Hanisch, in the 1970 collection of essays Notes from the Second Year.

 

Hanisch's article was a defence of second-wave feminism's consciousness-raising. Meeting in small groups, women told stories about their lives to understand how their personal problems were actually political ones. And they planned collective action.

 

Women in the left and the civil rights movement felt that while they protested inequalities between black and white, and the imperialist war in Vietnam, there were glaring injustices in their personal lives.

 

Women took the bulk of responsibility for housework and childcare, did the "shitwork" (Hanisch's word) in protest movements, were judged on their appearances, and took all the responsibility for contraception and abortion.

 

Second-wave feminists wanted sexual emancipation and the right to work alongside men, but they didn't want to do everything.

 

They discussed all kinds of solutions, from communal living to state-provided free childcare, to a total revolution in the consumerist capitalist system. * * *

 

But now websites like Mamamia are increasingly asking how women can transform and adapt themselves to fit into a competitive, individualistic world. The emphasis is mostly on individual achievement and adaption to the status quo — rather than on changing the status quo.

 

September 6, 2017 in Pop Culture, Theory | Permalink | Comments (0)

Woman Who Laughed Put on Trial Again

Jeff Sessions' DOJ to Put Woman Who Laughed at Sessions on Trial Yet Again

Jeff Sessions’ Justice Department plans to put a woman who laughed at the now-attorney general back on trial yet again, a federal prosecutor told a D.C. judge here on Friday.

Desiree Fairooz, a woman taken into custody after she laughed during Attorney General Jeff Sessions’ confirmation hearing, will go to trial in November for a second time.

Fairooz and her lawyer rejected a plea deal offered by the government in which she would have pleaded guilty to one of two charges in exchange for the government recommending a sentence of time served, Assistant U.S. Attorney Kimberly Paschall said in D.C. Superior Court on Friday. 

Chief Judge Robert E. Morin previously tossed out a jury’s guilty verdict against Fairooz in July because the government had improperly argued that her laughter alone was enough to convict.

September 6, 2017 in Courts | Permalink | Comments (0)

Tuesday, September 5, 2017

The Gender Gap in Expert Witnesses

Bruce Kaufman, Attorneys Faulted for Scarcity of Female Expert Witnesses

An astonishing 80 percent of expert witnesses chosen by attorneys are male, and those male experts get paid on average 60 percent more than their female counterparts, according to a leading provider of courtroom experts across the U.S. Judges, attorneys, service providers, and professors spoke to Bloomberg BNA about the wide gender gap and paint a troubling portrait of an industry that is wearing blinders when it comes to bias against female expert witnesses.

 

And though everyone agrees that the sparsity of female expert witnesses is worrisome, the likely explanations for the gender preference are equally troubling.

 

Chief among them: disparate treatment by the attorneys who make hiring decisions.

 

These predominantly male attorneys may be biased themselves.

 

Or they may believe that hiring female experts will put them at a competitive disadvantage when they appear before jurors with outdated views on gender roles, those who talked to Bloomberg BNA said.

 

Educating attorneys and jurors on their biases, both conscious and subconscious, and coaching experts on how to overcome those prejudices could lead to more female experts and reduce the stark pay gap for female experts, interviewees said.

 

Part 1 of this two-part series explores the scope of, and reasons behind, the gender gap for expert witnesses. Part 2 looks at possible solutions, all rife with uncertainty. 

Bruce Kaufman, Gender Gap for Female Experts Won't Be Easily Narrowed

September 5, 2017 in Courts, Equal Employment | Permalink | Comments (0)

Friday, September 1, 2017

The Autonomy Hierarchy

Meghan Boone, The Autonomy Hierarchy, 22 Tex. J. Civ. Liberties & Civ. Rgts 1 (2016)

The Supreme Court decided two cases in Spring 2015 – Young v. United Parcel Service, Inc. and EEOC v. Abercrombie & Fitch Stores, Inc. – under Title VII. The plaintiffs in both cases believed that they had been discriminated against by their employers because they were members of a protected class – pregnant women in the former and religious believers in the latter. Both plaintiffs were seeking minor modifications to workplace policies as an accommodation. And in both opinions, handed down within a few months of each other, the Court used the language of favoritism to discuss whether the plaintiffs should prevail and what analysis should be employed. The manner in which the Court used the language of favoritism, however, could not have been more different. In the case of pregnancy, the Court soundly rejected that pregnant employees were entitled to any favored treatment, bending over backwards to avoid a ruling that pregnant employees were part of a “most favored” class. In the case of religion, the Court took the exact opposite approach, declaring that religious plaintiffs enjoyed “favored treatment.” This is despite the fact that Title VII provides no explicit textual support for such a distinction. In the absence of such a statutory explanation, what is really behind this difference in approach? This paper explores one potential answer to this question – that these decisions reflect the Court’s underlying belief in the paramount importance of the right to spiritual autonomy over and above the importance of a right to physical autonomy. Further, it explores how allowing such a hierarchy between a right to spiritual autonomy on the one hand and a right to physical autonomy on the other, to animate judicial decisions is both inherently gendered and has the effect of disproportionately harming women. It concludes by analyzing whether such a hierarchy of rights is reflective of lived experience and discussing possible alternative frameworks for analyzing such claims.

September 1, 2017 in Constitutional, Equal Employment, Pregnancy, Religion | Permalink | Comments (0)

Thursday, August 31, 2017

A Feminist Conflict-of-Laws Approach to the Comfort Women Agreement

Karen Knop & Annelise Riles, Space, Time, and Historical Injustice: A Feminist Conflict-of-Laws Approach to the "Comfort Women" Agreement, 102 Cornell L. Rev. 853 (2017)

After more than twenty years of worldwide feminist activism, transnational litigation, and diplomatic stalemate, on December 28, 2015, Japan and South Korea announced a historic agreement intended to provide closure to the so-called “Comfort Women issue”—the issue of what Japan must do to atone for the sexual enslavement of up to 200,000 women from throughout Asia in service to the Japanese troops before and during World War II. Reactions to this landmark agreement continue to be mixed, and the question for many is whether it will hold. One challenge is how to respect the scale and systematicity of the crimes without imposing a single narrative, or without projecting an overdetermined understanding of the gendered past onto the future. We offer an analysis of this question in a wider lens: how to address grave historical injustices when legal claims and advocacy goals spread and metamorphose not only over time, but also across jurisdictions.

 

Focusing on one high profile and particularly contentious provision of the agreement, concerning a privately erected statue honoring the Comfort Women outside the Japanese embassy in Seoul, we first show that the usual questions about settlements for historical injustices—whether they will achieve closure and what kind—can productively be traded for attention to where and when closure and reopening occur.

 

Borrowing our analytical lens from conflict of laws, we refine the problem as a manifestation of a pervasive issue for feminist justice in a globalized world that we call “spatio-temporal diffusion.” We argue that a novel response to this diffusion of historical injustices can be grounded in conflict-of-laws techniques. Using the hypothetical of a case brought by Korean Comfort Women in California, we redescribe the field’s techniques for dealing with time across space as a matter of what we term the “sequencing” of different spatio-temporal horizons. This approach resonates with, but also goes a step beyond, the arguments of certain feminist social theorists that feminist politics must be polytemporal. In the mode of an interdisciplinary experiment, we deploy the conflicts technique of sequencing spatio-temporal horizons as a more specified and hopeful approach to a feminist future.

August 31, 2017 in International | Permalink | Comments (0)

How Individual Balancing Choices at Work can Reproduce Gender Roles

LaTonya J. Trotter, Making a Career: Reproducing Gender Within a Predominantly Female Profession, Gender & Society

In my Gender & Society article, I explore the career biographies of NPs and NP students in order to understand the role of nursing’s institutional arrangements in women’s labor market decisions. I focus on NPs because they are a highly educated subgroup of nurses that have cleared a series of credentialing hurdles to order to make careers. In some ways, nursing is a shining example of how flexible arrangements not only help workers manage family commitments but actively encourage career aspirations. Nursing’s flexibility begins with education. Nursing is one of the few professions that make it possible to accrue educational credentials in cohesive fragments. Forty-one-year-old Hana described a fifteen-year trajectory that started with a two-year community college degree. That was enough to begin working as a registered nurse (RN). A few years later, Hana enrolled in a structured bridge program that allowed her to leverage her two-year degree towards completion of a bachelor’s degree in nursing. Moreover, the bridge program enabled her to pursue her bachelor’s part-time while working as a full-time nurse. Ten years later, Hana took advantage of similar accommodations to complete her master’s degree to practice as an NP. “I call myself a kind of Cinderella story,” she told me. “I came up from community college all the way up to the Ivy League.”

 

Nursing’s flexibility facilitated motherhood as well as social mobility. Women entering high status professions often delay childbearing. The demands of advanced schooling and early career leave little room for parenting. The ability to build a career over a longer time horizon meant that motherhood might change the rhythm of a career, but it did not stop it. A similar level of flexibility was mirrored in nursing work. Hospital nursing’s reliance on 12-hour shifts over 3 days gives full-time workers more days at home to spend with children. For NPs who spend part of their careers as hospital RNs, this allowed them to more effectively juggle work, family, and eventually, graduate education.

 

For individual women, these institutional arrangements provided a private solution to balancing work with family life. However, these solutions have broader consequences for gender inequality. Because these arrangements were sequestered within a predominately female occupation, they reproduced gendered expectations about women’s investments in family life. Flexible scheduling ensured that women retained primary responsibility for family caregiving. Moreover, nursing’s flexibility reproduced flexible women who could switch specialties, change jobs, or delay graduate education to accommodate the inflexible jobs of partners and spouses. Flexibility became both an opportunity and an obligation. Nursing’s accommodating arrangements are themselves a product of the historical legacy of gender inequality. The continued existence of two-year RN programs is the preference of employers, not the profession. As a female dominated profession, its aspirations remain tempered by hospital demands for an inexpensively trained workforce.

 

My work suggests an additional explanation for why women continue to crowd into careers like nursing. Women may gravitate toward caring work, but they also care about creating careers. Nursing’s flexibility stands in contrast to the inflexibility women encounter in other parts of the labor market. My work also serves as a caution for relying on workplace policies alone to solve the dilemmas of working women. Without subsidized, national programs for parental leave and child-care, women alone will be pressed to “choose” flexibility. When only women are the beneficiaries of such arrangements, they quickly become segregated into “mommy tracks” or “women’s professions.” The unequal benefits that follow can too easily be attributed to women’s preferences rather than as the product of gender inequality.

August 31, 2017 in Work/life, Workplace | Permalink | Comments (0)

Happy Birthday Gender & the Law Prof Blog

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August 31, 2017 | Permalink | Comments (0)