Gender and the Law Prof Blog

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

Thursday, December 7, 2017

Time's Person of the Year: The Women Who Broke the Silence on Sexual Harassment

Person-of-year-2017-time-magazine-cover1

Time, The Silence Breakers: The Voices that Launched a Movement

The galvanizing actions of the women on our cover—Ashley Judd, Susan Fowler, Adama Iwu, Taylor Swift and Isabel Pascual—along with those of hundreds of others, and of many men as well, have unleashed one of the highest-velocity shifts in our culture since the 1960s. Social media acted as a powerful accelerant; the hashtag #MeToo has now been used millions of times in at least 85 countries. “I woke up and there were 32,000 replies in 24 hours,” says actor Alyssa Milano, who, after the first Weinstein story broke, helped popularize the phrase coined years before by Tarana Burke. “And I thought, My God, what just happened? I think it’s opening the floodgates.” To imagine Rosa Parks with a Twitter account is to wonder how much faster civil rights might have progressed. * * * 

 

This reckoning appears to have sprung up overnight. But it has actually been simmering for years, decades, centuries. Women have had it with bosses and co-workers who not only cross boundaries but don't even seem to know that boundaries exist. They've had it with the fear of retaliation, of being blackballed, of being fired from a job they can't afford to lose. They've had it with the code of going along to get along. They've had it with men who use their power to take what they want from women. These silence breakers have started a revolution of refusal, gathering strength by the day, and in the past two months alone, their collective anger has spurred immediate and shocking results: nearly every day, CEOs have been fired, moguls toppled, icons disgraced. In some cases, criminal charges have been brought.

 

The Story Behind the Woman You Don't See on Time's Person of the Year Cover

But on the lower right-hand corner of the cover, there’s simply an arm, cropped at the shoulder. It belongs to an anonymous young hospital worker from Texas — a sexual harassment victim who fears that disclosing her identity would negatively impact her family.

She is faceless on the cover and remains nameless inside TIME’s red borders, but her appearance is an act of solidarity, representing all those who are not yet able to come forward and reveal their identities. 

But see

Wash Post, #MeToo? In 80 Years, No American Woman has Won Time's Person of the Year by Herself

How Many Women Have Been Time's Person of the Year? It's a Short List.

December 7, 2017 in Media, Pop Culture, Workplace | Permalink | Comments (0)

RICO Claim Filed Against Weinstein and Co-Conspirators for Sexual Enterprise

ABA J, Suit Accuses Harvey Weinstein of Racketeering, Says Law Firms Aided "Sexual Enterprise"

Defendants in the suit (PDF) include Weinstein, Miramax, the Weinstein Co. and members of its board, the New York Times, the Washington Post, the American Lawyer (sub. req.) and ABC Newsreport.

 

The plaintiffs accused Weinstein of isolating them and other class members to engage in unwanted sexual conduct that included flashing, groping, harassing, attempted rape and rape.

 

The suit says several lawyers and law firms were participants in the enterprise, though none are named as defendants. Weinstein hired the lawyers and private investigators “to harass, threaten, extort, and mislead both Weinstein’s victims and the media to prevent, hinder and avoid the prosecution, reporting, or disclosure of his sexual misconduct,” the suit says.

 

The law firms listed were Boies Schiller Flexner; K&L Gates; UK-based BCL Burton Copeland; and Israel-based Gross, Klatthandler, Hodak, Halevy, Greenberg & Co.

 

New York L. J., Weinstein's Alleged Sexual Misconduct Protected by Criminal Enterprise, Suit Claims

Film mogul Harvey Weinstein’s alleged sexual misconduct toward women was aided and abetted by a criminal enterprise made up of law firms, private investigators, fellow producers and others, a group of plaintiffs argued in a suit filed on Wednesday in federal court in New York.

 

The proposed class action, filed in the U.S. District Court for the Southern District of New York on behalf of six plaintiffs who say Weinstein assaulted them—in some cases with the assistance of employees from The Weinstein Co. or Miramax—includes civil claims under the Racketeering Influenced and Corrupt Organizations Act.

 

The suit, filed on behalf of the plaintiffs by attorneys from Hagens Berman Sobol Shapiro, is the latest in a cascade of legal issues surrounding Weinstein and allegations surrounding him; since Oct. 10, the suit states, more than 60 women have come forward to say they have been assaulted or harassed by Weinstein at some point.

 

The defendants—referred to collectively in the suit as the “Weinstein Sexual Enterprise”—worked together to prevent disclosure and prosecution of Weinstein’s alleged behavior through extortion, threats and harassment, the plaintiffs allege, and through misrepresentations to the media and to Weinstein’s alleged victims.

 The full complaint is here.

December 7, 2017 in Pop Culture, Workplace | Permalink | Comments (0)

Tuesday, November 28, 2017

Why You Should Stop Calling Women "Females"

6 Reasons You Should Stop Referring to Women as "Females" Right Now

  • 1. Because the words "female" and "woman" mean different things.
  • 2. Because reducing a woman to her reproductive abilities is dehumanizing and exclusionary.
  • 3. Because nobody casually refers to men as "males."
  • 4. Because it is most often used to imply inferiority or contempt.
  • 5. Because it's grammatically weird.
  • 6. And most importantly, because the word you're looking for already exists.

The Problem With Calling Women "Females"

For many who use the word, I'm sure it seems innocuous. If you listen closely to the howling winds of patriarchy, you can make out their cries: Why are women making such a big deal about one word? Aren't there more important issues, like rape? I don't mean anything negative by it. It's just a different way of saying "women."

No one is suggesting that calling women "females" is directly behind rape on college campuses and affordable access to birth control on Womanhood's List of Very Important Priorities. It is a simple and relatively contained issue—and the staunch resistance to such a simple issue is extremely telling.

Using "female" in this way is contrary to how we generally communicate. As noted above, "female" as a noun erases the subject—making "female" the subject of the sentence. In the most technical sense, it's correct, but by employing this word that is usually an adjective as a noun, you're reducing her whole personhood to the confines of that adjective. It's calling someone "a white" instead of a white person, "a black" instead of a black person, and so on.

"When you refer to a woman as a female, you're ignoring the fact that she is a female human," write Nigatu and Clayton, pointing out the connotation that follows: "It reduces a woman to her reproductive parts and abilities." The focus shifts away from the personal and onto onto her qualities as an object—qualities that have, historically, not been used in the best interest of women.

Why We Need to Reclaim the Word "Female"

Green and other linguists have long documented the innate misogyny of slang, where thousands of disparaging terms for women have proliferated over the years, with scant male equivalents. Indeed, the Oxford English Dictionary (OED) lists “female” as a disparaging term for men.

The OED goes on to note that since 1400, female has occasionally been used to describe one’s mistress, which could be seen as pejorative — as a sex object. As Katherine Martin, head of U.S. dictionaries at Oxford University Press, points out the term femalehas had depreciative connotations for longer than one might expect. She cites the OED’s original entry for female in 1895, in which the editors described its usage as “now commonly avoided by good writers, exc. with contemptuous implication.”

The simple solution seems to be to turn woman/women into an adjective: women Senators, women executives, a woman President. But I would argue that by allowing virtually every word that can be applied to women, except women, as negative we are helping men box us in with their “male gaze” of the English language, as Green puts it

November 28, 2017 in Gender, Pop Culture | Permalink | Comments (0)

Tuesday, November 21, 2017

Why is Now the Sexual Harassment Tipping Point?

Julia Carpenter, CNN Money, Sexual Harassment Tipping Point: Why Now?

It's been called the Weinstein effect.

Following the bombshell investigations into Harvey Weinstein's conduct, more people began to speak out about sexual harassment, leading to a string of allegations against other prominent men like Charlie Rose, Kevin Spacey, Louis C.K., Jeffrey Tambor, Al Franken and others. Many of the accused have paid a steep price for their behavior.

 
But why now?
 
 
America has had its share of news-making scandals before. Anita Hill testified against Clarence Thomas in 1991, and Thomas still sits on the Supreme Court today.

 

Decades of assault accusations followed former television star Bill Cosby even as his star was rising. And in 2016, the "Access Hollywood" tape depicting then-candidate Donald Trump boasting of sexual assault did not stop his ultimate presidential victory.

 

So what's different in the moment we're experiencing now?

 

We know their names

Many of the women who spoke out against Weinstein -- Gwyneth Paltrow, Ashley Judd, Rose McGowan -- are famous names. In previous high-profile sexual harassment cases, it's usually the men who are more well-known (see: Bill O'Reilly, Clarence Thomas). Experts say that the previous power dynamic -- the famous man accused by the less-famous woman -- only bolstered a false narrative, one that discredited women's stories.

 

In Weinstein's case, however, as more women added their own allegations to a growing list, people paid attention.

 

"What do we focus on in our society? Movies and social media and People magazine," says Tracy Thomas, law professor at the University of Akron. "So those are the voices that finally ... make a difference."

 

And to people watching around the world, the women's fame cemented the credibility of their stories.

 

"Class and race and stature play into whether someone is believed," says Fatima Goss Graves, president and CEO of the National Women's Law Center. "The nature of who is telling the story mattered here."

 

Other women are sharing their stories

Since Hill testified in 1991, the way in which people show support for survivors has changed, says Renee Knake, professor at the University of Houston Law Center.

 

Case in point: the words we use.

 

"When Anita testified, women supported her, but they said, 'I believe Anita,'" Knake says. "And the reason why they believed her is because it was happening to them, but no one wanted to face what she endured. Now, women are saying, 'Me, too,' which is more tangible and more concrete."

 

The advent of social media, and the way women now turn to it to share their own stories, on their own terms, has created "a critical mass" of testimonials, Knake says.

 

"Suddenly, when you have more people speaking, that always creates a tipping point," Thomas says. It's harder for critics to say, "'They can't all be overly sensitive. They can't all be lying,'" she added.

 

And more importantly, these testimonials made an issue that was otherwise removed from many lives into something personal.

 

And when it's personal, Thomas says, you're encouraged to share your story, too -- whether on Facebook, with your friends or in an HR office making a formal complaint.  ***

 

Men are paying attention

Thomas says the recent outpouring of support for harassment survivors has also engaged a critical population: men.

 

At previous sexual harassment flashpoints throughout American history, men were listening, but they weren't engaged.

 

But in the last month, the #metoo campaign and barrage of accusations has made the issue personal for millions of women -- and men -- as they shared their own harassment stories or realized this issue had touched every woman they knew.

 

Thomas points to the important role men have played in previous women's rights milestones. Just a century ago, in the fight for suffrage, women relied on male supporters to add their voices to the conversation. In harnessing such widespread support and demonstrating in numbers before the White House, advocates won women the right to vote in 1920.

 

"Just like any movement when we're talking about women, bringing men into that dialogue is so critical and must really be taken seriously," Thomas says.

November 21, 2017 in Media, Pop Culture | Permalink | Comments (0)

Monday, November 20, 2017

Decades Old Sexual Harassment Allegations Rarely Actionable in Court, but Viable Online

We are seeing an endless parade of new allegations of sexual harassment made daily against powerful men in entertainment, news, and business industries.  While doing much to elevate the public discourse of sexual harassment, they are also triggering the backlash accusations of “witch hunt.”

One piece of this accusation is that in many of these cases, the incidents now reported and alleged go back five, ten or twenty years.  There seems to be an inherent unfairness in bringing up such old claims now.  Advocates, of course, understand victims’ reluctance to come forward with claims, since such claims are rarely taken seriously or investigated and more often than not, cause substantial negative consequences to the woman professionally, financial, and emotionally.

The law, however, is quite concerned about these types of old claims, and has several doctrines designed to address this potential unfairness to the accused.

First, are statutes of limitations, which are relatively short for sexual harassment lawsuits. Most harassment suits are filed under the federal statute Title VII, and require that complaints be filed with the EEOC within 180 days of the incident (or sometimes deferred to 300 days where state action is first sought).  Statutes of limitations for sexual assault are longer, most commonly 2-3 years for civil claims of sexual assault and 5-10 years for criminal sexual assault, or even no time limit for certain crimes like sexual assault of a minor.  Statutes of limitations generally help preserve evidence needed for both plaintiffs and defendants to accurately present their case, and provides timely notice and resolution of disputes.  In the sexual harassment context, it also may help ensure that the perpetrator stops his continued conduct against other women.

There is an exception to the statute of limitations for sexual harassment when the incident is part of a continuing pattern of conduct.  When old incidents are part of the same pattern of more recent conduct, the most recent incident triggers the clock, and the old incidents can still be brought in as evidence.  Mandel v. M&Q Packaging Corp., 3d. Cir. 2013.

Laches is as second doctrine seeking to avoid old claims from being actionable.  Laches is an equitable notion that bars a plaintiff from seeing a remedy when she has unreasonably delayed in filing an action, or unreasonably delayed in prosecuting the action after filing it.  Here, the known reluctance and harm to victims from filing might help mitigate the unreasonableness of the delay.  But the core of the laches inquiry is whether the delay caused prejudice to the defendant.  Prejudice can be economic, monetary or investment harm, or procedural, such as loss of evidence and witnesses. Thus, in the law, foundational precepts of due process and fairness prohibit litigating old claims, and place the obligation squarely on the plaintiff to bring forward her claims within a short time of the incident.  

Of course the media revelations of alleged past incidents are not bound by these doctrines of timeliness.  Nor, apparently, are internal organizational investigations of misconduct.  See NPR, Legal Landscape Shifts as More Sexual Harassment Allegations Surface Online

"It is a much sweeter and faster form of justice to out a harasser than to go through many years of legal battle, which is psychically, emotionally and financially exhausting," says Debra Katz, an attorney who specializes in harassment and discrimination in Washington, D.C. ***

More accusers are also coming forward online because "sex harassment cases have historically been difficult to prove" on legal grounds, says Deborah Rhode, a law professor at Stanford University.

More than half of sexual harassment claims made to the Equal Employment Opportunity Commission last year resulted in no charge. There is a consistent pattern in which accusers are unsuccessful, according to data from the past six years.

In addition, fewer than 5 percent of sexual harassment cases actually get to court, Rhode told Here & Now's Jeremy Hobson earlier this month.

"Fewer than those are actually litigated. And what normally happens when the cases are filed is they're settled with a confidentiality clause that prevents the victim from disclosing any details," she says.

Victims can also get around the legal statute of limitations [online], Rhode says.

"You can see people losing their jobs for conduct that occurred well before the statute of limitations," she says. "They may not have a legal claim, but they have an audience. And the reputational injuries — as we've seen with someone like Kevin Spacey — could be substantial."

 

November 20, 2017 in Courts, Pop Culture, Workplace | Permalink | Comments (0)

Monday, November 13, 2017

Feminist Student Organization Loses Challenge against University for Cyberbulling on Yik Yak

The decision in Feminist Majority Foundation v. University of Mary Washington, 2017 Wl 4158787 (E.D. Va. Sept. 19, 2017)

This case arises from the cyberbullying of a student-run feminist organization at the University of Mary Washington (“UMW”). The cyberbullying occurred primarily through a social media smartphone application called Yik Yak. Yik Yak allowed users to anonymously share messages—called “yaks”—with other users within a certain radius (e.g., with users at or around UMW). Other users could then anonymously comment on yaks or could vote up or down on the yaks. During the 2014–2015 school year, users on Yik Yak harassed the plaintiffs by posting insulting, derogatory, and threatening yaks. The plaintiffs complained to UMW about the harassment, and eventually filed a complaint against UMW under Title IX.
 
The plaintiffs have now sued UMW, along with its current and former presidents, for violations of Title IX and the Equal Protection Clause. The defendants have moved to dismiss. Because UMW has limited, if any, control over Yik Yak, the plaintiffs' Title IX discrimination claim fails. Their Title IX retaliation claim fails because UMW took no retaliatory action against the plaintiffs. Finally, because no constitutional violation occurred, let alone a clearly establish or continuing violation, the plaintiffs have not stated claims under the Equal Protection Clause. Accordingly, the Court will grant the defendants' motion to dismiss

Commentary at Court Rejects Feminist Majority Foundation's Demand that Public University Block Access to Yik Yak

November 13, 2017 in Education, Pop Culture | Permalink | Comments (0)

Tuesday, October 31, 2017

Using the Captive Audience Doctrine to Redress Street and Cyber-Harassment

JoAnne Sweeney,  Trapped in Public: The Regulation of Street Harassment and Cyber-Harassment Under the Captive Audience Doctrine, 17 Nev. L.J. 651 (2017)  

In the wake of the 2016 presidential election, public intimidation of women, particularly women of color, seems to be on the rise. Even before the election, however, a woman's presence on a public street or public website has routinely made her a target for unwanted and often threatening male attention, also known as street harassment or cyber-harassment. Scholars and journalists have called for laws that would penalize street and cyber-harassment. However, this type of legislative effort will be met with several difficulties, including logistical problems due to the high prevalence and anonymity of street and cyberharassment, as well as cultural opposition to what is perceived by many to be a nonexistent or minor issue with little actual consequences. Another major argument against regulation of street and cyber-harassment is that any laws prohibiting such speech would violate the First Amendment. In response to the latter argument, this Article argues that laws regulating street or cyber-harassment should be protected from First Amendment scrutiny under the captive audience doctrine. As this Article demonstrates, by using the captive audience doctrine, 652 legislators can attack the problem of street and cyber-harassment without running afoul of the First Amendment.

October 31, 2017 in Constitutional, Pop Culture | Permalink | Comments (0)

Friday, October 20, 2017

A History of the Word "Ladies"

Jessica Halem and Jen Manion, Why Do You Call Us Ladies? History, Gender and Manners in Public Life

It seems as if the term ‘ladies’ has made a comeback in public life. No matter where we are — in a small town or big city, in the gayborhood or a mainstream hotspot — strangers greet us the same way: “Hello, ladies;” or “What can I get you ladies?” And we are not alone. Hosts, servers, and salespeople everywhere address those they presume to be women, as ‘ladies,’ without a thought about the meaning or history of the term. People who are more masculine than your average cisgender guy; people who engage in public displays of queer affection; people who are femme, athletic, punky, androgynous, or professional are all addressed as ‘ladies’ now. The question is, why?

The term ‘ladies’ itself has a history that illuminates how power, privilege, and oppression have functioned throughout American history. From early modern times through much of the twentieth century, the term ‘lady’ signified women with power and authority over others by virtue of their race, class, marriage, or ancestry. A lady was a queen or head of household who oversaw subjects, children, servants, and slaves. As Evelyn Brooks Higginbotham notes, “Ladies were not merely women; they represented a class, a differentiated status within the generic category of “women.”” During Reconstruction, for example, married black women who didn’t work outside of the home and aspired to such status were socially condemned for even trying. A lady was a quintessentially normative white woman who set the standards by which other women were judged.

While the social and political criteria for addressing a singular woman as ‘lady’ remained intact for centuries, the plural version of the term proved more flexible. ‘Ladies’ became a polite form of address to a general group of women on their own or with men, as in ‘ladies and gentleman,’ a phrase that is still commonly used to this day. Even though ‘ladies’ could be used interchangeably with ‘women,’ it also retained an element of specificity throughout the nineteenth century. Nowhere was this more evident than in the difference between sex-segregation of spaces and the designation of certain areas for ‘ladies.’

Sex-segregation itself was routinized in American life by the state in late eighteenth and early nineteenth century carceral institutions, from almshouses and prisons to asylums. Voluminous reports documenting carceral life designated groups of people “females or males” and declared certain spaces for “women or men” — but never for ‘ladies.’ The Philadelphia House of Refuge, for example, had “male and female” departments. The only ‘ladies’ who set foot there were elite reformers who visited as part of their service on the ‘ladies committee.’

The emergence of ‘ladies’ rooms in the later decades of the nineteenth century signaled something different. Special spaces for ‘ladies’ in department stores, libraries, trains, and restaurants were seen as a way to carry a bit of the protective tranquility associated with the domestic realm into public areas. It matters that they were called ‘ladies’ rooms and not women’s rooms. ‘Ladies’ rooms were not intended for poor, black, immigrant and working women who already moved around in public; invisible to the protective gaze that followed and constrained elite white women. Under Jim Crow segregation, for instance, black women regardless of class were not allowed to use the ‘ladies’ rooms. In 1887, Massachusetts and New York were the first two states to pass laws that required employers provide separate restrooms for women. This extension of ‘ladies’ spaces to workers was an expansion of the protective ideal that rendered some women more precious and fragile than men.

 For a prior related post, ladies in sports teams

October 20, 2017 in Gender, Pop Culture | Permalink | Comments (0)

Wednesday, October 18, 2017

McDonald's Moms v. Organic Moms: Regulating Motherhood

Kate Cairns, Josée Johnston & Merin Oleschuk, Calibrating Extremes: The Balancing Act of Maternal Foodwork

When it comes to feeding children, mothers today must avoid the appearance of caring too little, or too much. Either extreme garners social stigma, although the penalties are far from equal.

 

As mothers in our study distanced themselves from an unhealthy “Other” who made poor food choices, we were surprised how frequently McDonald’s entered the conversation. McDonald’s seemed to function as a trope symbolizing “easy” meals, “unhealthy” choices, and “bad” mothering more generally. Gail (white, acupuncturist) contrasted her vision of healthy home cooking with a “stereotypical image of someone stopping at McDonald’s to get food for their kids.” Marissa (Black, project manager) confessed that as “busy people we do need to do fast food,” but clarified that “my kids will tell you that does not mean McDonald’s.” Lucia (Latina, social worker) said she and her son “talk about what’s junk and you know, McDonald’s and all that kind of food” in an effort to teach him “what’s healthy, what’s not healthy.”

 

Again and again, mothers distanced themselves from the figure of the “McDonald’s Mom,” a stigmatized “Other” they used to defend their own feeding practices. While this defense may seem judgmental, we suggest mothers’ efforts to establish this distance reflect the intense pressures they experience feeding their children. These pressures are especially penalizing for poor women who struggle to feed kids on a limited budget and racialized women who face enduring racist stereotypes about parenting and food choices. Indeed, the assumption that poor mothers make inferior food choices is evident in recent calls to restrict what can be purchased on SNAP benefits, undermining the essential role of government assistance in mitigating the effects of poverty.

 

When distancing their own feeding practices from “bad” ones, some mothers described feeding their children an organic diet – a resource-intensive practice that has become a gold standard of middle-class motherhood. Mothers today face considerable pressure to purchase ‘pure’ foods that are free of harmful chemical additives; this “intensive feeding ideology” involves the added work of researching products, reading labels, and making baby food from scratch.***

 

Our point is not to equate these uneven penalties, but to draw attention to the multiple ways mothers are harshly judged for their foodwork. Notably, comparable figures of the “McDonald’s” or “Organic Dad” did not emerge in our broader study (which included men), revealing the continued gendered burden of feeding children and the more flexible standards fathers face when doing this work.

 

What became clear throughout our research is that mothers from diverse backgrounds face pressure to continually monitor their children’s eating in ways that are careful and responsible, yet don’t appear obsessive or controlling. We call this process calibration – the constant balancing act of striving for an elusive maternal ideal. Calibration is labor-intensive and emotionally taxing, part of the seemingly impossible task of performing the “good” mother. If you opt for affordability or convenience, you risk being seen as a McDonald’s Mom. If you take your job as health-protector tooseriously, you may be deemed an obsessive Organic Mom who deprives her kids of childhood joys like hotdogs. These gendered pressures not only contribute to mother-blame, but distract us from the larger harms perpetuated by an unhealthy, unsustainable, and unjust food system.

October 18, 2017 in Family, Gender, Pop Culture, Poverty | Permalink | Comments (0)

Tuesday, September 12, 2017

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)

Wednesday, September 6, 2017

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)

Thursday, August 3, 2017

The Origins of Ms.

An oldie but goodie.

NYT, Ms: Explaining the Origins of Ms. (2009)

In the Nov. 10, 1901, edition of The Sunday Republican of Springfield, Mass., tucked away in an item at the bottom of Page 4, an unnamed writer put forth a modest proposal. “There is a void in the English language which, with some diffidence, we undertake to fill,” the writer began. “Every one has been put in an embarrassing position by ignorance of the status of some woman. To call a maiden Mrs. is only a shade worse than to insult a matron with the inferior title Miss. Yet it is not always easy to know the facts.”

 

How to avoid this potential social faux pas? The writer suggested “a more comprehensive term which does homage to the sex without expressing any views as to their domestic situation,” namely, Ms. With this “simple” and “easy to write” title, a tactfully ambiguous compromise between Miss and Mrs., “the person concerned can translate it properly according to circumstances.” The writer even gave a pronunciation tip: “For oral use it might be rendered as ‘Mizz,’ which would be a close parallel to the practice long universal in many bucolic regions, where a slurred Mis’ does duty for Miss and Mrs. alike.”

 

The item in the Springfield paper made a minor splash, getting picked up and discussed over the next few weeks in other newspapers around the country, from Iowa to Minnesota to Utah. As 1901 drew to a close, however, the Ms. proposal faded from the public eye — though it seems to have made enough of an impression to lurk just below the radar for decades to come. In 1932, it reappeared: a letter writer in The New York Times wondered if “a woman whose marital status is in doubt” should be addressed as M’s or Miss. And in 1949, the philologist Mario Pei noted in his book “The Story of Language” that “feminists, who object to the distinction between Mrs. and Miss and its concomitant revelatory features, have often proposed that the two present-day titles be merged into a single one, ‘Miss’ (to be written ‘Ms.’).”

 

The genesis of Ms. lay buried in newspaper archives until earlier this year, when after much painstaking hunting through digitized databases I found The Sunday Republican article that started it all. A few years ago I stumbled upon a mention of the article in another newspaper, The New Era, of Humeston, Iowa, on Dec. 4, 1901. Fred Shapiro, the editor of “The Yale Book of Quotations,” then found an excerpt from The Sunday Republican article in The Salt Lake Tribune. After discovering that The Sunday Republican had recently been scanned and digitized by Readex, a publisher of digital historical materials, I was finally able to zero in on this forgotten document.

 

It was certainly unknown, in 1961, to Sheila Michaels, a 22-year-old civil rights worker in New York City, who one day spotted it on a piece of mail that her roommate received. In fact, she initially took it as a typo, albeit a felicitous one. Fiercely independent, Michaels abhorred having her identity defined by marriage. Struck by Ms., she became a one-woman lobbying force for the title as a feminist alternative to Miss and Mrs. She even unwittingly replicated The Republican’s rationale for pronouncing Ms. as “mizz,” since she had noticed this ambiguous spoken form when she was a child growing up in St. Louis.

 

For several years her fellow activists evinced little interest. The turning point, Michaels told me recently, came when she was interviewed on the progressive New York radio station WBAI in late 1969 or early 1970. The program “Womankind” invited her on with other members of a radical group known simply as the Feminists, and during a lull in the show she plunged into her impassioned plea for Ms. Her advocacy finally paid off. The following August, when women’s rights supporters commemorated the 50th anniversary of suffrage with the Women’s Strike for Equality, Ms. became recognized as a calling card of the feminist movement.

 

August 3, 2017 in Gender, Pop Culture | Permalink | Comments (0)

Monday, July 17, 2017

Judge Narrows Scope of Government Data Request in Google Gender Pay Audit

Google Must Cough Up Contact Info for 8000 Employees in Gender Discrimination Case: But Judge Narrows Scope of US Labor Dept Request 

Google has been ordered to hand over personal details of 8,000 employees as part of an ongoing US Labor Department investigation into equal pay.

 

A judge provisionally ruled Friday that Google must provide names, personal addresses, telephone numbers and email addresses to the Labor Department's Office of Federal Contract Compliance Programs (OFCCP) for 5,000 employees, upon request. After the OFCCP has interviewed a selection of these employees, it may request an additional 3,000.

 

The case began in January, when the OFCCP filed a lawsuit requesting salary structure details and employee information from Google in order to verify that the company is meeting Executive Order 11246, which prohibits federal contracts from discrimination based on race, colour, religion, sex or national origin, and gives the OFCCP authority to verify.

 

Google insists it has "closed the gender pay gap globally" and according to its *cough* internal *cough* annual analysis, provides "equal pay across races in the US".

 

But the Labor Department has said that it had "found systematic compensation disparities against women pretty much across the workforce" and requires additional information from the tech giant.

The judge's order is here, at Dept of Labor v. Google, Recommended Decision and Order (July 14, 2017). It explains the nature of the administrative audit.

I begin with an explanation of what this case is and what it is not. The Office of Federal
Contract Compliance Programs is the agency of the Department of Labor charged with auditing government contractors to determine whether they are complying with certain contractually imposed anti-discrimination and affirmative action obligations. OFCCP’s auditing activities generally are not “complaint-driven”; rather, OFCCP opens audits of federal contractors based on neutral criteria. That is how OFCCP selected Google for this audit, not because any of the more than 25,000 potentially affected employees (or anyone else) filed a complaint with OFCCP.

When OFCCP determines after an audit that a government contractor is discriminating or failing to meet affirmative action obligations, it must try to resolve the violation voluntarily and without litigation. According to OFCCP’s Regional Director (Pacific Region), these efforts lead to voluntary resolutions of about 99 percent of OFCCP’s cases.

See also:

July 17, 2017 in Business, Equal Employment, Pop Culture | Permalink | Comments (0)

Tuesday, July 11, 2017

Gender Biases in Cyberspace

Shlomit Yanisky-Ravid & Amy Mittelman, Gender Biases in Cyberspace: A Two-Stage Model, the New Arena of Wikipedia and Other Websites, 26 Fordham IP, Media & Entertainment LJ (2016) 

Abstract

Increasingly, there has been a focus on creating democratic standards and norms in order to best facilitate open exchange of information and communication online―a goal that fits neatly within the feminist aim to democratize content creation and community. Collaborative websites, such as blogs, social networks, and, as focused on in this Article, Wikipedia, represent both a cyberspace community entirely outside the strictures of the traditional (intellectual) proprietary paradigm and one that professes to truly embody the philosophy of a completely open, free, and democratic resource for all. In theory, collaborative websites are the solution for which social activists, intellectual property opponents, and feminist theorists have been waiting. Unfortunately, we are now realizing that this utopian dream does not exist as anticipated: the Internet is neither neutral nor open to everyone. More importantly, these websites are not egalitarian; rather, they facilitate new ways to exclude and subordinate women. This Article innovatively argues that the virtual world excludes women in two stages: first, by controlling websites and filtering out women; and second, by exposing women who survived the first stage to a hostile environment. Wikipedia, as well as other cyber-space environments, demonstrates the execution of the model, which results in the exclusion of women from the virtual sphere with all the implications thereof.

July 11, 2017 in Media, Pop Culture | Permalink | Comments (0)

Friday, June 2, 2017

The Feminist Origins of Wonder Woman

This weekend brings the release of the movie Wonder Woman.  Feminists are taking the occasion to celebrate girl power. 

Wonder Woman has been an icon of feminism since (at least) her adoption by Ms. magazine on its first cover in 1972.

The origins of Wonder Woman the comic-book hero created in 1941 trace to the feminist ideas of her creator, William Moulton Marston, a Harvard lawyer, professor, scientist and creator of the lie detector test (hence WW’s magic lasso of truth).  The fascinating story of the origins of the Wonder Woman superhero character as created by Marston and the two women he lived with is told in Jill Lepore’s The Secret History of Wonder Woman (2014).  Her account traces how Marston, and his wife Sadie Holloway and live-in paramour Olive Byrne (niece of Margaret Sanger), created WW from the Amazonia legend and feminist ideals of equality and birth control, even as their own polyamorous relationship challenged the women's own individual equality and power. 

From Lepore (xiii-xiv):

            Women Woman isn’t only an Amazonian princess with badass boots.  She’s the missing link in a chain of events that begins with the woman suffrage campaigns of the 1910s and ends with the troubled place of feminism fully a century later.  Feminism made Wonder Woman.  And then Wonder Woman remade feminism, which hasn’t been altogether good for feminism.

            But Wonder Woman is no ordinary comic-book superhero.  The secrets this book reveals and the story it tells place Wonder Woman not only within the history of comic books and superheroes but also at the very center of the histories of science, law, and politics. . . . WW’s debt is to the fictional feminist utopia and to the struggle for women’s rights.  Her origins lie in William Moulton Marston’s past, and in the lives of the women he loved; they created WW too.

As Lepore notes, the early suffragists used the Amazonian legends of powerful women to support their cause and provide anthropological evidence of a history of women’s rule.  In particular, leading 19th century feminist Elizabeth Cady Stanton used the legend of women’s power or the “Matriarchate” to support her demands for women’s power.  I traced this line of thought and advocacy in my recent book.  An excerpt is here..  

June 2, 2017 in Books, Pop Culture | Permalink | Comments (0)

Tuesday, January 10, 2017

Rediscovering Queen Victoria as a Feminist Icon

Queen Victoria is trending these days with 2 new books and an upcoming TV series.  I have just finished both books, the fictional Victoria by Daisy Goodwin and the non-fiction Victoria: The Queen by Julia Baird.  I am always interested in books that show us how we have been getting it all wrong.  See also Queen Victoria's Story is More Inspiring, and More Badass, Than We've Seen Before

These books argue that the myth around Queen Victoria as a moralistic, strict leader of women's domestic role was manufactured by men -- particularly those male editors of her papers. These editors omitted all letters to and about women, on grounds that women's issues were irrelevant and not of interest to posterity. They rewrote Victoria's language to reflect the demure, submissive status expected of women. Victoria's youngest daughter Beatrice later edited her mother's papers to omit any signs of the intimate and volatile relationship with her husband, Albert. Modern author Julia Baird argues that the "Victorian" era would have been better named the "Albertine era" as it was Prince Albert who was more moralistic and leading of the domestic sphere and women's inferiority, even for his own wife and Queen. The books also present Victoria as a passionate, engaged, and hot tempered woman who demanded respect, power, and control.

 My interest in Queen Victoria stems from her name repeatedly invoked by Elizabeth Cady Stanton as the model of a strong woman. During my research for my book on American feminist and legal thinker Stanton, I came across many references where Stanton cited Victoria as the ideal strong woman -- a woman with power, employment, but also domestic authority as the mother of nine children. Stanton told mothers they should act "queenly" and she used the history of queens as evidence of women's capacity for political power. I was puzzled by Stanton's continued reverence for Victoria, who is typically depicted as the role model for the domestic, not feminist. She is known as being obsessed and grieved by her husband's early death, the bearer of strict Victorian morality, and the icon for motherhood and domestic sphere (even a Queen should relegate to her domestic role).

I concluded that Stanton must have used Victoria simply because she was the most well-known figure to her audiences and that as Queen she generically illustrated women's potential for power. It may have also been that Stanton saw a little of herself in Queen Victoria. They were about the same age and lived almost the same 80 years (Stanton 1815-1902, Victoria 1819-1901), both were very short (Victoria was 4'11), both had large families (Stanton 7 children, Victoria 9). Stanton visited England in 1840 when Victoria was at the height of her popularity as the new queen and recently married, and Stanton visited England again in the late years of the century as Victoria continued as the longest serving monarch (until Queen Elizabeth II in 2015).

As I learn more about Victoria, I understand Stanton's references better. Stanton's theory of feminism was holistic. She envisioned equality for women in all spheres, both private and public. To her, feminism meant equal autonomy for women in all aspects of life -- public, politics, employment, religion, and family. Significantly, it also meant embracing and elevating the power of motherhood.  Victoria represented this public and private power harmonized with the role of motherhood as authority, not subservience.

 

January 10, 2017 in Books, Legal History, Pop Culture | Permalink | Comments (0)

Thursday, October 13, 2016

Anita Hill on Sexual Harassment: Focus on the Victims

Anita Hill, Op ed, What We Can Still Learn from Sexual Harassment

What I learned in 1991 is no less true today and no less important for people to understand: responses to sexual harassment and other forms of sexual violence must start with a belief that women matter as much as the powerful men they encounter at work or at school, whether those men are bosses or professors, colleagues or fellow students.

 

We must understand the harm that sexual harassment and sexual violence causes. Missing from the conversation this weekend, which focused almost exclusively on the character of the offender, was concern about the victims of sexual violence....

 

A recent Equal Employment Opportunity Commission Task Force reported on the psychological, physical, occupational, and economic harm that victims of sexual harassment suffer. Since 1991, I’ve heard from thousands of women who have experienced harassing bosses and colleagues. Some overcome the situations, but none of them ever forget the pain of it. To understand why the way women are treated matters, we must view Donald Trump’s comments and the behavior he described from the point of view of a victim of sexual predation.

 

Trump’s language, which he and others have tried to minimize as “locker room banter,” is predatory and hostile. To excuse it as that or as youthful indiscretion or overzealous romantic interest normalizes male sexual violence. According to attorney Joe Sellers, a member of the EEOC Task Force, “Trump’s remarks reflect the quintessential mindset of a harasser: the view that he has certain privileges and power by virtue of his celebrity status and position.”

October 13, 2016 in Pop Culture, Violence Against Women | Permalink | Comments (0)

Thursday, September 8, 2016

The Anti-Feminism of Phyllis Schlafly

Arch anti-feminist Phyllis Schlafly died this week.  She has ironically, as Slate notes, become "doomed to represent the feminism she hated."

I recently wrote about Schlafly and her leadership of the political movement that stopped ERA.   After Suffrage Comes Equal Rights? ERA as the Next Logical Step, in 100 Years of the Nineteenth Amendment: An Appraisal of Women’s Political Activism (Lee Ann Banaszak & Holly McCammon eds.) (Oxford Univ. Press forthcoming) (with TJ Boisseau).

The face of women’s opposition to ERA was conservative activist Phyllis Schlafly and her STOP ERA (Stop Taking Our Privileges) organization. Schlafly, a mother to six children, offered herself to the anti-ERA movement as a voice for stay-at-home mothers in need of special privileges and protections under the law. The irony that she, much like all the most prominent reformers historically lining up on either side of the ERA amendment (such as Alice Paul, Florence Kelley, and Pauli Murray), held a law degree and enjoyed a flourishing decade-long career in the public eye, was utterly elided in her rhetoric.

 

Doggedly focused on women’s roles as mothers and home-makers, Schlafly trumpeted the cause of women’s difference from men—championing the special rights of women as citizens who, ideally, did not work outside the home.  She asserted that equality was a step back for women: “Why should we lower ourselves to ‘Equal Rights’ when we already have the status of ‘special privilege?’”  She and other ERA opponents reframed the issue as forcing women into dangerous combat, co-education dormitories, and unisex bathrooms.  Feminist advocates responded by clarifying that privacy rights protected concerns about personal living spaces in residences and bathrooms, but their counsel was unheard in the din of threat to traditional family and gender roles. Opponents equated ERA with homosexuality and gay marriage, as the amendment’s words “on account of sex,” “were joined with ‘sexual preference’ or homosexuality to evoke loathing, fear, and anger at the grotesque perversion of masculine responsibility represented by the women’s movement”  Schlafly hurled insults at the ERA supporters, urging her readers to view photographs of an ERA rally and “see for yourself the unkempt, the lesbians, the radicals, the socialists,” and other activists she labeled militant, arrogant, aggressive, hysterical, and bitter. When ERA supporters “gathered at the federally financed 1977 International Women’s Year Conference in Houston and endorsed homosexual rights and other controversial resolutions on national television, they helped to make the case for ERA opponents.” 

 

The shift in debate slowed and then stopped ratification of the ERA. In 1974, three states ratified the amendment, one state ratified in 1975 and in 1977, and then ended with only 35 of the 38 required.  At the same time, states began to rescind their prior ratifications, with five states voting to withdraw their prior approval. The legality of the rescissions was unclear, but these efforts had political reverberations in the unratified states. When the deadline arrived without the required three-fourths approval, Congress voted in 1978 to extend the ratification deadline three years to June 30, 1982.  Not a single additional state voted to ratify during this extension.

 

 

September 8, 2016 in Legal History, Pop Culture | Permalink | Comments (0)

Wednesday, August 31, 2016

Gender By Far is the Biggest Determinant of Who Should do Housework

Huff Post, Most Americans Still Think Women Should Do the Bulk of the Housework

If bitter fights over dirty dishes feel like the gender wars, or you’ve found yourself ranting about The Second Shift, a new study from Indiana University suggests you’re onto something. For most Americans, the survey study found, chore roles align with traditional thinking on masculinity and femininity ― even among couples where a woman is the primary or sole breadwinner and even in same-sex couples. 

 

The researchers were surprised by how much gender mattered ― and how little income did.

 

“Most research on housework suggests that couples divide housework along different axes; for example, lower-earning partners do more housework than higher-earning partners,” said lead author Natasha Quadlin, a doctoral student at Indiana University. “Instead, our findings suggest that [gender] is by far the biggest determinant of Americans’ attitudes toward housework.”

 

Gender matters more than income

 

Participants assigned straight women more female-typed chores, more gender-neutral chores and more physical and emotional caregiving than their partners. This held true even if the woman earned more money than the man.

 

While relative income determined whether or not the husband or the wife would become the stay-at-home caregiver, Quadlin pointed out that low-earning men in straight relationships were still expected to do fewer chores and fewer childcare tasks than their wives.

 

But even though gender mattered most, Quadlin found that participants gave primary responsibility for cooking, cleaning, laundry and dishes, as well as being a primary caregiver for a child, to lower-earning partners, while expecting the higher- wage earners to manage the household finances. Income didn’t have any bearing on groceries, car maintenance or outdoor chores. However, the effects of relative income were minor — for instance, low-wage earners were given responsibility for cooking 55 percent of the time, versus 45 percent for higher earners.

 

August 31, 2016 in Family, Gender, Pop Culture | Permalink | Comments (0)

Wednesday, August 17, 2016

Sexism at the Olympics

Literally Just a List of Sexist Things Which Have Happened at the Olympics for Far

Because there’s nothing like the Olympic Games to remind women that we are inferior by patronising female athletes for the world to see at every given opportunity. Here’s a comprehensive guide to the most sexist things that have happened thus far.

 

The commodification of the female body started before the athletes even arrived in Rio, with the host nation promising it to have the “sexiest ever” opening ceremony with “lots of nearly naked women doing the samba”, as opposed to celebrating the masses of world-class athletes that would be competing.

 

However, according to NBC’s chief marketing official John Miller, this is just catering to the games’ female audience who are “less interested in the result and more interested in the journey. It’s sort of like the ultimate reality show and miniseries wrapped into one”.

 

And NBC didn’t stop there. They’ve made demeaning comments about the USA women’s gymnastics team – after dominating the qualifications for the all round team medal, the ‘final five’ were discussing their performance, to which one commentator said “they might as well be standing in the middle of a mall”, attempting to take away the power of arguably the most formidable team in Olympic gymnastics history.

Olympic Men Stand Up to Sexism Too--Because That's Not Just Women's Work

Feminism! Fairness! Equality! These are not concepts that affect women alone. But boy, do we get tired of carrying the expectation that they are. So a big “Well done, gentlemen,” to Andy Murray and Adam van Koeverden, two male athletes who this week took a stand against sexist assumptions.

August 17, 2016 in Pop Culture, Sports | Permalink | Comments (0)