Wednesday, October 7, 2015
Prof. Keith Cunningham-Parmeter has uploaded a new article onto SSRN. The article is titled "Marriage Equality, Workplace Inequality: The Next Gay Rights Battle," and its abstract reads:
Same-sex marriage is not the only civil rights issue impacting the gay community. Although the Supreme Court's decision in Obergefell v. Hodges represented a momentous victory on same-sex marriage, workplace protections affect far more people and remain a high priority for many lesbians and gay men. Today, even though the Supreme Court has invalidated state marriage restrictions across the country, federal law still makes it perfectly permissible to fire a gay man for telling a coworker about his sexuality or to discharge a woman for displaying her wife's picture at work.
This Article critically evaluates the relationship between same-sex marriage and workplace rights. Focused narrowly on case-by-case tactics, proponents of same-sex marriage won in court by selectively choosing gay couples who appeared “safe” and “ordinary” to judges. The decision to prioritize marriage over other gay civil rights-while utilizing reductive depictions of gay relationships in the process-raises distinct challenges for lawyers attempting to extend victories on the marriage front to other important legal realms such as employment protections.
Outlining a model for thinking about gay rights beyond marriage, this Article calls for renewed attention to the argument that sexual orientation discrimination constitutes a form of sex discrimination. The cultural imperative requiring individuals to desire only partners of the opposite sex constitutes American society's most enduring gender stereotype. Employers and states that punish sexual minorities for violating this norm engage in both sexual orientation discrimination and sex discrimination. By combating discrimination in employment, housing, and other civil rights areas, this refocused approach to gay rights applies to numerous legal contexts outside of marriage, thereby addressing the legal needs of a much larger segment of the gay community.
Tuesday, September 29, 2015
I just published the 2015 edition of Women and the Law for West.
This is an annual collection of what I call the "greatest hits" in legal scholarship from the past year on women's rights. It includes sections on reproductive rights, family, employment, domestic violence, feminist theory, and sometimes education.
Here's this year's awesome lineup.
Introduction and Summary, Tracy Thomas
Abortion Distortions, Caroline Mala Corbin
Fetal Protection Laws: Moral Panic and the New Constitutional Battlefront, Michele Goodwin
Abortion and the Constitutional Right (Not) to Procreate, Mary Ziegler
Bearing Children, Bearing Risks: Feminist Leadership for Progressive Regulation of Compensated Surrogacy in the United States, Sara L. Ainsworth
Feminism and the Family Law
Unprotected Sex: The Pregnancy Discrimination Act at 35, Deborah L. Brake & Joanna L. Grossman
Reframing the Work-Family Conflict Debate by Rejecting the Ideal Parent Norm, Jennifer H. Sperling
Spousal Support in the 21st Century, Judith G. McMullen
Digging Beneath the Equality Language: The Influence of the Fathers' Rights Movement on Intimate Partner Violence Public Policy Debates and Family Law Reform, Kelly Alison Behre
Violence Against Women
Real Men Advance, Real Women Retreat: Stand Your Ground, Battered Women's Syndrome, and Violence as Male Privilege,Mary Anne Franks
Enjoining Abuse: The Case for Indefinite Domestic Violence Protection Orders, Jane K. Stoever
Love Matters, Tamara L. Kuennen
Financial Freedom: Women, Money, and Domestic Abuse, Dana Harrington Conner
A Home with Dignity: Domestic Violence and Property Rights, Margaret E. Johnson
Women in the Workplace
Twenty Years of Compromise: How the Caps on Damages in the Civil Rights Act of 1991 Codified Sex Discrimination, Lynn Ridgeway Zehrt
Two Very Different Stories: Vicarious Liability Under Tort and Title VII Law, Martha Chamallas
It's Complicated: Age, Gender, and Lifetime Discrimination Against Working Women—The United States and the U.K. as Examples, Susan Bisom-Rapp and Malcolm Sargeant
Feminist Legal Theory
State Responsibility for Gender Stereotyping, Barbara Stark
Rights of Belonging for Women, Rebecca E. Zietlow
The New Sex Discrimination, Zachary A. Kramer
Saturday, September 26, 2015
The new issue of the Journal of Women's History (Fall 2015).
TABLE OF CONTENTS
"I Wouldn't Be No Woman If I Didn't Hit Him": Race, Patriarchy, and Spousal Homicide in New Orleans, 1921 - 1945
Jeffrey S. Adler
"As Potent a Prince as Any Round About Her": Rethinking Weetamoo of the Pocasset and Native Female Leadership in Early America
Gina M. Martino-Trutor
Dode Akabi: A Reexamination of the Oral and Textual Narrative of a "Wicked" Female King
Harry N.K. Odamtten
From Anne to Hannah: Religious Views of Infertility in Post-Reformation England
Sex Scandals and Papist Plots:The Mid-Nineteenth-Century World of an Irish Nurse in Quebec
Sanitizing the Domestic: Hygiene and Gender in Late Colonial Bengal
Constructing Women's Citizenship: The Local, National, and Global Civic Lessons of Rajkumari Amrit Kaur
Single Girls and Working Women: Gender, Power, and Feminism in American History and Culture
Sexual Labor and the Transnational Sphere
Michelle K. Rhoades
Personal and Political: Love's Revolutions in Recent Historical Research
New Views on Left Feminist Activism Before the 1960s
Monday, September 7, 2015
Current Issue: Volume 22, Issue 1 (2015)
Anastasia M. Boles
Thursday, July 16, 2015
Vicki Schultz (Yale), Taking Sex Discrimination Seriously, 91 Denver L. Rev. (2015).
Abstract:The fiftieth anniversary of Title VII’s ban on sex discrimination provides an occasion to reflect on its successes and failures in achieving workplace sex equality. Although considerable progress has occurred, advances have been both uneven and unsteady. This Article shows that the primary limit on legal reform has been attitudinal. Since Title VII’s enactment, both private and public officials have defended sex discrimination and inequality by appealing to naturalized conceptions of sex difference. Persistent stereotypes portray women as more devoted to family roles than work roles, and, consequently, less committed to their jobs than men. Similar stereotypes portray women as primarily interested in female-typed jobs said to reward feminine traits and values. Viewed through the lens of such assumptions, sex-based disparities in employment are not inequalities: They are the inevitable expression of innate and cultural sex differences.
How, then, has progress occurred under Title VII? The answer lay in reformers challenging essentialist claims about sex difference.
During Title VII’s first decade, this Article shows, agencies and courts adopted an expansive reading of Title VII’s first decade only because the leaders of the emerging women’s rights movement pulled activists together to mount a strong, clear, concerted challenge to the existence and relevance of sex difference. Crafting a new conception of equality that captured American women’s growing sense of discontent while promising greater freedom to both women and men, early feminists overcame governmental resistance and achieved genuine legal progress. By the mid-1970s, they secured favorable rulings from the agencies, the Supreme Court, and the lower courts under both Title VII and the Constitution and consolidated these gains in Congress.
Yet progress was not universal and the initial momentum did not last. Rather, this Article argues, in areas of the law where feminist groups failed to establish a significant presence, or where they began to take a divided or less decisive stance as the women’s movement fractured and faded, the activist void and resulting lack of accountability permitted courts to retain or revert back to older views attributing workplace inequality to women’s difference. Two areas of law illustrate these dynamics. In cases raising women’s lack of interest as a defense to sex discrimination, women’s rights groups’ failure to regularly contest this arcane defense in the courts and agencies, coupled with resurfaced internal division that sent mixed signals about the existence and sources of women’s allegedly different work preferences, freed conservative judges to accept this defense and legitimate the underlying stereotypes in a wide swath of cases. Pregnancy discrimination law provides a second example, showing how courts stalled, and later backpedaled, as feminists initially wavered and later split over whether to characterize pregnancy as uniquely female reproductive experience unlike other medical conditions or as a temporary disability comparable to others that may affect an employee’s ability to work. Despite federal laws and agency rulings adopting the latter approach, images of pregnancy as unique and distinct from other disabilities have continued to resurface, limiting the law’s capacity to address this persistent form of discrimination.
Progress under anti-discrimination law is thus difficult to achieve and sustain: It requires committed, cohesive efforts to contest difference as a rationale for inequality and galvanize public support for change. This Article suggests that, going forward, civil rights reformers can make further headway by challenging not only the existence and relevance of such alleged differences, but also their nature and sources. New evidence highlights that many sex, race, and other-group differences typically thought to explain and justify workplace inequalities are actually created and fostered there through employment policies and practices. The hope is that, by coming together to contest and change those practices, reformers can erode both enduring patterns of employment discrimination and the essentialist ideas about difference that have undermined the law’s promise.
Friday, June 26, 2015
The summer is available online:
|Feminism in Yellowface
|The Future of Polyamorous Marriage: Lessons From the Marriage Equality Struggle
Hadar Aviram & Gwendolyn M. Leachman
|A Deficiency in Addressing Campus Sexual Assault: The Lack of Women Law Enforcement Officers
Karen Oehme, Nat Stern & Annelise Mennicke
|The Long American Plan: The U.S. Government’s Campaign Against Venereal Disease and its Carriers
Scott Wasserman Stern
|Why Originalism Needs Critical Theory: Democracy, Language, and Social Power
Annaleigh E. Curtis
Monday, June 1, 2015
Keith Cunningham-Parmeter has published "(Un)Equal Protection: Why Gender Equality Depends on Discrimination." It's available for download here and its abstract reads as follows:
Most accounts of the Supreme Court’s equal protection jurisprudence describe the Court’s firm opposition to sex discrimination. But while the Court famously invalidated several sex-based laws at the end of the twentieth century, it also issued many other, less-celebrated decisions that sanctioned sex-specific classifications in some circumstances. Examining these long-ignored cases that approved of sex discrimination, this Article explains how the Court’s rulings in this area have often rejected the principle of formal equality in favor of broader antisubordination concerns. Outlining a new model of equal protection that authorizes certain forms of sex discrimination, (Un)Equal Protection advocates for one particular discriminatory policy that could dramatically promote gender equality in the decades to come. Fatherhood bonuses— laws that give families additional parental leave when fathers stay at home with their newborns—have the potential to drastically reorder gendered divisions of labor and expand women’s workplace opportunities. Countries that have experimented with fatherhood bonuses have seen women with children spend more time in paid work, advance in their careers, and earn higher wages. Applying these international models to the American context, this Article explains why fatherhood bonuses would fit comfortably within our constitutional framework, which authorizes discriminatory policies when such policies support women’s public participation. (Un)Equal Protection concludes by proposing a model for fatherhood bonuses in the United States that would encourage more men to perform care work, thereby advancing the goal of gender equality for both sexes.
On SSRN, Stuart Chinn has uploaded "Situating 'Groups' in Constitutional Argument: Interrogating Judicial Arguments on Economic Rights, Gender Equality, and Gay Equality." The abstract reads:
The New Deal transformation in Commerce Clause and Due Process jurisprudence marked, among other things, a shift in judicial attention from groups defined by economic relationships to groups defined by social status. Hence, one might plausibly see judicial activism in defense of freedom of contract during the Lochner era subsequently giving way, in part, to the judicial protection of racial minorities, women, and gay persons in the decades after Brown v. Board of Education.
In this paper, I attempt to illuminate this shift in judicial attention by examining the Supreme Court's rhetoric surrounding groups in the context of the Lochner era cases on wages and hours regulations and the post-Brown v. Board of Education era cases on gender and gay equality. I situate my inquiry in the context of broader themes in American political thought, with particular attention to the core concepts and principles of American liberalism. In examining the recurrent modes of argument surrounding groups in these Supreme Court cases, I discuss how the Court's concept of groups — and how its views of American society more broadly — has varied in different constitutional doctrinal contexts.
My examination of these cases yields two key findings. The first finding speaks to a similarity across these contexts of Supreme Court jurisprudence: when confronted by reforms calling for special or different legal treatment of specific groups, both pro-reform and anti-reform Supreme Court justices in these three doctrinal contexts put forth arguments about group-sameness and group-difference. That is, group-sameness and group-difference arguments were deployed by Justices on both sides of the various legal controversies in these doctrinal areas. The second finding speaks to a difference between these doctrinal contexts: while arguments in defense of special legal treatment for groups in the Lochner era cases on wages and hours regulations were linked to larger, broader, more systemic goals, no such sensibility informs the judicial protection of groups in the post-Brown cases on gender and gay equality. Rather, in more recent years, the judicial defense of groups largely proceeds from a judicial concern for only the groups in question. Thus, we see in the more contemporary cases examples of judicial arguments about “societal segmentation” — a significant mode of legal and political argument that, I assert, has appeared episodically throughout American history. In the final Part, I set forth a more general definition of societal segmentation arguments, and I discuss how notions of segmentation may be situated in relation to the principles of American liberalism.
Saturday, May 9, 2015
Pleased to announce that my article, Back to the Future of Regulating Abortion in the First Term, 29 Wisconsin J. Law, Gender & Soc'y 47 (2014), received the annual award for best faculty scholarship granted by the Alumni Association.
The article tracks the backstory of the U.S. Supreme Court decisions in Akron v. Akron Center for Reproductive Health and Ohio v. Akron Center for Reproductive Health. It draws on original research of oral histories and recovered documents to explore the historical and legal context that spawned informed consent laws so early after Roe v. Wade seemingly resolved the legal question over abortion.
Tuesday, April 14, 2015
Naomi Cahn, Author Diversity in Legal Scholarship
One impetus for the conference was Minna Kotkin’s article, Of Authorship and Audacity: An Empirical Study of Gender Disparity and Privilege in the “Top Ten” Law Reviews, 31 Women’s Rts. L. Rep. 385 (2010). Kotkin published the results of a study examining the percentage of female authors in elite journals, finding that just over 20% of articles in those law reviews were written by women even though women make up 31% of the tenured/tenure-track faculty nationally. When she first began discussing the results of the study, she faced lots of criticism and support in the blogosphere. Nancy Leong has usefully pointed out that these disparities certainly exist outside of the law review context as well. On the other hand, a later study mentioned at the conference concerning gender disparity in citation rates found that “women publishing in the field of legal studies do not experience significant gender bias in citation rates to their articles. If anything, the opposite appears to be true.” (p. 20). While the authors are not certain as to why this is, they offer numerous speculations as to why this is so, such as “legal scholars [may be] less likely than other scholars to bias citation by gender of author”. One possibility they don’t mention is that women’s articles are simply better than men’s; as the famed quote (from Charlotte Whitton) goes: “Whatever women do, they must do twice as well as men to be thought half as good. Luckily, this is not difficult.” If this is true, then the gender disparity in law review authors is even more shocking.
Moving forward, we discussed a variety of potential changes. For example, when it comes to law review selection, we discussed the pipeline process: who is mentored to write on and join the law review, the topic selection for the write on process; the guidance given to law review staff on how to become senior editorial board members. While some participants advocated author-blind review of submissions by law reviews, others suggested affirmative action might be more appropriate (an issue discussed in this prior thread.
On the faculty side, we discussed the importance of both formal and informal mentoring, of finding colleagues from both within and outside of one’s own faculty who can engage in an informal peer review process. We discussed how schools can support diversity in faculty scholarship, including a shout-out to Martha Minow’s field guide to legal scholarship. One school actually has developed postings of sample (and successful) cover letters for articles.
Monday, March 16, 2015
A trio of economists have uploaded on SSRN a study about executive compensation and gender. The abstract:
We document three new facts about gender differences in executive compensation. First, female executives receive lower share of incentive pay in total compensation relative to males. This difference accounts for 93% of the gender gap in total pay. Second, the compensation of female executives displays lower pay-performance sensitivity. A $1 million dollar increase in firm value generates a $17,150 increase in firm specific wealth for male executives and a $1,670 increase for females. Third, female executives are more exposed to bad firm performance and less exposed to good firm performance relative to male executives. We find no link between firm performance and the gender of top executives. We discuss evidence on differences in preferences and the cost of managerial effort by gender and examine the resulting predictions for the structure of compensation. We consider two paradigms for the pay-setting process, the efficient contracting model and the “managerial power” or skimming view. The efficient contracting model can explain the first two facts. Only the skimming view is consistent with the third fact. This suggests that the gender differentials in executive compensation may be inefficient.
Wednesday, March 4, 2015
Irene Velkova, University College London, has uploaded "Quotas for Women on Corporate Boards: The Challenge for Europe." The abstract reads:
“Bringing more women on boards is not just the right thing to do. More women on boards is the bright thing to do!”, argues Viviane Reding, the Vice-President of the European Commission and Commissioner for Justice, Fundamental Rights and Citizenship in 2009-2014 when promoting European Union quota law. And then she adds: “…I do not like them (quotas) either. But I like the results they bring.”
The debate for higher female representation on corporate boards has become particularly intensive during the recent financial crisis. Scholars advocate that women are more risk-averse, more engaged with longer-term issues and tend to draw more attention to governance and ethics. Thus, it is suggested that due to the behavioural differences between men and women, more gender – balanced boards would have prevented a number of financial collapses. This assertion has triggered more detailed analyses of current statistics for women on boards in the European Union. The numbers that are found follow the global pattern. Women are well underrepresented on boards and even less visible as CEOs or chairpersons of companies. In particular, at the end of 2013 women held 17.8% of the seats on boards in Europe, 16.6% in the US, 12.3% in Canada, 12.3% in Australia and 17.1% in South Africa. Women serve as chairpersons on 3.2% of the biggest companies in Europe , 3.1% in the US, 4.2% in Canada, 3% in Australia and 5.5% in South Africa. The country in the world that excels with the highest number of female directors on boards is Norway, which has achieved 42% women on boards by 2013. These strikingly low ratios and the general finding in the empirical literature that women bring positive change to firms’ performance have generated a phenomenal drive for promoting initiatives that strive to increase the number of women on boards.
Saturday, February 14, 2015
What would United States Supreme Court opinions look like–and what would their influence be–if key decisions on gender issues were written with a feminist perspective? The US Feminist Judgments Project seeks to answer these questions by pulling together a group of leading feminist legal scholars in the United States to rewrite, using feminist reasoning, the most significant Supreme Court cases on gender from the 1800s all the way to the present day.
Editors Linda Berger (UNLV), Bridget Crawford (Pace) and Kathy Stanchi (Temple), along with an Advisory Panel of diverse and distinguished scholars, targeted 24 influential Supreme Court cases related to gender for feminist revision. Those 24 rewritten opinions, along with introductory commentary explaining the issues and context of the decision, will be published by Cambridge University Press in a volume entitled Feminist Judgments: Rewritten Opinions of the United States Supreme Court. You can see the final list of cases, as well as the authors of the rewritten opinions and commentaries, here.
The US Feminist Judgments Project was inspired by the successful collection and publication in Britain of Feminist Judgments: From Theory to Practice, by Rosemary Hunter, Clare McGlynn, and Erika Rackley. This volume, which included feminist versions of twenty-three key British decisions from the Court of Appeal and House of Lords, was published in 2010 to wide acclaim.
Like its British counterpart, the US Feminist Judgments Project seeks to illustrate how decision-makers with feminist viewpoints could have arrived at different decisions using different reasoning in critical Supreme Court cases despite the restrictions of stare decisis. The rewritten decisions are framed within the same precedent that bound the Supreme Court at the time of the opinion, but bring to the decision making and the opinion writing a feminist perspective on the facts and the law. The rewritten decisions show not only how feminist theory can apply to real-world judgments, but also the ways that stare decisions can mask the law’s masculine perspective and bias. In this way, the volume will help uncover the manner in which hidden and often-unrecognized gender bias drives the results and the reasoning in much of our jurisprudence.
Friday, February 13, 2015
This study suggests so. The abstract available on SSRN:
We formulate theory on the effect of board of director gender diversity on the broad spectrum of securities fraud and generate three main insights. First, based on ethicality, risk aversion, and diversity, we hypothesize that gender diversity on boards can operate as a significant moderator for the frequency of fraud. Second, we hypothesize that the stock market response to fraud from a more gender-diverse board is significantly less pronounced. Third, we hypothesize that women are more effective in male-dominated industries in reducing both the frequency and severity of fraud. Our first-ever empirical tests, based on data from a large sample of Chinese firms that committed securities fraud, are largely consistent with each of these hypotheses.
Monday, January 19, 2015
A recent student Note in the Hastings Constitutional Law Quarterly examines the status of intersex prisoners. It's available here and the abstract reads:
Miki Ann DiMarco spent 438 days in the most restrictive and isolated housing pod at Wyoming Department of Corrections due to the fact that she was “classified as an individual of ambiguous
Even though DiMarco identified herself as female since puberty, she was segregated from the general prison population because of her gender ambiguity. Biologically speaking, she “has a
nearly complete set of male reproductive organs however [sic] does not have testicles . . . [or] female reproductive organs.”
People who are intersex, such as DiMarco, “fail to fit neatly into the traditional male/female binary construct.” DiMarco’s case demonstrates the difficulty in determining appropriate housing arrangements in the prison system for people whose bodies do not conform to the
traditional male/female dichotomy.
This Note seeks to examine the problems that arise due to the insistence upon a binary society with regards to sex. First, this Note sheds light on sex as a spectrum, rather than the classic male/female dichotomy—particularly focusing on the different conditions of intersex people. Next, this Note discusses the ways in which prison authorities house and treat intersex prisoners. The potential constitutional violations of these housing classifications is analyzed with special emphasis on the DiMarco case.
Monday, January 12, 2015
The recent terrorist attack against Charlie Hebdo may not have raised explicit issues of gender (although I couldn't help but think about the subject of male rage and attendant claims of patriarchal authority), but readers might find an article I wrote to be of interest. It argues that humor--especially a certain variety of barbed humor--should be protected as a principle of antiauthoritarianism: John Kang, "In Praise of Hostility: Antiauthoritarianism as Free Speech Principle," 32 Harv. J. L. & Public Policy 351 (2012).
Wednesday, January 7, 2015
As the recent flurry of tweeting on #AALS2015 showed, academic discourse is fully on social media. Everybody's doing it.
Here's a nice guide to why and how to Tweet for academic purposes.
TaxLawProf, Why Scholars Should Blog and Tweet
One of the recurring themes (from many different contributors) on the LSE Impact of Social Science blog is that a new paradigm of research communications has grown up — one that de-emphasizes the traditional journals route, and re-prioritizes faster, real-time academic communication. Blogs play a critical intermediate role. They link to research reports and articles on the one hand, and they are linked to from Twitter, Facebook, Pinterest, Tumblr and Google+ news-streams and communities. So in research terms blogging is quite simply, one of the most important things that an academic should be doing right now.
Tuesday, January 6, 2015
Sahar F. Aziz, Texas A & M Law, has uploaded "Coercive Assimilationism: The Perils of Muslim Women's Identity Performance in the Workplace." It's forthcoming in the Michigan J. of Race & Law and its abstract reads as follows:
Fifty years after Congress passed the Civil Rights Act of 1964, unlawful discrimination continues to ail American workplaces. Despite the prevailing narrative that America is now "post-racial" after the election of the first African American president, equal opportunity still eludes many Americans. Their membership in racial, ethnic, or religious groups stigmatized as the "other" adversely affects their access to education, political empowerment, and equal opportunity in the workplace.
At the time Title VII was passed, victims often experienced explicit bias against their protected group. The law’s immediate effect was to ban overt prejudice causing disparate intergroup discrimination between men and women, blacks and whites, different ethnicities, and Christians and non-Christians.As a result, Title VII, along with other anti-discrimination laws, has been relatively successful in rooting out explicit bias in employment. Many employers now refrain from overtly treating employees disparately on account of an immutable characteristic. But, as the data show, the absence of discriminatory policies on paper does not always translate into a discrimination free workplace in practice. Rather, it pushes bias into more covert manifestations wherein facially neutral factors become proxies for unlawful discrimination.
While Title VII prohibits covert bias; it is ill equipped to prevent two increasingly prevalent forms of discrimination: 1) implicit bias arising from negative stereotypes of protected classes; and 2) disparate treatment of subgroups of protected classes who do not conform to coercive assimilationist pressures.Because an employee alleging discrimination must show that a similarly situated worker outside the protected class does not receive the same adverse treatment or impact, an employer who treats a subgroup of a minority better than another subgroup of the same minority can evade liability.
Of course, if the difference in treatment among the subgroups is based on performance and skills directly related to the work at issue, then no liability should attach. However, that is not always the case. Disparate treatment of members of the same protected class arises from negative racial, ethnic, or religious stereotypes that privileges those able and willing to perform their identity in accordance with assimilationist demands of the majority group. The effect is intragroup discrimination based on intergroup bias rooted in implicit negative stereotyping.
Female employees who fall under multiple protected classes face an intersection of identity performance pressures as women, racial or ethnic minorities, and religious minorities.The dominant group’s expectations of how women or members of minority groups should behave, dress, and communicate to be "professional" are often contradictory due to conflicting stereotypes. A Black woman, for example, who is assertive, ambitious, and exhibits leadership qualities associated as masculine characteristics, risks being stigmatized as aggressive, insubordinate, and threatening because of negative stereotypes of blacks. Meanwhile, her behavior contradicts gender conformity norms that women should be deferential, gentle, soft spoken, and pleasant. And if she is a Muslim, then her behavior triggers stereotypes of Muslims as terrorists, disloyal, foreign, and suspect.
For workplace anti-discrimination laws to eradicate these multiple binds that disparately impact women of color, this Article argues that Title VII jurisprudence should take into account intergroup discrimination based on intragroup identity performance to assure all employees, not just a subset of a protected class, are covered by workplace antidiscrimination law. As such, a plaintiff’s treatment should not be compared only with similarly situated employees outside the protected class but also with similarly situated employees within the protected class whose identity performance accommodates coercive assimilationism rooted in stereotypes.
This Article applies social psychology and antidiscrimination theories to the case of Muslim women of color in the workplace, an under-researched area in legal scholarship. I examine in detail the identity performance challenges and contradictions faced by Muslim women of color as "intersectionals" facing stereotypes against 1) Muslims as terrorists, violent, and disloyal; 2) Muslim women as meek, oppressed, and lacking individual agency; 3) women as sexualized, terminally second best to men, and uncommitted to their careers; 4) immigrants as forever foreign and undeserving of equal treatment; and 5) ethnic minorities from the Middle East and South Asia as barbaric, misogynist, and anti-American. I conclude that Muslim women of color are at risk of falling between the cracks of Title VII jurisprudence due to courts’ unwillingness to recognize the harms caused by coercive assimilationst pressures to conform one’s identity to comport to high status group norms, irrespective of the relevance to work performance.
Monday, January 5, 2015
Orna Alyagon Darr, Carmel Academic Center, has uploaded an article forthcoming from the Yale J. of Law and Humanities. It's titled "Relocated Doctrine: The Travel of the English Doctrine of Corroboration in Sex Offense Cases to Mandate Palestine." The abstract reads:
The spread of the British Empire was accompanied by the relocation of legal doctrines, which took on new meanings and uses. This article follows the relocation to Mandate Palestine of the common-law doctrine of corroboration of victim testimony in sex offense cases. In England, corroboration was a cautionary rule that expressed mistrust of female complainants. In jury-less Palestine, the rule also expressed deep distrust toward non-English complainants, especially children. While the British rulers of Palestine prided themselves on imposing sexual regulation tailored to protecting women and children, an analysis of the way corroboration was applied in that setting reveals a rigidly imposed and hard-to-meet evidentiary standard. British colonial judges maintained that demanding corroboration in sex offense cases was an implementation of English law. However, the rule was not simply a ‘transplant’ that reproduced the original but, rather, acquired its meaning within the specific social context and in the subjectivities of its users.
Wednesday, December 17, 2014
Lynn Paltrow (Nat'l Advocates for Pregnant Women) and Jeanne Flavin (Fordham Law) have uploaded "Arrests of and Forced Interventions on Pregnant Women in the United States, 1973-2005: Implications for Women's Legal Status and Public Health." The abstract reads:
In November 2011, the citizens of Mississippi voted down Proposition 26, a “personhood” measure that sought to establish separate constitutional rights for fertilized eggs, embryos, and fetuses. This proposition raised the question of whether such measures could be used as the basis for depriving pregnant women of their liberty through arrests or forced medical interventions. Over the past four decades, descriptions of selected subsets of arrests and forced interventions on pregnant women have been published. Such cases, however, have never been systematically identified and documented, nor has the basis for their deprivations of liberty been comprehensively examined. In this article we report on 413 cases from 1973 to 2005 in which a woman’s pregnancy was a necessary factor leading to attempted and actual deprivations of a woman’s physical liberty. First, we describe key characteristics of the women and the cases, including socioeconomic status and race. Second, we investigate the legal claims made to justify the arrests, detentions, and forced interventions. Third, we explore the role played by health care providers. We conclude by discussing the implications of our findings and the likely impact of personhood measures on pregnant women's liberty and on maternal, fetal, and child health.