Gender and the Law Prof Blog

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

Thursday, October 18, 2018

Extending the Sex Plus Discrimination Doctrine to Age Discrimination Claims

Marc Chase McAllister, Extending the Sex Plus Discrimination Doctrine to Age Discrimination Claims Involving Multiple Discriminatory Motives, 60 Boston College L. Rev. (forthcoming)

This article examines a double judicial split in age discrimination cases, one pertaining to Title VII and the other to the ADEA. First, this article considers whether the Title VII sex-plus discrimination doctrine should apply to discrimination claims specifically combining sex and age, and contends that such claims should be more routinely permitted to combat discrimination against older female employees. Second, this article considers whether the sex-plus discrimination doctrine should extend to age-plus discrimination claims under the ADEA. In a thorough analysis, this article shows that the ADEA’s “but for” standard of causation permits discrimination claims based on the combination of age and another immutable characteristic, like race or gender. Nevertheless, because Congress has not amended the ADEA to clarify how it applies in cases involving multiple discriminatory motives, courts will likely remain hesitant to recognize ADEA plus discrimination claims. Accordingly, this article proposes that Congress amend the ADEA to state that an ADEA plaintiff may prevail upon proof that his or her age was “a motivating factor for an adverse employment action, even though other discriminatory or illegitimate factors may have also motivated the employer.”

October 18, 2018 in Equal Employment, Theory, Workplace | Permalink | Comments (0)

After MeToo, Using the Law of Agency for Strict Liability for Employers for Sexual Harassment

David Oppenheimer, Twenty Years After Faragher and Ellerth, Is It Time to Revisit Strict Liability for On-the-Job Sexual Harassment?

In 1995, I published the attached article in the Cornell Law Review, arguing that a proper application of agency law would impose strict vicarious liability on employers for nearly all on-the-job sexual harassment. (See Exacerbating the Exasperating: Title VII Liability of Employers for Sexual Harassment Committed by Their Supervisors, 81 Cornell L. Rev. 66 (1995).) Three years later, the U.S. Supreme Court decided the cases Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Ellerth v. Burlington Industries, 524 U.S. 742 (1998), taking a different approach. The Court held that in the absence of a tangible employment decision (such as termination of employment), an employer sued for sexual harassment could assert an affirmative defense that it had an anti-harassment policy that the employee unreasonably failed to invoke, and that it vacted properly once on notice of the harassment.

 

As the #MeToo movement dramatically illustrates, in the ensuing twenty years, the law of harassment has woefully failed to protect women workers. All too often women harassed on the job find their cases dismissed or decided against them on summary judgment because they failed to properly follow their employer’s anti-discrimination policy, even when the employer knew of the harassment. As Lauren Edelman argues in Working Law (2016), courts have accepted the existence of anti-discrimination policies as persuasive proof of a lack of discrimination/harassment, even in the face of evidence that the policies are ineffective, or serve only a symbolic purpose.

 

This may be a good time, then, to return to the common law of agency, and the duties it imposes on employers to protect the safety of employees. For good reasons of public policy, worked out over many years, those rules usually impose strict liability on employers for harm caused by or to employees, and treat these as duties an employer may not delegate to others. Re-visiting Exacerbating the Exasperating seems like a good place to start.

October 18, 2018 in Business, Equal Employment, Theory, Workplace | Permalink | Comments (0)

Tuesday, October 9, 2018

CFP Applied Feminism and MeToo

The Center for Applied Feminism at the University of Baltimore announces its call for papers its call for papers for the 2019 Feminist Theory Conference.  

2019 Feminist Legal Theory Conference
Call for Papers

APPLIED FEMINISM AND #METOO

The Center on Applied Feminism at the University of Baltimore School of Law seeks paper proposals for the Eleventh Feminist Legal Theory Conference.  We hope you will join us for this exciting conference on Friday, April 12, 2019.  The theme is the #MeToo movement.

 

The resurgent #MeToo movement and the Kavanaugh confirmation hearings have put a spotlight on sexual harassment and sexual assault in our society.  Across America, the #MeToo movement has spurred women to share their stories of sexual harassment, run for office, advocate for change, litigate abuses, and build coalitions.  As a result of this social movement, there are emerging proposals to change the law, workplaces, schools and family dynamics to decrease sexual harassment and assault and ensure better responses to complaints.  In addition, the Kavanaugh hearings have created discussions about credibility, trauma, anger, and employment qualifications.  In sum, we are at a critical moment, a reckoning, of the persistent systemic sexual harassment and assaults of women.  At the same time, certain voices seem less visible in the movement, such as men who are harassed and assaulted, women who are low-income, women of color, women living with disabilities, and those who are imprisoned or subject to police violence.  And proposals for change may be too limited. 

 

We seek submissions of papers that focus on the topic of Applied Feminism and #MeToo.  This conference aims to explore the following questions: What impact has #MeToo had on feminist legal theory, critical race feminist theory, class crit feminist theory, and other critical legal theories? How has #MeToo changed law and social policy? What more needs to be done, and how? How can #MeToo be expanded to address all victims and survivors of sexual harassment and assault? How can we respond to intersecting forms of oppression like race, class, and disability? How can law and theory address the barriers to persons making claims of sexual harassment and assault? How can law and theory address distrust and anger towards sexual harassment and assault claims? What should be individual and systemic responses to sexual harassment and assault claims? What more can be done to eradicate sexual harassment and assault in the workplace, institutional, and other settings? 

 

We welcome proposals that consider these questions and any other related questions from a variety of substantive disciplines and perspectives. As always, the Center’s conference will serve as a forum for scholars, practitioners, and activists to share ideas about applied feminism, focusing on connections between theory and practice to effectuate social change. The conference will be open to the public and will feature a keynote speaker. Past keynote speakers have included Nobel Laureate Toni Morrison, Dr. Maya Angelou, Gloria Steinem, Senators Barbara Mikulski and Amy Klobuchar, NOW President Terry O’Neill, EEOC Commissioner Chai Feldblum, U.S. District Judge Nancy Gertner, and Obama administration official Jocelyn Frye.

 

To submit a paper proposal, by Friday, November 2, 2018, please complete this form and include your 500 word abstract: https://docs.google.com/forms/d/e/1FAIpQLSeTVf_gKjDmLaMlx_OX_AvKY9iUPCNy-CULsiThkpb_ie89ZQ/viewform?usp=sf_link.  We will notify presenters of selected papers by early December. About half the presenter slots will be reserved for authors who commit to publishing in the annual symposium volume of the University of Baltimore Law Review. Thus, the form requests that you indicate if you interested in publishing in the University of Baltimore Law Review's symposium issue. Authors who are interested in publishing in the Law Review will be strongly considered for publication. For all presenters, working drafts of papers will be due no later than March 22, 2019. Presenters are responsible for their own travel costs; the conference will provide a discounted hotel rate as well as meals. 

 

We look forward to your submissions. If you have further questions, please contact Prof. Margaret Johnson at majohnson@ubalt.edu. For additional information about the conference, please visit law.ubalt.edu/caf.

October 9, 2018 in Call for Papers, Theory, Workplace | Permalink | Comments (0)

Thursday, September 20, 2018

Tracing Catharine MacKinnon's Equality Theory

Chao-Ju Chen, Catharine A. MacKinnon and Equality Theory in Robin West and Cynthia Bowman eds, Research Handbook on Feminist Jurisprudence (2018, Edward Elgar), Forthcoming

This chapter discusses Catharine A. MacKinnon’s theory of sex equality, its application as well as major strands of criticism. Beginning with a radical critique of liberal legalism, feminism and Marxism, MacKinnon conceived a hierarchy-centered theory of substantive equality, shifting the paradigm of equality thinking from questions of sameness and difference to the power structure of dominance and subordination. Drawing on feminist consciousness raising as method, her theory sees gender as an inequality and sexuality as the linchpin of gender inequality. It is also an engaged theory producing sex equality laws to address women’s sexual violations: sexual harassment as a legal injury and a form of sex discrimination; a harm-based civil-rights approach to pornography; an asymmetrical approach to the abolition of prostitution; and an inequality approach to rape as a gender-based crime. Against challenges from anti-essentialist and sex-positive critiques, MacKinnon’s theory embraces intersectionality as a method and pursues equality by resisting sexual oppression.

September 20, 2018 in Theory, Women lawyers | Permalink | Comments (0)

Wednesday, September 19, 2018

On Feminist Theorist Martha Fineman's Legacy and Contribution to the Law

Linda McClain, Formative Projects, Formative Influences: Of Martha Albertson Fineman and Feminist, Liberal, and Vulnerable Subjects, 67 Emory L. J. (2018)

This essay, contributed to a symposium on the work of Professor Martha Albertson Fineman, argues that Fineman is a truly generative and transformative scholar, spurring people to think in new ways about key terms like “dependency,” “autonomy,” and “vulnerability” and about basic institutions such as the family and the state. It also recounts Fineman’s role in creating spaces for the generation of scholarship by others. The essay traces critical shifts in Fineman’s scholarly concerns, such as from a theory of dependency to vulnerability theory and from a gender lens to a skepticism about a focus on identities and discrimination. In evaluating Fineman’s call to move beyond identities and antidiscrimination law, the essay explores the rhetoric of vulnerability in the briefs in the recent Masterpiece Cakeshop litigation. This essay also charts my own critical engagement with Fineman’s critique of liberalism and the liberal subject in my constructing a form of liberal feminist legal and political theory. The essay identifies parallel concerns about the role of the state and civil society, comparing a liberal feminist formative project of fostering capacity and vulnerability theory’s project of building resilience.

September 19, 2018 in Theory | Permalink | Comments (0)

Tuesday, September 18, 2018

Will Tort Law Have its MeToo Moment

Martha Chamallas, Will Tort Law Have its #MeToo Moment?, Journal of Tort Law (forthcoming)

Using tort law’s treatment of claims for domestic violence and sexual assault as examples, this essay identifies prominent features of a feminist historical approach to law to demonstrate how gender inequality is reproduced over time, despite changes in legal doctrine. When informed by feminist theory, history can function as a critique of past and present regimes of inequality, highlighting the various techniques of exclusion and marginalization that emerge to prevent law from redressing serious, recurring injuries suffered disproportionately by women. The essay explores two such techniques: sexual exceptionalism that treats gender-related torts differently than other harms and the adoption of ostensibly neutral rules that have a disparate impact on women and marginalized groups. The essay speculates as to whether the #MeToo movement can provide the momentum to produce a break from the past, particularly with respect to third-party claims holding employers and other institutional defendants responsible for sexualized harms.

September 18, 2018 in Theory, Violence Against Women, Workplace | Permalink | Comments (0)

Wednesday, August 29, 2018

Domestic Violence as a Form of Torture: A Feminist Expansion of the Theory of the Prohibition of Torture

Natalie Davidson, The Feminist Expansion of the Prohibition of Torture: Towards a Post-liberal International Human Rights Law, Cornell Int'l L. J. (forthcoming)

International human rights law (IHRL), discourse and activism have been the subject of well-known critiques. Two categories of critique are closely linked to the liberal ideology underlying the human rights project, and point to the project's limited ability to further profound change. The "critique of justification" exposes the field's formalist argumentative practices, which struggle to justify proposed normative solutions. The "critique of representation" highlights the narrow ways in which injustice and violence are portrayed, denounced and addressed in international human rights discourse. These weaknesses are all the more troubling in the contemporary populist authoritarian era. Yet contrary to many critical scholars who advocate abandoning the human rights discourse, this article argues that it is possible to transform the discursive practices of IHRL so as to be more convincing and better address structural inequalities. It does so by analyzing the discursive practices of the feminist campaign to frame domestic violence as a form of torture, an explicit attempt to release the prohibition of torture, a central norm of IHRL, from the constraints of liberalism. While the discourse of domestic violence as torture reproduces some of the problematic features of better-known feminist engagements with international law, it also suggests IHRL's potential for profound reform, both at the level of justification and representation.

August 29, 2018 in International, Theory, Violence Against Women | Permalink | Comments (0)

Applying an Intersectional Theory of Criminal Law to Sex Work

I. India Thusi, Harm, Sex, and Consequences, Utah L. Rev. (forthcoming)

At a moment in history when this country incarcerates far too many people, criminal legal theory should set forth a framework for re-examining the current logic of the criminal legal system. This Article is the first to argue that “distributive consequentialism,” which centers the experiences of directly-impacted communities, can address the harms of mass incarceration and mass criminalization. Distributive consequentialism is a framework for assessing whether criminalization is justified. It focuses on the outcomes of criminalization rather than relying on indeterminate moral judgments about blameworthiness, or “desert,” which are often infected by the judgers’ own implicit biases. Distributive consequentialism allows for consideration of both the harms of the conduct and the harms of criminalization itself. It brings an intersectional approach to criminal legal theory by examining the distribution of harm, centering the experience of populations that face intersectional forms of subordination, and viewing the criminal legal system suspiciously. This Article adopts a distributive consequentialist analysis to examine the continued criminalization of sex work as just one example of how the theory can be applied. This application demonstrates how engaging in a distributive consequentialist analysis is a step toward reigning in a system that seems to be ever-expanding, and reframing a criminal legal theory that has grown ambivalent about this expansion.

August 29, 2018 in Theory | Permalink | Comments (0)

Tuesday, August 14, 2018

Federalism as Feminism in Health Reform

Elizabeth McCuskey, The Body Politic: Federalism as Feminism in Health Reform, 11 St. Louis J. Health L. & Policy 303 (2018)

This essay illuminates how modern health law has been mainstreaming feminism under the auspices of health equity and social determinants research. Feminism shares with public health and health policy both the empirical impulse to identify inequality and the normative value of pursing equity in treatment. Using the Affordable Care Act’s federal health insurance reforms as a case study of health equity in action, the essay exposes the feminist undercurrents of health insurance reform and the impulse toward mutuality in a body politicThe essay concludes by revisiting — from a feminist perspective — scholars’ arguments that equity in health insurance is essential for human flourishing.

August 14, 2018 in Healthcare, Theory | Permalink | Comments (0)

Tuesday, July 31, 2018

Podcast: Catharine MacKinnon on Sexual Harassment in the Age of MeToo

Podcast: Signs, Ask a Feminist: Catharine MacKinnon and Durba Mitra Discuss Sexual Harassment in the Age of #MeToo

Durba Mitra (DM): Today as part of Signs’ Ask a Feminist series, I have the opportunity to speak about sexual harassment and the #MeToo movement with feminist legal scholar Catharine MacKinnon, a lawyer, writer, teacher, and activist who is Elizabeth A. Long Professor of Law at the University of Michigan Law School and the James Barr Ames Visiting Scholar of Law at Harvard Law School since 2009, and one of the most cited legal scholars in the English language. MacKinnon is the author of numerous books, including the groundbreaking work Sexual Harassment of Working Women: A Case of Sex Discrimination, published in 1979 by Yale University Press, when Professor MacKinnon was completing her PhD at Yale. MacKinnon went on to write the brief and win, as cocounsel, the landmark Supreme Court case Meritor Savings Bank v. Vinson, which established sexual harassment as discrimination. MacKinnon has authored numerous books on critical issues, including Feminism UnmodifiedToward a Feminist Theory of the State, and Are Women Human? I had the opportunity before this interview to read some of Professor MacKinnon’s research related to her landmark first book in an extraordinary resource, her own papers, acquired by the Arthur and Elizabeth Schlesinger Library on the History of Women in America at the Radcliffe Institute at Harvard. Her study, published almost forty years ago, became the basis of transformations not only in sexual harassment law but in wider discourses that shaped the public perception of the very idea of sexual harassment. Supreme Court Justice Ruth Bader Ginsburg cites MacKinnon’s Sexual Harassment as the landmark study, the foundation for legal debates and social understanding on discrimination on the basis of sex.

July 31, 2018 in Equal Employment, Theory, Workplace | Permalink | Comments (0)

Thursday, July 26, 2018

CFP Public Feminisms

CFP Public Feminisms, Signs

Special Issue: Public Feminisms

Even as antifeminist and right-wing forces have gained footholds worldwide, feminists have forcefully asserted themselves in the public sphere as key voices of resistance. From the Women’s Marches around the world that took place the day after Donald Trump was inaugurated, to the 2012 protests in Delhi, to a new resurgence of writers proudly adopting the moniker, feminists have organized to claim public space and a public voice. It is no overstatement to claim that “the resistance” is being led by women, with intersectional feminism at its core.

Meanwhile, a shifting media landscape has enabled contradictory dynamics: feminists—through innovative uses of social media and online media outlets, as well as mainstream media—have found (and created) platforms to amplify their public voices, yet the pool of public intellectuals and the punditry continues to be largely dominated by white men.

This special issue seeks to address these dynamics through a multifaceted and interdisciplinary discussion of “Public Feminisms.” Signs has sought—through the creation of the Feminist Public Intellectuals Project—to actively advocate for feminist voices in both the scholarly and the public sphere, building a critical mass of public intellectuals who speak with a feminist voice to audiences outside of academia. These multipronged efforts have engaged feminist theorizing and historicizing with the pressing political and social problems across the globe. This special issue seeks to further extend the discourse of public feminisms.

 

Possible areas of focus might include:

  • How have new forms of media enabled new public forms of feminism (or antifeminism)? How does changing media create new risks for feminist discourse or feminist individuals?
  • How are feminist publics and public feminisms represented in literature, film, television, theater, dance, or other cultural forms today and in prior moments of resistance? How can these forms of expression be put to feminist use?
  • How has feminism either challenged or contributed to the concept of publicness itself? What historical models of publicness has feminism adopted or transformed?
  • How has claiming public space related to claiming discursive space, or vice versa? How have feminisms conjured new publics or counterpublics?
  • How do race, nation, religion, class, sexuality, and caste structure where and which feminisms tend to become public? How have feminists across time challenged these dynamics?
  • How do nonfeminist forces shape what circulates in the name of feminism, and how can feminists combat it?
  • What can comparisons among different historical eras, geographical areas, or political climates tell us about the conditions under which public feminisms can emerge?
  • To what extent are new languages necessary to shifting public discourses about feminism? How are new conceptual languages or vocabularies adopted as part of public discourse?

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

The deadline for submissions is September 15, 2018.

Please submit full manuscripts electronically through Signs’ Editorial Manager system at http://signs.edmgr.com. Manuscripts must conform to the guidelines for submission available at http://www.journals.uchicago.edu/journals/signs/instruct.

July 26, 2018 in Call for Papers, Theory | Permalink | Comments (0)

Friday, May 11, 2018

Reconceptualizing Sexual Harassment, Again

Vicki Schultz, Reconceptualizing Sexual Harassment, Again

Twenty years ago, I published an article in the Yale Law Journal entitled “Reconceptualizing Sexual Harassment.” Five years later, I published a follow-up article in YLJ. These two pieces anchored a body of writing that proposed a new theory of sexual harassment. 

Recent events reveal the work still depressingly relevant. Still relevant, because sexual harassment remains far too widespread, despite forty years of activism and legal reform. And still relevant, because the need for an adequate theoretical framework to guide action remains as pressing as ever, twenty years later.

Now is the time to reinvigorate theory. With the election of Donald Trump and the rise of the #MeToo movement, we are witnessing an extraordinary cultural moment of resistance against sexual harassment — one that could enable real change. I am heartened by the courage, tenacity, and smarts of the women and men who have come forward to challenge harassment in an effort to change the status quo. I include here not only the survivors who have risked so much to share their stories, but also the reporters who have worked to expose long-held secrets in the entertainment, technology, media, and other important industries. Most reports have focused on workplace or career-related harassment, a focus that is unsurprising given the centrality of work and workplace inequality to women’s lives. For that reason, this essay will focus on workplace harassment (though much of the analysis would apply also to sexual harassment on campus, a sphere that is important in its own right and as a training ground for professional life).

May 11, 2018 in Theory, Violence Against Women | Permalink | Comments (0)

The MeToo Movement as an Analytical Tool to Critique Rape Crisis Framing of Victim Services

Jamie Abrams, The #MeToo Movement: An Invitation for Feminist Critique of Rape Crisis Framing, 52 Richmond L. Rev. (forthcoming)

This article invites feminists to leverage the #MeToo Movement as a critical analytical tool to explore the longevity of the enduring rape crisis framing of victim services. For nearly half a century, victims have visited rape crisis centers, called rape crisis hotlines, and mobilized rape crisis response teams to provide services and support. This enduring political and social framing around rape as a crisis is opaque, has prompted a political backlash, and risks distorting hard-fought feminist legal, social, and political battles. It has yielded underreporting, underutilization, and recurring risks of budgetary cuts. This model and terminology have gone virtually unchanged for nearly half a century. Crisis language denotes urgency, decisiveness, judgment, action, and mobilization, all leading to closure. These descriptions can be problematic when mapped onto the lived experiences of certain communities. 

The #MeToo Movement presents modern feminists with a powerful, productive, and timely opportunity to critique the existing crisis model of service provision and support. This article invites feminists to begin this dialogue. It presents three critiques of the current framing. First, the crisis framing risks resurrecting troublesome legal relics relating to statutes of limitations and evidentiary hurdles. Second, it risks being perceived as exclusionary and limited, thus cabining its impact. Particularly, campus sexual assault victims and marginalized communities generally may not universally connect to an opaque crisis framing. Third, crisis framing risks distorting the scope of sexual assault. It limits the expansive range of harms that are associated with rape and sexual assault and the systemic longevity of the problem of rape and sexual assault in society. While the language of crisis seems to invoke an urgent call to action, which is to be applauded, this language risks blurring the long history of sexual assault and erasing a legacy of inaction in countless institutional and political and social settings. It also suggests a beginning and an end to a victim’s recovery journey. It suggests that closure is attainable when in reality, ongoing monitoring, responsiveness, and engagement are critically necessary.

May 11, 2018 in Pop Culture, Theory, Violence Against Women | Permalink | Comments (0)

Monday, April 16, 2018

Neoliberalism and the Lost Promise of Title VII

Henry L. Chambers, Jr., Neoliberalism and the Lost Promise of Title VII, JOTWELL, reviewing Deborah Dinner, Beyond “Best Practices”: Employment-Discrimination Law in the Neoliberal Era, 92 Ind. L.J.  1059 (2017).

In Beyond “Best Practices”: Employment-Discrimination Law in the Neoliberal Era, Professor Deborah Dinner explores how neoliberalism of the late twentieth century has influenced Title VII’s interpretation and destroyed Title VII’s ability to transform the American workplace into one where employees are properly treated, fairly valued, and fully compensated. She suggests that neoliberalism’s focus on a minimal role for state intervention and on the individual worker as a completely realized market actor capable of protecting her interests through negotiation with an employer is problematic. It has led to an interpretation of Title VII that functionally expands employer prerogatives regarding terms of employment, limits employee power, and legitimates the economic inequality and class subordination that Title VII should attempt to eliminate. Consequently, even “best practices” that fully enforce Title VII “are insufficient to realize a labor market responsive to the needs of low-income workers for adequate wages, safe work conditions, and work hours and schedules that allow for fulfilling family and civic lives.”

 

The article is a Thing I Like Lots because it takes two seemingly unrelated topics – Title VII and neoliberalism – and explores how they are connected. Dinner notes neoliberalism is not a tight theory, but a general outlook that focuses on a free-market ideal that favors deregulation and individual autonomy. Accordingly, the article situates employment discrimination law inside of our American culture, recognizing that a law or its interpretation does not exist separate from the society in which it operates. Simply, Title VII – the statute considered most likely to bring substantive and procedural equality to the workplace – can be blunted by interpretations provided by courts and commentators operating in a neoliberal society. The article notes the roads not taken and laments the unmet possibilities of employment discrimination law. That is worthwhile to consider even for a reader who may tend to focus on employment discrimination doctrine rather than theory.

April 16, 2018 in Equal Employment, Theory | Permalink | Comments (0)

Tuesday, April 10, 2018

Leveling Down Gender Equality

My latest article thinking about gender and remedies.

Tracy A. Thomas, Leveling Down Gender Equality

Introduction

The Supreme Court resurrected its “leveling down” jurisprudence in 2017 when it remedied an equal protection violation of gender discrimination by denying, rather than extending, the requested benefit. This approach of nullifying the benefit for all had previously been confined to a handful of cases, over thirty years old; but with the decision in Sessions v. Morales-Santana the Court brought new life and currency to this limitation of equality law. In Morales-Santana, a six-Justice majority of the Supreme Court led by Justice Ruth Bader Ginsburg and joined by Chief Justice Roberts and Justices Kennedy, Breyer, Sotomayor, and Kagan, struck down a gender-based distinction in the federal immigration statute.  The statute had two different standards for mothers and fathers for determining derivative citizenship for children born abroad to unwed citizen parents. It seemed to be an easy case of facially unequal rules based on gender: one year prior U.S. residence for mothers, five years prior residence for fathers. However, the Court then refused to grant the plaintiff father the same benefit of the shorter time frame allotted mothers.  It instead equalized the gendered rules by denying the previous benefit of the shorter one year to mothers. While Justice Ginsburg’s decision in Morales-Santana purported to be a strong, historic decision on the merits of equality, the denial of meaningful relief actually weakened the meaning of equality with a reach far beyond the contours of this one case. 

This “leveling down” of the remedy – responding to inequality by reducing benefits to all rather than leveling up and extending benefits to the disadvantaged group -- is unusual, but not unheard of.  It has been judicially endorsed in a few cases, where the courts have ratified the voluntary actions of defendants.  In one example, the city of Jackson, Mississippi remedied its racially segregated swimming pools by closing down all pools.  In another, Congress redressed the disparity of Social Security benefits that gave extra benefit to women by reducing the women’s benefit to the lower level previously applicable to men.  And in yet another example, a high school found to have discriminated against a pregnant teen by denying her membership in the school’s National Honor Society, eliminated the honor society for all students.

Defendants seem to choose this remedy almost in defiance, refusing to grant a benefit to the petitioner with the audacity to challenge inequality.  This retrenching is deemed an acceptable organizational response, as seen for example, in the example of the BBC and its overseas editors.  When the BBC (British Broadcasting Company) was exposed in the media for paying its women overseas editors substantially less than its men editors, it responded by reducing the men’s pay. The women were thus not only denied equal pay for the past discrimination, but were exposed to potential peer retaliation for “rocking the boat” and making the men worse off.  But for the BBC, as with other wrongdoing defendants, leveling down seemed to be a quick and easy way to erase the inequality problem.    

The Court in Morales-Santana similarly believed it needed to defer to the defendant’s choice of remedy for the gender discrimination.  This was ironic given that the Court in that same case expressly rejected such deference to Congress in the merits part of the decision.  It departed from previous decisions upholding gender distinctions in the derivative citizenship statute based on deference to Congress’s plenary power over immigration; this time, the Court forcefully applied constitutional norms of equality to a different end.  Yet, in the same breath, the Court turned around and espoused the importance of deference to the defendant’s choice for the remedy.  It struggled to find such legislative intent, trying to second guess what Congress would have done had it known its derivative citizenship statute was unconstitutional.  The Court decided Congress would have stricken the second of two statutory clauses, rather than the first provision or instead of utilizing the gender neutral term “parent” instead of “mother.” It thus achieved equality by a simple formal textual exercise which resulted in the elimination of the shorter-time benefit to all unwed parents.   

This textualist analysis, however, depended upon the assumption that leveling down is an equally-valid remedial option for inequality.  But this is where the Court went wrong.  The Court failed to question the constitutionally legitimacy of this nullification in light of the constitutional mandates of due process and equal protection.  Had the Court engaged in an analysis of the remedy as much as it did of the right, it might have discovered that more was demanded than mere neutral formality and equivalency of benefit across the board.  Equality itself, as a constitutional right, dictates more than just empty formalism.  And due process, I have argued, requires that rights be granted meaningful remedies. Together, this means that where the operative substantive right is based on equal protection, as in Morales-Santana, a meaningful remedy is one that grants the “protection” promised.  For equal protection does not merely mandate a logical parallelism of genders, but normatively values equal opportunity and benefit. Examining the leveling down remedy in light of equality, beyond the strict mandates of a particular statutory benefit, reaches a different conclusion than the Court.  Asking the additional question of whether the plaintiff has received a meaningful remedy for the past inequality casts doubt on the validity of leveling down relief for gender discrimination.  

This Article first examines the Court’s decision in Morales-Santana and its justification for choosing the “mean remedy” of leveling down and denying a citizenship benefit to the child of both mothers and fathers.  Part II then explores the Court’s general, but unexplained, impression that ordinarily leveling up is the proper remedial course.  It provides a normative foundation for this remedial presumption grounded in the meaning of equal protection and in the due process right to a meaningful remedy.  Given these constitutional norms, the Article then argues that the remedial calculus should be changed.  Rather than accepting the Court’s assumption, renewed in Morales-Santana, that leveling down and leveling up are equally valid remedial choices, it argues for a strong presumption of leveling up in cases of gender discrimination, with only narrow exceptions permitted to rebut.  Part III of the article explains that these exceptions permitting leveling down would be rare, and would be grounded in equity, but only in concerns that would inflict undue burden on the defendant or third parties from the leveling up itself.  Such a deferential rule to the plaintiff’s rights better effectuates the meaning of equal protection and protects against judicial and voluntary action that by remedial formalism of leveling down could eviscerate the very meaning of equality.

 

April 10, 2018 in Abortion, Constitutional, Courts, Family, Gender, SCOTUS, Theory | Permalink | Comments (0)

Tuesday, March 27, 2018

Foundations of Modern Penal Theory that Ignore the Gender Inequality of the Social and Family Context

Catalina Correa, The Foundations of Modern Criminal Law and Gender Inequality, 16 Seattle J. Soc. Justice 1 (2017)

Modern penal theory, like prevalent western theories of law, adopts a determined model of autonomy, one in which people are separable from social and family contexts. Taken to the criminal law context, this model proposes people can be defined without taking into account the social context. The use of prisons thus presupposes that individuals can be removed from their communities and families to be reeducated, readapted, treated or—in the retributive approach—simply punished. This notion of autonomy, however, hides from sight the group of people who not only maintain family ties with the men and women in prison, but who also, in contexts such as the Latin American one, take on the responsibility of supporting the prisoners economically. As this paper shows, this group is not heterogeneous or plural but defined by gender and primarily constituted of the mothers, daughters, wives and sisters of the people who are imprisoned. The data presented in this paper shows that this group of women is marginalized, impoverished and abused by a criminal justice system that not only omits to recognize the serious costs that the system imposes on them, but also omits to acknowledge their existence. This paper argues that this lack of recognition is possible because it is premised on a penal model that assumes a certain idea of autonomy, one which enables societies to erroneously affirm that prison sentences are individual sentences.

March 27, 2018 in Family, Gender, International, Theory | Permalink | Comments (0)

Wednesday, March 21, 2018

Before MeToo There was Catharine MacKinnon

 

MacKinnon

NYT, Before #MeToo, There was Catharine MacKinnon and her Book "Sexual Harassment of Working Women"

Catharine A. MacKinnon’s influential work of legal scholarship published in 1979, but it offers the clearest possible illustration of the dynamics that MacKinnon believed were central to the American workplace, a system in which women were judged by the standards imposed on wives and concubines, used and discarded similarly.

 

MacKinnon, whose work has helped shape thinking about harassment, wrote at a time when the trees were beginning to shake in a landscape that still looked a lot like Cheever’s. Women remained employed largely in their capacity to serve as secretaries, receptionists, nurses, typists, telephone operators, research assistants. In the book, MacKinnon draws on the observations of the sociologist Talcott Parsons, who noted that a woman in an “occupational organization” was essentially a “wife-mother,” tasked with ego-building, “housekeeping (tidying up, answering the phone, getting coffee)” and performing the attendant role of “sex object.” In 1976, aRedbook magazine survey examining sex at work brought a kind of loose statistical confirmation, with one in three respondents remarking that appearance was as important as any other qualification when it came to getting hired. MacKinnon cites one woman’s lament that the well-paid jobs always go to the prettiest girls. It was a woman’s fate to either endure the migratory hands of a male boss and earn a decent living, or wish she looked good enough to invite the indignities.

 

These arrangements made the sexual subjugation of women in offices and on factory floors inevitable. “Women tend to be economically valued according to men’s perceptions of their potential to be sexually harassed,” MacKinnon argues. “They are, in effect, required to ‘ask for it.’” These imbalances, built on the subordination of female labor to male desire, meant that coercion and compliance could never be disaggregated — a notion that only now, in the aftermath of so many harassment scandals, with replicating details, is finding its place in our collective recognition. MacKinnon and other feminists who are almost always tagged as “radical” reflexively saw what so many witnesses to the current revelations are still absorbing: Harassment has been endemic to the way we do business. It has been tireless and unyielding.

March 21, 2018 in Equal Employment, Gender, Legal History, Theory | Permalink | Comments (0)

Wednesday, March 14, 2018

MeToo, Time's Up, and Theories of Restorative and Transitional Justice

Lesley Wexler, Jennifer K. Robbennolt, Colleen Murphy, #Metoo, Time's Up, and Theories of Justice

Abstract:

Allegations against movie-mogul Harvey Weinstein and the ensuing #MeToo movement opened the floodgates to a modern day reckoning with sex discrimination in the workplace. High level and high profile individuals across industries have been fired, suspended, and resigned. At the same time, serious concerns have been raised about useful processes for non-privileged women, due process for those accused of misconduct, and the need for proportionate consequences. And there have been calls for both restorative and transitional justice in addressing this problem. But these calls have not been explicit about what sort of restoration or transformation is envisioned.

This article explores the meaning, utility, and complexities of restorative and transitional justice for dealing with sexual misconduct in the workplace. We begin by documenting the restorative origins of #MeToo as well as exploring steps taken, most prominently by Time’s Up, to amplify and credit survivors’ voices, seek accountability, change workplace practices, and encourage access to the legal system. We then take up the call for restorative justice by exploring its key components — including acknowledgement, responsibility-taking, harm repair, non-repetition, and reintegration — with an eye toward how these components might apply in the context of addressing sexual harassment in the workplace.

We conclude by looking more broadly to the insights of transitional justice. We identify some shared features of transitional societies and the #MeToo setting, including structural inequalities, a history of denial and the normalization of wrongful behavior, and uncertainty about the way forward. We then provide guidance for ongoing reform efforts. First, we emphasize the vital importance of including and addressing the interests of marginalized groups within the larger movement both because we need to know and acknowledge specific intersectional harms and also because doing so helps model the kinds of equal relationships that marginalized groups seek across other dimensions such as race, sexual orientation, gender orientation, and disability. Second, emphasize the need for holism and mixed types of responses in trying to spur societal change.

March 14, 2018 in Equal Employment, Theory, Workplace | Permalink | Comments (0)

Thursday, March 8, 2018

Law Students Protest Libertarian Feminist Speaker

Campus Speech Protest Draws Call to Discipline Students

The shouting down of Christina Hoff Sommers by students at Lewis and Clark law school during a talk on her brand of feminism has renewed concern about freedom of expression in academic settings.

 

Protesters who disrupted Sommers’ March 5 appearance at an event sponsored by the conservative legal group the Federalist Society should face school and bar discipline, one scholar told Bloomberg Law. Another said their tactics only amplified her ideas, which they opposed.

 

“I think there’s always a tough balance to be drawn between the right of speakers to speak and the right of students to protest,” Tung Yin, a professor at the private Portland, Ore., school who attended the event told Bloomberg Law.

 

The Lewis and Clark incident is one of many controversies involving events hosted by conservative groups that were canceled or disrupted on college and law school campuses. Law schools have not had as many incidents as other campuses, but some Federalist Society events have become a venue for politically charged disputes over speech.

 

Seattle University law school revoked its co-sponsorship of an immigration discussion in October hosted by its chapter of the Federalist Society. Texas Southern University law school soon after canceled a Federalist Society event that was to feature a conservative state representative.

Feminism Critiqued

Sommers, a scholar at the American Enterprise Institute, a nonprofit conservative-leaning think tank, articulates what she calls a “factual feminism” that critiques contemporary feminism. For instance, she challenges the gender wage gap and claims about the prevalence of sex assault on college campuses.Her lecture, “The Closing of the Feminist Mind,” was “an argument for a more judicious, inclusive, freedom-centered feminism,” Sommers told Bloomberg Law by email.

 

At least some of the protesters who interrupted her talk were law students, according to Yin.

 

They chanted that “rape culture is not a myth” and that the gender wage gap “is real,” in a video uploaded to YouTube. They also sang “no platform for fascists.”

 

Janet Steverson, a law professor and dean of diversity and inclusion at the school, asked Sommers to “wrap up” her speech “a couple of” times, Yin said.

 

Sommers said that she was able to give half of her speech, and that most of the student attendees, including progressives, were civil.

 

But she complained in a tweet about Steverson’s interference and said she was “never able to develop” her argument.

 

The speech was intended “to show that there was too little intellectual diversity in gender studies,” and that the “lack of balance has been harmful to the field” and “students who take it too seriously,” Sommers said.

 

“The censorious protesters who shouted me down could be Exhibit A for my thesis,” Sommers said.

 

She told Bloomberg Law that she is a registered Democrat and a moderate “libertarian feminist.”***

 

A better strategy for the protesters would have been to ignore the speech, Anthony Michael Kreis, a law professor at Chicago-Kent College of Law, told Bloomberg Law by telephone.

 

“I really had no idea who” Sommers was before the incident, but “now I know a lot more about her,” which shows that the protests were counterproductive, he said.

Sommers is the author of  Who Stole Feminism? How Women have Betrayed Women (1994) and  Freedom Feminism (2013) on the history of "conservative feminism," and host of the vlog The Factual Feminist.

Sommers' positions and writing have been characterized by the Stanford Encyclopedia of Philosophy as "equity feminism," a classical-liberal or libertarian feminist perspective which suggests that the main political role of feminism is to ensure the right against coercive interference is not infringed. Sommers has contrasted equity feminism with "victim feminism" and "gender feminism", arguing that modern feminist thought often contains an "irrational hostility to men" and possesses an "inability to take seriously the possibility that the sexes are equal but different."

 

March 8, 2018 in Law schools, Theory | Permalink | Comments (0)

Wednesday, March 7, 2018

Making the Case for Gender Quotas

Gender quotas are back in the news with the Oscars and the trending of "inclusion riders."  See posts here and here.  Not so long ago gender quotas were talked about with Canadian Prime Minister Justin Trudeau's 50% female cabinet, European corporate board quotas, and the United Nation's gender parity initiatives.

Quota is certainly a bad word.  But that doesn't mean its a bad idea.  To the contrary, I have argued that quotas, specifically gender quotas, can be legal.  And that such quotas are powerful remedies that offer the promise of structural change.  See Tracy A. Thomas, Reconsidering the Remedy of Gender Quotas, Harv. J. L. & Gender (online) (Nov. 2017).

The article first discusses the need for and the power of gender quotas.  They are worth examining because no other remedy packs as much potential for making concrete, meaningful, systemic change.  The article traces the other contexts, mostly international, where such quotas have been endorsed.  It then addresses the legal issues. Here is an excerpt:

 

III.  Making the Legal Case for Judicial Gender Quotas

* * *

A second legal question regarding the validity of gender quotas is whether ordering such gender-specific relief would violate constitutional parameters of equal protection as seen in the affirmative action cases. U.S. Supreme Court decisions in the race context seemed to have foreclosed most affirmative action remedies like quotas in education and employment. Conditioning state action based on race is said to be discriminatory and trigger strict scrutiny, thereby justifying little state action.“‘To be narrowly tailored, a race-conscious admissions program cannot use a quota system,’ but instead must ‘remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application.’” Race, however, can still be used as one factor in decisions like university admissions.

On the other hand, the European Court of Justice has upheld gender quotas against claims that they violate equality dictates. “[T]he ECJ's jurisprudence has reinforced the notion that gender quotas can only be narrowly justified by the goal of eradicating women's disadvantage.  Particularly when women's underrepresentation in certain positions is explained by prejudice, stereotype, or other practices associated with women's traditional exclusion from working life, quotas tend to be upheld.” Viewed this way, “[q]uotas are a mechanism for combating and undoing the history and present complex structures of women’s subordination.”

In the U.S., the question turns in large part on application of the Fourteenth Amendment’s Equal Protection Clause as to whether a gender quota as a judicial remedy would itself constitute discrimination. One key distinction between gender and race quotas is that the constitutional standards for sex discrimination have been distinguished from those for race. The Supreme Court has applied only intermediate, not strict, scrutiny to sex-based classifications. While arguments have been made over the years that sex is akin to race in its immutable and stereotypical function, and thus should demand the same level of strict scrutiny, the Court has stuck to its different standard for women. As a result, the Court has shown a greater tolerance for sex-based action, articulating a need to protect women or acknowledge gendered differences. And the constitutional standard has been interpreted by the Court to require women’s admission to the avenues of power.

What the intermediate standard of constitutional scrutiny might mean in the quota context is that sex-based action might be more tolerable than race-based action. Perhaps this is the silver lining of the double-standard of intermediate scrutiny. For the Court's gender jurisprudence has recognized “the transformative potential of affirmative action and” how it “best advances the antisubordination goal of the equal protection guarantee.”Courts would need to identify important (but not compelling) interests justifying the sex-based action. These important interests could be derived from women’s non-representative lack of power, continued subordination, lack of autonomy, and other systemic effects well-established in the feminist literature, and interests in equity, proportional representation, and balanced power which have driven global reforms.

This important objective of reversing gendered and discriminatory systems by mandating shared parity of power differentiates the case of gender quotas from the women-only policy struck down in Mississippi University for Women v. Hogan. There, a state university’s nursing program was open only to women.132 The state claimed that its single-sex admission policy “compensate[d] for discrimination against women and, therefore, constitutes educational affirmative action.” The Court noted, significantly, that such a justification could be an important governmental interest. “In limited circumstances, a gender-based classification favoring one sex can be justified if it intentionally and directly assists members of the sex that is disproportionately burdened.” However, in Hogan, the Court found that this compensatory remedial purpose was not in fact the state’s objective. “Mississippi has made no showing that women lacked opportunities to obtain training in the field of nursing or to attain positions of leadership in that field when the MUW School of Nursing opened its door or that women currently are deprived of such opportunities.” The Court concluded that, “[r]ather than compensate for discriminatory barriers faced by women, MUW's policy of excluding males from admission to the School of Nursing tend[ed] to perpetuate the stereotyped view of nursing as an exclusively woman’s job.” In addition, the Court found that “MUW's admissions policy lends credibility to the old view that women, not men, should become nurses, and makes the assumption that nursing is a field for women a self-fulfilling prophecy.” Thus, the constitutional infirmity with the all-women policy in Hogan was that it was not remedial and not aimed at reversing systemic inequality, but rather impermissibly perpetuated gendered stereotypes.

Where affirmative remediation is the legitimate objective, the Supreme Court has upheld quota-like gender preferences. In Johnson v. Transportation Agency, the Court upheld an affirmative action plan of a county employer granting promotion preference to a woman against challenge under Title VII. The county adopted the plan because “mere prohibition of discriminatory practices is not enough to remedy the effects of past practices and to permit attainment of an equitable representation of minorities, women and handicapped persons.” It’s “goal” (specifically designated as the softer term “goal” rather than “quota”) was to achieve “a statistically measurable yearly improvement in hiring, training and promotion of minorities and women” by the use of a “benchmark by which to evaluate progress,” working toward a long-term goal where its work force matched the gender composition of the area labor force, 36%. At the time, just 22% of the employees were women, two-thirds of them clerical, only 7% women in administration, 9% in technical, and none in the position of the skill craft worker challenged in the lawsuit. The Court upheld using the gender preference as one of the factors of employment, citing the statistical imbalance and underrepresentation of women. It did not, the Court said, “unnecessarily trammel the rights of male employees or create [ ]  an absolute bar to their advancement” because positions still remained available for men and candidates, both men and women, still had to be qualified for the position.

Taking these cases together, the Court has shown a willingness to consider quotas in the gender context. While it has not had the question presented directly, the Court has at least not closed the door to gender parity. Instead, as in any heightened constitutional scrutiny, it demands close and careful application of the constitutional standards to ensure that gender preferences are not mere pretexts nor avenues for future discrimination.

March 7, 2018 in Equal Employment, Theory | Permalink | Comments (0)