Tuesday, October 31, 2017
Lauren Rivera, When Two Bodies are (Not) a Problem: Gender and Relationship Status Discrimination in Academic Hiring, Amer. Soc. Rev. (Oct. 25, 2017)
Junior faculty search committees serve as gatekeepers to the professoriate and play vital roles in shaping the demographic composition of academic departments and disciplines, but how committees select new hires has received minimal scholarly attention. In this article, I highlight one mechanism of gender inequalities in academic hiring: relationship status discrimination. Through a qualitative case study of junior faculty search committees at a large R1 university, I show that committees actively considered women’s—but not men’s—relationship status when selecting hires. Drawing from gendered scripts of career and family that present men’s careers as taking precedence over women’s, committee members assumed that heterosexual women whose partners held academic or high-status jobs were not “movable,” and excluded such women from offers when there were viable male or single female alternatives. Conversely, committees infrequently discussed male applicants’ relationship status and saw all female partners as movable. Consequently, I show that the “two-body problem” is a gendered phenomenon embedded in cultural stereotypes and organizational practices that can disadvantage women in academic hiring. I conclude by discussing the implications of such relationship status discrimination for sociological research on labor market inequalities and faculty diversity.
Wednesday, October 25, 2017
Kate Webber Nuñez, Toxic Cultures Toxic Cultures Require a Stronger Cure: The Lessons of Fox News for Reforming Sexual Harassment Law, 122 Penn State L. Rev. (forthcoming):
A series of sexual harassment scandals have disrupted Fox News, causing the departure of some of its top executives and anchors. The upheaval at Fox News, however, came from public disclosure and social pressure; the actual law prohibiting harassment failed to deter or stop the rampant abuse at the network. Legal scholars have previously identified the problems with federal harassment law that could explain why widespread sexual harassment occurred at the highest levels of Fox News. Specifically, the existing literature details how women are forced to report harassment nearly immediately, despite the many career reasons not to, and yet are not fully protected against retaliation when they do. Scholars have also documented that if a victim’s claims do make it to court, the standard for proving harassment is a nearly insurmountable burden to overcome. These identified weaknesses in the law would seem to explain why it failed to act as a stronger deterrent to Fox News. Fox News, however, is headquartered in New York City, a jurisdiction with its own local anti-harassment law that is much more strongly worded. In fact, the New York City Human Rights Law removes each of the identified problems in federal harassment law. The example of Fox News therefore demonstrates that with entrenched harassing cultures, stronger anti-discrimination statutes that “fix” the identified weaknesses of current law are not a complete solution. Thus, this article advocates for two alternative means of strengthening harassment law: expanded use of systemic harassment claims and limits on the use of confidential settlements and mandatory arbitration agreements. This analysis is of particular relevance in light of recent sexual harassment scandals affecting companies such as Uber and The Weinstein Company.
Tuesday, October 24, 2017
As sexual harassment dominates the news, a blog post here collecting some of the key sources for understanding the legal history of sexual harassment.
Lin Farley, NYT, I Coined the Term "Sexual Harassment." Corporations Stole It.
It wasn’t until April 1975 that women had a word for talking about what their male bosses were doing to them.
It was that month that I first used the phrase “sexual harassment” in public, during a hearing on women in the workplace by the New York City Human Rights Commission, at which I was testifying as an instructor at Cornell University. The New York Times covered the hearing in an article that was reprinted across the country. And thus, a concept was born.
Reva Siegel, A Short History of Sexual Harassment Law
As we have· seen, the practice and protest of sexual harassment have a long history, in which we can situate developments of the 1970s as a recent and relatively short chapter. But these developments nonetheless represent a dramatic turning point in social and legal understandings of the practice.
In the 1970s Catharine MacKinnon and Lin Farley and the many other lawyers and activists who represented women in and out of court were able to mount a concerted assault, of unprecedented magnitude and force, on the practice of sexual harassment. Responding on many fronts to the demands of the second-wave feminist movement, the American legal system began slowly to yield to this challenge, and for the first time recognized women's right to work free of unwanted sexual advances.
How did this come about? Sexual harassment law arose, first and foremost, from women acting as part of a· social movement speaking out about their experiences as women at work; the term "sexual harassment" itself grew out of a consciousness-raising session Lin Farley held in 1974 as part of a Cornell University course on women and work. But more was required for the American legal system to recognize this experience of gendered harm as a form of legal injury, when for centuries it had refused.
Carrie Baker, Sexual Harassment: Law for Women, By Women, in Feminist Legal History
Carrie Baker, The Women's Movement Against Sexual Harassment
Tuesday, October 10, 2017
How marvelous. A fresh batch of “best” law firms for women lists. They are proliferating like bunnies across the American legal landscape. Law360, Working Mother and our own National Law Journal are just some of the publications that recently put out such lists. (Yale Law Women issues one too; it’s called “Top 10 Family-Friendly Firms”—a much more P.C. moniker.)
I’d love to say that these lists signal an abundance of opportunities for women in law. But that’s not how I see them. I find these lists confusing, if not misleading. And sad.
Often, firms get the “best” designation because they boast a high percentage of women lawyers—even though not many of them are actual shareholders.
The result is that firms with below-average percentage of women equity partners can get a skewed ranking, as I see it. For example, Baker McKenzie (16.4 percent female equity partners; the national average hovers around 18 percent) ranks No. 24 on the NLJ’s list, while Paul, Weiss, Rifkind, Wharton & Garrison (23.3 female equity partners) only ranks No. 38. Using a similar formula, Law360 puts Baker McKenzie in second place on its best women’s list in the 600-plus law firm category, tying with Jackson Lewis.
To me the proof in the equality pudding is how many women are elevated to equity partner. If women aren’t equal stakeholders with men, how can anyone say they have any genuine power?
I’m all for encouraging institutions to reach lofty goals, but why laud firms so behind the curve? What’s so great about all those spiffy flexibility arrangements when female lawyers essentially have second-class status? ***
Instead of focusing on initiatives, I’d rather take a cold, hard look at where women are making equity partner. And here’s the reality check: Women are scarce in the top echelons of the profession.
The bottom line is that the sexy Big Law firms are not the places where women are making it in Big Law. So let’s call the “best firms for women” what it really is: a sad statement of how much women lag behind.
Thursday, August 31, 2017
LaTonya J. Trotter, Making a Career: Reproducing Gender Within a Predominantly Female Profession, Gender & Society
In my Gender & Society article, I explore the career biographies of NPs and NP students in order to understand the role of nursing’s institutional arrangements in women’s labor market decisions. I focus on NPs because they are a highly educated subgroup of nurses that have cleared a series of credentialing hurdles to order to make careers. In some ways, nursing is a shining example of how flexible arrangements not only help workers manage family commitments but actively encourage career aspirations. Nursing’s flexibility begins with education. Nursing is one of the few professions that make it possible to accrue educational credentials in cohesive fragments. Forty-one-year-old Hana described a fifteen-year trajectory that started with a two-year community college degree. That was enough to begin working as a registered nurse (RN). A few years later, Hana enrolled in a structured bridge program that allowed her to leverage her two-year degree towards completion of a bachelor’s degree in nursing. Moreover, the bridge program enabled her to pursue her bachelor’s part-time while working as a full-time nurse. Ten years later, Hana took advantage of similar accommodations to complete her master’s degree to practice as an NP. “I call myself a kind of Cinderella story,” she told me. “I came up from community college all the way up to the Ivy League.”
Nursing’s flexibility facilitated motherhood as well as social mobility. Women entering high status professions often delay childbearing. The demands of advanced schooling and early career leave little room for parenting. The ability to build a career over a longer time horizon meant that motherhood might change the rhythm of a career, but it did not stop it. A similar level of flexibility was mirrored in nursing work. Hospital nursing’s reliance on 12-hour shifts over 3 days gives full-time workers more days at home to spend with children. For NPs who spend part of their careers as hospital RNs, this allowed them to more effectively juggle work, family, and eventually, graduate education.
For individual women, these institutional arrangements provided a private solution to balancing work with family life. However, these solutions have broader consequences for gender inequality. Because these arrangements were sequestered within a predominately female occupation, they reproduced gendered expectations about women’s investments in family life. Flexible scheduling ensured that women retained primary responsibility for family caregiving. Moreover, nursing’s flexibility reproduced flexible women who could switch specialties, change jobs, or delay graduate education to accommodate the inflexible jobs of partners and spouses. Flexibility became both an opportunity and an obligation. Nursing’s accommodating arrangements are themselves a product of the historical legacy of gender inequality. The continued existence of two-year RN programs is the preference of employers, not the profession. As a female dominated profession, its aspirations remain tempered by hospital demands for an inexpensively trained workforce.
My work suggests an additional explanation for why women continue to crowd into careers like nursing. Women may gravitate toward caring work, but they also care about creating careers. Nursing’s flexibility stands in contrast to the inflexibility women encounter in other parts of the labor market. My work also serves as a caution for relying on workplace policies alone to solve the dilemmas of working women. Without subsidized, national programs for parental leave and child-care, women alone will be pressed to “choose” flexibility. When only women are the beneficiaries of such arrangements, they quickly become segregated into “mommy tracks” or “women’s professions.” The unequal benefits that follow can too easily be attributed to women’s preferences rather than as the product of gender inequality.
Friday, August 25, 2017
New Book Podcast, Liana Christin Landivar, Mothers at Work: Who Opts Out?
A big question in Sociology regarding work and gender is: which mothers opt out of the labor force to take care of children? Popularly known as “opting out,” this trend is often seen as a mother’s personal choice rather than a decision made within a set of cultural and structural constraints in women’s everyday lives. Building upon previous work, Liana Christin Landivar‘s new book Mothers at Work: Who Opts Out? (Lynne Rienner Publishers, 2017) uses nationally representative data to inquire into who exactly is opting out and who is staying in the labor force. Most media coverage on the topic focuses on women who work in management or other professional level occupations, but Landivar’s book looks at a wide spectrum of occupations and finds that the question of who opts out is much more nuanced. She finds that investigating occupation is key for answering who is opting out. She also delves into the categorizations of work hours, giving consideration not only to part-time work and how that varies by occupation, but also women who scale back, or reduce work hours but not to part-time levels. Additionally, age of the mother, as well as the child, alongside race and educational attainment all help to better understand which mothers are opting out. Landivar gives careful consideration to the structural factors across and between occupations and how they may influence mothers opting out. Finally, this book provides some important methodological insights for the reader, including emphasizing the variations within work hours and the key importance of reference groups used to answer research questions.
This book will be enjoyed by Sociologists broadly, but is key reading for work/family and gender scholars. Folks in gender studies as well as business leaders might enjoy this book and find important insights into which mothers opt out of the labor force. This book would be useful in a gender/work/family class as well as a graduate level methods course, with its careful explanation of modeling and fantastic graphics.
Wednesday, August 23, 2017
Catherine Ross Dunham, Third Generation Discrimination: The Ripple Effects of Gender Bias in the Workplace
What is implicit bias? What does it look like? How can we define and address it in personal and legal contexts, working towards the end goal of making the workplace more amenable to successful career paths for all engaged? These questions constitute the modern taxonomy of questions in the area of gender discrimination. Thanks to plaintiffs of the past fifty years and their arduous battles under Title VII with quid pro quo sexual harassment, hostile environment sexual harassment, pregnancy discrimination, gender discrimination in benefits and work assignments, and many other indignities, we have passed through the era of blatant, un-actionable gender-based discrimination. Of course, certain work environments continue to pose threats to female workers. In those environments, employers and supervisors prey on women who are ill-positioned to access legal and other support services, thus continue to operate workplace environments that openly discriminate based on gender and openly threaten female employees. But the risks to female workers are not only present in those extreme environments. Women in safe, corporate jobs and women in professional jobs, those white collar bastions of Mad Men fame, still battle an evolved species of gender discrimination which flows from implicit bias against women generally and specifically against women attempting to compete in male-driven industries and professions.
Betty Dukes was a Wal-Mart employee who could not get promoted into an entry level management position despite her employer’s sophisticated employment policies which included the legally appropriate policies designed to protect women at Wal-Mart from gender-based discrimination. At Wal-Mart, the decision to elevate employees into entry-level management positions was delegated to department and store managers. ***
Ellen Pao worked in a very different professional context. Ellen Pao was an Ivy-League educated management analyst and lawyer who had enjoyed success in the field of banking and finance. . . . After complaining of harassment by Nazre and other partners, Ellen Pao continued her work at Kleiner, working towards her goal of partnership. However, she was never considered for partner, being excluded from opportunities, meetings and events, which were essential to advancement in the firm. The firm relied on her personnel reviews in evaluating her for partnership, which included evaluative comments that ran the gamut from her having “sharp elbows” and complaining too much or being too sensitive.
Betty Dukes and Ellen Pao may appear to have little in common but they are both pioneers in developing a conversation about the role of implicit bias against women in the workplace. This article will discuss their cases in greater detail as a means to focus on a larger question regarding gender-based discrimination and implicit bias. Courts and scholars have recognized the existence of structural or Second Generation discrimination, which describes aspects of an organization’s structure that facilitate or enable implicit gender bias. Betty Dukes’s case was an unsuccessful attempt to litigate a claim for Second Generation discrimination under Title VII, ultimately failing at the United States Supreme Court. Ellen Pao was also unsuccessful in her effort to persuade a San Francisco jury that she was a victim of Second Generation discrimination. In both cases, men and women of various backgrounds determined the ultimate fate of the claims. This article asks if Title VII claims based on Second Generation discrimination are further inhibited by the implicit biases of judges and juries. How can a female plaintiff convince a fact-finder, or a reviewing judge, that she has been discriminated against through the use of stereotypes and bias if those hearing the case share the same implicit gender bias?
This article will begin by examining the Pao and Dukes cases, focusing on the role of the decision-makers in the ultimate outcomes of those cases. The article will then consider implicit bias as a concept, noting the interplay between implicit bias and gender-based stereotypes. Building on that understanding, the article will explore generally the evolution of Second Generation discrimination as a legal theory, connecting that analysis back to Dukes’s and Pao’s cases. The article will then explore the role of implicit bias in the court system, reviewing social science literature regarding the role of gender-based bias in the courtroom as it relates to female attorneys, female litigants, and the effect of certain “feminine traits” in the courtroom. The article will argue that gender-based implicit bias against women litigants plays out in the form of a Third Generation Discrimination, a term developed here, by layering on the biases of judges and juries. Third Generation Discrimination further undermines efforts by women seeking relief under Title VII for workplace discrimination based on claims that her employer allowed bias against her to curb her opportunities for advancement. Women will only succeed in implicit bias cases, such as those brought by Dukes and Pao, if the facts of the case are evaluated by those who can assess the case without regard to their own preconceptions about the role of women in the workplace and in society.
Tuesday, May 23, 2017
EEOC Seeks Rehearing En Banc in 9th Cir Decision Finding Unequal Pay Based on Salary History Alone is not Gender Discrimination
The EEOC has petitioned for rehearing en banc in the 9th Circuit's decision in Rizo v. Yovino (Apr. 27, 2017) holding that pay a woman less than men doing the same job because of their different salary histories was not gender discrimination.
Some of the highlights of the petition:
- The Commission, along with two circuit courts, takes the position that prior pay cannot be the sole factor causing the disparity because the practice perpetuates the gender pay gap that continues to exist nationally, in the field of education and elsewhere.
- A practice like the County’s undermines the purposes of the EPA because it institutionalizes the gender pay gap that studies confirm continues to exist and relies on the largely discredited market forces theory, which endorses paying women less than men because they will agree to work for less.
- The Tenth and Eleventh Circuits have held categorically that while there is no prohibition against relying on multiple factors including prior pay, prior pay alone cannot be considered a “factor other than sex” within the meaning of the EPA. See, e.g., Riser v. QEP Energy, 776 F.3d 1191, 1199 (10th Cir. 2015) (citing Angove, 70 F. App’x at 508); Irby, 44 F.3d at 955 (stating that “prior salary alone cannot justify pay disparity”). They reason that “if prior salary alone were a justification, the exception would swallow up the rule and inequality in pay among genders would be perpetuated.” Irby, 44 F.3d at 955.
- Courts similarly reject the related “market forces theory,” discredited by Corning Glass (417 U.S. at 205) — that an employer must offer more money to male applicants because they will not accept less but, conversely, may offer less money to female applicants because they will accept less. The Eleventh Circuit explained, “[T]he argument that supply and demand dictates that women qua women may be paid less is exactly the kind of evil that the [Equal Pay] Act was designed to eliminate, and has been rejected.”
- We recognize that even if this Court adopts the rule from the Tenth and Eleventh Circuits, it will not entirely eliminate the circuit conflict. The Seventh Circuit takes the position that “prior wages are a ‘factor other than sex.’” Wernsing v. Ill. Dep’t of Human Servs., 427 F.3d 466, 468 (7th Cir. 2005) (citation omitted).
For a prior blog post about the Rizo decision, see Court Holds Salary Histories are Non-discriminatory Basis to Pay Women Less
For some of my additional thoughts on the case, see Erin Mulvaney, EEOC Fights Ninth Circuit Ruling That Institutionalizes Gender Pay Gap, Natl. L. J. (May 23, 2017)
Two important points to keep in mind are:
- How salary histories can be gendered: Historically women have been paid less than men because they could be. "Market forces" allowed employers to pay women less because women were willing to take jobs for less than men, usually because women had less options and less bargaining power. Women were also paid less because they were assumed to be working for "pin money," extra spending money rather than being a primary breadwinner or supporter of a family. It was also assumed that women were primarily dedicated to their families and children, and thus work was secondary, and family needs might interfere with dedication to work, thus justifying the lower pay. And, most obviously, if a woman was discriminated in a past job, that discrimination is perpetuated forwarded if it is continued to be used as a marker for future salaries. These are all workings of structural or systemic gender discrimination beyond any individual animus.
- There are easy non-gendered workarounds: As the EEOC points out, just base salary on the relevant factors, sometimes reflected in salary history and sometimes not in cases of discrimination. Consider the factors directly of work experience, number of years of experience, and education and degrees.
Tuesday, March 28, 2017
New data shows that women are underrepresented in the highest levels of leadership because they are being forced out by dated workplace structures. These structures, which do not represent the modern needs of a two-income household labor force, are causing millions of talented employees to fail, especially working mothers—and the result is massive attrition at every point in the leadership pipeline.
Contrary to popular belief, the majority of women who leave the corporate workforce actually want to stay. A recent Bain study showed that women value flexibility over and above any other factor in their career search, including compensation, title, and location. Of the 30 percent of credentialed women who drop out of the workforce, 70percent say they would have stayed if they had access to flexibility. This amounts to 6.6 million women—enough to dramatically increase the number of women in leadership and rapidly accelerate the advancement of corporate gender equality.
Strategic workplace flexibility is the easiest and most cost effective way to retain women in the workplace and advance them to positions of leadership over time.
While many companies have demonstrated a commitment to helping women advance to positions of leadership, they remain largely unsuccessful because strategic flexibility is not a key component of their programming. When companies do provide flexibility programs, they are often underutilized or fail entirely because flexibility is misunderstood. Women tend to not take advantage of existing flexibility policies due to a fear that their requests will make them appear less committed and a concern that flexibility policies will not be faithfully implemented.
Flexibility isn’t simply working from home via video conference or a lifestyle perk like free cereal; it’s a fundamental shift in the way we think about and expect our employees to work. Flexibility does not alter a job’s scope of responsibilities or expected results—it simply modifies the existing agreement between the employer and employee to increase compatibility. And when it’s negotiated in a standardized context, it normalizes the conversation around flexibility and eliminates the bias or discomfort women tend to feel during the interview and hiring process.
Monday, March 13, 2017
3d Circuit Says Medical Resident's Title IX Sexual Harassment and Retaliation Claim Survives Motion to Dismiss
Under a residency agreement, Doe joined Mercy's diagnostic radiology residency program in 2011 as a second-year, or R2. The program offered training in all radiology subspecialties in a community-hospital setting combining hands-on experience with didactic teaching. As required, Doe attended daily morning lectures presented by faculty and afternoon case presentations given by residents under faculty or attending physicians' supervision. She took a mandatory physics class taught on Drexel's campus, attended monthly radiology lectures and society meetings, joined in interdepartmental conferences, and sat for annual examinations to assess her progress and competence.
Doe says the director of Mercy's residency program, whom she calls Dr. James Roe, sexually harassed her and retaliated against her for complaining about his behavior, resulting in her eventual dismissal. Early on, Dr. Roe inquired about her personal life and learned she was living apart from her husband. He found opportunities to see and speak with her more than would otherwise be expected, often looking at her suggestively. This made Doe uncomfortable, especially when the two were alone. From these interactions she surmised Dr. Roe was sexually attracted to her and wished to pursue a relationship, though they both were married.Three months into her residency Doe sent Dr. Roe an email voicing concern that others knew about his interest in her. She wanted their relationship to remain professional, she said, but Dr. Roe persisted, stating he wanted to meet with her while they attended a conference in Chicago. She replied with text messages to clear the air that she didn't want to pursue a relationship with him. Apparently displeased, Dr. Roe reported these messages to Mercy's human resources department, or HR. In response, HR called Doe to a meeting where she described Dr. Roe's conduct, like how he'd touched her hand at work, and said his unwelcome sexual attention was negatively affecting her training. The next day HR referred Doe to a psychiatrist, noting that her attendance was optional. Doe, however, believed Mercy would use it against her if she didn't go, given her complaints against Dr. Roe. She thus attended three sessions and complained there about Dr. Roe's conduct, but she heard nothing more from HR. Later Dr. Roe apologized to Doe for reporting her. He did it, he said, for fear he'd be reprimanded for having an inappropriate relationship with her. Thereafter two male faculty members, both close with Dr. Roe, trained her significantly less than they had before.In Fall 2012 Dr. Roe learned Doe was getting divorced. His overtures intensified. He too was getting divorced, he told her, and he wanted a relationship with her. He suggested they go shooting and travel together. He said he was uncomfortable with her going to dinner for fellowship interviews and unhappy about her leaving Philadelphia post-residency. During this time Doe asked Dr. Roe and another faculty member for fellowship recommendation letters. They agreed but wrote short, cursory, and perfunctory ones. Dr. Roe even told the fellowship's director that Doe was a poor candidate. When Doe called Dr. Roe to ask why, he said it was to teach her a lesson before hanging up on her.In response to Doe's complaints about Dr. Roe, Mercy's vice president, Dr. Arnold Eiser, called Doe to a meeting with Dr. Roe and others. There Doe complained about Dr. Roe's conduct again but was told to wait outside. A short time later Dr. Eiser escorted her to Mercy's psychiatrist. As they walked Dr. Eiser told Doe her second in-service examination score was poor, an issue she needed to address. Later, however, Doe learned this wasn't true: Her score was in the 70th percentile, and Dr. Eiser had received misinformation. She asked Dr. Roe to report her improvement to the fellowship she'd applied to, but he refused. Mercy later told Doe that to remain in the program, she'd have to agree to a corrective plan. Reluctantly, she signed on.Dr. Roe's conduct continued into Spring 2013. Once while Doe was sitting alone with Dr. Roe at a computer reviewing radiology reports, he reached across her body and placed his hand on hers to control the mouse, pressing his arm against her breasts in the process. She pushed herself back in her chair, stood up, and protested. Another time, when a physician expressed interest in Doe, Dr. Roe became jealous and told Doe she shouldn't date him. Later, in April 2013 Dr. Roe told another resident to remove Doe's name as coauthor from a research paper she'd contributed to. Doe complained, but Dr. Roe said she was acting unprofessionally and ordered her to another meeting with Dr. Eiser. At that meeting Doe again told Dr. Eiser about Dr. Roe's conduct over the past year. Dr. Eiser, however, said the other residents loved Dr. Roe and told her to apologize to him. She did, but Dr. Roe wouldn't accept it, calling it insincere. Dr. Eiser suspended Doe, recommending another visit to the psychiatrist.Thereafter on April 20, 2013 Doe received a letter from Mercy stating she'd been terminated but could appea.
Tuesday, February 7, 2017
Tristin Green, American is from Venus, France is from Mars: Pinupus, Policing, & Gender Equality, Employee Rgts & Employment Policy J (forthcoming)
Professor Tristin Green shows in this Essay that current portrayals of differences between American and French harassment law are incomplete. They overlook important history of harassment law in the United States and miss the extent to which American law has been and continues to be shaped by concerns very similar to those articulated by the French in devising their harassment law. To reveal the common thread of concern, Professor Green uncovers the seeds of the limits placed on employer liability for harassment by the United States Supreme Court in the 1980s and 1990s, and digs beneath the doctrinal cover of “because of sex” in Title VII cases today. She shows judges in the United States relying on the “because of sex” requirement to prevent Title VII from disrupting exclusionary and subordinating work cultures for the very same reasons that French law was originally narrowly conceived. American judges in these cases see harassment as a problem of interpersonal intrusion (if not violence) first and of workplace discrimination second. Most fundamentally, they see employers as mere police officers of individuals who engage in harassment, and they resist a construction of the law that would require employers to alter male-dominated work cultures.
Seeing this similar thread of concern and how it restricts the reach of harassment law in the United States is important to understanding the equality project in both countries. France and the United States both face significant hurdles to developing a harassment law that will alter workplace cultures in ways that further integration and equality. If equality advocates cannot disrupt the pervasive sense that workplace harassment is a matter solely of interpersonal behavior to be policed, whether by employers or by the state, then the harassment laws of neither country are likely to be effective.
Wednesday, January 25, 2017
Joyce Sterling & Nancy Reichman, Overlooked and Undervalued: Women in Private Law Practice, 12 Annual Rev. Law & Soc. Science 373 (2016)
This article examines the durability of gender inequality in private law practice since Kay & Gorman published their comprehensive review in the Annual Review of Law and Social Science in 2008. We begin with some of the changes in legal practice that intensified during the Great Recession and help to contextualize women's lack of progress. We turn next to a contemporary profile of women in private practice that demonstrates empirically where women stand. We look at some of the organizational mechanisms that seem to perpetuate inequality. The challenges of integrating work and family dominated the discussion of women's lack of progress in earlier reviews of women in the legal profession and continue to matter greatly. We assume the persistence of these challenges and instead focus on ways that the mechanisms or strategies for determining compensation systematically overlook and undervalue women's contributions. We consider the different social science frameworks that explain women as overlooked and undervalued for their contributions. We conclude with proposed suggestions for changes aimed at remedying the problems discussed here.
Monday, January 9, 2017
The Supreme Court today denied cert in The Geo Group v. EEOC allowing the Ninth Circuit's decision to stand allowing the class action to go forward.
According to EEOC's suit, Alice Hancock and a class of 20 female employees were sexually harassed at the Arizona State Prison-Florence West Facility and the Central Arizona Correctional Facility in Florence, Ariz.; both entities were managed by GEO under contract with the Arizona Department of Corrections. The physical sexual harassment allegedly included an incident where a male GEO manager grabbed and pinched the breasts and crotch of a female correctional officer. Also, EEOC claimed that at least one female employee was forced onto a desk, where a male GEO employee shoved apart her legs and kissed her. EEOC charged that the sexual harassment also included sexual comments and gestures, including a male officer calling a female officer "bitch" and "f---ing bitch" on a daily basis and making other lewd remarks and suggestions.
The complaint further charged that the female employees were subjected to retaliation when they reported or otherwise sought help from GEO management.
EEOC filed its lawsuit in U.S. District Court for the District of Arizona, CIV2:10-cv-02088 MHM, in September 2010, after first attempting to reach a pre-litigation settlement through its conciliation process. A similar suit was filed by the Arizona attorney general's office (ACRD), the agency that conducted the administrative investigation in this case, and the Ninth Circuit also reinstated that suit.
The trial court dismissed the claims of the women who were not identified until after EEOC filed suit. The court also dismissed the claims of two women which the court said were untimely, and another claim of one woman whose harassment was not actionable, according to the court. EEOC and ACRD appealed.
Thursday, December 8, 2016
The new podcasts on Women in the Law have been released.
From their summary:
Over six weeks, this podcast mini-series will advance the conversation on the many challenges, both professional and personal, that women continue to face as members of the legal profession. Through first-person narratives, thoughtful conversations, and synthesis of economic and social science research, this show will add to the myriad of work fighting against decades of systemic problems.
We hope to empower both women and men to recognize and constructively address a wide range of workplace issues that negatively impact women, the organizations and firms they work for, the clients they represent, and the society we all live in.
The New York Times had a recent article on the leaky pipeline research highlighted in the podcasts: More Law Degrees for Women, but Fewer Good Jobs
Thursday, March 10, 2016
Michelle Travis (San Francisco), Gendering Disability to Enable Disability Rights Law, Cal. L. Rev. (forthcoming)
Abstract:This Article expands the social model of disability by analyzing the interaction between disability and gender. The modern disability rights movement is built upon the social model, which understands disability not as an inherent personal deficiency but as the product of the environment with which an impairment interacts. The social model is reflected in the accommodation mandate of the Americans with Disabilities Act of 1990 ("ADA"), which holds employers responsible for the limiting aspects of their workplace design. This Article shows that the limitations imposed upon impairments result not only from physical aspects of a workplace but also from other identity-based stereotypes, biases, and oppressions, which affect how disability is both experienced and perceived.
This Article advances the social model's aspirations by specifically challenging the existing gender-neutral view of the causes and consequences of disability. This analysis reveals how ignoring gender has enabled masculine norms to become embedded into the ADA's substantive and procedural approaches to defining and remedying disability discrimination in the workplace. This inattention to gender has not only imposed serious social and economic consequences on women with disabilities, but it has also rendered legally invisible many non-prototypic members of the disabled community. This analysis illustrates how attending to other social identities may advance the social model, deepen our understanding of disability discrimination, and empower disability rights law to serve a broader group of individuals within the disabled community.
Wednesday, October 28, 2015
Hundreds of women, some of them pregnant or domestic servants who are victims of rape, are being imprisoned in the United Arab Emirates every year under laws that outlaw consensual sex outside marriage, according to a BBC Arabic investigation.
Secret footage obtained by BBC Arabic show pregnant women shackled in chains walking into a courtrooms where laws prohibiting “Zina” – or sex outside marriage – could mean sentences of months to years in prison and flogging.
“Because the UAE authorities have not clarified what they mean by indecency, the judges can use their culture and customs and Sharia ultimately to broaden out that definition and convict people for illicit sexual relations or even acts of public affection,” said Rothna Begum, women’s rights researcher at Human Rights Watch in London.
While both men and women could in theory be imprisoned for having sex outside marriage, the investigation – which will air at the opening of BBC Arabic festival on 31 October – found that in reality pregnancy is often used as proof of the “crime”, with domestic female migrant workers – numbering about 150,000 in the UAE – left most vulnerable.
It's back to the future — and not in a good way for women seeking equity partnership in the nation’s 200 largest law firms.
Women have not made “appreciable progress” since 2006 in either attaining equity partnership or increasing their pay to be on par with their male colleagues once they grasp the brass ring, according to a study by the National Association of Women Lawyers released on Tuesday.
The results: Women represent 18 percent of equity partners, an increase of two percent since 2006, according to NAWL’s findings. Even after they’ve made it into the equity ranks, they make about 80 percent of what their male colleagues bring home. In 2006, women had made 84 percent.
Friday, October 9, 2015
California took a major step Tuesday toward closing the lingering wage gap between men and women, as Gov. Jerry Brown signed one of the toughest pay equity laws in the nation.
Women in California who work full time are paid substantially less — a median 84 cents for every dollar — than men, according to a U.S Census Bureau report this year.
“The inequities that have plagued our state and have burdened women forever are slowly being resolved with this kind of bill,” Brown said at a ceremony at Rosie the Riveter National Historical Park in the Bay Area city of Richmond.
Monday, October 5, 2015
Firstly, to hire women at junior levels and invest in them only to lose them before they can take on the senior roles is a poor outcome business-wise, returns-wise and image-wise.
Secondly, women are increasingly becoming the decision-making consumer. Not having a proper representation of women at senior levels would mean firms are losing out on an opportunity to have leaders who have a better understanding of the needs and psyche of their target consumers. That is a bad business decision.
Thirdly, women will increasingly be the decision-maker and enterprise-buyer on the corporate side as well. Not having top leaders who can easily relate to the situation of senior female executives across the table can have adverse consequences.
Wednesday, September 30, 2015
If companies are looking for gender bias in their workplace, here’s one place they may want to start: feedback.
Research suggests that men and women are assessed very differently at work. Specifically, managers are significantly more likely to critique female employees for coming on too strong, and their accomplishments are more likely than men’s to be seen as the result of team, rather than individual efforts, finds new research from Stanford University’s Clayman Institute for Gender Research. Those trends appear to hold up whether the boss making the assessments is male or female.