Tuesday, June 19, 2018
Senators from both parties expressed frustration and concern on Wednesday about the US judiciary's response to sexual harassment in federal courthouses.
Judiciary Chairman Chuck Grassley complained that judicial officials, who studied the problem for six months after claims of misbehavior against US Appeals Court Judge Alex Kozinski became public, produced only a "vague" report with no assessment of how widespread abuse might be.Grassley, an Iowa Republican, warned that it might be time for an independent inspector general to oversee misconduct -- a proposal judicial officials have long fought as being unnecessary and a potential violation of the Constitution's separation of powers.James Duff, director of the Administrative Office of the US Courts, insisted that judges are sufficiently addressing sexual misconduct."It's not as prevalent as it is in other workplaces," Duff said.When Sen. John Kennedy, R-Louisiana, pressed him to be more specific and use a scale of 1 to 10, with 10 being "off the charts" sexual offenses, Duff further hesitated but answered, "By comparison to the other workplaces, it's probably ... maybe ... whatever I say ... it's just a guess, maybe a 3 or 4."The Judiciary Committee hearing offered the first forum for examining the third branch's response to sexual harassment claims and broader misconduct issues since complaints against the California-based Kozinski emerged in December. The Washington Post, which first reported on Kozinski, highlighted an account from a law clerk who said the judge had asked her to look at pornographic images on his office computer.A CNN special report in January, examining about 5,000 judicial orders arising from misconduct complaints over the past decade, found that courthouse employees and others with potentially valid complaints against judges rarely use the complaint system, or get no relief when they do. Judges overseeing the system seldom find that a claim warrants an investigation or that a judge should be disciplined.
This open statement on sexual harassment law by leading law scholars includes 10 principles important to understanding sexual harassment as well as concrete proposed reforms tailored to each principle.
Law Professors Rachel Arnow-Richman, Ian Ayres, Susan Bisom-Rapp, Tristin Green, Rebecca Lee, Ann McGinley, Angela Onwuachi-Willig, Nicole Porter, Vicki Schultz, and Brian Soucek
We, the undersigned legal scholars and educators with expertise in employment discrimination law, seek to offer a new vision and agenda for eliminating sexual harassment and advancing workplace equality. We are inspired by the #MeToo movement: The courage and sheer number of people who have come forward to report harassment and abuse, the cross-race, cross-class solidarity among activists, the media’s in-depth and sustained coverage, and the public’s willingness to hear and believe so many victims all suggest this is a watershed moment for change.
Inspired by recent events and renewed activism, we wish to contribute to the current momentum by broadening the conversation about the law. We know that law alone cannot create change. Yet we know also that change rarely occurs without the law. For over forty years, employees, activists, educators, and policymakers have looked to the legal system to address sexual harassment in the workplace. These efforts have produced important theories and information, steps forward and setbacks, that yield important lessons for the future. Title VII and other existing laws against discrimination provide an important tool in the fight against sexual harassment, one that will require continued leadership from enforcement agencies. But broader reforms are needed to address the conditions in which harassment flourishes and to make the legal system more responsive to employees. To reduce sexual harassment and move toward a fairer, more inclusive workplace and society for people of all sexes and genders, we offer the following principles and proposals for reform gained from years of working for change within the law.
Ten Principles for Addressing Sexual Harassment
Principle #1: The problem with workplace harassment is sexism, not sexual desire.
Principle #2: Harassment includes many forms of sexism and abuse, not just sexual misconduct.
Principle #3: Sexual harassment is directly linked to sex segregation and inequality.
Principle #4: Same-sex harassment and LGBTQ harassment are prohibited sex discrimination, too.
Principle #5: Race-based harassment and intersectional race/sex harassment and discrimination against women and men of color must be specifically addressed.
Principle #6: Broader occupational and other structural vulnerabilities must be reduced.
Principle #7: Banning all sexual behavior is not a solution and can even be harmful to the cause of eliminating harassment.
Principle #8: Protection against retaliation for victims of harassment and people who stand up for them must be strengthened.
Principle #9: Victims of harassment should have the same recourse to the legal system as other victims of discrimination.
Principle #10: Prevention and remedies must move beyond punishing individual wrongdoers to encourage systemic institutional change.
Leading Law Scholars on MeToo and Sexual Harassment Law in Joint Collaboration of Yale and Stanford Law Reviews
The #MeToo movement has prompted a national dialogue about sexual harassment. This Companion Collection, launched in collaboration with the Stanford Law Review, aims to draw lessons from the #MeToo movement for activists, scholars, policymakers, lawyers, and judges. Across the two journals, the Collection offers twelve scholars’ insights on the ways sexual harassment produces and is produced by broader forms of inequality. Companion Essays can be found at the Stanford Law Review Online.
Articles in Yale Law Journal
Vicki Schultz, Reconceptualizing Sexual Harassment, Again
The #MeToo movement has spurred a renewed focus on sexual harassment. But often, the narratives that emerge overemphasize sexualized forms of harassment at the expense of broader structural causes. This Essay builds on Schultz's previous work to explore those institutional drivers of harassment.
Brian Soucek, Queering Sexual Harassment Law
Rachel Arnow-Richman, Of Power and Process: Handling Harassers in an At-Will World
Angela Onwuachi-Willig, What About #UsToo?: The Invisibility of Race in the #MeToo Movement
Tristin K. Green, Was Sexual Harassment Law a Mistake? The Stories We Tell
Essays in Stanford Law Review
Wednesday, June 13, 2018
Watch the hearing here on CSPAN Senate Committee Examines Workplace Misconduct in the Federal Judiciary, June 13, 2018
Joan Biskupic, CNN, Senate Judiciary Committee Takes up #MeToo in the Courts
The Senate Judiciary Committee will hear testimony related to judicial misconduct on Wednesday, including from a Washington lawyer who says she collected numerous accounts of sexual harassment by judges, in the first public airing of US judges' #MeToo moment.
Live tweeting commentary on the hearing by Courtney Milan (pen name of former law prof and Kozinski judicial clerk Heidi Bond) @courtneymilan
For more on the Working Group Report from the committee which studied the issue:
Monday, June 11, 2018
The Federal Judiciary Workplace Conduct Working Group, a group of federal judges and senior Judiciary officials formed at the request of Chief Justice John G. Roberts, Jr., issued a report recommending measures to improve workplace conduct policies and procedures in the federal Judiciary. The Working Group submitted its findings to the Judicial Conference of the United States, the federal Judiciary’s policy-making body. The report and an executive summary are available online.
The recommendations include clarifying workplace standards and communications about how employees can raise formal complaints, removing barriers to reporting complaints, providing additional and less formal avenues for employees to seek expert advice and assistance on workplace conduct issues, and utilizing enhanced training on these subjects for judges and employees.
Several recommendations of the Working Group have already been implemented or are underway, such as clarifying that confidentiality rules in the Judiciary do not prevent law clerks or employees from reporting misconduct by judges. Many of the report’s recommendations require further action by the Judicial Conference.
The report is here.
Commentary by Joan Biskupic, CNN, Judicial "Inappropriate Conduct" Broader than Isolated Incidents, Panel Finds
A special US judiciary working group set up last December after a prominent appeals court judge was accused of sexual harassment reported on Monday that "inappropriate conduct" in the nation's courthouses is "not limited to a few isolated instances."Yet the eight-member group -- which met with scores of former and current employees of the judiciary and invited comment nationwide -- did not detail the magnitude of employee abuse in the US judiciary beyond saying it was "not pervasive." The group also did not note whether, during its five months of study, any action was taken against individual judges or other court employees.The working group, which was established by Chief Justice John Roberts, made several recommendations in its report, including that:
- judges should put a greater priority on improving workplace culture
- the code of conduct should be revised to make clear what behavior is prohibited
- the complaint system should be made more transparent and accessible.
Tuesday, April 10, 2018
Equal Pay Day — the day up to which the typical woman must work in a particular year to catch up with what the average man earned the previous year — always brings back a rush of memories. Not surprisingly, many of them I’d rather forget: the pit in my stomach, for example, that developed when I read the anonymous note left in my mailbox that told me I was being paid a fraction of what other, male supervisors at Goodyear were making. And when the Supreme Court denied me justice in my pay discrimination case.
(Some of them are happier memories, like when President Barack Obama signed into law the Lilly Ledbetter Fair Pay Act to ensure other women would not receive the same treatment.)
Sexual harassment isn’t about sex, just like pay discrimination isn’t just about pay. Both are about power. They are clear evidence that too many workplaces value women less. That was true for me in the 1980s and 1990s when I worked at Goodyear, and it is still true today.
Friday, April 6, 2018
The year 2017 marked an inflection point in the evolution of social norms regarding sexual harassment. While victims of workplace harassment had long suffered in silence, the surfacing of serious sexual misconduct allegations against Hollywood producer Harvey Weinstein encouraged many more victims to tell their personal stories of abuse. These scandals have spread beyond Hollywood to the rest of corporate America, leading to the departures of several high-profile executives as well as sharp stock price declines at a number of firms. In the past year, shareholders at four publicly traded companies have filed lawsuits alleging that corporate directors and officers breached their fiduciary duties and/or violated federal securities laws in connection with sexual harassment scandals at those firms. More such suits are likely to follow in the months ahead.
In this Article, we examine the role of corporate and securities law in regulating and remedying workplace sexual misconduct. We specify the conditions under which corporate fiduciaries can be held liable to shareholders under state corporation law for perpetrating sexual misconduct or allowing it to occur at their firms. We also discuss the circumstances under which federal securities law requires issuers to disclose sexual misconduct allegations against top executives and to reveal payments made to settle sexual misconduct claims. After building a doctrinal framework for analyzing potential liability, we consider the strategic and normative implications of using corporate and securities law as tools to address workplace-based sexual misconduct. We conclude that corporate and securities law can serve to publicize the scope and severity of sexual harassment, incentivize proactive and productive interventions by corporate fiduciaries, and punish individuals and entities that commit, conceal, and abet sexual misconduct in the workplace. But we also address the potential discursive and distributional implications of using laws designed to protect shareholders as tools to regulate sexual harassment. We end by emphasizing the promise as well as the pitfalls of corporate law as a catalyst for organizational and social change.
Kenneth Robert Davis, Strong Medicine: Fighting the Sexual Harassment Pandemic, Ohio State L. J. (forthcoming)
A pandemic of sexual harassment has stricken the country. A recent EEOC report shows that, depending on how the question is posed, between 25 and 85 percent of women respond that they have experienced harassment in the workplace. The report also states that 90 percent of incidents go unreported. Victims do not believe that their employers will be receptive to their complaints, and many fear censure or retaliation. The law is limited in its capacity to deter a pandemic that has psychological, sociological, and cultural causes. Nevertheless, the law has a role to play, particularly in the workplace. Title VII of the 1964 Civil Rights Act prohibits employment discrimination based on sex, and the courts have long recognized sexual harassment as a form of sex discrimination. The Act has established a framework focused on conciliation, and, where efforts at settlement fail, on litigation. Regrettably, this framework has failed to achieve its mission of deterrence. In Meritor Bank v. Vinson, the Supreme Court established the elements of hostile-work-environment claim. A plaintiff must prove that she was subjected to unwelcome, discriminatory words or conduct of a sexual or gender-related nature so severe or pervasive that they altered the conditions of her employment. In applying this standard, federal courts have rejected claims alleging highly offensive and even egregious misconduct. Several reasons account for the failure of current law to curtail sexual harassment in the workplace. One of the primary reasons is the law’s focus on conciliation and litigation. Under the current model, complainants file grievances with the EEOC, which seeks to settle disputes. If efforts at settlement fail, the current approach authorizes a federal court action. Settling cases may do little to deter abuses. After entering into a settlement agreement, an employer may slip back into complacency. Litigation also fails to promote deterrence because the current framework focuses on compensating victims.
To strengthen Title VII’s deterrent impact, this Article proposes that Congress supplement the current model by granting the EEOC expanded enforcement powers. The EEOC should have broad authority to initiate civil enforcement proceedings in federal court and in quasi-judicial enforcement proceedings. Rather than compensating victims, the purpose of such proceedings would be to identify instances of workplace harassment, and, where appropriate, sanction irresponsible employers. Because the EEOC, in such enforcement proceedings, would not seek relief on behalf of victims, the elements that establish injury would be superfluous. In such proceedings the EEOC should merely have to prove that discriminatory, sexual or gender-related words or conduct would be highly offensive to a reasonable person. By adopting the “highly offensive to a reasonable person” standard, Congress would maximize prevention of sexual harassment in the workplace.
Wednesday, March 14, 2018
Lesley Wexler, Jennifer K. Robbennolt, Colleen Murphy, #Metoo, Time's Up, and Theories of Justice
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.
Nearly 20 reforms and improvements have been implemented or are under development to help address workplace conduct concerns in the federal judiciary, James C. Duff, Chair of the Federal Judiciary Workplace Conduct Working Group, reported today at the biannual meeting of the Judicial Conference.
In introducing Duff before he delivered his report, Chief Justice John G. Roberts, Jr., who is the Conference's presiding officer, told the group, "I would like to reiterate what I stated in my year-end report. I have great confidence in the men and women who comprise the federal judiciary. I am sure that the overwhelming number have no tolerance for harassment and share the view that victims must have a clear and immediate recourse to effective remedies. The Work of this group will help our branch take the necessary steps to ensure an exemplary workplace for every court employee."
“Any harassment in the judiciary is too much,” Duff said in his report to the Conference. He told the Conference that the Working Group hopes to simplify and develop additional options, at both the national and local levels, for employees to seek assistance with workplace conduct matters. . . .
Representatives of current and former law clerks and a cross-section of current judiciary employees met with the Working Group at its most recent meeting and had what Duff described as "an informative and productive discussion."
The Working Group also is receiving input via a mailbox on uscourts.gov, through which current and former judiciary employees can submit comments relating to the policies and procedures for protecting all judiciary employees from inappropriate workplace conduct....
The following either have been accomplished or are in progress:
- Provided a session on sexual harassment during the ethics training for newly appointed judges in February.
- Established an online mailbox and several other avenues and opportunities for current and former judiciary employees to comment on policies and procedures for protecting and reporting workplace misconduct.
- Added instructive in-person programs on judiciary workforce policies and procedures and workplace sexual harassment to the curricula at Federal Judicial Center programs for chief district and chief bankruptcy judges this spring and upcoming circuit judicial conferences throughout the country this spring and summer.
- Removed the model confidentiality statement from the judiciary’s internal website to revise it to eliminate any ambiguous language that could unintentionally discourage law clerks or other employees from reporting sexual harassment or other workplace misconduct.
- Improve law clerk and employee orientations with increased training on workplace conduct rights, responsibilities, and recourse that will be administered in addition to, as well as separately from, other materials given in orientations.
- Provide “one click” website access to obtain information and reporting mechanisms for both Employment Dispute Resolution (EDR) and Judicial Conduct and Disability Act (JC&D) claims for misconduct.
- Create alternative and less formalized options for seeking assistance with concerns about workplace misconduct, both at the local level and in a national, centralized office at the Administrative Office of the U.S. Courts, to enable employees to raise concerns more easily.
- Provide a simplified flowchart of the processes available under the EDR and JC&D.
- Create and encourage a process for court employee/law clerk exit interviews to determine if there are issues and suggestions to assist court units in identifying potential misconduct issues.
- Establish a process for former law clerks and employees to communicate with and obtain advice from relevant offices and committees of the judiciary.
- Continue to examine and clarify the Codes of Conduct for judges and employees.
- Improve communications with EDR and JC&D complainants during and after the claims process.
- Revise the Model EDR Plan to provide greater clarity to employees about how to navigate the EDR process.
- Establish qualifications and expand training for EDR Coordinators.
- Lengthen the time allowed to file EDR complaints.
- Integrate sexual harassment training into existing judiciary programs on discrimination and courtroom practices.
- Review the confidentiality provisions in several employee/law clerk handbooks to revise them to clarify that nothing in the provisions prevents the filing of a complaint.
- Identify specifically the data that the judiciary collects about judicial misconduct complaints to add a category for any complaints filed relating to sexual misconduct. The data shows that of the 1,303 misconduct complaints filed in fiscal year 2016, more than 1,200 were filed by dissatisfied litigants and prison inmates. No complaints were filed by law clerks or judiciary employees and no misconduct complaints related to sexual harassment.
Tuesday, February 27, 2018
Massachusetts Sen. Elizabeth Warren and Nevada Rep. Jacky Rosen introduced legislationTuesday that would require public companies to publicly report allegations of sexual harassment and other types of harassment in the workplace.
The Democrats argue investors are entitled to know the specifics of harassment allegations — and any settlements public companies have made. The legislation, called the “Sunlight in Workplace Harassment Act,” was first reviewed by BuzzFeed News before its introduction.
If passed, Warren and Rosen’s legislation would require public companies to annually report the number of settlements they entered related to sexual harassment and the total amount of money spent on them. It would also require reports on settlements made based on complaints related to race, religion, sex, gender identity, genetic information, sexual orientation, national origin, disability, service-member status, or age discrimination.
The bill would also require the companies to report the “average length of time” for an employer to resolve a complaint regarding sexual harassment. But the bill specifically prohibits the disclosure of the names of employees involved in the settlements.
“What the #MeToo movement has taught us is that we're not going to change the culture where this misconduct is brushed aside or openly tolerated in workplaces across America without more transparency on how these issues are being handled.”
Friday, February 23, 2018
Now an online survey launched in January by a nonprofit called Stop Street Harassment offers some of that missing evidence. It found that 81 percent of women and 43 percent of men had experienced some form of sexual harassment during their lifetime.
Those numbers are much larger than suggested by other recent polls. Those polls used a more limited sample or narrower definitions of harassment, says Anita Raj, director of the Center on Gender Equity and Health at the University of California, San Diego, who analyzed the results of the new survey.
The new survey, on the other hand, included a larger, more nationally representative sample of men and women ages 18 and above, says Raj.
The survey also involved a broader definition of sexual harassment that includes the "continuum of experiences" that women face, she says.
That includes verbal forms of sexual harassment, like being catcalled or whistled at or getting unwanted comments of a sexual nature. It also includes physical harassment, cyber harassment and sexual assaults.
The results, released in a report Wednesday, show that 77 percent of women had experienced verbal sexual harassment, and 51 percent had been sexually touched without their permission. About 41 percent said they had been sexually harassed online, and 27 percent said they had survived sexual assault.
The report also looked into locations where people experienced harassment. The majority of women — 66 percent — said they'd been sexually harassed in public spaces. "The public forums are where you see the more chronic experiences of sexual harassment," says Raj. These include verbal harassment and physical harassment, like touching and groping.
However, 38 percent of women said they experienced sexual harassment at the workplace. Thirty-five percent said they had experienced it at their residence. These experiences are more likely to be assaults and the "most severe forms" of harassment, says Raj.
Joan Williams & Suzanne Lebsock, Now What?, Harv. Bus. Rev.
Farewell to the world where men can treat the workplace like a frat house or a pornography shoot
Not only is this better for women, but it’s better for most men. A workplace culture in which sexual harassment is rampant is often one that also shames men who refuse to participate.
Still, it’s unnerving for many men to see the numbers of those toppled by accusations grow ever higher.
This is not a fight between men and women, however. . . To repeat: This is not a fight between men and women. It’s a fight over whether a small subgroup of predatory men should be allowed to interfere with people’s ability to show up and do what they signed up for: work.
The result of all these changes is what social scientists call a norms cascade: a series of long-term trends that produce a sudden shift in social mores. There’s no going back. The work environment now is much different from what it was a year ago. To put things plainly, if you sexually harass or assault a colleague, employee, boss, or business contact today, your job will be at risk.
What we’re seeing today is not the end of sex, or of seduction, or of la différence. What we’re seeing is the demise of a work culture where women must submit to being treated, insistently and incessantly, as sexual opportunities. Most people, when they go to work, want to work. And now they can.
Tuesday, February 20, 2018
Andrea Kupfer Schneider, Negotiating While Female, 70 SMU L. Rev. (2017)
Why are women paid less than men? Prevailing ethos conveniently blames the woman and her alleged inability to negotiate. This article argues that blaming women for any lack of negotiation skills or efforts is inaccurate and that prevailing perceptions about women and negotiation are in-deed myths. The first myth is that women do not negotiate. While this is true in some lab studies and among younger women, more recent workplace data calls this platitude into question. The second myth is that women should avoid negotiations because of potential backlash. Although women in leadership do face an ongoing challenge to be likeable, it is clear that not negotiating has long-term detrimental effects. The third myth, based on the limited assumption that a good negotiator must be assertive, is that women cannot negotiate as well as men. However, the most effective negotiators are not just assertive, but also empathetic, flexible, socially intuitive, and ethical. Women can and do possess these negotiation skills. This article concludes by proposing an action plan which provides advice on how women can become more effective negotiators and identifies structural changes that might encourage negotiation and reduce the gender pay gap.
Regulating how women dress, both in and out of the workplace, is nothing new. In ancient Greece, an appointed group of magistrates, gynaikonomoi, or “controllers of women”, ensured that women dressed “appropriately” and managed how much they spent on their apparel. The strict – and mandatory – codes were designed to remind women of their place in Greek society. In the ensuing millennia, not much has changed. Throughout history, men have controlled women’s bodies and their clothing by way of social strictures and laws.
Employers have long imposed dress codes on women in the workplace, demanding that women wear, for instance, high heels, stockings, makeup and dresses or skirts of an appropriate but feminine and alluring length. Employers have also mandated how women should wear their hair. Women of colour, and black women in particular, have faced discrimination in the workplace when they choose to wear their hair in natural styles or braids. Employers have also tried to constrain what women wear by discriminating against faith-based practices, barring, for example, Muslim women from wearing the hijab.***
I wear clothes that allow me to feel comfortable and confident. That is how I choose to dress like a woman. I have always been aware that the freedom to wear mostly what I want has been influenced, in large part, by the women who worked before me – women who, throughout history, refused to allow their ambitions to be constrained by narrow ideas of what it means to dress like a woman. Dress has evolved as the role of women in contemporary society has evolved. Sometimes, dressing like a woman means wearing a trousersuit; other times, it means wearing a wetsuit, or overalls, or a lab coat, or a police uniform. I wear clothes that allow me to feel comfortable and confident. That is how I choose to dress like a woman. I have always been aware that the freedom to wear mostly what I want has been influenced, in large part, by the women who worked before me – women who, throughout history, refused to allow their ambitions to be constrained by narrow ideas of what it means to dress like a woman. Dress has evolved as the role of women in contemporary society has evolved. Sometimes, dressing like a woman means wearing a trousersuit; other times, it means wearing a wetsuit, or overalls, or a lab coat, or a police uniform. Dressing like a woman means wearing anything a woman deems appropriate and necessary for getting her job done.
Thursday, February 15, 2018
Rosa Freedman & Aoife O'Donoghue, United Nations Gender Network: United Nations Policy Proposal on Gender Equality and Parity
The UN Gender Network (UNGN) is rooted in both strengthening the UN’s leadership of gender equality and the empowerment of women working within the UN Secretariat, Funds, Programmes and Agencies. The UNGN believes that to enhance the UN’s leadership legitimacy in all areas but particularly regarding gender equality; to ensure the UN attracts the best talent from around the globe and to guarantee the UN fully represents ‘we the peoples’ significant change regarding gender equality amongst UN staff is required.
This policy paper places the women who work at the UN at its core. This policy looks at the history of women working at the Organisation, past attempts to strengthen their roles and looking to the future, suggests changes at the both the policy and practice levels to ensure that women working at the UN will be better served. This policy proposal aims to cause a significant shift in not just the numbers of women working at all levels at the UN but also their experiences within the workplace. The policy’s goal is to make the UN a better place for all staff to work and in doing so ensuring they can lead states in making their own workplaces into spaces where gender equality is without question a good.
Tuesday, February 6, 2018
D. Wendy Greene, Splitting Hairs: The 11th Circuit's Take on Workplace Bans Against Black Women's Natural Hair in EEOC v. Catastrophe, 71 Miami L. Rev. (2017)
What does hair have to do with African descendant women’s employment opportunities in the 21st century? In this Article, Professor Greene demonstrates that Black women's natural hair has much to do with their ability to obtain and maintain employment as well as their enjoyment of dignity, equality, and agency in contemporary workplaces. When Black women wear natural hairstyles like afros, locks, twists, braids, they are often subjected to harassment, demotions, discipline, termination and denial of employment for which they are qualified. However, when Black women have challenged natural hairstyle bans as race discrimination violative of federal laws like Title VII of the 1964 Civil Rights Act, federal courts have issued hair splitting decisions that decree: federal anti-discrimination law protects African descendants when they are discriminated against for adorning afros but statutory protection ceases once they grow their naturally textured or curly hair long or don it in braids, twists, or locks. Thus, generally, Black women subjected to discrimination because of their natural hair lack any form of legal redress. The 11th Circuit Court of Appeals recent decision in EEOC v. Catastrophe Management Solutions (2016) preserved this status quo by holding that an employer’s revocation of a job offer to an African American woman for refusing to cut off her dreadlocks did not violate Title VII because locks are not an “immutable” racial characteristic of African descendants presumably like an afro.
Professor Greene explains that federal courts’ strict application of this “legal fiction” known as the immutability doctrine—and the biological notion of race that informs it—have greatly contributed to this incoherency in anti-discrimination law that triggers troubling, tangible consequences in the lives of Black women. Indeed, natural hairstyle bans effectively require Black women to wear straightened hairstyles, which Black women often achieve through costly, time-consuming, and physically damaging procedures like weaves, wigs, hair extensions, chemical relaxers and/or the application of extreme heat to their hair. Thus, workplace bans against natural hair are not a superficial matter; they can negatively impact Black women's physical, economic, and emotional well being. Moreover, Professor Greene argues that the 11th Circuit's recent dismissal of the EEOC’s case, which affirms the legality of straight hair mandates imposed upon Black women, exacerbates the “hyper-regulation of Black women’s bodies via their hair” in the 21st century workplace.
Monday, February 5, 2018
The Second Circuit Judicial Council on Monday said it will take no action on a sexual misconduct complaint against former federal appellate judge Alex Kozinski because his retirement deprived the panel of any authority to “do anything more.”
“Because Alex Kozinski has resigned the office of circuit judge, and can no longer perform any judicial duties, he does not fall within the scope of persons who can be investigated under the [Judicial Conduct and Disability] Act,” the council stated in an order published Monday.
Kozinski, a former chief judge of the U.S. Court of Appeals for the Ninth Circuit, was accused of sexual misconduct in December by six former clerks or staffers, including former clerk Heidi Bond. The Washington Post, which first revealed the misconduct allegations, reported that Kozinski showed them pornographic images multiple times in his court chambers.
The complaint filed against Kozinski and subsequently referred to the Second Judicial Council by Chief Justice John Roberts Jr. was based on The Washington Post allegations.
Kozinski announced his retirement, effective immediately on Dec. 18.
Katherine Ku, Pressuring Harassers to Quit Can End Up Protecting Them
Although the #MeToo movement is rightly being celebrated for bringing down men who have abused their power, many of these men are not at the end of their careers. Already, the process of salvage has begun. Talent agent Adam Venit, accused of groping by actor Terry Crews, had to relinquish his position as head of WME’s motion picture division, but he was back at the agencyafter a 30-day unpaid suspension. New York Times star reporter Glenn Thrush, accused of inappropriate behavior by four female journalists, has been reassigned from the high-profile White House beat but is scheduled to return to the newsroom this month, after two months’ unpaid leave and training, counseling and substance abuse treatment.***
[I]t appears that Kozinski’s future in the legal profession almost certainly will be decided without the benefit of a robust investigation. At some point, a law school dean may have to weigh whether to place him in a position of trust over budding legal careers. Law firms may need to assess whether he’d be a fair mediator or arbitrator for their clients’ disputes. And the people making those decisions will have to do so without knowing the full scope of his misconduct.
Wednesday, January 10, 2018
A federal appeals court has put a pay discrimination suit against the Maryland Insurance Administration back in action.
A three-judge panel at the 4th U.S. Circuit Court of Appeals has ruled, 2-1, that the U.S. Equal Opportunity Employment Commission (EEOC) can move forward with a lawsuit alleging that the insurance regulatory agency may have paid female employees less than it paid male employees holding comparable jobs.
The EEOC has presented evidence in the case, EEOC v. Maryland Insurance Administration (Case Number 16-2408), suggesting that the agency paid three former fraud investigators who are women less than it paid four former fraud investigators with comparable credentials and experience who are men.
The EEOC showed that the female investigators ended up earning $45,503 to $50,300 per year. The male investigators earned from $47,194 to $51,561 per year.
A judge at the U.S. District Court in Baltimore granted summary judgment in favor of the Maryland Insurance Administration.
Two judges at the 4th Circuit, Circuit Judge Barbara Milano Keenan and Circuit Judge Henry Floyd, overturned the lower-court ruling and agreed to let the EEOC move ahead with the suit.
Judge Wilkinson dissent on state sovereignty grounds.
J. Harvie Wilkinson III, the third judge on the panel, voted to uphold the lower-court ruling. In a dissenting opinion, he blasted his colleagues for ignoring Maryland's sovereign rights.
"The majority refuses to so much as mention a state's sovereign interest in its own civil service," Wilkinson writes. "The place of state governments in our Republic has quite passed it by. Respect for states [as] states fails to merit even the slight courtesies of lip service."
Given that, legally, the United States still has a federal system, and states still have rights, the EEOC should not have brought such a marginal case against a state, Wilkinson writes.
"State workforces are highly regulated and regimented, and state law provides remedies for gender discrimination in all its forms," Wilkinson writes. "Simply put, state civil service systems are not hotbeds of gender bias, as this feeble suit makes all too clear."
The Maryland Insurance Administration suit puts Maryland's sovereign interest in its own workforce entirely in the hands of federal authorities, Wilkinson writes.
"Here, a federal agency is bringing suit, the federal courts are deciding the suit, and federal law is providing the applicable rule of decision," he writes. "In combination, this assertion of federal authority diminishes to an unacceptable extent the proper role of states in our constitutional system."
The majority opinion and the dissent are available here.
Thursday, January 4, 2018
Lara Bazelon, After #MeToo Comes to the Courts
Chief Justice John G. Roberts Jr. took a long overdue step toward answering that question on Sunday when he announced that a working group would assess whether the judiciary’s disciplinary procedures are capable of addressing sexual harassment complaints and taking corrective action. The governing statute, passed by Congress in 1980, holds federal judges responsible for disciplining one another, save for the nine Supreme Court justices who are immune from any oversight.
But this process is shrouded in secrecy, with embarrassing allegations swept under the rug and sanctions that are inadequate to the offense. If the judiciary is going to better police itself, it must overcome its historical impulse to shield bad actors from consequences they would not hesitate to mete out to people who don’t wear black robes.
This ordeal makes it clear that the chief justice’s working group must overhaul the process to make it more robust and transparent. This is no easy task. The law mandates that all evidence, testimony and hearings relating to misconduct investigations be kept secret. But judges can — and should — publish detailed, well-reasoned opinions about the outcome of those cases to inform the public and maintain confidence in the integrity of the proceedings.
Also crucial to ensuring fairness is giving both sides the same procedural rights. The statute allows for equal treatment, but as enforced it is biased against the person who brings the complaint. An accused judge has the right to be present at a disciplinary hearing, to present testimony and witnesses, and to have a lawyer in any disciplinary case that is subject to investigation. The working group should provide the same rights to the person accusing the judge.
Sexual misconduct cases should also be automatically transferred from the circuit where they arose to a court in a different region of the country so that judges won’t have to pass judgment on a close colleague whom they see on a regular basis. (Before he resigned, Judge Kozinski was set to be judged by his colleagues on the Second Circuit, but only because Chief Justice Roberts had ordered that transfer.)
Finally, the working group should hold the nine Supreme Court justices accountable under the same standards. The fact that Congress exempted them when it passed the disciplinary law in 1980 is no excuse for refusing to play by the same rules as everyone else.