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.
Wednesday, January 3, 2018
1. Workplace harassment is about work.
The current conversation around sexual harassment has been cast as a “sex panic” in some quarters, as writer Masha Gessen and others worry that in trying to curb harassment, Americans will end up “policing sex.” But it’s not sex that has countless people coming forward with stories of being forced out of jobs or entire industries. For many people who have shared their experiences as part of the groundswell that is #MeToo, the issue is abuse of power at work.
2. Harassment is a systemic problem. It requires systemic solutions.
3. To move forward, we have to focus on equality.
Some of Hollywood's most powerful women have teamed up to launch an initiative aimed at combating sexual harassment inside and outside their industry after an avalanche of allegations set in motion by the Harvey Weinstein scandal.
In a full-page open letter published in Monday's New York Times, 300 prominent actresses, female agents, writers, directors, producers and entertainment executives announced the campaign called "Time's Up."
The Time's Up initiative includes:
- A $13 million legal defense fund to help women in blue-collar jobs and farm work
- Drafting of legislation to punish companies that tolerate sexual harassment and to discourage nondisclosure agreements in such cases.
- A push to reach gender parity in Hollywood studios and talent agencies; and a call for women walking the red carpet at the Golden Globes to wear black as a sign of protest and solidarity.
A commission headed by Anita Hill and composed of and funded by some of the most powerful names in Hollywood has been created to tackle widespread sexual abuse and harassment in the media and entertainment industries.
Called the Commission on Sexual Harassment and Advancing Equality in the Workplace, the initiative was spearheaded by Kathleen Kennedy, the president of Lucasfilm; Maria Eitel, the co-chair of the Nike Foundation; the powerhouse attorney Nina Shaw; and Freada Kapor Klein, the venture capitalist who helped pioneer surveys on sexual harassment decades ago.
The commission’s mission, according to a news release, is to “tackle the broad culture of abuse and power disparity.”
“The commission will lead the entertainment industry toward alignment in achieving safer, fairer, more equitable and accountable workplaces —particularly for women and marginalized people,” according to a statement released Friday evening.
Employers can hit sexual harassers hard—in the pocketbook. There are a variety of channels by which to claw back compensation and benefits from bad-acting employees. The smartest employers have for years aimed those threats at employees who violate noncompete and trade secret protections. Now, they may want to toughen up their benefit plans and stock awards, because routine harassment training may not have the in terrorem effect that could come through broad-based forfeitures and clawback.
Chief Justice John G. Roberts Jr. announced an initiative Sunday to ensure there are proper procedures in place to protect law clerks and other court employees from sexual harassment, saying it is clear that the federal judiciary “is not immune” from a widespread problem.
The statement, in Roberts’s 2017 State of the Judiciary Report , follows the retirement last month of Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit.
Saturday, December 30, 2017
Bosses are five times more likely to view men as ambitious than women in the workplace, new research has found.
The YouGov survey for the Young Women’s Trust also revealed that men were perceived as more confident whereas women were deemed more “conscientious” at work.
Plus, two fifths of recruiters said men were more likely than women to ask for promotions and pay rises.
The survey was conducted on 800 employees with human resources decision-making responsibilities.
The findings also revealed that one in three of those surveyed believe that sexism exists in their workplace while one in eight of those who work at large companies say that sexual harassment has gone unreported at their organisation.
Furthermore, one in 10 were aware of a gender pay gap at their company, in which women are paid less than men for jobs at equal levels of seniority.
“Young women do not lack ambition but too often they are held back by employers who – knowingly or not – discriminate against them,” said Dr Carole Easton OBE, chief executive at Young Women’s Trust.
Tuesday, December 19, 2017
Call For Papers 2018 Oral History Association Annual Meeting. October 10-13, 2018, Montreal, Canada
From #believesurvivors to #me too, narratives around harassment, abuse, and sexual violence have become increasingly prominent in the media over the last few years. This panel draws on feminist oral history practice to explore critical questions relating to oral narratives of harassment and abuse. Oral history, with its ability to capture personal experiences and intimate narratives, is well-suited to document experiences of sexual violence, harassment, and abuse. The sharing of traumatic memories can also raise a range of ethical issues for narrators and interviewers. This panel explores how interviews exploring experiences of harassment and abuse, particularly within institutions and organizations, can shed new light on contemporary efforts to achieve justice for survivors.
Please send abstracts for papers to email@example.com by January 14th. Abstracts must be 300 words or less and accompanied by a 400-word (or less) CV. Applicants will be notified of the status of their paper by January 21st.
Potential paper topics include:
• Sexual violence within past or present social justice movements
• Sexual abuse or harassment in the workplace
• Intersections between sexual violence and other forms of oppression (such as racism, classism, transphobia, ableism, and homophobia)
• Legal and ethical issues relating to interviews about specific acts of abuse or harassment.
• Trauma-informed approaches to interviewing.
• Shared authority as it relates to interviews with survivors or perpetrators of violence.
• Other ethical issues pertaining to interviewing accused perpetrators of violence and abuse.
• Oral histories of anti-violence activist movements.
This list is not exhaustive, and we welcome all submissions that explore oral histories of gendered abuse, harassment, and violence.
Joanna Grossman, Reflections on America's Reckoning with Sexual Harassment
Many are surprised by the seemingly endless allegations of sexual misconduct. Is there an epidemic of harassment? No more than there ever was. Sexual harassment has been a pervasive problem in the American workplace, as well as in housing, education, the judicial system, on the street, and all other sectors of society, as far back as we look.
Two components of the modern story are “new,” however. First, women are showing greater willingness to come forward and report harassment. No matter how unwelcome sexual harassment is, study after study has shown that victims rarely file formal complaints after being harassed. Empirically, doing so is in fact the least likely response of a woman to an incident of sexual harassment at work. Victims tend to complain only about severe harassment, and only when they’ve exhausted all other avenues. As discussed below, women who have been sexually harassed forego complaining. They rightly fear retaliation from the harasser or their workplace, and they often worry about being socially ostracized at work and even about damaging the harasser’s career. At the same time, victims tend to be feel that complaining is futile—that no action will be taken that will make the victim’s situation better. The lack of hope for successful redress provides little by way of counterweight against the justifiable fear of adverse consequences.
Second, men facing credible accusations of harassment are suffering consequences. Employers have a long history of taking insufficient action—often no action—despite credible evidence of harassment. Some of their inaction can be explained by the infrequency of complaints, but even when they do investigate complaints, employers tend to be biased against finding evidence of discrimination, to recast harassment and discrimination as a problem of interpersonal conflicts that might justify intervention but not discipline, and to overlook misconduct when the harasser is too valuable to lose.
So why the current cascade of complaints?
We are experiencing a cultural moment. Despite the powerful deterrents to speaking out, women are coming forward, in droves, to tell their stories. It’s hard to explain why that moment is now, but the dam broke. It could be the power of the anti-Trump resistance movement, which has mobilized women around the country to organize, protest, and stand up for themselves. It could be the raunchy and disturbing nature of the allegations in the first few stories to break. It could be that the victimization of celebrities, at the hands of Harvey Weinstein and James Toback, brought the issue into our consciousness more clearly. It could be any combination of things. But whatever the catalyst, there can be no doubt that this chorus of voices, speaking out against sexual misconduct, is noteworthy.
Reporters keep asking me (and others) whether we are experiencing a cultural shift in dealing with sexual misconduct. Whether the moment becomes a shift will turn on how we react to it. The pervasiveness and severity of harassment women face at work is a symptom of broader dysfunction in our society. And the institutions that have allowed it to go unchecked are part of a system that has favored cosmetic preventative measures rather than effectiveness, and window dressing rather than effectiveness. True change will only come when institutional actors decide to hold themselves accountable for the way women are treated.
Initially, seven women -- three women law professors, including one former dean, and four women externs accuse US Court of Appeal Judge Alex Kozinski of sexual harassment
The first accuser, Heidi Bond's responded further on the details on her allegation.
Bond made two important suggestions for structural change to address the problem of sexual harassment in judicial clerkships.
I want the law clerk handbook distributed by the judiciary to explicitly state that judges may not compel clerk silence on matters like the ones I have described here. I also believe that there should be a person, or persons, or an institution that clerks can turn to in order to find answers. I understand that there are reasons why no such institution exists now—judicial independence and confidentiality must be fiercely protected. I also believe that the judiciary is capable of coming up with a solution to this problem.
A type of ombuds office within the court administrative office might be a way to implement this.
Bond's additional recommendation:
I want greater honesty regarding judicial clerkships. Law students are often told in glowing terms that a clerkship will be the best year in their career. They are never told that it might, in fact, be their worst—and that if it is their worst, they may be compelled to lie to others in the name of loyalty to their judge.
I also want law schools to start giving our best and brightest students accurate advice about clerkships. Students are often told that if they receive a clerkship offer from a judge, they must say “yes” without hesitation. I cannot imagine a situation more rife for abuse. Students should feel free to say no to any judge who triggers their discomfort for any reason.
However, Nancy Leong counseled against the potential consequences of steering women away from prestigious clerkships.
Additional women, including national reporter Dahlia Lithwick shared their metoo stories about Judge Kozinski.
Dahlia Lithwick, Judge Alex Kozinski Made Us All Victims and Acccomplices
Attorney Susan Estrich, also a feminist law scholar and professor at USC who wrote "Sex and Power" and "Sex at Work," represented Judge Kozinski. She also formerly represented Roger Ailes in his sexual harassment case. See NYT, The Curious Case of Susan Estrich
The case triggered much thought and commentary:
Dara Purvis, When Judges Prey on Clerks
Vivia Chen, Can We Get Rid of Alex Kozinski?
Charlotte Garden, On Judge Kozinski and Open Secrets
As a result:
An inquiry was initiated. Chief Judge Initiates Judicial Review of Allegations Against Alex Kozinski
Judge Kozinski retired on December 18, 2017. Alex Kozinski Announces Immediate Retirement Following Accusations of Sexual Misconduct
Chief Justice Roberts amended the law clerk handbook. Newly Amended Law Clerk Handbook Affirms Harassment Complaints are Permitted. "Clerks are encouraged to bring such matters to the attention of an appropriate judge or other official," the handbook now says.
Wednesday, December 13, 2017
Two months after the New York Times published an earth-shattering exposé about Harvey Weinstein's history of alleged sexual harassment and assault, the #MeToo movement shows no signs of slowing down. Every day, it seems there's a new set of stories about men in power using sex as a weapon to humiliate and intimidate women (and sometimes other men). Now Time magazine has named "The Silence Breakers" as Person of the Year, crowning this surge of anger over sexual harassment as one of the most important stories of 2017.
It's been a big media story, but has all this righteous anger over sexism really penetrated the consciousness of everyday Americans? Has this genuinely rattled ordinary people and their views on gender and power? A new study out by the research firm PerryUndem provides a surprising and encouraging answer: Yes, the past year has seen something of a feminist awakening in the American public. It's not just about Weinstein or the revelations of the past two months. It's been a year in the making, as evidenced by the outrage over Donald Trump's election and the Women's March in January that was likely the largest single protest event in modern history.
As we celebrate the #MeToo movement’s incredible accomplishments, including being recognized as Time Magazine’s “Person of the Year” a mere two months after becoming a viral hashtag, we must guard against the backlash that’s already brewing. Because the simple fact is that far from overreaching, the #MeToo movement has not yet gone far enough, in three important ways.
- We are not paying enough attention to the more routine “complicity machines” that keep women silent.
- We are not yet connecting sexual harassment to other discrimination -- or the structures that make women chronically vulnerable to mistreatment.
- Men are not yet owning their $%#@.
A new focus on systems that aid and abet sexual misconduct, rather than solely the actions of individuals, could be a welcome opportunity for all of us to begin to locate ourselves in this cultural discussion.
Professor Minna Kotkin, How the Legal World Built a Wall of Silence Around Workplace Sexual Harassment
A secret about sexual harassment on the job is finally coming to light. It’s not that harassment is still rampant in some industries, recalling the worst of the “Mad Men” days. Or that networks of women quietly help to protect their co-workers from the worst offenders. The real secret is that our regulatory and judicial systems are complicit in protecting harassers from public exposure and opprobrium.***
Since 1986, when the Supreme Court first recognized that sexual harassment is a form of discrimination, employers and their attorneys have generally insisted that victims who receive financial settlements as a result of harassment allegations sign confidentiality agreements. In my three decades of research and litigation on harassment claims, corporate officials have always insisted that unless settlements are confidential, firms will be overwhelmed by a deluge of accusations, with every disgruntled employee looking for a payout.
A typical confidentiality clause prohibits the employee not only from revealing the amount paid to her but also from discussing the facts and allegations relating to the underlying events. Often, these clauses contain a “liquidated damages” provision: If the facts are revealed, the employee automatically owes the employer some astronomical sum. Liquidated damages generally include the amount paid in the settlement and sometimes much more, especially if the settlement amount was small. This keeps many victims of harassment from making their experiences known to others who might face the same dangers.
In some instances, confidentiality clauses might protect an employee as well as her employer: Some women don’t want it known that they have made a harassment complaint, believing that it will hamper their future career prospects. But, according to my research, most confidentiality clauses are one-way, preventing revelations about the employer; they don’t address what can be said about the employee.
One reason it takes so long for sexual discrimination cases to emerge is that these lawsuits are governed by a certain timeline. In 1998, the Supreme Court decided that an employee must first make an internal complaint and that employers must have policies to afford workers that opportunity. Many incidents are resolved at this stage, with financial compensation and a confidentiality agreement. These deals never become public, and there is no way of knowing just how many such agreements have been reached with a certain employer.
Except for its court filings (which may not name the harasser, since the action is against the company), the EEOC proceeds under guarantees of confidentiality. In fact, Title VII specifically mandates that the agency may not disclose to the public charges of employment discrimination or information about conciliation, with violations punished by fines up to $1,000 or imprisonment for up to a year.
But despite the theoretical openness of court proceedings, much of what happens in litigation still remains secret. Less than 3 percent of employment discrimination cases go to trial, with a public verdict. Legal scholars and researchers estimate that close to 80 percent of the cases result in settlements, with the remainder dismissed before trial. Cases that settle are protected by confidentiality agreements, so we don’t know what the terms look like.
Another factor that contributes to secret settlements relates to how attorneys are paid for representing employees and the pressure they may place on their clients. Most employment lawyers work on a contingency-fee basis, receiving a percentage — usually one-third — of the settlement. When an employer offers a sum to make a case go away, it comes attached to a confidentiality clause; if the plaintiff refuses the clause, she gets nothing at all — and neither does her lawyer. Ethical standards enforced by state bar associations and courts require that settlement decisions be made by clients, but attorneys who want to collect their fees have every incentive to steer their clients toward accepting the confidentiality clause.