Gender and the Law Prof Blog

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

Wednesday, January 10, 2018

Fourth Circuit Allows Pay Gap Case to Move Forward over Dissent on State Sovereignty Grounds

EEOC Wins Battle Over Maryland Insurance Regulator Pay

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

 

January 10, 2018 in Courts, Equal Employment, Workplace | Permalink | Comments (0)

Thursday, January 4, 2018

Steps the Judiciary Needs to Take to Redress Sexual Harassment in its Own Courts

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.

January 4, 2018 in Courts, Workplace | Permalink | Comments (0)

Wednesday, January 3, 2018

3 Key Takeways from the Sexual Harassment Discourse

 Anna North, What I've Learned Covering Sexual Misconduct This Year

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.

 

January 3, 2018 in Equal Employment, Pop Culture, Workplace | Permalink | Comments (0)

Taking Action Against Sexual Harassment; Concrete Solutions Begin to Emerge

NPR, Hollywood Women Launch Initiative to Stop Sexual Harassment

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.

Anita Hill to Lead Hollywood Commission on Sexual Harassment

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.

NLJ, Hitting Workplace Harassers Where It Hurts

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 Roberts Says Courts Will Examine Protections Against Sexual Harassment

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.

January 3, 2018 in Equal Employment, Media, Pop Culture, Workplace | Permalink | Comments (0)

Saturday, December 30, 2017

Employers Think Men are More Ambitious Than Women

Employers Think Men are More Ambitious Than Women, Finds Survey

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.

December 30, 2017 in Equal Employment, Workplace | Permalink | Comments (0)

Tuesday, December 19, 2017

CFP Metoo: Oral Histories of Sexual Violence and Harassment

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 kja45@sfu.ca 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.

December 19, 2017 in Call for Papers, Workplace | Permalink | Comments (0)

Sexual Harassment: Why Now? And Where do we Go From Here?

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.

December 19, 2017 in Equal Employment, Workplace | Permalink | Comments (0)

The Judge Kozinski Sexual Harassment Saga: From Beginning to End

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 

Wash Post, Prominent Appeals Court Judge Alex Kozinski Accused of Sexual Misconduct

Seven Women Have Now Accused Judge of Sexual Harassment

NPR, Federal Appeals Judge Alex Kozinski Accused of Sexual Harassment

NYT, Federal Appeals Court Judge is Accused 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

Nine More Women Say Judge Subjected Them to Inappropriate Behavior Including Four Who Say He Touched or Kissed Them

 

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

Alison Frankel, Breaking the Law Clerks' Code of Silence: The Sexual Misconduct Claims Against Judge Kozinski

Catharine Crump, Clerkships are Invaluable for Young Lawyers. They Can Also be a Setup for Abuse.

Debra Weiss, Will Complaints of Inappropriate Sexual Conduct by Kozinski have any Impact Impact

Judge Alex Kozinski's Opinion in a 2001 Sexual Harassment Case is Alarming 

 

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.

December 19, 2017 in Courts, Equal Employment, Judges, Workplace | Permalink | Comments (0)

Wednesday, December 13, 2017

MeToo is Working but MeToo is not Enough

MeToo is Working: New Data Shows Attitudes on Harassment are Changing

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.

MeToo is Not Enough

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. 

  1. We are not paying enough attention to the more routine “complicity machines” that keep women silent.
  2. We are not yet connecting sexual harassment to other discrimination -- or the structures that make women chronically vulnerable to mistreatment.
  3. 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.

December 13, 2017 in Equal Employment, Workplace | Permalink | Comments (0)

How the Legal World Built a Wall of Silence Around Workplace Sexual Harassment

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.

December 13, 2017 in Equal Employment, Workplace | Permalink | Comments (0)

Tuesday, December 12, 2017

Why Do Men Sexually Harass

 

3 Psychologists Explain Why Men Harass Women in the Workplace

1.  Desire to "protect occupational territory"

Shawn Burn, Ph.D., is a psychology professor at California Polytechnic State University in San Luis. She says "sometimes, sexual harassment is used to intimidate, disempower, and discourage women in traditionally male-dominated occupations" "in fields like the military, tech or politics."

2.  Approval of sexual objectification

Burn says many men are surrounded by a culture that reduces women to sexualized objects, which normalizes female colleague in a less than professional manner.Women in certain jobs, Burn argues, particularly those in which physical appearance plays a role, "sometimes face increased levels of sexual harassment because their jobs implicitly condone their sexual objectification. Some men take this as permission to process and react to these women not as people, but as fantasy sex objects without personal sexual boundaries."

3.  Perceived invincibility 

"There are intense issues of entitlement and power and control that have gone unchecked that lead to situations where men feel it's perfectly fine to engage in these kind of behaviors," says clinical psychologist David Ley.

According to Burn, this behavior is closely linked to abuse of power.

"Not all people handle power and money with grace," she says. "Some use their power to exploit and maltreat others, knowing they can get away with it, and some getting off on it."

4.  Exhibitionist Disorder 

December 12, 2017 in Workplace | Permalink | Comments (0)

Monday, December 11, 2017

Ninth Circuit Judge Kozinski Accused of Sexual Harassment

Three women law professors, including one former dean, and four women externs accuse US Court of Appeal Judge Alex Kozinski of sexual harassment 

Wash Post, Prominent Appeals Court Judge Alex Kozinski Accused of Sexual Misconduct

Seven Women Have Now Accused Judge of Sexual Harassment

NPR, Federal Appeals Judge Alex Kozinski Accused of Sexual Harassment

NYT, Federal Appeals Court Judge is Accused of Sexual Harassment

  

Heidi Bond's further response provides more details on her allegation.

 

Bond makes 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 counsels against the potential consequences of steering women away from prestigious clerkships.

 

Further Updates as of Dec. 14:

Dara Purvis, When Judges Prey on Clerks

Vivia Chen, Can We Get Rid of Alex Kozinski?  

Dahlia Lithwick, Judge Alex Kozinski Made Us All Victims and Accomplices

Charlotte Garden, On Judge Kozinski and Open Secrets

Alison Frankel, Breaking the Law Clerks' Code of Silence: The Sexual Misconduct Claims Against Judge Kozinski

 

December 11, 2017 in Courts, Judges, Workplace | Permalink | Comments (0)

Complicit Bias in Sexual Harassment

Michele Goodwin, Complicit Bias: Sexual Harassment and Communities that Sustain It

For all of the coverage about sexual harassment in recent weeks, reports lack an accounting for complicity and workplace cultural norms. They fail to probe why certain environments foster harassment while others do not. Sometimes news reports address why women do not come forward. Rarely do reports concentrate on why witnesses and co-workers do not come forward to shut down apparent and known harassment. I’m not talking about hypothetical situations. Rather, known instances of sexually inappropriate conduct goes unchecked by friends, co-workers, and bosses.

 

Unexamined are the challenging issues related to why other women (and men) who witness abuse do not speak up, even when they have the power to do so—such as seniority over their offending colleagues. For that matter, why do senior administrators and executives ignore reported instances of sexual harassment?

 

Many years ago, as a new law professor at a former institution, barely three months into my new tenure-track position, I observed a male colleague forcefully grab a female student’s arm and lick her at a law school fundraiser....By Monday morning, I reported the licking incident to my dean—who happened to be a woman. I expected that the dean would make an inquiry and investigate....By coming forward, I had not anticipated the enormous public backlash, the ultimate firing of the dean, the harassment that I would encounter, and the institution’s paralysis.

***

 

So, why had the institution put up with it for so long?

 

The short answer is fear. For colleagues who have worked together for many years—sometimes their families live in the same neighborhoods; their children school together or play sports on the same teams. They fear losing relationships and disrupting their lives.

 

However, there is also the fear of experiencing exactly what happened to me—retaliation for reporting. Deferring and deflecting is a way to divvy up who has to suffer the burden of speaking up. My colleagues avoided being lumped into the barrage of emails targeting me by not speaking up, while I took the brunt of it along with one other colleague who complained previously about another male colleague’s harassing behavior

 

So, why had the institution put up with it for so long?

 

The short answer is fear. For colleagues who have worked together for many years—sometimes their families live in the same neighborhoods; their children school together or play sports on the same teams. They fear losing relationships and disrupting their lives.

 

However, there is also the fear of experiencing exactly what happened to me—retaliation for reporting. Deferring and deflecting is a way to divvy up who has to suffer the burden of speaking up. My colleagues avoided being lumped into the barrage of emails targeting me by not speaking up, while I took the brunt of it along with one other colleague who complained previously about another male colleague’s harassing behavior

On a legal effort to hold these complict networks accountable, see RICO Claim Against Weinstein and Co-Conspirators in "Sexual Enterprise"

December 11, 2017 in Equal Employment, Workplace | Permalink | Comments (0)

MeToo is Really About Work, Not Sex

Rebecca Traister, This Moment Isn't (Just) About Sex. It's About Work

[I[n the midst of our great national calculus, in which we are determining what punishments fit which sexual crimes, it’s possible that we’re missing the bigger picture altogether: that this is not, at its heart, about sex at all — or at least not wholly. What it’s really about is work, and women’s equality in the workplace, and more broadly, about the rot at the core of our power structures that makes it harder for women to do work because the whole thing is tipped toward men.

 

Sexual assault is one symptom of that imbalance, but it is not the only one. ***

 

Because the thing that unites these varied revelations isn’t necessarily sexual harm, but professional harm and power abuse. These infractions and abuses are related, sometimes they are combined. But their impact, the reasons that they are sharing conversational and journalistic space during this reckoning, need to be clarified. We must regularly remind everyone paying attention that sexual harassment is a crime not simply on the grounds that it is a sexual violation, but because it is a form of discrimination.***

 

In other words, sexual harassment may entail behaviors that on their own would be criminal — assault or rape — but the legal definition of its harm is about the systemic disadvantaging of a gender in the public and professional sphere. And those structural disadvantages do not begin or end with the actual physical incursions — the groping, kissing, the rubbing up against. In fact, the gender inequity that creates the need for civil-rights protections is what has permitted so many of these trespasses to have occurred, so frequently, and for so long; gender inequity is what explains why women are vulnerable to harassment before they are even harassed; it explains why it’s difficult for them to come forward with stories after they have been harassed, why they are often ignored when they do; it clarifies why so many women work with or maintain relationships with harassers and why their reactions to those harassers become key to how they themselves will be evaluated, professionally. Gender inequity is cyclical, all-encompassing.

 

We got to where we are because men, specifically white men, have been afforded a disproportionate share of power. That leaves women dependent on those men — for economic security, for work, for approval, for any share of power they might aspire to. Many of the women who have told their stories have explained that they did not do so before because they feared for their jobs. When women did complain, many were told that putting up with these behaviors was just part of working for the powerful men in question — “That’s just Charlie being Charlie”; “That’s just Harvey being Harvey.” Remaining in the good graces of these men, because they were the bosses, the hosts, the rainmakers, the legislators, was the only way to preserve employment, and not just their own: Whole offices, often populated by female subordinates, are dependent on the steady power of the male bosses. ***

 

What’s more, to cross powerful men is to jeopardize not just an individual job in an individual office; it’s to risk far broader professional harm within whole professions where men hold sway, to cut yourself off from future opportunity. 

 

These are the economics of sexual harassment, but also, simply, of sexism.

 

What makes women vulnerable is not their carnal violability, but rather the way that their worth has been understood as fundamentally erotic, ornamental; that they have not been taken seriously as equalsthat they have been treated as some ancillary reward that comes with the kinds of power men are taught to reach for and are valued for achieving. How to make clear that the trauma of the smaller trespasses — the boob grabs and unwanted kisses or come-ons from bosses — is not necessarily even about the sexualized act in question; so many of us learned to maneuver around hands-y men without sustaining lasting emotional damage when we were 14. Rather, it’s about the cruel reminder that these are still the terms on which we are valued, by our colleagues, our bosses, sometimes our competitors, the men we tricked ourselves into thinking might see us as smart, formidable colleagues or rivals, not as the kinds of objects they can just grab and grope and degrade without consequence. It’s not that we’re horrified like some Victorian damsel; its that we’re horrified like a woman in 2017 who briefly believed she was equal to her male peers but has just been reminded that she is not, who has suddenly had her comparative powerlessness revealed to her.

December 11, 2017 in Equal Employment, Gender, Workplace | Permalink | Comments (0)

Thursday, December 7, 2017

Time's Person of the Year: The Women Who Broke the Silence on Sexual Harassment

Person-of-year-2017-time-magazine-cover1

Time, The Silence Breakers: The Voices that Launched a Movement

The galvanizing actions of the women on our cover—Ashley Judd, Susan Fowler, Adama Iwu, Taylor Swift and Isabel Pascual—along with those of hundreds of others, and of many men as well, have unleashed one of the highest-velocity shifts in our culture since the 1960s. Social media acted as a powerful accelerant; the hashtag #MeToo has now been used millions of times in at least 85 countries. “I woke up and there were 32,000 replies in 24 hours,” says actor Alyssa Milano, who, after the first Weinstein story broke, helped popularize the phrase coined years before by Tarana Burke. “And I thought, My God, what just happened? I think it’s opening the floodgates.” To imagine Rosa Parks with a Twitter account is to wonder how much faster civil rights might have progressed. * * * 

 

This reckoning appears to have sprung up overnight. But it has actually been simmering for years, decades, centuries. Women have had it with bosses and co-workers who not only cross boundaries but don't even seem to know that boundaries exist. They've had it with the fear of retaliation, of being blackballed, of being fired from a job they can't afford to lose. They've had it with the code of going along to get along. They've had it with men who use their power to take what they want from women. These silence breakers have started a revolution of refusal, gathering strength by the day, and in the past two months alone, their collective anger has spurred immediate and shocking results: nearly every day, CEOs have been fired, moguls toppled, icons disgraced. In some cases, criminal charges have been brought.

 

The Story Behind the Woman You Don't See on Time's Person of the Year Cover

But on the lower right-hand corner of the cover, there’s simply an arm, cropped at the shoulder. It belongs to an anonymous young hospital worker from Texas — a sexual harassment victim who fears that disclosing her identity would negatively impact her family.

She is faceless on the cover and remains nameless inside TIME’s red borders, but her appearance is an act of solidarity, representing all those who are not yet able to come forward and reveal their identities. 

But see

Wash Post, #MeToo? In 80 Years, No American Woman has Won Time's Person of the Year by Herself

How Many Women Have Been Time's Person of the Year? It's a Short List.

December 7, 2017 in Media, Pop Culture, Workplace | Permalink | Comments (0)

RICO Claim Filed Against Weinstein and Co-Conspirators for Sexual Enterprise

ABA J, Suit Accuses Harvey Weinstein of Racketeering, Says Law Firms Aided "Sexual Enterprise"

Defendants in the suit (PDF) include Weinstein, Miramax, the Weinstein Co. and members of its board, the New York Times, the Washington Post, the American Lawyer (sub. req.) and ABC Newsreport.

 

The plaintiffs accused Weinstein of isolating them and other class members to engage in unwanted sexual conduct that included flashing, groping, harassing, attempted rape and rape.

 

The suit says several lawyers and law firms were participants in the enterprise, though none are named as defendants. Weinstein hired the lawyers and private investigators “to harass, threaten, extort, and mislead both Weinstein’s victims and the media to prevent, hinder and avoid the prosecution, reporting, or disclosure of his sexual misconduct,” the suit says.

 

The law firms listed were Boies Schiller Flexner; K&L Gates; UK-based BCL Burton Copeland; and Israel-based Gross, Klatthandler, Hodak, Halevy, Greenberg & Co.

 

New York L. J., Weinstein's Alleged Sexual Misconduct Protected by Criminal Enterprise, Suit Claims

Film mogul Harvey Weinstein’s alleged sexual misconduct toward women was aided and abetted by a criminal enterprise made up of law firms, private investigators, fellow producers and others, a group of plaintiffs argued in a suit filed on Wednesday in federal court in New York.

 

The proposed class action, filed in the U.S. District Court for the Southern District of New York on behalf of six plaintiffs who say Weinstein assaulted them—in some cases with the assistance of employees from The Weinstein Co. or Miramax—includes civil claims under the Racketeering Influenced and Corrupt Organizations Act.

 

The suit, filed on behalf of the plaintiffs by attorneys from Hagens Berman Sobol Shapiro, is the latest in a cascade of legal issues surrounding Weinstein and allegations surrounding him; since Oct. 10, the suit states, more than 60 women have come forward to say they have been assaulted or harassed by Weinstein at some point.

 

The defendants—referred to collectively in the suit as the “Weinstein Sexual Enterprise”—worked together to prevent disclosure and prosecution of Weinstein’s alleged behavior through extortion, threats and harassment, the plaintiffs allege, and through misrepresentations to the media and to Weinstein’s alleged victims.

 The full complaint is here.

December 7, 2017 in Pop Culture, Workplace | Permalink | Comments (0)

CFP Special Issue on Sexual Harassment and Sexual Assault

Call for Papers: American University’s Journal of Gender, Social Policy & the Law


You are invited to submit articles for possible inclusion in a special themed edition of the American University Journal of Gender, Social Policy & the Law. The edition will focus on timely and important legal issues in the areas of sexual harassment and sexual assault. As one of the top-cited legal periodicals in the U.S. and selected non-U.S. regions in the subject areas of women, gender, sexuality, and the Law, the Journal is deeply committed to publishing high-quality pieces that explore legal issues relating to gender and social policy.

Requirements:

The Journal will consider articles that propose a new argument or perspective on a timely legal issue relating to sexual harassment or sexual assault. To fulfill its interdisciplinary mission, the Journal will accept articles authored by legal, policy, and gender scholars. Articles selected for publication in the Journal must include an analysis of U.S. law in addition to any international focus. All contributions are required to conform to the author policies available at: http://digitalcommons.wcl.american.edu/jgspl/policies.html#whocansubmit  

Content:

While not an exhaustive list, the Journal encourages authors to submit articles on any of the following topics:

● Institutional responses to sexual assault (e.g., schools, universities, the military, and prisons)

● Sexual assault in the workplace

● Statutory limitations in sexual harassment and sexual assault cases

● Selection of impartial venues

● The Department of Education Q&A on Campus Sexual Misconduct

● Judicial discretion and sentencing requirements

 

Deadlines for Submission:

Contributions for this special edition must be submitted by January 5, 2018. All submissions must include the article, a resume/CV, and contact information for the author(s).

Contact:

Please direct questions and final submissions to the Journal Senior Articles Editors: Sahar Ahmed and Kathryn Suma (gl-articles@wcl.american.edu).

December 7, 2017 in Call for Papers, Scholarship, Workplace | Permalink | Comments (0)

Monday, November 20, 2017

Decades Old Sexual Harassment Allegations Rarely Actionable in Court, but Viable Online

We are seeing an endless parade of new allegations of sexual harassment made daily against powerful men in entertainment, news, and business industries.  While doing much to elevate the public discourse of sexual harassment, they are also triggering the backlash accusations of “witch hunt.”

One piece of this accusation is that in many of these cases, the incidents now reported and alleged go back five, ten or twenty years.  There seems to be an inherent unfairness in bringing up such old claims now.  Advocates, of course, understand victims’ reluctance to come forward with claims, since such claims are rarely taken seriously or investigated and more often than not, cause substantial negative consequences to the woman professionally, financial, and emotionally.

The law, however, is quite concerned about these types of old claims, and has several doctrines designed to address this potential unfairness to the accused.

First, are statutes of limitations, which are relatively short for sexual harassment lawsuits. Most harassment suits are filed under the federal statute Title VII, and require that complaints be filed with the EEOC within 180 days of the incident (or sometimes deferred to 300 days where state action is first sought).  Statutes of limitations for sexual assault are longer, most commonly 2-3 years for civil claims of sexual assault and 5-10 years for criminal sexual assault, or even no time limit for certain crimes like sexual assault of a minor.  Statutes of limitations generally help preserve evidence needed for both plaintiffs and defendants to accurately present their case, and provides timely notice and resolution of disputes.  In the sexual harassment context, it also may help ensure that the perpetrator stops his continued conduct against other women.

There is an exception to the statute of limitations for sexual harassment when the incident is part of a continuing pattern of conduct.  When old incidents are part of the same pattern of more recent conduct, the most recent incident triggers the clock, and the old incidents can still be brought in as evidence.  Mandel v. M&Q Packaging Corp., 3d. Cir. 2013.

Laches is as second doctrine seeking to avoid old claims from being actionable.  Laches is an equitable notion that bars a plaintiff from seeing a remedy when she has unreasonably delayed in filing an action, or unreasonably delayed in prosecuting the action after filing it.  Here, the known reluctance and harm to victims from filing might help mitigate the unreasonableness of the delay.  But the core of the laches inquiry is whether the delay caused prejudice to the defendant.  Prejudice can be economic, monetary or investment harm, or procedural, such as loss of evidence and witnesses. Thus, in the law, foundational precepts of due process and fairness prohibit litigating old claims, and place the obligation squarely on the plaintiff to bring forward her claims within a short time of the incident.  

Of course the media revelations of alleged past incidents are not bound by these doctrines of timeliness.  Nor, apparently, are internal organizational investigations of misconduct.  See NPR, Legal Landscape Shifts as More Sexual Harassment Allegations Surface Online

"It is a much sweeter and faster form of justice to out a harasser than to go through many years of legal battle, which is psychically, emotionally and financially exhausting," says Debra Katz, an attorney who specializes in harassment and discrimination in Washington, D.C. ***

More accusers are also coming forward online because "sex harassment cases have historically been difficult to prove" on legal grounds, says Deborah Rhode, a law professor at Stanford University.

More than half of sexual harassment claims made to the Equal Employment Opportunity Commission last year resulted in no charge. There is a consistent pattern in which accusers are unsuccessful, according to data from the past six years.

In addition, fewer than 5 percent of sexual harassment cases actually get to court, Rhode told Here & Now's Jeremy Hobson earlier this month.

"Fewer than those are actually litigated. And what normally happens when the cases are filed is they're settled with a confidentiality clause that prevents the victim from disclosing any details," she says.

Victims can also get around the legal statute of limitations [online], Rhode says.

"You can see people losing their jobs for conduct that occurred well before the statute of limitations," she says. "They may not have a legal claim, but they have an audience. And the reputational injuries — as we've seen with someone like Kevin Spacey — could be substantial."

 

November 20, 2017 in Courts, Pop Culture, Workplace | Permalink | Comments (0)

Tuesday, October 31, 2017

Relationship Status Discrimination Against Women in Academic Hiring

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.

October 31, 2017 in Education, Equal Employment, Family, Workplace | Permalink | Comments (0)

Wednesday, October 25, 2017

The Lessons of Fox News for Reforming Sexual Harassment Law

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.

October 25, 2017 in Business, Violence Against Women, Workplace | Permalink | Comments (0)