Friday, June 20, 2014

Push ups, anyone?

From Chicago

An Illinois man, who was training to become a special agent with the FBI, sued the FBI for gender discrimination after failing the physical fitness portion of the special agent test. Women taking the test were required to complete 14 pushups while men were required to do 30. The agent who sued only did 29 and was denied special agent status. He was told he could take another position within the agency, resign, or be fired.


He chose to take the alternate position within the FBI, working in Chicago as an analyst. A few years later, he sued, looking to regain agent status. He claimed he was essentially fired based because of the discriminatory physical fitness test.  Apparently, he had done really well in all other aspects of his training and was well respected among others in the program. That one push up kept him from the career he wanted.


The Federal judge agreed with the man, ruling that the fitness test violates Title VII of the Civil Rights Act. The judge did say that his ruling does not mean that standards can’t ever differ based on sex. Many agree that the physiological differences between men and women should be taken into consideration, and many times they are, without violating the Civil Rights Act.

What makes different standards legal is when they have a rational basis. The trainee claimed that the difference (in push ups required) was arbitrary and not based on actual data. He also claims that a fellow trainee, a woman, was allowed a second try at her push-up test and he was not. I couldn’t find an explanation as to why he couldn’t eek out one more pushup. 30 doesn’t seem like a crazy hard number, but what do I know.

June 20, 2014 in Manliness, Masculinities, Workplace | Permalink | Comments (0)

Thursday, June 19, 2014

Domestic Violence as Regular Tort

Camille Carey (New Mexico) has posted, Domestic Violence Torts:Righting a Civil Wrong, 62 Kansas L. Rev. (2014).

    Tort law, especially personal injury law, has become an integral aspect of American society. Domestic violence injuries – including physical injury, pain and suffering, and death – have been conspicuously absent from the development of tort law. The common law history of chastisement, coverture, and spousal immunity contributed to the current dearth of domestic violence tort claims. Today tort law offers a number of underused claims that can be used to address domestic violence harms. Victims can use existing common law causes of action – such as battery, assault, and intentional infliction of emotional distress – to sue their abusers for abusive conduct. Specific causes of action for domestic and gender-motivated violence also offer ready remedies to victims of domestic violence. Through these actions, victims can achieve financial compensation for harm, obtain therapeutic outcomes, and seek deterrence of the abuser’s conduct. Domestic violence tort claims should be pursued aggressively and frequently and should become a prominent approach to addressing domestic violence.

June 19, 2014 in Violence Against Women | Permalink | Comments (0)

Women Farmers Litigation

The most recent step in the women farmers' litigation, Love v. Vilsack (Westlaw) denying a motion of African-American farmers to intervene.

From the decision:

Between 1997 and 2000, African–American, Native American, Hispanic, and female farmers filed four similar class action lawsuits alleging that the USDA engaged in widespread discrimination on the basis of race, ethnicity, or gender in the administration of its farm loan and benefit programs, and that it routinely failed to investigate complaints of such discrimination. SeePigford v. Glickman, Nos. 97–1978, 98–1693 (D.D.C. filed Aug. 28, 1997, July 7, 1998) (“Pigford I ”) (African–American farmers); Keepseagle v. Vilsack, No. 99–03119 (D.D.C. filed Nov. 24, 1999) (Native American farmers); Garcia v. Vilsack, No. 00–2445 (D.D.C. filed Oct. 13, 2000) (Hispanic farmers); Love v. Vilsack, No. 00–2502 (D.D.C. filed Oct. 19, 2000) (female farmers). Judge James Robertson, a former member of this Court, denied the plaintiffs' motions for class certification in this action and in Garcia v. Vilsack .SeeLove v. Veneman, 224 F.R.D. 240 (D.D.C.2004)aff'd in part, remanded in part sub nom. Love v. Johanns, 439 F.3d 723 (D.C.Cir.2006)Garcia v. Veneman, 224 F.R.D. 8 (D.D.C.2004)aff'd and remanded sub nom. Garcia v. Johanns, 444 F.3d 625 (D.C.Cir.2006). The defendant has, however, developed an administrative claims process for Hispanic and female farmers to resolve their claims of discrimination against the USDA. Participation in the administrative claims process is conditioned on dismissal of a farmer's legal claims against the USDA.


The Association seeks to intervene in this litigation.... [I]t seeks a declaration finding that “both the Equal Protection Clause and Due Process Clauses of the United States Constitution mandate that its members who are eligible ‘Pigford claimants' under the 2008 Farm Bill, but did not timely file claims are entitled to file claims, under the framework established for Hispanic and female farmers.”

The motion to intervene was denied.

For more details of the history of the women's lawsuit, see Women Farmers Litigation.

June 19, 2014 in Business | Permalink | Comments (0)

Books: The Good Lawyer

Naomi Cahn's book review for Concurring Opinions on The Good Lawyer by Doug Linder and Nancy Levit.  The "good lawyer" possesses certain qualities:

Those attributes are addressed in nine of the book’s ten chapters, and they range from empathy to moral courage, cognitive skills, willpower, civility, honesty, and open-mindedness. As they explore the good lawyers’ attributes, the authors draw on behavioral economics, Tonglen Buddhism, cognitive psychology, and the law to support and explain their point

June 19, 2014 in Books, Women lawyers | Permalink | Comments (0)

Wednesday, June 18, 2014

Alabama Sodomy Law Struck Down--11 years after Lawrence v. Texas

From the Advocate

The Alabama Court of Criminal Appeals has ruled that the state’s antisodomy law is unconstitutional – 11 years after the U.S. Supreme Court made that ruling regarding all such laws.


Despite the Supreme Court’s 2003 ruling in Lawrence v. Texas,striking down all state antisodomy laws, about a dozen states still have these laws on the books and attempt to enforce them. In the Alabama case, Dewayne Williams was charged with first-degree sodomy in 2010, and a Dallas County jury convicted him of the lesser offense of sexual misconduct, which is included in the sodomy statute, reports the Montgomery Advertiser. His sexual partner claimed Williams forced him to have sex, but Williams said the act was consensual.

Williams appealed his conviction, arguing that the law violates the U.S. Constitution, as the Supreme Court found in Lawrence v. Texas, and the Alabama appeals court agreed unanimously. The court noted in its ruling, issued Friday, that the purpose of the antisodomy law was to ban all homosexual sex acts, including those that are consensual. The statute explicitly states that consent is no defense.

Prosecutors in the case still say the sex between Williams and the other man was nonconsensual, and they asked the appeals court to strike the “consent is no defense” language from the law and allow Williams to be tried again for nonconsensual sodomy. The appeals court judges refused, saying this would subject the defendant to “double jeopardy” – being tried twice for the same crime, which is prohibited by the U.S. Constitution.

Civil rights advocates praised the appeals court’s ruling. “Aiming to ban consensual sex is flat-out wrong,” Susan Watson, executive director of the American Civil Liberties Union of Alabama, told the Advertiser.“A person’s sexual orientation shouldn’t matter. Consensual sex is consensual sex.”

In a prepared statement, Equality Alabama chairman Ben Cooper said, “Each and every person, no matter their sexual orientation or gender identity, is entitled to equal protection under the law. The Alabama court’s unanimous decision overturning the statute is a step in the right direction and makes us optimistic for future and ongoing equal rights through the continued elimination of unconstitutional provisions in our state’s constitution that violate privacy and equal protections.”

June 18, 2014 in LGBT | Permalink | Comments (0)

Exxon and LGBT Discrimination

From the WSJ blog: 

In more than half the states, it isn’t against the law to discriminate based on sexual orientation or gender identity. Some opponents of expanded workplace protections have pointed to the risk of frivolous lawsuits and conflicts with religious beliefs.

And here's where Exxon comes in: 

Exxon, one of the biggest companies in the U.S., may have to change its employment code after Mr. Obama signs an executive order barring federal contractors from discriminating based on sexual orientation, which covers gays, lesbians and bisexuals, or gender identity, which covers transgender workers.  Mr. Obama has used a series of executive orders to advance policies when progress has stalled in Congress, and is expected to sign this order soon.


Exxon has repeatedly rejected shareholder-driven efforts to add these protections to the company’s equal employment opportunity policy. The company’s policy currently bars discrimination based on race, color, sex, religion, national origin, citizenship status, age, genetic information, physical or mental disability, veteran “or other legally protected status.”

June 18, 2014 | Permalink | Comments (0)

Lockely on PTSD and Gender

Kimberly Joy-Lockely at Mississippi Law has uploaded "How Gender Bias Negatively Affects Soldiers with PTSD."  Its abstract reads: 

The Veteran’s Administration (VA) is charged with caring for our nation’s veterans, but their procedures allow for a gender bias that is causing countless veterans with post-traumatic stress syndrome (PTSD) to remain without adequate help. Though women have been involved in every military conflict in the United States, women continue to be treated differently than men. Women were not granted official military status until 1949, but they currently make up the fastest growing portion of the veteran population. The impending lift of the ban on women in combat will likely only increase women’s involvement in the military, so their disparate treatment must be dealt with quickly to avoid an increase in an already prevalent problem.

The VA only currently recognizes two types of PTSD: Military Sexual Trauma-related PTSD (MST) and Combat-related PTSD. MST complaints increased 46% from 2012 to 2013. An estimated 26,000 men and women experienced MST in 2011, but only 3,300 of those victims filed reports. Increased numbers of women are seeing combat in Iraq and Afghanistan, and 15% of active duty soldiers are females. Because of the gender bias in the military sexual trauma reporting process and the VA in-processing, the already over-burdened VA system has become even more inefficient and female and male veterans alike are the ones harmed.

Various failures on the VA’s part account for veterans’ difficulties in obtaining earned and promised benefits. For example, the two types of PTSD have different burden of proof structures, and the interviewers who determine whether or not a veteran gets benefits have an extreme gender bias. Even worse, the VA did not offer mental healthcare services to women until 1988, and the VA currently only has four facilities dedicated to women’s care.

Men are expected to be “stronger” than to have psychological or emotional issues and women who are already often perceived as “weaker” do not wish to add to that perception by admitting any struggles. Each sex fears retribution, loss of promotion, loss of opportunity to re-enlist, and loss of the respect of their superiors and/or peers. Though Congress has recently attempted a weak solution, it is quite simply not even close to being enough to close the gender gap. This paper proposes a three-tiered solution focusing on enhancing reporting schemes within the military and the relationship between the military and the VA, restructuring the PTSD intake within the VA, and adopting a common sense approach to VA benefits.

Part I of this paper will discuss the history of women in the military, the history of PTSD, and gender bias’ role in PTSD; part II of this paper will discuss and analyze the military’s, Congress’, and the VA’s failures in consistently and adequately serving soldiers and veterans with PTSD. Part III of this paper will discuss ways in which the military and VA can improve including recent Congressional steps that have attempted to do so.


June 18, 2014 in Manliness, Masculinities, Scholarship | Permalink | Comments (0)

Tuesday, June 17, 2014

SCOTUS Allows Challenge to Anti-Abortion Political Speech

Yesterday, the Supreme Court in Susan B. Anthony List v. Driehaus unanimously allowed a pro-life group to challenge a state election law prohibiting lies in election speech.  An analysis of the opinion is here: SCOTUS Opinion Analysis

I commented on the case before in Susan B. Anthony List's Right to Lie and again here about the political misuse of Susan B. Anthony's name and representation as an anti-abortion icon. 

June 17, 2014 in Abortion, Reproductive Rights | Permalink | Comments (0)

Federal Laws Inadequate to Protect Native American Women from Violence

Washington Post: New Federal Laws Help, But Still Don't Fully Protect Native American Women From Violence

President Obama toured the Standing Rock Sioux Reservation in North Dakota on Friday, marking his first visit to Indian Country since his 2008 campaign—and his first since signing two bills into law that were in large part aimed at better protecting Native American women from violent crimes on tribal lands.


Both laws—the Tribal Law and Order Act, signed in 2010, and the Violence Against Women Act, which passed Congress and was signed into law last year—essentially give tribal justice systems more power in prosecuting and sentencing violent offenders on reservations, where gaps in the federal law had made Native American communities safe havens for criminals for decades. The reason: Tribal prosecutors were barred from prosecuting crimes by non-Native American offenders.

June 17, 2014 in Violence Against Women | Permalink | Comments (0)

Judges, Daughters and Women's Rights

From the NYT, Another Factor Said to Sway Judges to Rule for Women's Rights: A Daughter

It turns out that judges with daughters are more likely to vote in favor of women’s rights than ones with only sons. The effect, a new study found, is most pronounced among male judges appointed by Republican presidents, like Chief Justice Rehnquist....


There was no relationship between having daughters and liberal votes generally. Daughters made a difference in only “civil cases having a gendered dimension....”


The most likely explanation, Professor Sen said, was the one offered by Justice Ginsburg. “By having at least one daughter,” Professor Sen said, “judges learn about what it’s like to be a woman, perhaps a young woman, who might have to deal with issues like equity in terms of pay, university admissions or taking care of children.”

June 17, 2014 in Gender | Permalink | Comments (0)

Monday, June 16, 2014

Italian Court on Transgender Rights

From the Jurist

[JURIST] Italy's Constitutional court [official website, in Italian] ruled [judgment, in Italian] Wednesday that an Italian law that annuls a marriage once a partner undergoes a sex change operation is against the national interest because the couple may desire to stay together. Wednesday's ruling overturns a judgment from a lower court in Bologna in the case of 43-year-oldAlessandra Bernaroli [Ansa News report], who underwent surgery in 2009 to become a female, four years after getting married as a man. Bernaroli's marriage was automatically dissolved by national law after the transgender operation. The case will now reach Italy's highest court, La Consulta, where a favorable ruling for Bernaroli could make her and her female partner the first same-sex couple in Italy.

June 16, 2014 in LGBT, Same-sex marriage | Permalink | Comments (0)

Italian Court on Transgender Rights

From the Jurist

[JURIST] Italy's Constitutional court [official website, in Italian] ruled [judgment, in Italian] Wednesday that an Italian law that annuls a marriage once a partner undergoes a sex change operation is against the national interest because the couple may desire to stay together. Wednesday's ruling overturns a judgment from a lower court in Bologna in the case of 43-year-oldAlessandra Bernaroli [Ansa News report], who underwent surgery in 2009 to become a female, four years after getting married as a man. Bernaroli's marriage was automatically dissolved by national law after the transgender operation. The case will now reach Italy's highest court, La Consulta, where a favorable ruling for Bernaroli could make her and her female partner the first same-sex couple in Italy.

June 16, 2014 in LGBT, Same-sex marriage | Permalink | Comments (0)

An outsider to help an outsider

I've blogged about Gianmarco Monsellato's admirable initiative to ensure that women lawyers in his large French law firm get equal pay and equal assignments as do their male counterparts.  

Monsellato believes that the popular American approach to form "diversity committees" and to "lean in" are absurd because the partners themselves have all the power and that genuine fairness must be initiated by them.  

A female CEO blogger for the Harvard Business Review Blog notes that those partners like Monsellato are themselves "outsiders" to their firms and that it might very well take such an outsider to implement serious changes: 

Interestingly, in my experience, most of the leaders who’ve pushed hardest for gender balance are themselves not fully members of their companies’ dominant majority. They are often a different nationality than most of their colleagues, or the first non-home- country CEO. So, for example, the Peruvian-born Carlos Ghosn at Nissan in Japan, the Dutch Marijn Dekkers at BAYER (disclosure: they are a client) in Germany, or the Italian Monsellato at TAJ in France.

There is nothing better than being a bit of an outsider to understand the particular stickiness of the in-group’s hold on power. These are some of the more enlightened leaders on gender balance. They build true meritocracies, they get the best of 100% of the global talent pool – and they will win a huge competitive edge in this century of globalization.


June 16, 2014 in Women lawyers, Work/life, Workplace | Permalink | Comments (0)

Saturday, June 14, 2014

DOJ Reaches Agreement on Gender Bias in MT Prosecution of Sexual Assaults

Department of Justice Reaches Landmark Decision to Improve Missoula County Attorney's Office's Responses to Sexual Assault

The Department of Justice announced today that it has reached a comprehensive agreement with the Missoula County Attorney’s Office, as well as Missoula County, Montana, and the Montana Attorney General’s Office, to resolve the department’s investigation of alleged gender bias in the prosecution of sexual assaults by the Missoula County Attorney’s Office (MCAO).  Under this first-of-its-kind agreement, MCAO and the county agree to take a number of significant steps to improve MCAO’s response to allegations of sexual assault and eliminate discrimination and gender bias.  This agreement completes the Civil Rights Division’s investigation of the response by the Missoula criminal justice system and the University of Montana to sexual assault.

June 14, 2014 in Violence Against Women | Permalink | Comments (0)

High School Boys Talk About Why They're Feminists

The video is here: High School Boys Talk About Why They're Feminists.  Some of their thoughts: Because its about more than equal rights for women.  Because its humanistic.  Because of intersectionality - no one is one dimensional.  Because of misogynist song lyrics and behaviors.

June 14, 2014 in Theory | Permalink | Comments (0)

Fees Upheld in Supermarket Cashier Gender Discrimination Case

Duling v. Gristede's Operating Corp, 2014 WL 567442 (S.D.N.Y. June 5, 2041). Upholding award of $500,000 in attorney's fees for successful $1.45m settlement of sex discrimination class action.

Former cashiers at a New York supermarket Gristede's alleged the compnay violated Title VII, the NYSHRL, and the NYCHRL by steering women who had applied for work in one of its approximately 40 New York supermarkets into part-time, dead-end cashier jobs—with little or no prospect for transfers or promotions into management-track positions. They also alleged that women were denied promotions in favor of men and paid less than them.  Plaintiff Sewer also brought an individual claim of discrimination based on her gender and pregnancy and a claim for interference with her rights under the Family & Medical Leave Act.

Technically, attorney's fees are not available for cases that settle without a "judicial imprimatur," said SCOTUS in Buckhannon v. West Virginia (2001). But the shadow of the law knows that without the fees, the case would proceed to trial where it would then include fees.  

June 14, 2014 in Equal Employment | Permalink | Comments (0)

Friday, June 13, 2014

Australian Feminist Law Journal Call for Paper Proposals

Volume 41.2, December 2015

Deadline of September 30th, 2014
The Australian Feminist Law Journal calls for submissions for the positions of Special Editor(s) of a Special Themed Issue of the Journal, namely Volume 41.2 (December 2015). Special Editors work in conjunction with the Editorial Board to create a theme, solicit articles, organize the referee process, make publication decisions and guide author revisions, subject to the oversight of the Board who will ensure consistency with the AFLJ’s focus on critical feminist approaches to law and justice,  broadly conceived. As an international Critical Legal Journal we publish research informed by  critical theory, cultural and literary theory, jurisprudential, postcolonial and psychoanalytic approaches, amongst other critical research practices. Each journal issue normally comprises 6-8 articles of between 8,000 to 12,000 words, including footnotes. Special Editors are encouraged to plan their Themed Issue around a conference, workshop, or other mode of organizing preparations for the research and publication theme, including a public call for papers.

June 13, 2014 in Scholarship | Permalink | Comments (0)

Hillary Clinton's Book Reviewed

In the Guardian UK

Sure, Clinton jokes in the book about scrunchies and outfits and nail polish to make her point that woman in public life are forced under a microscope. "There is a persistent double standard applied to women in politics," she writes, "regarding clothes, body types, and of course hairstyles."

But Clinton is still not ready to talk – at least not in a substantive way – about what it meant to be the first woman to go so far, yet still fall short, in the race for the 2008 Democratic nomination. And she is certainly not saying, in Hard Choices or in the rounds of interviews and appearances surrounding its release, how she would overcome biases on women seeking power when and if she decides to run in 2016.

It's about time she did.

June 13, 2014 in Theory, Work/life, Workplace | Permalink | Comments (0)

Thursday, June 12, 2014

When Baseball Player Takes Paternity Leave, It's National News

White House Hosts Discussion of Working Fathers.

New York Mets second baseman Daniel Murphy headlined a White House discussion on working fathers today, nine weeks after an uproar over his decision to miss the first two games of the season for the birth of his first child.

 Paid Paternal Leave: What Would Jesus Do?

Daniel Murphy, the Mets second baseman who was slammed by some boneheaded sports radio guys for taking his contractually obligated paternity leave, was at the White House on Monday speaking at a forum on working fathers. He offered rousing support for family leave. "When [my son] Noah asks me one day, 'What happened? What was it like when I was born?' I could have answered, 'Well, Stephen Strasburg hung me a breaking ball that day, son. I slammed it into the right field corner,” Murphy told the audience. But instead, he continued, he can tell his son, “I am the one who cut his umbilical cord.”

June 12, 2014 in Family | Permalink | Comments (0)

Misusing Data on Violence Against Women

The Washington Post Misused the Data on Violence Against Women.  

On Tuesday, the Washington Post published an op-ed about sexual assault claiming:

The bottom line is this: Married women are notably safer than their unmarried peers, and girls raised in a home with their married father are markedly less likely to be abused or assaulted than children living without their own father....

[T]he way the authors presented the data to support their claims was ... flawed, according to the author of the underlying study...

The graph which they used from my report does show clear differences between intimate violence rates — but that is because it is only showing one variable; household composition. The story could change if we started to control for other factors.

Here's another article objecting not to the study's use of data, but its conclusion. Marriage Will Not Save Women from Male Violence

June 12, 2014 in Violence Against Women | Permalink | Comments (0)