Thursday, April 30, 2015
That's my takeaway.
Yesterday, the Supreme Court unanimously decided Mach Mining v. EEOC finding a meaningful role of judicial review in Title VII conciliation procedures.
It just strikes me as 180 degrees apart from the long line of arbitration cases in which the Court repeatedly upholds the inability for judicial inquiry into business, employment, civil rights, consumer and all other arbitration cases.
The Court's answer is likely that the federal statutes are different.
And that one is administrative action which is usually reviewable, and one is business action which is not.
And that it is recognizing only a very limited review. But its not. It is requiring notice and an opportunity for the business to prove voluntary compliance. That's due process, right? So the Court is imposing on sex discrimination cases an obligation of fair adjudication that is completely absent in ADR business cases. And seemingly tipping the balance in favor of businesses.
In a telling moment at Tuesday’s Supreme Court arguments over same-sex marriage, Chief Justice John G. Roberts Jr. suggested that he may have found a way to cast a vote in favor of the gay and lesbian couples in the case.
“I’m not sure it’s necessary to get into sexual orientation to resolve this case,” he said. “I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?”
That theory had gotten only slight attention in scores of lawsuits challenging bans on same-sex marriage, and it is unlikely to serve as the central rationale if a majority of the court votes to strike down such bans, an opinion likely to be written by Justice Anthony M. Kennedy.
But it could allow Chief Justice Roberts to be part of a 6-to-3 decision, maintaining some control over the court he leads and avoiding accusations from gay rights groups that he was on the wrong side of history.
"This would be a clean, formalistic way for the court to resolve the case,” Andrew Koppelman, a law professor at Northwestern University, said in an interview. “It could just apply existing sex discrimination law.”Professor Koppelman and other scholars filed a brief urging the court to strike down the four same-sex marriage bans before it on sex-discrimination grounds. The chief justice’s musings were similar to a passage in the brief.
Wednesday, April 29, 2015
Brian Tashman of “Right Wing Watch” reports that on a recent episode of the Family Research Council’s “Washington Watch,” conservative Rabbi Daniel Lapin claimed that the problem with effeminate liberals is that an excess of estrogen in their systems causes them to fall in love with “the masculine strength and brutality of Islam.”
Host Tony Perkins asked him why liberals “favors Islam and actually promotes it, even to their own demise,” and Rabbi Lapin responded with what he characterized as a “zinger” of an answer — there’s a “sexual dimension” in which, much like feminized hostages suffering from Stockholm Syndrome, liberals are attracted to the masculinity of the Islamic extremists.
Today gay marriage is obviously the big issue. And there a lot of articles and commentaries about it.
Here are a couple that I chose. The Most Awkward Moments during oral argument, discussed here.
From the NYT.
From the Fox News.
A commentary by Toobin in the New Yorker; he thinks the Court will decide in favor of gay marriage.
An editorial by the conservative National Review.
Tuesday, April 28, 2015
Sixth Circuit Holds Employees Cannot be Fired as Retaliation for Complaining to Sexually Harassing Boss
Employees who tell their bosses to stop sexually harassing them are engaging in protected activity and are protected from retaliation, a federal appeals court has ruled.
The decision upheld a $1.5 million award to four employees at New Breed Logistics in Memphis who say they were fired after complaining to the harassing warehouse supervisor. Three of the employees were women who say they were harassed and a fourth was a man who complained on their behalf.
The company had argued it shouldn’t be liable because there was no evidence that company higher-ups were aware of the supervisor’s conduct.
Ruthann Robson at Con Law Blog has given us an encyclopedic summary of all of the amicus briefs filed in the same-sex marriage being argued today in the U.S. Supreme Court. Well worth reading.
The United States Supreme Court is set to hear oral arguments on April 28 in the same-sex marriage cases, now styled as Obergefell v. Hodges, a consolidated appeal from the Sixth Circuit’s decision in DeBoer v. Snyder, reversing the district court decisions in Kentucky,Michigan, Ohio, and Tennessee that had held the same-sex marriage bans unconstitutional, andcreating a circuit split.
Recall that the Court certified two questions:
1)Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
The case has attracted what seems to be a record number of amicus briefs. As we discussed last year, the then-top amicus brief attractors were the same-sex marriage cases of Windsor and Perry, which garnered 96 and 80 amicus briefs respectively, and the 2013 affirmative action case of Fisher v. University of Texas at Austin, which attracted 92.
The count for Obergefell v. Hodges stands at 147.
The U.S. Supreme Court hears legal arguments next week in the legal battle over same-sex marriage. It's an extraordinarily high-stakes clash, but the men and women at the center of it see themselves as incredibly ordinary. The 12 couples and two widowers include doctors, lawyers, an Army sergeant, nurses and teachers.
Most have children and lead the typically harried lives of working parents. They say they didn't set out to be pioneers. They consider themselves "accidental activists," meaning they filed lawsuits not to further a cause but because of the way the bans affected their lives.
Monday, April 27, 2015
Earlier this month, a 21-year-old marine was sentenced to one year and six months in prison for sexually abusing at least four of his male subordinates over the course of 20 occasions in 2013, including forcing them to perform oral sex on him.
However, when prosecutors in Gwangju indicted him on sexual abuse charges, they could not apply the nation’s rape laws ― as the law only acknowledges rape when the “female sex organ has been penetrated by the male sex organ.”
This means same-sex rape cannot be legally acknowledged in Korea. The laws also don’t recognize any other forms of sexual penetration ― such as forced anal or oral sex, or inserting of a foreign object into the body ― as rape, regardless of the gender of the victim.
(Pope Francis meets with Malta’s President, Marie-Louise Coleiro Preca during a private audience in September Gabriel Bouys / AP)
That Malta--the small archipelago in the Mediterranean--should pass the world's most progressive gender identity law is surprising. Malta's constitution states that its official religion is Catholicism, and until 2011, it forbade divorce.
The Mediterranean country of Malta adopted the world’s most progressive gender identity law on Wednesday in a final vote by the country’s parliament on Wednesday.
The law is the latest in a series of LGBT rights laws ushered in by the Labour Party after taking power in 2013, a dramatic about-face for the country which has a constitution establishing Catholicism as the official religion.
The law — which goes beyond those its fellow European Union members have passed — would allow for someone to change their legal gender through simply filing an affidavit with a notary without a significant waiting period, eliminates any requirement for medical gender reassignment procedures, and prohibits discrimination on the basis of gender identity. It now heads to the desk of President Marie-Louise Coleiro Preca, and LGBT rights advocates expect her to sign.
It also includes some groundbreaking provisions for minors and intersex babies, those born without clearly male or female anatomy. Medical experts estimate that around .1 - .2 percent of children are born with atypical genitals that cannot be classified as either male or female, and in much of the world doctors operate on these children to make their anatomy clearly male or female.
There are some obvious reasons not to be sympathetic to Bruce Jenner's coming out: for one, he lives with the Kardashians; for another, the coming out looks like a publicity ploy by an aging celebrity who had milked everything once of fame for his achievements in an obscure sport called the decathlon.
But then there was the response by his family, which was admirable:
“I am at peace with what he is and what he’s doing,” his mother, Esther Jenner, said in a separately filmed portion of the two-hour segment. “I never thought I could be more proud of Bruce when he reached his goal in 1976, but I’m more proud of him now.” Kim Kardashian tweeted, “Love is the courage to live the truest, best version of yourself. Bruce is love. I love you Bruce. #ProudDaughter.” (Jenner told Sawyer that he first came out to Kim, and that she once walked in on him in a dress.)
Seventeen-year-old Kylie Jenner, Jenner’s youngest child, tweeted, “Understandingly, this has been very hard for me. You will hear what I have to say when I’m ready to but this isn’t about me. I’m so proud of you, Dad. You are so brave. My beautiful Hero.” In this unconditional and unquestioning way, the Kardashian and Jenner clans are defining what it means to be a family today. They may be superficial, but their support for Bruce is notable for its candid demonstration of acceptance.
A male student accused of raping his classmate has sued Columbia University for failing to protect him against backlash and harassment.
Authorities rejected Emma Sulkowicz's case that Paul Nungesser, a German citizen, was a 'serial rapist' who assaulted her after class.
Nonetheless, the case gathered international attention as Sulkowicz, a senior majoring in visual arts, publicly paraded her mattress in protest, calling for his indictment.
And according to Nungesser's lawsuit citing 'gender-based harassment and defamation', Columbia presented the allegations as fact on a university-owned website.
Saturday, April 25, 2015
My colleagues and I have been discussing this issue. In the family law context, there is a rise of law firms that represent only male parties, often due to an affiliation with the father's rights movement.
We didn't come up with any answers, just flagged some of the questions:
Does the civil rights law apply? Are law firms "public accommodations" under the Civil Rights Act? They are defined as public accommodations under the ADA - any relevance? Is the licensing of lawyers sufficient state action? Maybe the commerce clause?
Don't lawyers have the right to choose their own clients? A First Amendment right of association? Or what about a religious right under Hobby Lobby?
What about ethical rules for lawyers against discrimination?
Here is an older law review article on the topic: Samuel Stonefield, Lawyer Discrimination Against Clients (1998)
But here’s the dot that few have connected: The retirement savings crisis is also a women’s crisis.
That’s because women retire with two-thirds the savings of men, live six to eight years longer and have higher medical costs. Plus, 80 percent of women are single in their final years.
And it may be getting worse: Women’s labor-force participation is dropping, which suggests we’re moving in the wrong direction, considering that retirement savings tend to be driven by lifetime wages.
By looking at this issue through the gender lens, the solutions take on a decidedly different character. They become less about an inevitable, looming wealth transfer and more about increasing the economic engagement of women. And thus the focus of the national discussions about advancing women in the workplace, the focus moves from we-should-do-this-because-it’s-the-fair-thing-to-do to we-should-do-this-because-it-helps-solve-a-ridiculously-large-problem.
Friday, April 24, 2015
From Bloomberg Business:
Venture capital firm Kleiner Perkins Caufield & Byers offered to drop its bid for legal costs after defeating Ellen Pao’s gender bias claims if she forgoes an appeal.
The firm filed its $1 million reimbursement request a month after a jury soundly rejected the former Kleiner junior partner’s claims of discrimination and retaliation and demand for $16 million in damages.
“KPCB has offered to waive all legal costs due to the firm should Ellen Pao choose to bring this legal matter to a close,” Christina Lee, a spokeswoman for Kleiner, said in an e-mail. “We believe that women in technology would be best served by having all parties focus on making progress on the issues of gender diversity outside of continued litigation.”
Thursday, April 23, 2015
Before the passage of the Affordable Care Act (ACA), Geneva College, which is associated with the Reformed Presbyterian Church of North America, regularly notified its insurance carrier that it would not provide coverage for four contraceptives that it deemed to be abortifacients, namely, emergency contraceptives Plan B and ella and two intrauterine devices. Similarly, the Roman Catholic Bishops and Dioceses of Pittsburgh and Erie, Pennsylvania, along with their affiliated nonprofit organizations Catholic Charities, Prince of Peace Center, St. Martin Center, and Erie Catholic Cathedral Preparatory School, regularly notified their insurance carriers that they would not provide any contraceptive insurance. Geneva College administrators believe some contraceptives cause abortion and abortion is immoral; Catholic officials believe all contraception is immoral.
After the passage of the ACA, Geneva College is required to tell either its insurance company or the Department of Health and Human Services (HHS) that it will not provide coverage for four contraceptives that it deems to be abortifacients, namely, emergency contraceptives Plan B and ella and two intrauterine devices. Similarly, the Roman Catholic organizations are required to tell either their insurance companies or HHS that they will not provide contraceptive coverage to their employees.
Post-ACA, however, the religious organizations argue that filling out a simple notification form, just as they did in the past, substantially burdens their religion in violation of the Religious Freedom Restoration Act (RFRA). They argue that filling out a form makes them “complicit” in the sins of abortion and contraception because their signatures immorally “trigger” abortion and contraception.
Four courts of appeals—the Sixth, Seventh, D.C., and, most recently, the Third Circuits, in Geneva College v. Burwell— rejected that argument. The “trigger” to insurance coverage, those courts concluded, is the ACA itself, which legally requires contraceptive access for employees. Thus there is no “causal link” or trigger between the notification forms and contraception. Without a trigger, there is no substantial burden on religion, because women’s independent access to contraception is not a substantial burden on the religious organizations’ religious exercise. As the Third Circuit shrewdly observed:
The appellees’ real objection is to what happens after the form is provided—that is, to the actions of the insurance issuers and the third-party administrators, required by law, once the appellees give notice of their objection.
The court then refused to give the religious organizations a veto over women’s rights on such non-substantial ground.
There things stood until Justice Samuel Alito shot down women’s rights last week by staying the Third Circuit’s opinion for the Catholic plaintiffs. Geneva College has asked the Court for a similar stay.
Why are biased acts against women — even religiously motivated ones — considered so much less toxic than biased acts of any other kind? Why do women often demur and accept humiliation rather than make a fuss? Why does respect even for admittedly extreme religious beliefs trump respect for half the human race?
My encounter came to mind again as I pondered recent stories of ultra-Orthodox Jewish men refusing to take airline seats next to women. Several cases were reported in the New York Times this month. Others have appeared in the Israeli press as far back as 2012.On some flights women reportedly moved when asked. Some men switched places with women to eliminate the adjacency problem. Some flight attendants assisted the Orthodox men in relocating. Yet when others did not, some flights were delayed as men refused to be seated. The incidents have spawned lively discussions among Jews and non-Jews alike.
Yet I wonder: Why are we even discussing this?
Would such blatant behavior be treated merely as a social choice, a courtesy issue or an awkward airline customer-service problem if the targets were anyone other than women?
Let’s test it. What if we recast my encounter, giving me a different race and gender. How do I react now if someone says, “I don’t touch black men.” Do I quietly move on? How would this young man have reacted had the tables been turned? What if I had done something I could never imagine myself doing? Would he have treated it as a social issue if I had refused his hand, saying: “I don’t shake hands with Jews?”
Wednesday, April 22, 2015
As a senior administrator at an all-boys' school in suburban Philadelphia, I spend each day with 1,000 boys, many of whom, by virtue of their gender alone, occupy positions of privilege and power at least one step removed from the important issue of sexual assault. To state the obvious, while it is women who are overwhelmingly the victims of this crime, its prevention is not a women's problem -- and boys' schools have a unique opportunity and responsibility to be part of the solution.
The challenge has been well chronicled: from our earliest days, we boys bask in marinades of hyper-masculine stereotypes. From the sandbox to the locker room to the high school dance to the conference room, we are conditioned to compete: relationships, we learn, are zero sum games to be won. Of course, where there are winners, there are also losers, but it does not pay to consider their fate too carefully. Keep your eyes on the prize. Act hard, and tough; be logical and remote, witty and distant. And then become boyfriends and husbands and fathers... of sons.
But by placing relationships at the center of everything we do, we can break the cycle. Witness the first day of school here: a senior takes a new kindergartner by the hand and walks him to opening assembly. Without thinking, the young boy crawls into his lap, and the young man responds by instinctively wrapping a pair of gangly arms around him. "It's safe here," the arms say. "I've got your back." Or witness the last day of school, some twelve years from now, when that same kindergartner, now a grown man himself, will cry in the arms of a classmate, a teacher, or a coach.
Thus reads the headline from an essay in Salon.
One of the weirder developments of the online publishing era is the way a loose confederation of embittered anti-feminists has formed, across social media and the blogging world, under the banner of “men’s rights activism.” MRA is an attempt to reframe old-fashioned misogyny as if it’s some kind of human rights movement, much like organized racism has periodically tried to reframe itself as a “white pride” movement. MRAs, who spend most of their “activist” energy roaming around the Internet, harassing feminists and pushing misogynist myths about false accusers and gold-diggers, are clearly bad for women. But while they claim to speak for men, their rhetoric is just as bad for men as it is for women.
Here are some of the reasons why.
Or so argues a recent book reviewed in the UK Daily Mail.....
George Clooney, Benedict Cumberbatch and Eddie Redmayne may have all taken the plunge recently — but they are a diminishing band of brothers, for the number of men marrying in the West has plunged in recent decades.
The state of matrimony is not just ailing. It is dying out faster than a mobile phone battery.
According to the Office for National Statistics, marriage in Britain is at its lowest level since 1895. In 2011, there were just 286,634 ceremonies — a 41 per cent free fall from 1972, when 480,285 couples tied the knot.
For an army of women, Mr Right is simply not there, no matter how hard they look for him. And the reason? When it comes to marriage, men are on strike.
Why? Because the rewards are far less than they used to be, while the cost and dangers it presents are far greater.
‘Ultimately, men know there’s a good chance they’ll lose their friends, their respect, their space, their sex life, their money and — if it all goes wrong — their family,’ says Dr Helen Smith, author of Why Men Are Boycotting Marriage, Fatherhood And The American Dream.
‘They don’t want to enter into a legal contract with someone who could effectively take half their savings, pension and property when the honeymoon period is over.