Gender and the Law Blog

Understanding Campus Sexual Misconduct as Sexual Harassment

Katharine Baker (Chicago-Kent), Campus Sexual Misconduct as Sexual Harassment: A Defense of the DOE, Kansas L.Rev. (forthcoming)

Abstract:     

This article explains and defends the Department of Education’s campaign against sexual misconduct on college campuses. It does so because DOE has inexplicably failed to make clear that their goal is to protect women from the intimidating and hostile environment that results when men routinely use women sexually, without regard to whether women consent to the sexual activity. That basic point, that schools are policing harassing and intimidating behavior, not necessarily rape, has been lost on both courts and commentators. Boorish, entitled, sexual behavior that stops well short of rape, if pervasive enough, has been actionable as sexual harassment for decades. The failure to understand the theory of university regulation is problematic not only because it leads courts to ask the wrong questions when reviewing university tribunals, but also because it blinds both courts and commentators to the hard questions that follow from a theory of sexual harassment. First, evidence from both sides in cases of college sexual misconduct is likely to lack credibility and critical detail. Reasonable minds will differ on whether the complainant’s or the accused’s story is more accurate. What should college tribunals do in close cases, allow for findings of liability, as is permitted by the civil law of discrimination (and harassment), or require more proof, as is required by the criminal law and some college codes of conduct? Second, while many women on college campuses feel insulted and demeaned by the culture of male sexual entitlement, most women - by their own admission - are probably not being irreparably injured. If DOE’s policy is to be justified it is probably not on grounds that women are so severely hurt by men’s sense of their own sexual entitlement, but because that sense of entitlement undermines the norms of respect, civility and equality that university’s routinely enforce in other contexts. Is it worth curtailing men’s (entitled sense of) sexual freedom to enforce those norms?

 

Black Women Lawyers Featured on Reality TV, "Sisters in Law"

Ms JD, The Law and Reality TV--Reflection on "Sisters in Law" and the Impact on Black Women Attorneys

WE tv launched the premier to its newest reality show at the end of March called “The Sisters in Law".  The show follows 6 black female attorneys in Houston, Texas. *

 

The show is brand new and only a few episodes in.  The show does have a dramatic flare among the cast mates, but so far the show is also doing a great job of showing the women in their career and working hard for their clients.  For example, the first episode showed criminal defense attorney Jolanda meeting with her client who had been charged with murder.  In the episode, Jolanda is advocating that her client was in self-defense of her life from an abusive spouse, and even goes to visit the client’s house where the homicide took place.

 

Policing Rape

Corey Rayburn Yung (Kansas), Policing Rape

Abstract:     

For decades, reformers have sought to increase the number and success rate of rape prosecutions by amending evidentiary rules, substantive definitions of rape, and consent standards. Such efforts are simply doomed from conception because they are primarily designed to affect the stage of the criminal justice process that few cases ever reach: trials. Looking to substantial empirical and institutional evidence, this Article concludes that police across the United States act as aggressive gatekeepers who prevent rape complaints from progressing by fervently policing the culturally disputed concept of “rape.” The Article breathes life into these data by exploring eight recent cases, which are illustrative of the overall statistical landscape, where victims were disbelieved, even prosecuted for filing false complaints, but ultimately had their complaints validated through confessions and/or forensic evidence. These data and supporting narratives indicate that to have any real effect in decreasing sexual violence, solutions must focus on removing the numerous police-imposed gatekeeping obstacles inhibiting investigation and adjudication in rape cases, beginning with substantial reform of police practices. The belief that reforming trial rules would trickle-down to police decisions has proven to be unwarranted. As long as rape victims do not have consistent access to the criminal justice system due to failures of policing, tinkering with rules and statutes is at best futile, and possibly counterproductive.

 

Merck Sex Discrimination Case Conditionally Certified as Collective Action

Reuters, Merck Sex Discrimination Case Could Be Collective Action

A federal judge has granted preliminary approval for a lawsuit accusing Merck & Co In. of underpaying female sales representatives to go forward as a collective action.

 

 The lawsuit is seeking at least $250 million in damages.

 

 U.S. District Judge Michael Shipp in Trenton, New Jersey, on Wednesday granted conditional certification to a proposed class of current and former representatives under the federal Equal Pay Act, which requires women and men to be paid equally for the same work.

 

The complaint alleges that Merck systematically paid female sales representatives less than their male peers, denied them promotions and subjected them to sexual harassment and an otherwise hostile work environment.

 

 Employees who become pregnant or have children were often pressured to leave the company, the complaint says.

 

A collective action under the Equal Pay Act requires potential class members to opt in, unlike a traditional class action in which class members must opt out. Shipp's order allows notices to be sent to potential members so they can opt in.

 

New in Books: Gender Remade: Citizenship, Suffrage, and Public Power

From Legal History Blog, VanBurkleo's "Gender Remade", Abstract and TOC:

Sandra F. VanBurkleo, Associate Professor of History at Wayne State University, has published Gender Remade: Citizenship, Suffrage, and Public Power in the New Northwest, 1879–1912 (Cambridge UP).

Gender Remade explores a little-known experiment in gender equality in Washington Territory in the 1870s and 1880s. Building on path-breaking innovations in marital and civil equality, lawmakers extended a long list of political rights and obligations to both men and women, including the right to serve on juries and hold public office. As the territory moved toward statehood, however, jury duty and constitutional co-sovereignty proved to be particularly controversial; in the end, 'modernization' and national integration brought disastrous losses for women until 1910, when political rights were partially restored.

New in Books: Gender Remade

From Legal History Blog, VanBurkleo's "Gender Remade", Abstract and TOC:

Sandra F. VanBurkleo, Associate Professor of History at Wayne State University, has published Gender Remade: Citizenship, Suffrage, and Public Power in the New Northwest, 1879–1912 (Cambridge UP).

Gender Remade explores a little-known experiment in gender equality in Washington Territory in the 1870s and 1880s. Building on path-breaking innovations in marital and civil equality, lawmakers extended a long list of political rights and obligations to both men and women, including the right to serve on juries and hold public office. As the territory moved toward statehood, however, jury duty and constitutional co-sovereignty proved to be particularly controversial; in the end, 'modernization' and national integration brought disastrous losses for women until 1910, when political rights were partially restored.

On Balance: Lead by Leaving

Paula Schaefer (Tennessee), On Balance: Lead by Leaving, Tennessee L.Rev. (forthcoming)

Abstract:     

Even though women make up half of law school classes in the U.S., hold half of elite judicial clerkships, and accept almost half of the jobs in large U.S. law firms, only a small number of women make partner or serve in leadership roles in those firms. Much has been written about the things that stand in the way of gender equality in elite law firms. Yet misconceptions persist about why the time demands of “big law” have a disproportionate impact on women.

This Article points to evidence that is contrary to those misconceptions and argues that the women – and men – who leave large law firms in search of balance are exhibiting leadership. Contrary to Sheryl Sandberg’s advice that they should “lean in” if they hope to lead, these former big law attorneys are leading by leaving.

Following an Introduction, Part II looks at the numbers of women in the pipeline from law school to elite law firms, and how the numbers drop off precipitously before women achieve partnership and take on leadership positions. Next, Part III considers and refutes two common misconceptions about why women have not succeeded in big law: that women lack ambition and that women cannot shoulder the dual demands of practicing law and being a primary caregiver. The reality is that these women are ambitious and that both women and men leave elite firms for similar reasons. They are often seeking better balance in their professional and personal lives. The topic of balance is the focus of Part IV, which makes the argument that lawyers who are leaving large law firms in search of work-life balance are exhibiting leadership. Turning to the topic of this symposium, Part V concludes with some suggestions about how law school leadership education could address issues of work-life balance and gender disparities in the profession. Rather than framing these as women’s issues, this Part suggests the benefits of presenting these as issues that men and women should consider as they make a plan for their professional and personal lives.

 

How Not to Lead Faculty

Having been on both sides of this administrative coin, I found these suggestions particularly instructive.

Chronicle of Higher Ed, The Top 5 Faculty Morale Killers.  The 5 things not to do as a manager of faculty:

• Micromanagement. People don’t generally like to have someone looking over their shoulder and telling them what to do all the time, especially intelligent, highly trained professional
• Trust issues. Faculty members interpret micromanagement as lack of trust. We assume that it means our leaders simply don’t have enough faith in our ability or enough of a commitment to allow us to do our work as we see fit. Few things are more insulting than that to academics.
• Hogging the spotlight. The success of an organization is rarely attributable to any one person. And yet it’s natural for leaders to want to take much of the credit....There are several behaviors leaders must learn that don’t necessarily come naturally, and one of those is deflecting praise.
• The blame game. Besides deflecting praise when things go right, leaders must also learn to accept the lion’s share of the blame when things go wrong
• Blatant careerism. Finally, we come to one of my own personal pet peeves: Academic leaders whose sole ambition in life is to climb as high as possible on the administrative ladder and who are willing to do literally anything to achieve that ambition

 

Gender Discrimination Case Against Wal-Mart Still Alive

ICYMI, Reuters, Gender Bias Lawsuit Against Wal-Mart Can Proceed After High Court Denies Review (Feb. 2016)

The Supreme Court ... rejected Wal-Mart's bid to overturn a federal appeals court decision allowing female workers to sue the retail giant for paying women less and giving them fewer promotions than men.

 

The court's decision not to take the case leaves intact a 6th U.S. Circuit Court of Appeals ruling that found former members of the landmark Dukes v. Wal-Mart class action did not miss the deadline to bring their gender discrimination claims on a regional basis after the Supreme Court rejected the nationwide class in 2011.

 

See also, Michael Selmi & Sylvia Tsakos, Employment Discrimination Cases After Wal-Mart, 48 Akron Law Rev. 803 (2015) 

The view of Wal-Mart as a game changer has proved inaccurate, though the decision seems to have significantly affected the number of case filings. The reduction in filings is an important development, but when one reviews the cases interpreting Wal-Mart, it appears that courts are proceeding much as they did prior to the Supreme Court decision. Employment discrimination class actions have never been easy to certify, nor have they been plentiful, and that remains true today. At the same time, courts that were receptive to class action claims prior to the Wal-Mart decision appear to remain receptive after the decision. As a result of Wal-Mart, the analysis by the lower courts varies somewhat, but the results are largely the same; to the extent a court would have certified the claim before the Supreme Court decision it will likely still be certified. Moreover, various efforts by defense attorneys to stretch the Wal-Mart decision to have claims dismissed even before a certification hearing have largely failed, although those efforts have undeniably escalated in the last several years.

Roe as a Negative Precedent for Same-Sex Marriage

Cary Franklin (Texas), Roe as We Know It, 114 Mich. L.Rev. 867 (2016), reviewing, Mary Ziegler (Florida State), After Roe: The Lost History of the Abortion Debate (2015)

The petitioners in last year’s historic same-sex marriage case cited most of the Supreme Court’s canonical substantive due process precedents. They argued that the right of same-sex couples to marry, like the right to use birth control and the right to guide the upbringing of one’s children, was among the liberties protected by the Fourteenth Amendment. The Court in Obergefell v. Hodges agreed, citing many of the same cases. Not once, however, did the petitioners or the majority in Obergefell cite the Court’s most famous substantive due process decision. It was the dissenters in Obergefell who invoked Roe v. Wade.

Who is Elizabeth Cady Stanton and Why is she on the $10 Bill

The news focused on Harriet Tubman on the $20 bill, but more women will be featured on the $10 bill.  Five women suffrage leaders will appear on the back of the $5 bill.  These five are Susan B. Anthony, Lucretia Mott, Alice Paul, Elizabeth Cady Stanton, and Sojourner Truth.

I have spent the last 10+ years researching and writing about Stanton.  My focus has been her contributions to the philosophical development of legal feminism and her work for legal reforms of gender equity in the private sphere of the family. 

Tracy A. Thomas, Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYU Press forthcoming Oct. 2016)

From the abstract for the book:

Elizabeth Cady Stanton was the principal feminist thinker, leader, and “radical conscience” of the nineteenth-century woman’s rights movement. Stanton initiated the women’s rights movement on July 19, 1848, in Seneca Falls, New York, where she issued her feminist manifesto, the “Declaration of Sentiments,” demanding women’s right to vote. This is generally all that history has remembered of Stanton. Her Declaration, however, demanded seventeen other rights for political, religious, social, and civil rights equality. These included the right to public office, marital property, divorce, education, employment, reproductive control, and religious autonomy. As Stanton explained, the institutions of government, church, family, and industrial work constituted “a fourfold bondage” of women, with “many cords tightly twisted together, strong for one purpose” of woman’s subordination. They were all intertwined, so that “to attempt to undo one is to loosen all.” As Stanton later explained, to break down this complexity required women to have “bravely untwisted all the strands of the fourfold cord that bound us and demanded equality in the whole round of the circle.” Holistic reform was required to break down the complex system of women’s oppression. 

The family was one centerpiece of Stanton’s feminist agenda. The family, governed by patriarchal laws and sentimental gender norms, created and perpetuated women’s inferiority. “If the present family life is necessarily based on man’s headship,” Stanton argued, “then we must build a new domestic altar, in which the mother shall have equal dignity, honor and power.” The private sphere of the family was not segregated from the public sphere, as both nineteenth-century suffrage reformers and twentieth-century feminists often argued, but instead was intertwined with the other institutional strands strangling equality. As a result, radical concrete change to the family institution was required in the forms of egalitarian partnerships, economic rights, free divorce, and maternal autonomy. Stanton’s commitment to women’s equality in marriage and the family was longstanding -- from Seneca Falls to her last writings. As Stanton said, she “remained as radical on the marriage question at the age of eighty-six as [she] had been a half a century earlier.” 

Stanton’s family reforms seem less shocking today because most of them have become law. Her proposals to reconstruct marriage and the family, detailed in this book, are now mainstream. Women have separate and joint marital property rights. Spouses inherit equal shares of estates when one partner dies without a will. Common law marriage is prohibited in most states, and civil marriage requires procedural safeguards. Divorce is available for irreconcilable differences or for misconduct equally applicable to both spouses. The law supports domestic violence protections, reproductive choice, and maternal custody.

Recovering Stanton’s feminist thinking on the family reveals the longevity and persistence of women’s demands for family equality. Contrary to popular wisdom, these feminist ideas were not invented in the 1970s, but instead reach back more than a century earlier as part of the original conceptualization of women’s rights. This longer perspective bolsters the truth and credibility of such feminist demands, dispelling their characterization as a modern anomaly and demanding legitimization and consideration in the law. As these issues of family, marriage, work/life balance, pregnancy, and parenting continue to challenge the law and confound feminism, Stanton’s work adds historical evidence of important principles that should be part of the legal equation. Her work shows that feminism and the family have not been historically in opposition, as we usually think. To the contrary, feminists have existed not apart from the family, but within it. 

See also:

Tracy A. Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. Rev. 1 (2012) (on Stanton’s theory and advocacy of maternity)

Tracy A. Thomas, Elizabeth Cady Stanton and the Notion of a Legal Class of Gender, in Feminist Legal History (Tracy A. Thomas & Tracey Jean Boisseau, eds. 2011) (on foundations of constitutional sex equality inquiry)

Tracy A. Thomas, Elizabeth Cady Stanton on the Federal Marriage Amendment: A Letter to the President, 22 Constitutional Commentary 137 (2005) (on marriage equality and divorce)

Tracy A. Thomas, Introduction to Symposium, The Origins of Constitutional Gender Equality in the Nineteenth-Century Work of Elizabeth Cady Stanton, 7 ConLawNOW 1 (2016)

Tracy A. Thomas, The New Face of Women's Legal History, 41 Akron L. Rev. 695 (2008) (on Truth and Stanton)

 

The Slow Professor: Resisting the Culture of Speed in Academe

Slowing down into deliberate and thoughtful academic work as the antidote to the corporatization of the university.

Inside Higher Ed, Book Review, The Slow Professor: New Book Argues that Professors Should Actively Resist the "Culture of Speed" in Academe

In a new book, two tenured professors propose applying the “slow movement” -- which has thus far been applied to everything from food to parenting to science to sex -- to academic work. And while it’s already raised some eyebrows as an example of “tenured privilege,” it’s at once an important addition and possible antidote to the growing literature on the corporatization of the university.

 

***“While slowness has been celebrated in architecture, urban life and personal relations, it has not yet found its way into education,” reads Slow Professor: Challenging the Culture of Speed in the Academy (University of Toronto Press). “Yet, if there is one sector of society which should be cultivating deep thought, it is academic teachers. Corporatization has compromised academic life and sped up the clock. The administrative university is concerned above all with efficiency, resulting in a time crunch and making those of us subjected to it feel powerless.”

 

In a corporate university, argues Slow Professor, “power is transferred from faculty to managers, economic justifications dominate, and the familiar ‘bottom line’ eclipses pedagogical and intellectual concerns.” But slow professors nevertheless “advocate deliberation over acceleration” because they “need time to think, and so do our students. Time for reflection and open-ended inquiry is not a luxury but is crucial to what we do.”

Instead, Slow Professor proposes with some optimism that professors -- especially those with tenure -- have the power to change the direction of the university by becoming the eye of the storm, working deliberately and thoughtfully in ways that somehow now seem taboo.

 

“Distractedness and fragmentation characterize contemporary academic life; we believe that slow ideals restore a sense of community and conviviality … which sustain political resistance,” Berg and Seeber say. “Slow professors act with purpose, cultivating emotional and intellectual resilience to the effects of the corporatization of higher education.”

 

Slow Professor proposes getting off-line as much as possible and doing less by thinking of scheduling as eliminating commitment’s from one’s day, not taking them on. Perhaps most importantly, it proposes leaving room in one’s schedule for regular “timeless time,” starting with some kind of relaxing, transitional ritual. Incorporate playfulness and shun those negative self-thoughts.

 

And don’t forget leaving time to do nothing at all, the book says.

 

In a separate discussion on “pedagogy and pleasure,” Slow Professor advocates for the in-person classroom model over online. It argues that teaching is an undeniably emotional activity for which one should be physically present, and that students also benefit from working face-to-face with their peers.

 

“It is neither frivolous nor incidental that to ensure that we enjoy ourselves in the classroom: it may be crucial to creating an environment in which students learn,” the book reads.

 

Slow Professor also addresses research pressures, saying that slow scholarship must stand against perverse incentives for publication or a rush to “findings” at the expense of scholarly value. Noting how one of the authors’ colleagues was once admiringly referred to as a “machine,” the book questions the very way in which academics talk about one another’s productivity, saying, “Slowing down is a matter of ethical import. To drive oneself as if one were a machine should be recognized as a form of self-harm. … Furthermore, being machine-like will hardly generate compassion for others.”

 

Overwork can make colleagues jealous, impatient and rushed,Slow Professor reads, while slowing down “is about allowing room for others and otherness. And in that sense, slowing down is an ethical choice.”

 

The Goal of the [Feminist] Academic is to Make Everything Less Simple

The Guardian, Interview with Mary Beard: "The Role of the Academic is to Make Everything Less Simple

She is a feminist to her bones, and gives no quarter to the kind of historical relativism that ringfences the brutality of the past as something natural and unremarkable, like eating songbirds. “It’s very hard to get positive female role models in the history of the Roman empire. You think you’ve got one, and then, oh no. She’s been raped. And killed herself. If you’re going to remove the sexual violence, you cannot tell the story of Rome.”She is resolute on her purpose in public life, and has no qualms about the distinction of scholarship: “What is the role of an academic, no matter what they’re teaching, within political debate? It has to be that they make issues more complicated. The role of the academic is to make everything less simple.”

Conference on Reproductive and Sexual Justice

Northeastern, Workshop on Reproductive and Sexual Justice

A Vulnerability and the Human Condition Workshop on Reproductive and Sexual Justice

April 29 - 30, 2016

Northeastern University School of Law, Dockser Hall

This workshop will seek to reflect upon the issues of reproductive rights, sexual health, and sexual violence through the lens of vulnerability as a way to advance discussion on related issues of social justice.

Organized by:
Aziza Ahmed, Associate Professor of Law, Northeastern University School of Law
Stu Marvel, Visiting Scholar, College of Social Sciences and Humanities, Northeastern University
Martha Fineman, Robert W. Woodruff Professor of Law, Emory Law

Questions? Contact Rachel Ezrol, [email protected]

Program
Friday, April 29, 2016
4:00 - 6:00 PM	Beyond Rights? Locating Discourses of Reproductive Justice and Vulnerability  Human Rights and the Contraceptive Imperative | Joanna Erdman(Schulich School of Law, Dalhousie University, Halifax Nova Scotia) The Intersection of Reproductive Justice and Human Rights | Rachel Rebouché (Beasley School of Law, Temple University)   Between Rights-Talk and Reproductive Justice: Abortion Law and the Search for a Common Ground | Noya Rimalt (Professor of Law and Co-Director of the Center for Gender, Law and Policy, University of Haifa) From Rights to Dignity: Drawing Lessons from Aid in Dying and Reproductive Rights | Yvonne Lindgren (Indiana Tech Law School)
6:30 - 8:00 PM	Dinner
Saturday, April 30, 2016
8:30 - 9:00 AM	Breakfast
9:00 - 11:30 AM	Tracking Contestation Around the Regulation of Intimacy  Missed Turns on the Road from Maternalism to Individual Rights: The Lost Promise of Reproductive Justice | Deborah Dinner (Emory University School of Law) A Vulnerability Theory Approach to Individual and Institutional Conscience Exemptions in the Reproductive Healthcare Setting | Sarah Stephens (Employment Counsel at Cox Automotive Inc.) Comparative Vulnerability and (Equal) Protection from Discrimination: Framing (and Resolving) Conflicts Between Religious Liberty and Equality | Linda C. McClain (Boston University School of Law) How Might a Foregrounding of the “Vulnerable Legal Subject,” Rather than our Present “Liberal Legal Subject,” Provoke Different Claims for Justice and Distribution in the Context of Reproductive Justice? The Case of Same-Sex Marriage and Substantive Equality | Moana Genevey(EU Delegation to the United Nations, Human Rights Adviser)
11:30 am - 12:30 pm	Lunch
12:30 - 2:30 pm	Pregnancy and Mothering Through a Vulnerability Lens Going. Going. Gone Baby Gone! The Implications of Determining Parentage Following Gestational Surrogacy Arrangements in Domestic and Cross-Border Cases- Is There a Third Way between the Prohibition and Laissez-Fare Model? | Hayley Mulligan (National University of Ireland, Galway- PhD Fellow) “Vulnerable Mothers?” The Medical and Social Monitoring of Motherhood in France | Diane Roman (University François Rabelais, Tours) Obstetric Violence | Elizabeth Kukura (Beasley School of Law, Temple University)
2:45 - 4:45 pm	Resilient Frames: Injury, Victimhood and Criminalization Bondage: Sex Work, Freedom, and Vulnerability | Michal Ben Noah(Brown University, Department of Political Science- PhD Candidate) The Threat Lives On: How to Exclude Expectant Mothers from Prosecution for Mere Exposure to HIV to Their Fetuses and Infants |Shahabudeen Khan (Shepard Broad College of Law, Nova Southeastern University) Prosecuting Desire, Protecting Innocence: The Legal Construction of Vulnerability in Child Sexual Abuse Cases | Jamie Small (University of Dayton, Department of Sociology)

 

Broadening Intent to Include Implicit Bias and Structural Discrimination in Employment

Leora F. Eisenstadt (Temple, B School) & Jeffrey R. Boles (Temple, Dept Legal Studies in Bus), Intent and Liability in Employment Discrimination, American Business L.J. (forthcoming)

Abstract:     

The Silicon Valley Ellen Pao trial brought to the forefront once again the changing nature of discrimination in the workplace with its focus on a culture of bias and the prevalence of unconscious discriminatory behavior. This case is only the most recent high-profile example. There is an emerging consensus among scholars that the concept of “intent” in disparate treatment employment discrimination should be broadened to encapsulate more flexible notions including implicit bias, negligent discrimination, and structural discrimination. These scholars argue convincingly that psychological research demonstrates that implicit bias and reliance on ingrained stereotypes is, to some extent, natural to human decision-making processes. As a result, bias in the workplace operates at both an overt, knowing level but also beneath the surface and, at times, without the conscious knowledge of the decision-makers themselves.

However, despite extensive discussion of implicit bias in the legal literature, few, if any, scholars have considered alterations to liability and compensation schemes as a result of the broader meanings of intent. This article proposes looking to criminal law as a practical and theoretical model for an amendment to Title VII that would include gradations of intent with concomitant gradations in liability. The Model Penal Code presents an orderly and well-thought-out approach to intent, or mens rea, and the gradations of intent that support a finding of guilt. In addition, theory and policy supporting criminal law’s linkage of intent and liability are remarkably analogous to Title VII’s goal of elimination of discrimination. As a result, this article contends that a careful and measured consideration of criminal law’s approach to liability is instructive.

Drawing on the extensive literature on flexible intent and criminal law theories of retributivism and consequentialism, this article proposes a statutory expansion of the definition of disparate treatment discrimination under Title VII with an adjustment in the liability regime based on the level of employer intent. We contend that a clear link between intent level and damages constitutes an attractive balancing of employer and employee needs that should spur this crucial statutory change. A statutory amendment to Title VII that both broadens the meaning of “intent” for disparate treatment claims but also limits liability based on the level of intent offers a compromise position that expands the application of discrimination law to meet changing workplace norms and a theoretically and emotionally satisfying means of accomplishing that change.

 

Mary Ziegler speaks on her book After Roe: The Lost History of the Abortion Debate

In this podcast, Mary Ziegler (Florida State), speaks about her book, “After Roe: The Lost History of the Abortion Debate.” 

H-Law Podcast: After Roe

Uncovering the Gendered Nature of Disability Discrimination

Jennifer Bennett Shinall (Vanderbilt), The Substantially Impaired Sex: Uncovering the Gendered Nature of Disability Discrimination, Minnesota L. Rev. (forthcoming).

Abstract:     

The Americans with Disabilities Act (ADA) of 1990 was a landmark piece of legislation that prohibited private-sector employers from discriminating against qualified disabled workers. Although the Act is over a quarter-century old, legal scholars have never considered whether the Act has been uniformly efficacious — that is, whether the Act has served all subpopulations of disabled workers equally well. This scholarly neglect is surprising, given that prior economics research indicates that the ADA has been less effective for disabled women than for disabled men. This Article steps back and asks why the Act might have resulted in differential effects for men and women. The ADA provides precisely the same remedies for qualified disabled workers, without taking workers’ sex into account. The Act’s approach assumes that disability discrimination is the same (or highly similar) both in nature and in strength for men and women, but this Article questions that assumption. An empirical examination of all ADA charges filed with the Equal Employment Opportunity Commission reveals a negative interaction between disability discrimination and sex: Disabled workers who are in the minority sex within their workplaces are more likely to encounter discrimination than are disabled workers who are in the majority sex. Because many more industries are majority-male than majority-female, the result of this sex-disability interaction is higher overall rates of disability discrimination against women. Using this empirical evidence, the Article concludes that if disabled women are ever to achieve an equivalent legal remedy for disability discrimination to disabled men, courts must no longer ignore the exacerbating effects of sex discrimination on disability discrimination. Indeed, the case of disabled women highlights the need for courts to reform judicially created proof structures in employment discrimination cases, which — although already the object of much scholarly scrutiny — are particularly unworkable for disabled women.

 

Postpartum Taxation and the Opt Out Mom

Shannon Weeks McCormack (Washington), Postpartum Taxation: The Internal Revenue Code and the Opt Out, Georgetown L.J. (forthcoming.

Abstract:     

Legislation seeking to ensure that women receive equal pay for equal work has been on the books for decades. Nevertheless, the average American woman still receives less than eighty cents for every dollar earned by the average American man. Happily, the gender pay gap between men and childless women is narrowing over time. Meanwhile, the gap between mothers and others continues to widen. Career interruptions contribute significantly to this disturbing trend — nearly half of mothers opt out of the workforce at some point in their lives, most often to care for young children. Faced with too-short (or non-existent) maternity leaves, inflexible work schedules and the soaring costs of childcare in the United States, this opt out phenomenon is hardly surprising. But with the decision to opt out comes grave cost. Over 90% of opt out moms want to return to the workforce several years after off ramping. Unfortunately, many discover that they are unable to do so. A mother that does manage to reenter the workforce will find that even a short off ramp results in a sizeable and disproportionate reduction in her annual earnings that will persist for every year of her remaining life.

Given this dismal reality, experts that study the biases faced by women in the workplace encourage mothers who want to maintain careers to resist opting out during their children’s preschool years (and to incur the many high costs of doing so) in order to protect their most valuable economic asset — their lifelong earning capacity. Surprisingly, these insights are under- (if not completely un-) utilized in tax scholarship considering the taxation of women and the family. Incorporating these critical insights, this Article shows that the tax laws are already well suited to provide new mothers the encouragement urged by so many non-tax scholars. This Article first proposes several reforms to ensure the postpartum earnings of new mothers are not over-taxed. It then discusses existing mechanisms used by the tax laws to encourage long-term investment and identifies two mechanisms that could be easily fashioned to help new mothers remain in the very imperfect workforce that exists today.

 

ICYMI Confirmation - The Anita Hill Story

This past weekend HBO aired "Confirmation" dramatizing Anita Hill's testimony in Justice Clarence Thomas's confirmation hearings.  For those of us who watched it, it seems like recent history, except that most of my students have no idea about any of it.

Here's a collection of news stories on the show and the confirmation itself:

Slate, Dahlia Lithwick & Gillian Thomas, National Group Therapy: How the Clarence Thomas Confirmation Hearings Changed How America Talks About Sexual Harassment

NYT, After OJ, Confirmation Revisits Another '90s Flashpoint: Anita Hill v. Clarence Thomas

Wash Post, "It Was Just Awful": The Clarence Thomas Hearings in the Words of Those Who were There

NPR, The Real Story Behind HBO's "Confirmation" From the NPR Reporter Who Broke the Story

 

Women Could be Majority of Law Students in 2017

ABA J, Women Could be a Majority of Law Students in 2017

If trends continue, women will outnumber men in law schools in 2017, according to a legal blog’s analysis of ABA statistics.

 

According to Associate’s Mind, the percentage decline in students attending law school is greater for men than women. From 2011 to 2015, the number of men attending law school dropped by 25.59 percent, while the number of women attending law school dropped by 17.31 percent.

 

From 2014 to 2015, the number of men going to law school dropped by 5 percent, while the number of women dropped by 3 percent. If those one-year percentage drops continue into 2016, there will be 132 more men than women attending law school. “Extrapolate that out one more year,” the blog says, “and women will outnumber men in law schools for the first time ever.”

 

The blog also found the number of law schools with more women than men is increasing. In 2011, 38 law schools had more women students enrolled than men. In 2015, 85 law schools had more women students enrolled than men. This chart has the breakdown.