Gender and the Law Blog

Third Circuit Holds Occassional and Sporadic Sexual Harassment over a Decade is not Actionable

Lorraine Kokinchak v. Postmaster General (3d Cir. Feb. 3, 2017)

Even if we were to consider the unexhausted allegations of sexual harassment, the behavior Kokinchak complains about falls short of the sort of conduct courts have said constitutes hostile work environment sexual harassment. See, e.g., Harris, 510 U.S. at 19-20; Meritor, 477 U.S. at 60-61. All of these allegations—those exhausted and unexhausted—consist merely of Brents's presence near Kokinchak. As the Postmaster General points out, Kokinchak “does not allege that Brents ever touched her sexually, was physically threatening, made lewd or inappropriate comments, or even that Brents spoke to her at all.” Appellee Br. at 24. Even considering Brents's status as someone Kokinchak formerly accused of harassment, no instance of Brents's occasional and sporadic presence near Kokinchak could rationally be considered severe, and together they occurred too infrequently—a few occasions spanning years—to be pervasive. While they may have been subjectively unwelcomed by Kokinchak, an objective person could not conclude they altered the terms and conditions of her workplace. Title VII does not create “a general civility code for the American workplace.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998). Instead, Title VII prohibits actual “discriminat[ion] because of sex.” Id.

 

Second, we agree with the District Court that there is no per se rule of hostile work environment when a plaintiff is forced to work in proximity with a former harasser. A plaintiff must prove hostile work environment using the five prong test described above, which includes showing the conduct was “severe or pervasive.” Mandel, 706 F.3d at 167.

Why Governments Should Use Gender Budgeting

The Economist, Making Women Count: Why Governments Should Introduce Gender Budgeting

At its simplest, gender budgeting sets out to quantify how policies affect women and men differently (see article). That seemingly trivial step converts exhortation about treating women fairly into the coin of government: costs and benefits, and investments and returns. You don’t have to be a feminist to recognise, as Austria did, that the numbers show how lowering income tax on second earners will encourage women to join the labour force, boosting growth and tax revenues. Or that cuts to programmes designed to reduce domestic violence would be a false economy, because they would cost so much in medical treatment and lost workdays.

 

As well as identifying opportunities and errors, gender budgeting brings women’s issues right to the heart of government, the ministry of finance. Governments routinely bat away sensible policies that lack a champion when the money is handed out. But if judgments about what makes sense for women (and the general good) are being formed within the finance ministry itself, then the battle is half-won.

 

Gender budgeting is not new. Feminist economists have argued for it since the 1980s. A few countries, such as Australia and South Africa, took it up, though efforts waxed and waned with shifts in political leadership—it is seen as left-wing and anti-austerity. The Nordic countries were pioneers in the West; Sweden, with its self-declared “feminist government”, may be the gold standard. Now, egged on by the World Bank, the UN and the IMF, more governments are taking an interest. They should sign on as the results are worth having.

Harvard Law Review has its First Black Woman President

After 130 Years, Harvard Law Review Elects a Black Woman President

It has been 27 years since the first black man, an older student by the name of Barack Obama, was elected president of the prestigious Harvard Law Review. It has been even longer — 41 years — since the first woman, Susan Estrich, was elected to the position. Since then, subsequent presidents have been female, Hispanic, Asian-American, openly gay and black.

 

Only now, for the first time in the history of the venerable 130-year-old journal, is the president a black woman.

 

ImeIme (pronounced “Ah-MAY-may”) Umana, 24, the third-oldest of four daughters of Nigerian immigrants, was elected on Jan. 29 by the review’s 92 student editors as the president of its 131st volume....

 

“It still feels like magic that I’m here,” Ms. Umana said in an interview, though her fellow students said it was not magic at all but her sharp legal mind, intense work ethic, leadership ability and generosity of spirit that catapulted her to the top.

 

Ms. Umana’s emergence now has raised questions about why it took so long for a black woman to reach the pinnacle of the review and how her perspective may influence a publication that has for most of its existence been led by white men.

 

When Ms. Umana talks about the law, she speaks through the prism of her race and gender. Not far from her mind are the black women who in recent years died after encounters with law enforcement.

 

“I’m constantly reminded of people like Natasha McKenna and Tanisha Anderson and Sandra Bland, whose relationships with the law were just simply tragic,” she said.

 

Unlike the vast majority of graduates of the nation’s top law schools, Ms. Umana says she has no interest in joining a high-paying corporate firm. Her dream for now is to become a public defender, a goal she set after an eye-opening internship last summer in the public defender’s office in the Bronx. She plans to work this summer with the public defender in Washington.

 

“A lot of the clients I worked with that summer and since have looked a lot like me,” she said. “They are disproportionately represented on the unfortunate end of the legal system, so it struck a little closer to home.”*** 

 

So why did it take so long to elect a black woman?

 

In Ms. Umana’s view, the lag reflects a wide gulf between black women and law school — and the law in general, a profession in which minorities have historically been underrepresented. 

 

“We’ve been systematically excluded from the legal landscape, the legal conversation, and we’re just now making some important inroads,” she said in her office at the law review, which occupies Gannett House, a creamy 19th-century Greek Revival building that amid the law school’s imposing brick and concrete edifices looks like a New England cottage.

 

A 2014 study found a wide gender disparity at many of the nation’s top law reviews. It suggests that women do not apply in the first place for a host of reasons: They prioritize other parts of their lives, do not want to put in the extra hours that law reviews demand and are less interested in conventional markers of success like law review membership.

 

 

OH Bill Proposes Ending Exemption for Marital Rape

Akron Beacon J., Ohio Bill Outlawing Marital Rape Gets No GOP Support, Again

As an assistant prosecutor in Summit County, Greta Johnson made a habit of asking females on the witness stand if they had married their alleged rapists.

 

“And that just seemed crazy to me. But it was a question I had to ask,” Johnson said. “I remember occasionally thinking, what if they were married? Would that have changed the situation?”

 

The situation? Maybe not. Justice for the crime? Maybe.

 

In Ohio, husbands or wives can rape their spouses so long as there is no force or threat of force. The “spousal exemption” means husbands can drug and rape wives, and avoid a first-degree felony rape charge.

 

“As a former prosecutor,” said Johnson, who now represents part of Akron in the Ohio House, “I would argue that you could still try to prosecute under the forced rape statute, but unfortunately drugging and raping your spouse in Ohio is not illegal.”

 

In her first term, Johnson introduced House Bill 234. It would have done away with this “spousal exemption” in Ohio’s criminal code. The bipartisan, bicameral Ohio Criminal Justice Recodification Committee explored this and agreed.

 

But the 2015 bill died in a Republican-controlled committee, receiving no more than initial testimony from its Democrat sponsors, Johnson and Rep. Teresa Fedor of Toledo.

 

Johnson suspects the bill failed for partisan reasons. Obstructing legislation offered by minority parties is common practice in Ohio’s history of making laws.

 

But GOP members also pushed back on a provision of the bill that eliminated Ohio’s 20-year statute of limitations on rape and sexual assault cases. Johnson still thinks rape should be categorized with murder and aggravated murder as crimes that have no shelf life for prosecution.

 

“I’ve always called rape murder of the soul. It changes people in fundamental ways. Nobody will ever be the same,” Johnson said. “The only thing [my clients] wanted was something I could never offer, which is the day before [the rape] happened.”

 

But with more pragmatism in her second term, Johnson have compromised by dropping the provision on statute of limitations and instead crafted a cleaner bill that focuses on the marital rape exemptions.

The Case Against Segregated Women's Sports

Nancy Leong, Against Women's Sports

Abstract

This Article challenges the longstanding assumption that sports should be segregated by sex. Imposing sex segregation on sports is problematic for many reasons. It reflects and reinforces a long-disproven binary view of both sex and gender. It communicates that women are physically unable to compete against men, even though research indicates considerable variation among individual athletes and different sports, and further reveals that attributes other than sex are more important determinants of athletic ability. It reinforces unfounded gender stereotypes that harm both women and men. And sex segregation uncritically prioritizes athletic activities involving strengths typically associated with male bodies, without forcing us to ask why we view these strengths as the most important in the first place.

Sex segregation should not be the default in sports. Rather, if the entity that regulates a sport believes the sport should be segregated by sex, that entity should meet a burden equivalent to intermediate scrutiny by articulating why sex segregation is substantially related to an important interest. If the regulatory entity is governmental, then relevant constitutional provisions and federal laws, including the Equal Protection Clause and Title IX, already reflect this obligation. And even when the regulatory entity is private, a test analogous to intermediate scrutiny should be required to justify sex segregation as a matter of policy.

The Article does not claim that we should do away with all sex segregation in sports. Indeed, at times sex segregation is likely the best choice. But we should think carefully and critically about when and why we engage in such segregation. A thoughtful reexamination of the sex segregation norm we have too long taken for granted will improve sports for everyone.

Book Talk (video): Elizabeth Cady Stanton and the Feminist Foundations of Family Law

 

Tracy A. Thomas, Book Talk: Elizabeth Cady Stanton & the Feminist Foundations of Family Law, University of Akron, Center for Constitutional Law (Feb. 9, 2017).

In this presentation, I talk about Stanton's impact on family law, the feminist reforms of family law in the 19th century, and broader goals of mainstreaming women's legal history.

 

The Mistaken Reliance on Title IX to Deter and Punish Campus Sexual Assault

Corey Rayburn Yung, Is Relying on Title IX a Mistake?, 64 Kansas L.Rev. (2016)

Abstract:     

This Article attempts to answer an essential question related to Title IX’s role in student sexual assault at universities: is it better to improve and universalize student safety and conduct codes or rely on the new Title IX framework that has emerged? The tentative answer offered is that it is a mistake to solely or primarily depend on Title IX to deter and punish offenders in university sexual assault cases. This conclusion is based upon the uncertainty related to various aspects of Title IX doctrine and the regulatory regime that has emerged to enforce the statute. Consequently, this Article concludes Congress should adopt a basic, uniform student safety and conduct code that will cure many of the shortcomings of a legal regime based entirely upon Title IX. This legislation, unlike proposals aimed at merely strengthening the Title IX framework, might potentially avoid some of the backlash that has emerged in the wake of Title IX’s growing application in student-to-student sexual assault cases at universities while better addressing the issue.

 

Bringing Tort Law to the Campus Sexual Assault Debate

Sarah Lynnda Swan, Between Title IX and the Criminal Law: Bringing Tort Law to the Campus Sexual Assault Debate, 64 Kansas L.Rev. (forthcoming)

Abstract

In the last few years, campus sexual assault has risen to prominence as a national public concern. As policy-makers scramble to figure out how best to address this problem, the contours of the conversation in scholarship, media articles, and policy-making have devolved into two competing adjudicative frameworks: criminal law or Title IX. In this criminal law versus Title IX debate, two questions dominate. First, who can better adjudicate claims of campus sexual assault: criminal courts using criminal laws, or schools using Title IX? Second, if schools do adjudicate sexual assault claims under Title IX, are students entitled to the same procedural protections as criminal defendants? In this Symposium piece, I argue that this criminal law versus Title IX framing is unduly narrow. It ignores a third, important mode of adjudication for sexual assault claims: tort law. In this essay, I show why tort law has been left out of the campus sexual assault debate, and the potential impact of its inclusion. Incorporating tort law into the campus sexual assault debate has three specific benefits. First, conceptualizing campus sexual assault as a tort reminds us that the same wrong can be legitimately framed and addressed in multiple ways. Second, tort law sets a useful standard for determining the scope of procedural protections in campus sexual assault proceedings. Third, tort law suggests that affirmative consent may be appropriate for campus sexual interactions. Ultimately, bringing tort law into the campus sexual assault debate opens up the vast and fertile ground between the two poles of criminal law and Title IX, and creates a space where better institutional design and a more effective solution to this social problem might be found.

Interdisciplinary Clinical Work and Empowering Women Clients

Ruthy  Lowenstein Lazar, Interdisciplinary Clinical Education--On Empowerment, Women, and a Unique Clinical Model, 23 Clinical L. Rev. 429 (2016)

For the past seven years, the Women’s Rights Clinic operatingwith in the Law School of the College of Management in Israel has been engaged in an “assistance project” of the women cleaners working at the campus. This Article presents a discussion of interdisciplinary clinical work and focuses on an empowerment model developed in the Women’s Rights Clinic. It argues that clinical work for marginalized populations requires a holistic approach that is not limited to legal work alone, but enables the use of a combination of legal and extra-legal tools. The holistic approach illustrated in the Article emphasizes the importance of integrating into lawyering models skills from the domains of social work and therapy rooted in empowerment theory: developing empathy and listening, giving clients a voice, avoiding paternalism, and using emotional discourse in communication with clients.

Empirical Research on Gender Diversity of Dutch Corporate Boards as Statutorily Required

Rosalien Diepeveen, Tineke Lambooy & Remko Renes, The Two-Pronged Approach of the (Semi) Legal Norms on Gender Diversity: Exploratory Empirical Research on Corporate Boards of Dutch Listed Companies

In this article, two different perspectives on diversity and gender equality in boards of listed companies in The Netherlands are discussed: first, the diversity perspective which focuses on better decision-making capabilities of gender-diverse teams (i.e. the economic perspective), and second, the gender equality perspective which aims to realise gender equality in all levels of society pursuant to international human rights treaties and national law (i.e. the rights-based perspective).

This two-pronged approach is presented as follows: on the basis of a literature study and desk research, the authors first set out the views discussed in the extant literature on the economic perspective and, next, the legal context applicable to the rights-based perspective. Subsequently, the application in practice of these two perspectives are tested by analysing unique empirical data collected by the authors from listed companies in The Netherlands.

The empirical data are collected in two studies assigned by the Dutch Corporate Governance Code Monitoring Committee (the Committee) to the authors in 2014 and 2015. This Committee annually reports on the compliance by listed companies with the Dutch Corporate Governance Code (the Code). One of the areas of concern is diversity in corporate boards as, since 2008, the Code requires that companies have a policy to realise a diverse board composition, gender being one of the indicators. The Code applies on a comply or explain basis.

The empirical study revealed that Dutch companies, in their annual reporting on their board diversity policies, often referred to the Dutch corporate law provision concerning the gender quota. This provision requires of large companies that their corporate boards (both the board of directors and the supervisory board) comprise at least 30 per cent women and at least 30 per cent men. Like the Code, this legal provision also applies on a comply or explain basis. This law had been enacted for a limited period of time, i.e. from 2013 until 2016, but a legislative proposal is pending to extend the application of this quota provision until 2020.

The authors discovered that the two perspectives (i.e. the economic and the rights-based perspectives) are often mixed up by companies, government representatives and institutions, and other parties (together: stakeholders) who deal with the theme of (gender) diversity in corporate boards. In this article, the authors elaborate on these two perspectives, raise questions in regard to the application of the (semi-)legal norms in this area, and share innovative findings regarding the measures taken by progressive Dutch listed companies in order to realise a diverse board composition, and in particular to comply with the statutory quota on female board representation.

Judge Nancy Gertner on What it Means to be a Woman Judge

Judge Nancy Gertner, Keynote Speaker, Univ. of Baltimore 9th Feminist Legal Theory Conference (Mar. 2016)

I was on the bench for seventeen years, and I intend to write about that experience. The problem is that while my memoir was funny, this book—on judging—is not. In my memoir, I describe the fact that the only way I could face the discrimination I was facing was to crack jokes about it, to find the humor in horrific situations. I started writing about judging literally the minute I joined the federal bench. I recorded everything I did and why—the palpable change from who I had been on April 26, 1994, when I was an employment discrimination, civil rights, and criminal defense lawyer, and who I was supposed to be on April 27, 1994, when I was sworn in as a judge.

Tracking the Experience of Decriminalizing Prostitution in Rhode Island

Donna Hughes & Melanie Shapiro, Bibliography of Sources on Prostitution Decriminalization in Rhode Island

A bibliography of sources on the research we did on prostitution and sex trafficking and the advocacy work we did to end decriminalized prostitution. For 29 years prostitution was decriminalized in Rhode Island (if it occurred indoors). Sexual exploitation and violence against women and girls were integrated into economic development. The number of sex businesses grew rapidly and organized crime groups operated brothels and extorted money from adult entertainment businesses. Rhode Island became a destination for pimps, sex traffickers, and other violent criminals. The lack of laws impeded police from investigating serious crimes, including sex trafficking

The Burden of Asylum for Gender-Related Persecution

Joanna Kallinosis, Refugee Roulette: A Comparative Analysis of Gender-Related Persecution, 6 DePaul J. Women, Gender & L. (2017)

This essay examines the existing law regarding gender related persecution and the burden imposed on female asylum applicants to fit their claims within the circumscribed notion of a refugee within Immigration law of the United States of America. Such difficulties are contrasted with the Canadian Immigration system, where women enjoy greater freedom in the interpretation of requisites necessary to be granted asylum. Section I of this essay explores the problems women face in gaining asylum in the United States. Section II of this essay will analyze the conflicting claims and claimants. Section III of this essay will explore past trends in asylum law; discuss the framework for evaluating asylum claims under current US asylum law; analyze the competing judicial interpretations of asylum law and discuss the inconsistency of judicial decisions. Section IV of this essay will discuss the projection of future trends. Section V of this essay will propose an amendment to the Refugee Act to include a Sixth category of gender or sexual persecution.

The Absence of Binding Norms for Gender-Based Asylum

Blaine Bookey, Gender-Based Asylum Post-Matter of A-R-C-G: Evolving Standards and Fair Application of the Law,  22 Southwestern J. Int'l Law 1 (2016)

Abstract:     

When I last studied this issue — the eligibility of domestic violence survivors for asylum in the United States — I concluded: “the absence of binding norms remains a major impediment to fair and consistent outcomes for women who fear return to countries where they confront unimaginable harms, or worse, death.” Despite a recent decision by the highest immigration tribunal in the United States accepting that women fleeing domestic violence can meet the refugee definition and qualify for protection, I could write the same words today. The 2014 ruling in a case known as Matter of A-R-C-G- marked a critical advancement in U.S. law. Notwithstanding, in the year since that decision, arbitrary and inconsistent outcomes have continued to characterize asylum adjudication in this area of the law.

I do not mean to diminish the importance of the A-R-C-G- precedent, a long-awaited and hard-fought victory. Issued by the Board of Immigration Appeals (BIA or Board), the decision constitutes binding precedent for immigration judges (and asylum officers) across the country who often have the final word in these life or death matters because adverse decisions are not often appealed, and if appealed, the vast majority are upheld. For thirteen years, from the vacating of the well-known and controversial Matter of R-A- decision denying asylum to a domestic violence survivor in 2001, to the issuance of the A-R-CG- decision in 2014, immigration judges and asylum officers adjudicated domestic violence asylum claims without the benefit of jurisprudential (or regulatory) guidance.

 

Intersectionality and Anti-Discrimination Law of Gender and Race in Sweden

Eva Schomer, Sweden a Society of Covert Racism: Equal from the Outside: Everyday Racism and Ethnic Discrimination in Swedish Society, 6 Onati Socio-Legal Series (2016) 

Abstract:     Sweden is widely considered to have one of the most equal and gender-equal societies in the world. But the Swedish society is also one in which the Labour Court can find discrimination when a 60-year-old ‘Swedish’ ‘white’ woman fails to get a job interview – yet not when workers call a colleague of Gambian background ‘blackie’, ‘big black bastard’, ‘the African’, and ‘svartskalle’, or a man of Nigerian background ‘Tony Mogadishu’ and ‘Koko stupid’. In this article, I will try to explain the logic behind these positions. I will also suggest an extended jurisprudential methodology that might help to prevent laws and the legal system from reinforcing societal processes of racialization. In this article I will argue that it is necessary to develop the legal methods to make it possible to forestall and prevent racism. To prevent everyday racism in the way intended by the law in books, the courts must take into account the living law and the law in action. If the courts are allowed to continue applying the law according to their whim, without even considering their position as representatives for the power of dominant ‘white’ groups over subordinated people of colour, then it is obvious that the living law that is the dominant discourse of ‘white’ normalcy will never change.

 

World Bank Study Measures Legal Gender Disparities in Economies Around the World

Sarah Iqbal, Asif Mohammed Islam, Rita Ramalho, Alena Sakhonchik, Unequal Before the Law: Measuring Legal Gender Disparities Across the World

Abstract:     

Several economies have laws that treat women differently from men. This study explores the degree of such legal gender disparities across 167 economies around the world. This is achieved by constructing a simple measure of legal gender disparities to evaluate how countries perform. The average number of overall legal gender disparities across 167 economies is 17, ranging from a minimum of 2 to a maximum of 44. The maximum possible legal gender disparities is 71. The measure is found to be correlated with other measures of gender inequality, implying the measure does capture gender inequality while also differing from preexisting measures of gender inequality. A high degree of legal gender disparities is found to be negatively associated with a wide range of outcomes, including years of education of women relative to men, labor force participation rates of women relative to men, proportion of women top managers, proportion of women in parliament, percentage of women that borrowed from a financial institution relative to men, and child mortality rates. Subcategories within the legal disparities measure help to uncover specific types of legal disparities across economies.

 

Exploring Why Cases of Sexual Assault against Black Women Rarely Result in a Conviction

 

Channel Fitch, Teri Platt & Michelle Wilson,  Black Women and the Criminal Justice System: The Politics of Processing Sexual Assault Cases

Abstract

According to the Rape, Abuse, and Incest National Network (RAINN), 3.7% of reported sexual assault instances are tried in court and only 2% result in a conviction. Despite evidence that most victims of sexual assault are children, multi-racial women, and black women, the majority of cases that are tried are those where the victims were white women. This paper will examine cases where black women are the victims in order to understand why these instances do not result in convictions. Our argument is that socioeconomic factors may make it more difficult for black women to navigate the process. We will explore this by analyzing each phase of the process to identify complexities in the system that may prevent these cases from concluding in court. The purpose of this paper is to provide insight into the experiences of black women in the criminal justice system and recommend procedural reforms that will result in an increase in reports and convictions.

Victim Narratives in Sexual Assault Cases in the Age of Social Media

Erin Sheley, Victim Impact Statements and Expressive Punishment in the Age of Social Media, Wake Forest L. Rev. (forthcoming)

Abstract

Victim impact statements (VIS) are long-disfavored among legal commentators for allegedly injecting unnecessary, negative emotion into sentencing at the expense of the defendant, with ambiguous informational benefits to the sentencing body. Most traditional arguments both for and against VIS turn on purely retributive or utilitarian grounds. This essay takes up the Stanford sexual assault victim’s statement to propose an expressive framework for understanding the function of VIS, which resolves much of the theoretical confusion surrounding the traditional justifications. I show how the expressive goals of criminal punishment have long been distorted by the mediation of traditional news reporting. I then analyze the legal relevance of the particular criminological values expressed in the Stanford statement to show how unmediated victim narratives may counterbalance media distortion, particularly in the age of social media transmission. I conclude that the criminal justice system better serves its expressive function by formally incorporating VIS into sentencing.

Examing Why Women Lawyers are Less than 20 Percent of Advocates in the US Supreme Court

Jennifer Mika, The Noteworthy Absence of Women Advocates at the US Supreme Court, 25 American J. Gender, Social Policy & Law 1 (2016)

Abstract:     

Arguing before the U.S. Supreme Court is considered one of the most prestigious accomplishments in a litigator’s career. However, during the last five terms, women consistently make up less than one fifth of this elite club. This article takes a closer look at the advocates that argued before the Supreme Court during the 2015-2016 term as well as those who appeared more than once in a given term over the past six years. It explores the possible causes of the deficit in women advocates including gender disparity in Supreme Court clerkship experience. It strives to start a dialogue about how the gender gap in Supreme Court advocacy can be closed.

 

Making Peace Negotiations Responsive to Gender

Aisling Swaine, Law and Negotiation: A Role for a Transformative Approach, Global Policy Volume 7, Issue 2, May 2016, 282-287

Abstract:     

Feminist critique of negotiations that aim to bring about peaceful political settlements has consistently pointed to the glaring absence of the critical analysis of and response to gender relations as part of both the modus operandi and substantive output of those processes. Just as war is a gendered phenomenon (working off gender relations that subordinate women), so too the processes that respond to it and aim to negotiate its end and create an aftermath, are inherently gendered. Where the goal is a peace that works for ‘everyone’, then negotiation needs to respond to structural gendered conditions that limit the potential that negotiation holds for women. The concept of transformation has been espoused by feminists as key to altering the structural inequalities that determine a systemic gendered order that works to deprivilege women and women’s interests. As a concept, ‘transformation’ holds great potential to regenerate processes of negotiation towards promoting women’s ability to have agency over their lives. This article begins a consideration of what transformation might mean for the practice of negotiation and how it might be advanced to make negotiations responsive to gender relations so that a peace that serves women as well as men is worked towards.