Thursday, August 31, 2017
Karen Knop & Annelise Riles, Space, Time, and Historical Injustice: A Feminist Conflict-of-Laws Approach to the "Comfort Women" Agreement, 102 Cornell L. Rev. 853 (2017)
After more than twenty years of worldwide feminist activism, transnational litigation, and diplomatic stalemate, on December 28, 2015, Japan and South Korea announced a historic agreement intended to provide closure to the so-called “Comfort Women issue”—the issue of what Japan must do to atone for the sexual enslavement of up to 200,000 women from throughout Asia in service to the Japanese troops before and during World War II. Reactions to this landmark agreement continue to be mixed, and the question for many is whether it will hold. One challenge is how to respect the scale and systematicity of the crimes without imposing a single narrative, or without projecting an overdetermined understanding of the gendered past onto the future. We offer an analysis of this question in a wider lens: how to address grave historical injustices when legal claims and advocacy goals spread and metamorphose not only over time, but also across jurisdictions.
Focusing on one high profile and particularly contentious provision of the agreement, concerning a privately erected statue honoring the Comfort Women outside the Japanese embassy in Seoul, we first show that the usual questions about settlements for historical injustices—whether they will achieve closure and what kind—can productively be traded for attention to where and when closure and reopening occur.
Borrowing our analytical lens from conflict of laws, we refine the problem as a manifestation of a pervasive issue for feminist justice in a globalized world that we call “spatio-temporal diffusion.” We argue that a novel response to this diffusion of historical injustices can be grounded in conflict-of-laws techniques. Using the hypothetical of a case brought by Korean Comfort Women in California, we redescribe the field’s techniques for dealing with time across space as a matter of what we term the “sequencing” of different spatio-temporal horizons. This approach resonates with, but also goes a step beyond, the arguments of certain feminist social theorists that feminist politics must be polytemporal. In the mode of an interdisciplinary experiment, we deploy the conflicts technique of sequencing spatio-temporal horizons as a more specified and hopeful approach to a feminist future.
LaTonya J. Trotter, Making a Career: Reproducing Gender Within a Predominantly Female Profession, Gender & Society
In my Gender & Society article, I explore the career biographies of NPs and NP students in order to understand the role of nursing’s institutional arrangements in women’s labor market decisions. I focus on NPs because they are a highly educated subgroup of nurses that have cleared a series of credentialing hurdles to order to make careers. In some ways, nursing is a shining example of how flexible arrangements not only help workers manage family commitments but actively encourage career aspirations. Nursing’s flexibility begins with education. Nursing is one of the few professions that make it possible to accrue educational credentials in cohesive fragments. Forty-one-year-old Hana described a fifteen-year trajectory that started with a two-year community college degree. That was enough to begin working as a registered nurse (RN). A few years later, Hana enrolled in a structured bridge program that allowed her to leverage her two-year degree towards completion of a bachelor’s degree in nursing. Moreover, the bridge program enabled her to pursue her bachelor’s part-time while working as a full-time nurse. Ten years later, Hana took advantage of similar accommodations to complete her master’s degree to practice as an NP. “I call myself a kind of Cinderella story,” she told me. “I came up from community college all the way up to the Ivy League.”
Nursing’s flexibility facilitated motherhood as well as social mobility. Women entering high status professions often delay childbearing. The demands of advanced schooling and early career leave little room for parenting. The ability to build a career over a longer time horizon meant that motherhood might change the rhythm of a career, but it did not stop it. A similar level of flexibility was mirrored in nursing work. Hospital nursing’s reliance on 12-hour shifts over 3 days gives full-time workers more days at home to spend with children. For NPs who spend part of their careers as hospital RNs, this allowed them to more effectively juggle work, family, and eventually, graduate education.
For individual women, these institutional arrangements provided a private solution to balancing work with family life. However, these solutions have broader consequences for gender inequality. Because these arrangements were sequestered within a predominately female occupation, they reproduced gendered expectations about women’s investments in family life. Flexible scheduling ensured that women retained primary responsibility for family caregiving. Moreover, nursing’s flexibility reproduced flexible women who could switch specialties, change jobs, or delay graduate education to accommodate the inflexible jobs of partners and spouses. Flexibility became both an opportunity and an obligation. Nursing’s accommodating arrangements are themselves a product of the historical legacy of gender inequality. The continued existence of two-year RN programs is the preference of employers, not the profession. As a female dominated profession, its aspirations remain tempered by hospital demands for an inexpensively trained workforce.
My work suggests an additional explanation for why women continue to crowd into careers like nursing. Women may gravitate toward caring work, but they also care about creating careers. Nursing’s flexibility stands in contrast to the inflexibility women encounter in other parts of the labor market. My work also serves as a caution for relying on workplace policies alone to solve the dilemmas of working women. Without subsidized, national programs for parental leave and child-care, women alone will be pressed to “choose” flexibility. When only women are the beneficiaries of such arrangements, they quickly become segregated into “mommy tracks” or “women’s professions.” The unequal benefits that follow can too easily be attributed to women’s preferences rather than as the product of gender inequality.
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Wednesday, August 30, 2017
Since President Trump took office, one of the most closely watched issues in higher education has been his Education Department’s shifting approach to enforcement of campus sexual-assault policy.
Candice E. Jackson, acting assistant secretary for the department’s Office for Civil Rights, directed her staff to sharply scale back the scope of sexual-violence investigations under the gender-equity law known as Title IX. Her instructions sought to cut down on a backlog of cases that the department said had "exploded" under President Barack Obama
Mr. Trump’s presidency is still young, but signs have emerged already that the department is delivering on that pledge. Sexual-violence investigations are still being opened at a rapid pace — this week, the department acknowledged six new ones, for a total of 350 active cases. But resolutions have grown more frequent, too, with two more announced this week.
o far, 11 sexual-violence cases have been resolved in the Trump era. Here’s what we know about them:
The resolutions are coming at a faster clip.
The civil-rights office is on pace to resolve more sexual-violence cases this year than it did in any other since the department issued its controversial 2011 "Dear Colleague" letter. Last month was especially busy — five cases were resolved in July alone. That’s the most resolutions of any month in the enforcement era marked by the 2011 guidance.
They’re also being delivered more quietly.
After President Obama’s civil-rights office first released its list of Title IX sexual-violence investigations, in May 2014, it became common for the department to announce its resolution agreements in news releases. Those public disclosures have been much less frequent since President Trump took office. Of the 11 investigations resolved in the Trump era, just two of those resolutions — involving Wittenberg University — were announced on the department’s website (in March). As BuzzFeed reported at the time, the department did not give the same treatment to a case involving the University of Alaska system, resolved in February, nor has it done so with a more recent case at the Butte-Glenn Community College District, resolved last month.
The new trend is "administrative closure."
The civil-rights office will administratively close an investigation — which means it issues a closure letter but no findings or resolution agreement — in certain situations, such as when investigations overlap with the actions of other agencies. For instance, OCR will close a complaint if the same party has filed similar allegations with another civil-rights agency or a state or federal court. It will also close a complaint if it receives "credible information" that the allegations have been resolved and that there are no broader, systemic allegations in question. The office may also close a complaint administratively if a complainant withdraws his or her allegations or refuses to cooperate.
The Journal of Legal Education's summer issue features a symposium exploring on campus issues related to sexual harassment, Title IX, and academic policies, including the following articles:
- “Safety and Freedom: Let’s Get It Together” by Hiram E. Chodosh, Matthew Bibbens, Nyree Gray, and Dianna Graves
- “Shame Agent” by Joan W. Howarth
- “Assaultive Words and Constitutional Norms” by Catherine J. Ross
- “Campus Misconduct, Sexual Harm, and Appropriate Process: The Essential Sexuality of It All” by Katharine K. Baker
- “Consensual Sexual Dysphoria: A Challenge for Campus Life” by Robin West
- “A Rising Tide: Learning About Fair Disciplinary Process from Title IX” by Alexandra Brodsky
- “Mapping the Title IX Iceberg: Sexual Harassment (Mostly) in Graduate School by College Faculty” by Nancy Chi Cantalupo and William C. Kidder
- “Trigger Warnings: From Panic to Data” by Francesca Laguardia, Venezia Michalsen and Holly Rider-Milkovic
New Books Network, Rosalind Rosenberg, Jane Crow: The Life of Pauli Murray (Oxford 2017)
Rosalind Rosenberg‘s book Jane Crow: The Life of Pauli Murray (Oxford University Press, 2017) is a multi-layered and rich biography of Pauli Murray, an activist, lawyer and Episcopal priest whose life intersected with the most significant civil and human rights issues of the twentieth century. As a mixed raced woman who felt that her identity was at odds with her body before transsexual had become part of the popular consciousness, Murray’s life provides insight into a lived intersectionality of race, class, gender, and sexuality. Beginning with her southern upbringing, we follow Murray through multiple educational, vocational and identity challenges she suffered. In a journey through a dislocated life, she contributed to multiple movements and institutions working with many key social leaders such as Thurgood Marshall, Eleanor Roosevelt and Betty Friedan. Appearing as a one-person social movement with a deep religious faith she pursued justice not only for herself but also for others. Rosenberg has provided sympathetic insight into the personal cost that Murray incurred on the road to a more equitable society. Rosalind Rosenberg is Professor of History Emerita at Barnard College.
Tuesday, August 29, 2017
The fifth episode of The Washington Post's "Constitutional" podcast explores the challenging path toward gender equality in America, highlighting figures from the Revolutionary period through today who have shaped the country's evolution on such rights.
Episode guests include Smeal and Julie Miller, a historian in the manuscripts division of the Library of Congress.
Four members of the Harvard Law School faculty have called on the U.S. Department of Education to revise the Obama Administration’s policies enforcing Title IX in matters of sexual harassment and sexual assault on college and university campuses.
The four scholars — Janet Halley, Jeannie Suk Gersen ’02, Elizabeth Bartholet ’65, and Nancy Gertner — have researched, taught, and written on Title IX, sexual harassment, sexual assault, and feminist legal reform. They were among the 28 Harvard Law School professors who published a statement in the Boston Globe on Oct 15, 2014, criticizing Harvard University’s sexual harassment policy as “overwhelmingly stacked against the accused” and “in no way required by Title IX law or regulation.”
On August 21, in a memo entitled “Fairness for All Students under Title IX,” the four scholars urged the Department of Education to adopt what they describe as “an agenda of fairness for all students, accusers and accused.”
Said Jeannie Suk Gersen: “In recent years the Education Department has pressured colleges and universities to adopt overbroad definitions of wrongdoing that are unfair to both men and women, and to set up procedures for handling complaints that are deeply skewed against the accused and also unfair to accusers.”
Janet Halley said: “To fully address campus sexual assault, the college definitions of violations and processes need legitimacy. Now is the time to build in respect for fairness and due process, academic freedom, and sexual autonomy.”
The memorandum is available here:
Monday, August 28, 2017
The Center for Constitutional Law at the University of Akron School of Law will host Professor Julie Suk as the featured Constitution Day speaker on September 18, 2017.
Professor Suk's talk is entitled "The Constitution of Mothers: Gender Equality and Social Reproduction in the United States and the World."
One of the largest mobilizations in recent American history was the Women’s March of 2017, with millions of participants in U.S. cities and in concurrent events throughout the world. Despite diverse backgrounds and agendas, the marchers unified around the general theme of equality for women. It was a constitutional moment: The unity principles included a call for a new Equal Rights Amendment to the U.S. Constitution, and in March 2017, Nevada became the first state to ratify the ERA 35 years after the 1982 deadline had lapsed. Nevada’s ratification raises questions about the legitimacy of post-deadline ratification of a Congressionally adopted constitutional amendment, as well as deeper normative questions about the desirability and meaning of constitutionalizing equal rights for women in the 21st century. If Nevada’s ratification is valid or can be made valid by Congressional action, two additional states’ ratifications will put the ERA in the U.S. Constitution. Would such an amendment change what the law does, or would it be merely symbolic?
This lecture will argue that an ERA is needed in the twenty-first century, but for reasons different from those that motivated the 1972 adopters. Meanwhile, most constitutions around the world explicitly guarantee sex equality, and many of these constitutions also guarantee special protections for mothers. Drawing on global constitutionalism, this lecture argues that constitutional equality for women must go beyond prohibiting sex distinctions in the law, and reach the disadvantages faced by largely by women due to the burdens of raising the next generation of citizens. The challenge of making the constitution regulate social reproduction, however, is illustrated by the history of women’s participation in advocating for the Prohibition Amendment and its repeal, both of which engaged the politics of the home and child-rearing. The legacy of women’s past struggles to change the Constitution, in light of contrasting narratives outside the United States, should inform our present gender equality efforts.
Full details here: Download ConLawSpeakerSukF2017
Julie Suk is a Professor of Law at the Cardozo School of Law – Yeshiva University in New York, where she has taught since 2005. She is a leading scholar of comparative equality law. Her research brings a transnational perspective to equality and antidiscrimination law in the United States, drawing on primary legal materials in multiple languages from multiple jurisdictions. Professor Suk's articles compare European and American approaches to a broad range of issues in law and public policy, such as the enforcement of antidiscrimination norms in various legal systems around the world, holocaust denial, maternity leave, and women’s equal representation in political and corporate leadership positions. Professor Suk’s current research projects focus on women, work, and family in comparative constitutional law, as well as education rights in the context of socioeconomic inequality. Representative publications include: An Equal Rights Amendment for the Twenty-First Century: Bringing Global Constitutionalism Home (Yale Journal of Law and Feminism), Are Gender Stereotypes Bad for Women? Rethinking Antidiscrimination Law and Work-Family Conflict (Columbia Law Review), Discrimination at Will: Job Security Protections and Equal Employment Opportunity in Conflict (Stanford Law Review), Gender Parity and State Legitimacy: From Public Office to Corporate Boards (International Journal of Constitutional Law).
Friday, August 25, 2017
Pat Chew, Comparing the Effects of Judges' Gender and Arbitrators' Gender in Sex Discrimination and Why it Matters, 32 Ohio State J. Dispute Resolution (2017)
Empirical research substantiates that the judges’ gender makes a difference in sex discrimination and sexual harassment court cases. The author’s study of arbitration of sex discrimination cases administered by the American Arbitration Association between 2010 and 2014, however, finds that this judges’ “gender effect” does not occur. Namely, there is no significant difference in the decision-making patterns of female and male arbitrators as indicated by case outcomes.
The author proposes that characteristics of arbitrators, the arbitration process, and arbitration cases all combine to help explain the gender effect differences. Further, she suggests that this analysis reveals concerns about the arbitration process more broadly: do the employers’ advantages as a repeat player, the arbitrators’ competitive pressures, and the arbitrators’ unmonitored discretion in decision-making all combine to explain both the gender effect differences and problematic biases in the arbitration process?
Bronwyn Taylor, Judge-Made Law: The "Menhennit Ruling" and Abortion Law Reform in Victoria, 88 Victorian Historical J. (June 2017)
Women’s right to access abortion has historically been seen as controversial by lawmakers, secular and religious. Th is article examines the sources of change in Victoria’s abortion laws, and in particular the role of judicial law making. Th e late 1960s was a time of challenges to class, gender and political inequalities, locally and internationally. In Victoria during this period, with politicians unwilling to introduce abortion law reforms despite substantial community support, a conventional — even conservative — judicial ruling in 1969 changed the law in Victoria at one stroke and provided a model of legal access to abortion for other jurisdictions for the next 40 years. Th e article examines the context for, and consequences of, the decision of Mr Justice Menhennit in R v Davidson, the ‘Menhennit ruling’.
New Book Podcast, Liana Christin Landivar, Mothers at Work: Who Opts Out?
A big question in Sociology regarding work and gender is: which mothers opt out of the labor force to take care of children? Popularly known as “opting out,” this trend is often seen as a mother’s personal choice rather than a decision made within a set of cultural and structural constraints in women’s everyday lives. Building upon previous work, Liana Christin Landivar‘s new book Mothers at Work: Who Opts Out? (Lynne Rienner Publishers, 2017) uses nationally representative data to inquire into who exactly is opting out and who is staying in the labor force. Most media coverage on the topic focuses on women who work in management or other professional level occupations, but Landivar’s book looks at a wide spectrum of occupations and finds that the question of who opts out is much more nuanced. She finds that investigating occupation is key for answering who is opting out. She also delves into the categorizations of work hours, giving consideration not only to part-time work and how that varies by occupation, but also women who scale back, or reduce work hours but not to part-time levels. Additionally, age of the mother, as well as the child, alongside race and educational attainment all help to better understand which mothers are opting out. Landivar gives careful consideration to the structural factors across and between occupations and how they may influence mothers opting out. Finally, this book provides some important methodological insights for the reader, including emphasizing the variations within work hours and the key importance of reference groups used to answer research questions.
This book will be enjoyed by Sociologists broadly, but is key reading for work/family and gender scholars. Folks in gender studies as well as business leaders might enjoy this book and find important insights into which mothers opt out of the labor force. This book would be useful in a gender/work/family class as well as a graduate level methods course, with its careful explanation of modeling and fantastic graphics.
Thursday, August 24, 2017
It is common for judges to publish guidance for lawyers who appear in their courtrooms on how to conduct themselves with regard to minor matters like how and when to file motions. But on Wednesday, Jack B. Weinstein, a senior federal judge in Brooklyn, used this typically mundane process to address an issue of growing concern to many in the legal profession: the lack of female lawyers in leading roles at trials and other court proceedings.
Following the lead of a handful of other federal judges, Judge Weinstein issued a court rule urging a more visible and substantive role for young female lawyers working on cases he is hearing.
The issuance of the rule was just one jurist’s effort to chip away at the traditional old-boy network that has dominated the legal profession for decades. While some women have, of course, ascended to the top of the legal field, serving on the United States Supreme Court, many still face challenges getting heard in court.
Judge Weinstein has informally encouraged young women and minorities to participate in court more actively over the years, but in an interview on Wednesday he said he decided to codify the guidance after a recent New York State Bar Association report found that female lawyers appear in court less frequently and that when they do, they are less likely to have a prominent role.
At least one other federal judge in Brooklyn, Ann M. Donnelly, has an analogous rule in place, but that sort of guidance is rare. Of the hundreds of other federal judges around the country, only about 20 have established similar provisions, according to the bar association.“I’ve been doing this on my own for some time, but not in a systematic way,” Judge Weinstein, who is 96, said. “It’s particularly important because we have so few trials these days so some of the youngsters don’t get the same training they used to. It’s important for everyone, and for the litigation process, that the upcoming generation understands the fundamentals and just gets up on their feet.”
A pay discrimination lawsuit filed on behalf of women law professors against the University of Denver by the Equal Employment Opportunity Commission continues to grow.
Two more tenured female law professors are seeking to intervene in the 2016 suit, which alleges that the law school systematically underpaid women on the faculty for years. So far, six women professors claim disparate pay against the law school
Professors Joyce Sterling and K.K. DuVivier last week asked a federal judge to join the suit. If allowed, there will be six plaintiffs named in the suit, which the EEOC filed on behalf of longtime professor Lucy Marsh and other female law professors they determined were underpaid after conducting a study of faculty compensation. The university is not opposing their motion to intervene.
Each of the named plaintiffs and proposed intervenors were identified by the EEOC as receiving lower compensation than similarly situated male colleagues, and all six still work at the law school. ...
The pay dispute began in 2013 when Marsh approached then-dean Martin Katz to discuss discrepancies in faculty compensation. A 2012 memo from Katz disclosed that the average salary for women professors was nearly $16,000 less than that of men. Marsh then learned that she was the lowest paid full law professor on the faculty, despite having taught at the law school since 1976. She earned $16,800 in her first year of teaching, according to court filings, and in 2016 earned a salary of nearly $116,000. ...
Call for Papers – Sunday September 17 Deadline
The Feminist Legal Theory Collaborative Research Network
Seeks submissions for the
Law and Society Association Annual Meeting
June 7–10, 2018 in Toronto, Canada
Submission link: https://form.jotformpro.com/pijip/2018fltcrn
Dear friends and colleagues,
We invite you to participate in the panels sponsored by the Feminist Legal Theory Collaborative Research Network at the Law and Society Annual Meeting in Toronto in June 2018. The Feminist Legal Theory CRN brings together law and society scholars across a range of fields who share an interest in feminist legal theory. Information about the Law and Society meeting is available at http://www.lawandsociety.org.
This year’s meeting invites us to explore LAW AT THE CROSSROADS/LE DROIT A LA CROISÉE DES CHEMINS. We seek in proposals that explore the application of feminist legal theory to this rich theme, across any substantive area.
If you would like to present a paper as part of a CRN panel, submit your 500 word abstract to https://form.jotformpro.com/pijip/2018fltcrn by the deadline of September 17, 2017.
Our goal is to stimulate focused discussion of papers on which scholars are currently working. While you may submit papers that are closer to publication, we are particularly eager to receive proposals for works-in-progress that are at an earlier stage and will benefit from the discussion that the panels will provide. We are also especially interested in hearing from junior scholars, and welcome submissions from scholars in VAPs, fellowship programs, non-tenure and pre-tenure positions.
The Planning Committee will group accepted papers into panels of four, based on subject matter. Each presentation should run roughly 10 minutes to allow ample time for discussion. A chair or discussant will provide feedback on each paper.
If you would like to propose a pre-formed panel of four papers with a chair and a discussant, please email us at firstname.lastname@example.org. Include that information in the appropriate box on the submission form for each of the papers as well.
In addition to traditional panels, we are open to some of the other formats that the LSA allows, including Author meets Reader, Salon, or Roundtable. If you have an idea that you think would work well in one of these formats, please email us at email@example.com. Please note that for roundtables, organizers must provide a 500-word summary of the topic and the contributions they expect the proposed participants to make. Please also note that LSA rules limit you to participating only once, either as a paper panelist or as a roundtable participant.
As a condition of participating as a Feminist Legal Theory CRN panelist, you must agree to also serve as a discussant or discussant/chair for another Feminist Legal Theory CRN panel. The planning committee will assign two discussants for each panel, to provide feedback on the papers and promote discussion. One of the discussants will also serve as the panel chair. This requirement helps us to create and sustain a supportive community of scholars. We will take into account expertise and topic preferences to the degree possible.
Chairs organize the panel, as well as moderate. Chairs will develop a 100-250 word description for the session and submit the session proposal to LSA before the anticipated deadline of mid-October. This will ensure that each panelist can submit their proposal, using the panel number assigned. Each chair will also serve as discussant for two papers.
Discussants read the two to three papers assigned to them and prepare a short commentary to offer feedback and serve as a basis for discussion among the panelist and audience members.
Proposals due Sunday, September 17 to https://form.jotformpro.com/pijip/2018fltcrn
While we’re always happy to hear from you, please do not send submissions to individual committee members.
The form requires the following information:
- The title of your proposal;
- A 500 word abstract or summary;
- Your name and title;
- Number of years you have been a law teacher/scholar;
- Your areas of interest and expertise within feminist legal theory;
- Whether this paper is part of a group of papers submitted together as a pre-formed panel.
This information will permit us to organize panels and submit them prior to the LSA’s anticipated deadline in mid-October. In the past, we have accommodated as many panelists as possible, but have been unable to accept all proposals. If we are unable to accept your proposal for the CRN, we will notify you by early October so that you can submit your proposal independently to LSA.
We hope you will join us in Toronto to share your current scholarship and connect with this vibrant community of feminist legal theorists.
2018 LSA Feminist Legal Theory CRN Planning Committee
Daniela Kraiem (co-chair)
Seema Mohapatra (co-chair)
Eylem Umut Atilgan
Wednesday, August 23, 2017
Deborah Brake, Back to Basics: Excavating the Sex Discrimination Roots of Campus Sexual Assault, Tenn. J. Race, Gender & Soc. Justice (2017)
This article, written for a symposium devoted to the legacy of celebrated Lady Vols coach, Pat Summit, connects the dots between Title IX’s regulation of campus sexual assault and the law’s overarching goal of expanding women’s access to leadership. Beginning with a discussion of how sexual objectification and harassment obstruct women’s paths to leadership, the article situates campus sexual assault as an important part of Title IX’s overarching agenda to promote equal educational opportunity. Although liberal feminism and dominance feminism are often discussed as competing theoretical frames for understanding and challenging gender inequality, they are best seen as complementary and mutually reinforcing strategies for dislodging the social practices that separate women from power. Sexual assault is just such a practice, and sex discrimination law has long recognized it as a form of sex discrimination. And yet, the current controversy over Title IX’s approach to campus sexual assault has become mired in the weeds of procedural discourse and de-gendered narratives of alcohol and campus partying culture, obscuring the gendered reality – and gender inequality – at the root of the problem. This article traces the evolution of Title IX’s current framework for regulating institutional responses to campus sexual assault with the goal of shoring up the sex discrimination roots underlying that framework. It begins this work by acknowledging that neither courts nor the enforcing agency has fully explained how and why the requirements in the Office for Civil Rights 2011 Dear Colleague Letter (DCL) stem from the statutory ban on sex discrimination. It proceeds to sketch the contours of the sex discrimination grounding for the principles in the DCL, moving beyond sexual assault itself as a gendered practice to focus on how gender scripts and rape myths affect institutional responses to it. The article concludes with a call for further work connecting the statutory ban on sex discrimination to the DCL’s specific requirements for institutional responses to campus sexual assault.
Catherine Ross Dunham, Third Generation Discrimination: The Ripple Effects of Gender Bias in the Workplace
What is implicit bias? What does it look like? How can we define and address it in personal and legal contexts, working towards the end goal of making the workplace more amenable to successful career paths for all engaged? These questions constitute the modern taxonomy of questions in the area of gender discrimination. Thanks to plaintiffs of the past fifty years and their arduous battles under Title VII with quid pro quo sexual harassment, hostile environment sexual harassment, pregnancy discrimination, gender discrimination in benefits and work assignments, and many other indignities, we have passed through the era of blatant, un-actionable gender-based discrimination. Of course, certain work environments continue to pose threats to female workers. In those environments, employers and supervisors prey on women who are ill-positioned to access legal and other support services, thus continue to operate workplace environments that openly discriminate based on gender and openly threaten female employees. But the risks to female workers are not only present in those extreme environments. Women in safe, corporate jobs and women in professional jobs, those white collar bastions of Mad Men fame, still battle an evolved species of gender discrimination which flows from implicit bias against women generally and specifically against women attempting to compete in male-driven industries and professions.
Betty Dukes was a Wal-Mart employee who could not get promoted into an entry level management position despite her employer’s sophisticated employment policies which included the legally appropriate policies designed to protect women at Wal-Mart from gender-based discrimination. At Wal-Mart, the decision to elevate employees into entry-level management positions was delegated to department and store managers. ***
Ellen Pao worked in a very different professional context. Ellen Pao was an Ivy-League educated management analyst and lawyer who had enjoyed success in the field of banking and finance. . . . After complaining of harassment by Nazre and other partners, Ellen Pao continued her work at Kleiner, working towards her goal of partnership. However, she was never considered for partner, being excluded from opportunities, meetings and events, which were essential to advancement in the firm. The firm relied on her personnel reviews in evaluating her for partnership, which included evaluative comments that ran the gamut from her having “sharp elbows” and complaining too much or being too sensitive.
Betty Dukes and Ellen Pao may appear to have little in common but they are both pioneers in developing a conversation about the role of implicit bias against women in the workplace. This article will discuss their cases in greater detail as a means to focus on a larger question regarding gender-based discrimination and implicit bias. Courts and scholars have recognized the existence of structural or Second Generation discrimination, which describes aspects of an organization’s structure that facilitate or enable implicit gender bias. Betty Dukes’s case was an unsuccessful attempt to litigate a claim for Second Generation discrimination under Title VII, ultimately failing at the United States Supreme Court. Ellen Pao was also unsuccessful in her effort to persuade a San Francisco jury that she was a victim of Second Generation discrimination. In both cases, men and women of various backgrounds determined the ultimate fate of the claims. This article asks if Title VII claims based on Second Generation discrimination are further inhibited by the implicit biases of judges and juries. How can a female plaintiff convince a fact-finder, or a reviewing judge, that she has been discriminated against through the use of stereotypes and bias if those hearing the case share the same implicit gender bias?
This article will begin by examining the Pao and Dukes cases, focusing on the role of the decision-makers in the ultimate outcomes of those cases. The article will then consider implicit bias as a concept, noting the interplay between implicit bias and gender-based stereotypes. Building on that understanding, the article will explore generally the evolution of Second Generation discrimination as a legal theory, connecting that analysis back to Dukes’s and Pao’s cases. The article will then explore the role of implicit bias in the court system, reviewing social science literature regarding the role of gender-based bias in the courtroom as it relates to female attorneys, female litigants, and the effect of certain “feminine traits” in the courtroom. The article will argue that gender-based implicit bias against women litigants plays out in the form of a Third Generation Discrimination, a term developed here, by layering on the biases of judges and juries. Third Generation Discrimination further undermines efforts by women seeking relief under Title VII for workplace discrimination based on claims that her employer allowed bias against her to curb her opportunities for advancement. Women will only succeed in implicit bias cases, such as those brought by Dukes and Pao, if the facts of the case are evaluated by those who can assess the case without regard to their own preconceptions about the role of women in the workplace and in society.
Tuesday, August 22, 2017
Many thanks to guest blogger Prof. Jamie Abrams for blogging with us this summer.
As immigration reform debates heat up, I am reminded of a project I undertook several years ago to examine how U.S. immigration laws and policies reflect governing dominant masculinities. In Enforcing Masculinities at the Borders, I noted how sparse historical work had considered the masculinities dimensions of immigration law. I argued that unpacking the masculinities dimensions of our paradigmatic shifts in immigration policy might offer an additional—even unifying—dimension to previously disparate and divergent immigration laws worthy of further research. This thesis feels more worrisome and relevant than ever.
Masculinities, the study of how men relate to each other and construct their identities, can be used as a powerful sociological and legal tool to understand institutions, power structures, and human relations. Recent events underscore that it is critical to make masculinities visible in immigration law to understand how dominant masculine imperatives shape citizenship itself. Immigration laws and policies reinforce dominant masculinities at the border by excluding marginalized masculinities and admitting those who comport with dominant masculinity norms. The state is not just enforcing immigration laws at its borders but it also enforces masculinity norms. For that reason, we should approach immigration reform with great caution and concern within the women’s movement, more vigilant to immigration reform than preciously understood.
Examining the masculinity underpinnings of historical immigration trends sets up the importance of a modern inquiry to understand how current dominant masculinities shape and drive immigration law and policy. The terrorist attacks of September 11, 2001, dramatically catalyzed sweeping changes in immigration law and policy. While September 11, 2001, offered a message of national security imperatives, critically the seeds of today’s anti-immigration activism and rhetoric began earlier with shifting masculinities and escalating nativism. Indeed one of the key defining characteristic of this generation of masculinities in crisis is its resorting to anger, even violence, in response to threatened masculinities. This can be viewed as an expression of hyper-masculinity or an “explosive rage of the twenty-first century” as masculinities scholar Michael Kimmel calls it. The idea that some subsection of white men perceive themselves as the “real victims in America” is heavily influencing modern immigration policy and political rhetoric.
The dominant masculinity imperative displayed by some political groups is not just “anti-immigrant” for security reasons or to shore up our nation’s borders. These reform efforts are driven – at bottom – by a toxic masculinity, which seeks to “other” women, the LGBTQ community, and immigrants by pushing a toxic masculinity into the political foreground. This masculinities lens reveals that the feminist community should watch and engage in the immigration debate carefully, recognizing that immigration law reflects the dominant masculinities of our time.
Guest blogger Professor Jamie Abrams is Associate Professor of Law at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Legislation, and Women and the Law. Her research focuses on reproductive and birthing decision-making, gendered citizenship, legal protections for immigrant victims of domestic violence, and legal education pedagogy. Professor Abrams' most recent work includes Debunking the Myth of Universal Male Privilege, in the University of Michigan Journal of Law Reform, and The Feminist Case for Acknowledging Women’s Acts of Violence in the Yale Journal of Law & Feminism.
Monday, August 21, 2017
Mary Anne Franks, Augmented Inequality, UC Davis Law Review (forthcoming)
The world we all live in is structured by inequality: of gender, race, class, sexual orientation, disability, and more. The promoters of virtual and augmented reality often claim that they offer a more perfect world, one that offers more stimulation, more connection, more freedom, more equality. For such technologies to be considered truly innovative, they should in some sense move us beyond our current limitations and prejudices. But when existing inequalities are unacknowledged and unaddressed in the “real” world, they tend to be replicated and augmented in virtual realities. We make new worlds based on who we are and what we do in old ones. All of our worlds, virtual and physical, are the product of human choice and human creation. The developers of virtual and augmented reality make choices about which aspects of our lived history they want to replicate, enhance, or change. The design – and design flaws - of new virtual and augmented reality technologies reveal much about the values of their developers and their consumers, providing a unique opportunity to evaluate just how innovative new technologies are with regard to social inequality.
Oregon Gov. Kate Brown (D) on Tuesday signed into law what advocates called the nation’s most progressive reproductive health policy, expanding access to abortion and birth control at a time when the Trump administration and other states are trying to restrict them.
Called the Reproductive Health Equity Act, the measure requires health insurers to provide birth control and abortion without charging a co-pay. It also dedicates state funds to provide reproductive health care to noncitizens excluded from Medicaid.