Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Tuesday, October 31, 2017

Relationship Status Discrimination Against Women in Academic Hiring

Lauren Rivera, When Two Bodies are (Not) a Problem: Gender and Relationship Status Discrimination in Academic Hiring, Amer. Soc. Rev. (Oct. 25, 2017)

Junior faculty search committees serve as gatekeepers to the professoriate and play vital roles in shaping the demographic composition of academic departments and disciplines, but how committees select new hires has received minimal scholarly attention. In this article, I highlight one mechanism of gender inequalities in academic hiring: relationship status discrimination. Through a qualitative case study of junior faculty search committees at a large R1 university, I show that committees actively considered women’s—but not men’s—relationship status when selecting hires. Drawing from gendered scripts of career and family that present men’s careers as taking precedence over women’s, committee members assumed that heterosexual women whose partners held academic or high-status jobs were not “movable,” and excluded such women from offers when there were viable male or single female alternatives. Conversely, committees infrequently discussed male applicants’ relationship status and saw all female partners as movable. Consequently, I show that the “two-body problem” is a gendered phenomenon embedded in cultural stereotypes and organizational practices that can disadvantage women in academic hiring. I conclude by discussing the implications of such relationship status discrimination for sociological research on labor market inequalities and faculty diversity.

October 31, 2017 in Education, Equal Employment, Family, Workplace | Permalink | Comments (0)

A Preliminary Assessment of the EU Gender Action Plan

Isabelle Ioannides, EU Gender Action Plan 2016-2020 at Year One: European Implementation Assessment, Study. European Parliamentary Research Service, European Parliament, Brussels, October 2017

The EU’s Gender Action Plan 2016-2020 (referred to as GAP II) is the Union’s framework for promoting gender equality and women and girls’ empowerment in external relations in third and partner countries, as well as in international fora and agendas. GAP II is significant, as it constitutes the manifestation of the principles related to gender parity outlined in the new European Consensus on Development. Its goals are also key to the successful achievement of the Sustainable Development Goals (SDGs). Against this background, this European Implementation Assessment seeks to provide an initial assessment of the strengths and weaknesses of GAP II at its first milestone: the end of its first year of operation in third countries. Given the short timeframe of the evaluation, this study presents some preliminary findings on the achievements and shortcomings in the application of GAP II, but also aims to assess the new framework itself. Moreover, it provides Members with a number of opportunities for action and recommendations for improving EU performance on promoting and protecting gender parity and women’s empowerment in partner countries.

 

October 31, 2017 in International | Permalink | Comments (0)

Using the Captive Audience Doctrine to Redress Street and Cyber-Harassment

JoAnne Sweeney,  Trapped in Public: The Regulation of Street Harassment and Cyber-Harassment Under the Captive Audience Doctrine, 17 Nev. L.J. 651 (2017)  

In the wake of the 2016 presidential election, public intimidation of women, particularly women of color, seems to be on the rise. Even before the election, however, a woman's presence on a public street or public website has routinely made her a target for unwanted and often threatening male attention, also known as street harassment or cyber-harassment. Scholars and journalists have called for laws that would penalize street and cyber-harassment. However, this type of legislative effort will be met with several difficulties, including logistical problems due to the high prevalence and anonymity of street and cyberharassment, as well as cultural opposition to what is perceived by many to be a nonexistent or minor issue with little actual consequences. Another major argument against regulation of street and cyber-harassment is that any laws prohibiting such speech would violate the First Amendment. In response to the latter argument, this Article argues that laws regulating street or cyber-harassment should be protected from First Amendment scrutiny under the captive audience doctrine. As this Article demonstrates, by using the captive audience doctrine, 652 legislators can attack the problem of street and cyber-harassment without running afoul of the First Amendment.

October 31, 2017 in Constitutional, Pop Culture | Permalink | Comments (0)

Thursday, October 26, 2017

Next Steps for the #MeToo Campaign

Marci Hamilton, What Needs to Happen Next for the #MeToo Campaign to Fulfill its Potential, Verdict, Justia.

The social media campaign #MeToo has been an extraordinary space where victims of sex harassment and assault have found their voices. These victims are inspiring and you just want to believe that something good must come out of all of the pain that they have had to endure so long in silence. While the disclosures are amazing, they aren’t enough to ensure a Harvey Weinstein never happens again.

 

Frankly, it is impossible to hold powerful people, institutions, and organizations accountable without massive legal change. The culture that permitted Weinstein, Bill Cosby, priests Paul Shanley and John Geoghan, and Nasser free rein will not end even if every single victim of sex abuse, harassment, and assault comes forward, and even if we succeed in educating every citizen in the United States. Disclosure and education are necessary but not sufficient. It’s not just that these predators used their positions of power to inflict life-changing pain on their victims. Rather, the legal and social cultures have been structured to shield the wrongdoers and keep the vulnerable weak. They have been publicly shamed, but the power construct they exploited remains precisely the same.

 

Indeed, society has signaled to these men in power that it is ok to take the spoils of war—the women and children—as part of their deserts for battles hard-won in moviedom, the board room, and sports.

 

There is, however, another power structure that has been bucking up these powerful men who have wreaked havoc on so many lives: our state and federal governments.

 

Here is a short list of laws that need to change in the vast majority of states (the federal government can also play a key role by incentivizing the states to pass these reforms):

Plug the gaps in mandated reporting. Right now many states do not require coaches, private school teachers, or university employees to report suspected abuse despite the irrefutable fact that children have been sexually abused in all three arenas.

 

Eliminate the statutes of limitations for all rape victims, young and old. This needs to happen for instances occurring right now and going forward and for those that are in the past. You want to know who your predators are? Revive the expired civil SOLs for rape in every state.

 

Test the rape kits sitting right now in police stations and forensic labs across the United States. This is Mariska Hargitay’s mission with the Joyful Heart Foundation, which she founded. How ridiculous is it that we have all of this evidence of rape and we just let it sit? Well, refer back to the discussion of power above.

 

Fix the defamation laws so no predator can follow Cosby’s lead and use the threat of a lawsuit to try to silence the victims, as I discuss here.

 

Enact whistleblower legislation that immunizes sex abuse, harassment, and assault whistleblowers from adverse employment actions and from defamation lawsuits.

 

Create liability for organizations that shield and hide the actions of sex predators of every stripe.

 

Mandate insurance coverage for companies that will cover sex harassment, abuse, and assault by employees and volunteers. This way the insurance industry transforms itself from being a bystander and enabler to an active participant in changing institutional policies. People wear seatbelts because the insurance lobby made it happen. It could do a helluva job with this problem if it wanted to.

 

Lasting change is difficult. Nothing is more difficult, though, than shifting power from one group that has had so much force that it could squander and abuse it.

October 26, 2017 | Permalink | Comments (0)

New SSRN Series for Women and Gender

Welcome to WGSRN: Women's & Gender Studies

SSRN is pleased to announce WGSRN, our new Women’s & Gender Studies Research Network, where researchers in women’s and gender studies and related interdisciplinary areas can share ideas and other early-stage research. Users can post preprints and working papers and can quickly upload and read free WGSRN papers, spanning subject areas including gender in the global research landscape, feminist methodology, theory, and philosophy, women and law, politics and justice, and several other growing topics.

Join our SSRN team on November 2 at 11a.m. to 11:30a.m. EDT for an informative webcast on the interdisciplinary nature of Women’s & Gender Studies and how sharing early research makes a difference can change the world.

October 26, 2017 in Scholarship | Permalink | Comments (0)

Wednesday, October 25, 2017

The Lessons of Fox News for Reforming Sexual Harassment Law

Kate Webber Nuñez, Toxic Cultures Toxic Cultures Require a Stronger Cure: The Lessons of Fox News for Reforming Sexual Harassment Law, 122 Penn State L. Rev. (forthcoming):

A series of sexual harassment scandals have disrupted Fox News, causing the departure of some of its top executives and anchors. The upheaval at Fox News, however, came from public disclosure and social pressure; the actual law prohibiting harassment failed to deter or stop the rampant abuse at the network. Legal scholars have previously identified the problems with federal harassment law that could explain why widespread sexual harassment occurred at the highest levels of Fox News. Specifically, the existing literature details how women are forced to report harassment nearly immediately, despite the many career reasons not to, and yet are not fully protected against retaliation when they do. Scholars have also documented that if a victim’s claims do make it to court, the standard for proving harassment is a nearly insurmountable burden to overcome. These identified weaknesses in the law would seem to explain why it failed to act as a stronger deterrent to Fox News. Fox News, however, is headquartered in New York City, a jurisdiction with its own local anti-harassment law that is much more strongly worded. In fact, the New York City Human Rights Law removes each of the identified problems in federal harassment law. The example of Fox News therefore demonstrates that with entrenched harassing cultures, stronger anti-discrimination statutes that “fix” the identified weaknesses of current law are not a complete solution. Thus, this article advocates for two alternative means of strengthening harassment law: expanded use of systemic harassment claims and limits on the use of confidential settlements and mandatory arbitration agreements. This analysis is of particular relevance in light of recent sexual harassment scandals affecting companies such as Uber and The Weinstein Company.

October 25, 2017 in Business, Violence Against Women, Workplace | Permalink | Comments (0)

What Women Victims of Domestic Violence Want from the Criminal Justice System

 Robyn Holder & Kathleen Daly, Sequencing Justice: A Longitudinal Study of Justice Goals of Domestic Violence Victims

What women as victims of domestic violence want from criminal justice has long interested researchers and advocates. This article foregrounds the ways in which ‘justice’ matters to victims and how a desire for justice may change over time. We find that victims have multiple justice goals, which are ordered and unfold through the criminal justice process. The goals are directed towards three domains of victim, offender and community; and are influenced by both personal and public interests. Accountability is a threshold goal from which others—punishment, deterrence, rehabilitation or another—may be contemplated. From the perspective of victims, achieving justice is sequencing these goals through hybrid processes with differing degrees of victim participation.

October 25, 2017 in Violence Against Women | Permalink | Comments (0)

What Women Victims of Domestic Violence Want from the Criminal Justice System

 

Robyn Holder & Kathleen Daly, Sequencing Justice: A Longitudinal Study of Justice Goals of Domestic Violence Victims

What women as victims of domestic violence want from criminal justice has long interested researchers and advocates. This article foregrounds the ways in which ‘justice’ matters to victims and how a desire for justice may change over time. We find that victims have multiple justice goals, which are ordered and unfold through the criminal justice process. The goals are directed towards three domains of victim, offender and community; and are influenced by both personal and public interests. Accountability is a threshold goal from which others—punishment, deterrence, rehabilitation or another—may be contemplated. From the perspective of victims, achieving justice is sequencing these goals through hybrid processes with differing degrees of victim participation.

October 25, 2017 in Violence Against Women | Permalink | Comments (0)

Achieving Gender Parity on International Judicial and Monitoring Bodies

Achieving Gender Parity on International Judicial and Monitoring Bodies: Analysis of International Human Rights Laws and Standards Relevant to the GQUAL Campaign

Women are underrepresented in virtually every international body responsible for adjudicating, monitoring, and developing international law. As of February 2017, three of the 15 judges on the International Court of Justice are women; the International Tribunal for the Law of the Sea has 21 judges, only one of whom is a woman; and the International Criminal Tribunal for the Former Yugoslavia has no permanent women judges. This working paper analyzes the extent to which international human rights law and standards support the GQUAL Campaign’s call for States to pledge to achieve gender parity on international courts and monitoring bodies.

States establish the nominating or voting procedures that apply to any particular international body. There are a number of opportunities for States to shape the pool of applicants, the composition of any short list, and the final composition of the international body. Because States have a fundamental role in establishing the procedures and controlling the final outcome, the GQUAL Campaign calls on States to address underrepresentation by adopting measures to rectify the gender imbalance on international judicial and monitoring bodies.

The Campaign is rooted in well-established and widely accepted provisions of international law. Article 8 of the Convention on the Elimination of all Forms of Discrimination against Women (“CEDAW”) establishes the right of women to represent their governments at the international level, on equal terms with men and without discrimination, and to participate in the work of international organizations. To gain a fuller understanding of the international legal basis for gender parity in addition to the CEDAW framework, this working paper identifies and analyzes complementary international human rights law standards pertinent to the GQUAL Declaration found in the UN Charter, selected international human rights treaties, UN resolutions, and policy statements.

The absence of women in equal numbers with men as international judges and members of human rights monitoring bodies is a grave issue. Gender disparities in international institutions undermine the international commitment to equality and non-discrimination. Further, the lack of gender parity erodes the legitimacy of international legal institutions and their mandates to uphold these universal values. This working paper contributes to the effort to address this gap by drawing attention to the scope of international human rights law and standards that can be marshaled to ground the GQUAL Declaration in international law and accepted best practices.

October 25, 2017 in Courts, Gender, International | Permalink | Comments (0)

Tuesday, October 24, 2017

DC Circuit en banc Allows Immigrant Teen's Abortion to Proceed

The DC Circuit sitting en banc overruled a panel decision from late last week delaying an immigrant teen's abortion, granted by a state court. 

Garza, as GAL to J.D. v. Hargan, No. 17-5236 (D.C. Cir. en banc, Oct. 24, 2017), overruling the panel decision in Garza v. Hargan (D.C. Cir. Oct. 20, 2017)

Concurring Opinion to the Order by Judge Millett (the dissent in the panel decision).

Abortion on demand? Hardly. Here is what this case holds: a pregnant minor who (i) has an unquestioned constitutional right to choose a pre-viability abortion, and (ii) has satisfied every requirement of state law to obtain an abortion, need not wait additional weeks just because she—in the government’s inimitably ironic phrasing—“refuses to leave” its custody, Appellants’ Opp’n to Reh’g Pet. 11. That sure does not sound like “on demand” to me. Unless Judge Kavanaugh’s dissenting opinion means the demands of the Constitution and Texas law. With that I would agree.

Dissenting Opinion by Judge Kavanaugh (majority opinion in the panel decision).

The en banc majority has badly erred in this case.

The three-judge panel held that the U.S. Government, when holding a pregnant unlawful immigrant minor in custody, may seek to expeditiously transfer the minor to an immigration sponsor before the minor makes the decision to obtain an abortion. That ruling followed from the Supreme Court’s many precedents holding that the Government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion. The Supreme Court has repeatedly held that the Government may further those interests so long as it does not impose an undue burden on a woman seeking an abortion.

Today’s majority decision, by contrast, “substantially” adopts the panel dissent and is ultimately based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand, thereby barring any Government efforts to expeditiously transfer the minors to their immigration sponsors before they make that momentous life decision. The majority’s decision represents a radical extension of the Supreme Court’s abortion jurisprudence.

Judge Karen Henderson also dissent in a separate opinion.

October 24, 2017 in Abortion, Constitutional, Family, Reproductive Rights | Permalink | Comments (0)

A Short History of Sexual Harassment

As sexual harassment dominates the news, a blog post here collecting some of the key sources for understanding the legal history of sexual harassment.

Lin Farley, NYT, I Coined the Term "Sexual Harassment." Corporations Stole It.

It wasn’t until April 1975 that women had a word for talking about what their male bosses were doing to them.

It was that month that I first used the phrase “sexual harassment” in public, during a hearing on women in the workplace by the New York City Human Rights Commission, at which I was testifying as an instructor at Cornell University. The New York Times covered the hearing in an article that was reprinted across the country. And thus, a concept was born.

Reva Siegel, A Short History of Sexual Harassment Law

As we have· seen, the practice and protest of sexual harassment have a long history, in which we can situate developments of the 1970s as a recent and relatively short chapter. But these developments nonetheless represent a dramatic turning point in social and legal understandings of the practice.

In the 1970s Catharine MacKinnon and Lin Farley and the many other lawyers and activists who represented women in and out of court were able to mount a concerted assault, of unprecedented magnitude and force, on the practice of sexual harassment. Responding on many fronts to the demands of the second-wave feminist movement, the American legal system began slowly to yield to this challenge, and for the first time recognized women's right to work free of unwanted sexual advances.

How did this come about? Sexual harassment law arose, first and foremost, from women acting as part of a· social movement speaking out about their  experiences as women at work; the term "sexual harassment" itself grew out of a consciousness-raising session Lin Farley held in 1974 as part of a Cornell University course on women and work. But more was required for the American legal system to recognize this experience of gendered harm as a form of legal injury, when for centuries it had refused.

Carrie Baker, Sexual Harassment: Law for Women, By Women, in Feminist Legal History  

Carrie Baker, The Women's Movement Against Sexual Harassment  

 

October 24, 2017 in Violence Against Women, Women lawyers, Workplace | Permalink | Comments (0)

Friday, October 20, 2017

A History of the Word "Ladies"

Jessica Halem and Jen Manion, Why Do You Call Us Ladies? History, Gender and Manners in Public Life

It seems as if the term ‘ladies’ has made a comeback in public life. No matter where we are — in a small town or big city, in the gayborhood or a mainstream hotspot — strangers greet us the same way: “Hello, ladies;” or “What can I get you ladies?” And we are not alone. Hosts, servers, and salespeople everywhere address those they presume to be women, as ‘ladies,’ without a thought about the meaning or history of the term. People who are more masculine than your average cisgender guy; people who engage in public displays of queer affection; people who are femme, athletic, punky, androgynous, or professional are all addressed as ‘ladies’ now. The question is, why?

The term ‘ladies’ itself has a history that illuminates how power, privilege, and oppression have functioned throughout American history. From early modern times through much of the twentieth century, the term ‘lady’ signified women with power and authority over others by virtue of their race, class, marriage, or ancestry. A lady was a queen or head of household who oversaw subjects, children, servants, and slaves. As Evelyn Brooks Higginbotham notes, “Ladies were not merely women; they represented a class, a differentiated status within the generic category of “women.”” During Reconstruction, for example, married black women who didn’t work outside of the home and aspired to such status were socially condemned for even trying. A lady was a quintessentially normative white woman who set the standards by which other women were judged.

While the social and political criteria for addressing a singular woman as ‘lady’ remained intact for centuries, the plural version of the term proved more flexible. ‘Ladies’ became a polite form of address to a general group of women on their own or with men, as in ‘ladies and gentleman,’ a phrase that is still commonly used to this day. Even though ‘ladies’ could be used interchangeably with ‘women,’ it also retained an element of specificity throughout the nineteenth century. Nowhere was this more evident than in the difference between sex-segregation of spaces and the designation of certain areas for ‘ladies.’

Sex-segregation itself was routinized in American life by the state in late eighteenth and early nineteenth century carceral institutions, from almshouses and prisons to asylums. Voluminous reports documenting carceral life designated groups of people “females or males” and declared certain spaces for “women or men” — but never for ‘ladies.’ The Philadelphia House of Refuge, for example, had “male and female” departments. The only ‘ladies’ who set foot there were elite reformers who visited as part of their service on the ‘ladies committee.’

The emergence of ‘ladies’ rooms in the later decades of the nineteenth century signaled something different. Special spaces for ‘ladies’ in department stores, libraries, trains, and restaurants were seen as a way to carry a bit of the protective tranquility associated with the domestic realm into public areas. It matters that they were called ‘ladies’ rooms and not women’s rooms. ‘Ladies’ rooms were not intended for poor, black, immigrant and working women who already moved around in public; invisible to the protective gaze that followed and constrained elite white women. Under Jim Crow segregation, for instance, black women regardless of class were not allowed to use the ‘ladies’ rooms. In 1887, Massachusetts and New York were the first two states to pass laws that required employers provide separate restrooms for women. This extension of ‘ladies’ spaces to workers was an expansion of the protective ideal that rendered some women more precious and fragile than men.

 For a prior related post, ladies in sports teams

October 20, 2017 in Gender, Pop Culture | Permalink | Comments (0)

Wednesday, October 18, 2017

McDonald's Moms v. Organic Moms: Regulating Motherhood

Kate Cairns, Josée Johnston & Merin Oleschuk, Calibrating Extremes: The Balancing Act of Maternal Foodwork

When it comes to feeding children, mothers today must avoid the appearance of caring too little, or too much. Either extreme garners social stigma, although the penalties are far from equal.

 

As mothers in our study distanced themselves from an unhealthy “Other” who made poor food choices, we were surprised how frequently McDonald’s entered the conversation. McDonald’s seemed to function as a trope symbolizing “easy” meals, “unhealthy” choices, and “bad” mothering more generally. Gail (white, acupuncturist) contrasted her vision of healthy home cooking with a “stereotypical image of someone stopping at McDonald’s to get food for their kids.” Marissa (Black, project manager) confessed that as “busy people we do need to do fast food,” but clarified that “my kids will tell you that does not mean McDonald’s.” Lucia (Latina, social worker) said she and her son “talk about what’s junk and you know, McDonald’s and all that kind of food” in an effort to teach him “what’s healthy, what’s not healthy.”

 

Again and again, mothers distanced themselves from the figure of the “McDonald’s Mom,” a stigmatized “Other” they used to defend their own feeding practices. While this defense may seem judgmental, we suggest mothers’ efforts to establish this distance reflect the intense pressures they experience feeding their children. These pressures are especially penalizing for poor women who struggle to feed kids on a limited budget and racialized women who face enduring racist stereotypes about parenting and food choices. Indeed, the assumption that poor mothers make inferior food choices is evident in recent calls to restrict what can be purchased on SNAP benefits, undermining the essential role of government assistance in mitigating the effects of poverty.

 

When distancing their own feeding practices from “bad” ones, some mothers described feeding their children an organic diet – a resource-intensive practice that has become a gold standard of middle-class motherhood. Mothers today face considerable pressure to purchase ‘pure’ foods that are free of harmful chemical additives; this “intensive feeding ideology” involves the added work of researching products, reading labels, and making baby food from scratch.***

 

Our point is not to equate these uneven penalties, but to draw attention to the multiple ways mothers are harshly judged for their foodwork. Notably, comparable figures of the “McDonald’s” or “Organic Dad” did not emerge in our broader study (which included men), revealing the continued gendered burden of feeding children and the more flexible standards fathers face when doing this work.

 

What became clear throughout our research is that mothers from diverse backgrounds face pressure to continually monitor their children’s eating in ways that are careful and responsible, yet don’t appear obsessive or controlling. We call this process calibration – the constant balancing act of striving for an elusive maternal ideal. Calibration is labor-intensive and emotionally taxing, part of the seemingly impossible task of performing the “good” mother. If you opt for affordability or convenience, you risk being seen as a McDonald’s Mom. If you take your job as health-protector tooseriously, you may be deemed an obsessive Organic Mom who deprives her kids of childhood joys like hotdogs. These gendered pressures not only contribute to mother-blame, but distract us from the larger harms perpetuated by an unhealthy, unsustainable, and unjust food system.

October 18, 2017 in Family, Gender, Pop Culture, Poverty | Permalink | Comments (0)

32 Years of Equality Advocacy in Canada

Jena McGill & Daphne Gilbert, Of Promise and Peril: The Court and Equality Rights, 78 Supreme Court Law Review (2d) 235 (2017)

In this brief reflection, we look back on 32 years of equality advocacy and outcomes at the Supreme Court of Canada. We recount the fraught trajectory of the Supreme Court of Canada’s section 15 jurisprudence over the past decades, tracing the evolution of three distinct approaches to equality rights and highlighting the unique role that the Women’s Legal Education and Action Fund (LEAF) and its feminist equality advocacy has played in shaping the Court’s jurisprudence at each stage of section 15’s life. We then look to the future of section 15, suggesting that recent jurisprudence indicates the emergence of a new era in equality rights at the Supreme Court characterized by a distinct turning away from section 15 arguments. We offer some preliminary comments on what this trend might mean for the future of equality rights and for the future of feminist litigation strategies under the Charter, arguing that some of LEAF’s ideas about how to pursue substantive equality under section 15 that have not been acknowledged by the Court offer promising new directions for the next chapter of section 15 jurisprudence. We conclude that while under the current state of section 15 jurisprudence equality rights may be imperilled, the promise of section 15 remains.

October 18, 2017 in Courts, Gender, International | Permalink | Comments (0)

Tuesday, October 17, 2017

Discrimination 3.0: Women as Devalued Workers in the Gig Economy

Arianne Renan Barzilay & Anat Ben-David, Platform Inequality: Gender in the Gig Economy, 47 Seton Hall L. Rev. 393 (2017)

From the Intro:

Americans are making extra money renting out a spare room, designing websites, selling products they design themselves at home, or even driving their own car. This ‘on demand’ or so-called ‘gig economy’ is creating exciting opportunities and unleashing innovation but it’s also raising hard questions about workplace protections and what a good job will look like in the future. –Hillary Rodham Clinton

Abstract:

Laboring in the new economy has recently drawn tremendous social, legal, and political debate. The changes created by platform-facilitated labor are considered fundamental challenges to the future of work and are generating contestation regarding the proper classification of laborers as employees or independent contractors. Yet, despite this growing debate, attention to gender dimensions of such laboring is currently lacking. This Article considers the gendered promises and challenges that are associated with platform-facilitated labor, and provides an innovative empirical analysis of gender discrepancies in such labor; it conducts a case study of platform-facilitated labor using computational methods that capture some of the gendered interactions hosted by a digital platform.

These empirical findings demonstrate that although women work for more hours on the platform, women’s average hourly rates are significantly lower than men’s, averaging about 2/3 (two-thirds) of men’s rates. Such gaps in hourly rates persist even after controlling for feedback score, experience, occupational category, hours of work, and educational attainment. These findings suggest we are witnessing the remaking of women into devalued workers. They point to the new ways in which sex inequality is occurring in platform-facilitated labor. They suggest that we are beholding a third generation of sex inequality, termed “Discrimination 3.0,” in which discrimination is no longer merely a function of formal barriers or even implicit biases. The Article sketches Equality-by-Design (EbD) as a possible direction for future redress, through the enlisting of platform technology to enhance gender parity. In sum, this Article provides an empirical base and analysis for understanding the new ways sex inequality is taking hold in platform-facilitated labor.

October 17, 2017 in Business, Equal Employment | Permalink | Comments (0)

Study of Gender Diversity in High Courts

Nancy B. Arrington, Leeann Bass, Adam Glynn, Jeffrey K. Staton, Brian Delgado, Staffan I. Lindberg, Gender Diversity in High Courts

Abstract

Increasing the diversity of political institutions is believed to improve the quality of political discourse and, subsequently, the quality of political outcomes. Moreover, the presence of diverse officials in positions of power signals the openness and fairness of political institutions. These benefits of diversity should be particularly acute in the judiciary, where judges are tasked with the symbolically and substantively powerful duty of interpreting and defending constitutional values. Extant scholarship suggests that well-designed appointment process can promote diversity without explicitly gendered goals, much less quotas. If correct, these proposals raise the possibility of promoting greater diversity without having to resolve politically charged debates about quotas. Yet, scholars disagree about the effects of particular design choices. Worse, estimating causal effects of institutions in observational data is particularly difficult. We develop a research design linked to the empirical implications of existing theoretical arguments to evaluate the effect of institutional change on the gender diversity of peak courts cross-nationally. Specifically, we consider the effect of an increase (or a decrease) in the number of actors involved in the appointment process. We find mixed results for any existing claim about the role of appointment institutions play in increasing diversity. Yet we also find that any institutional change seems to cause an increase in the gender diversity of peak courts.

From the Intro:

The presence of more women on peak courts may in influence the law, and by implication, core matters of public policy, either because women understand the law in particular contexts or evaluate facts differently than men (e.g. Boyd, Epstein and  Martin, 2010; Glynn and Sen, 2015; Collins, Manning and Carp, 2010) or because male judges behave differently when they share the bench with women (Boyd, Epstein and Martin, 2010; Farhang and Wawro, 2004). It is also possible that more diverse courts promote the legitimacy of the justice system (e.g. O'Connor and Azzarelli, 2011; Kenney, 2013), and increased gender diversity on important courts may be conceived of simply as an unalloyed normative good (e.g. Malleson, 2003).

October 17, 2017 in Courts, Gender, International, Judges | Permalink | Comments (0)

Monday, October 16, 2017

Court Upholds Denial of Parole to Pregnant Woman to Protect Unborn Child

Commonwealth v. Becker, (Pa. Super. Ct. Oct. 10, 2017)

P & P opposed Becker's parole because of the risk that she may use heroin while pregnant. The trial court shared similar concerns, among others, and denied Becker's petition for parole. 

Becker first claims that the denial of her parole was manifestly unreasonable, as she had incurred no misconducts during her incarceration, attended treatment and counseling, and had a stable address and family support. Becker's claim is without avail.

“Parole is nothing more than a possibility, and, when granted, it is nothing more than a favor granted upon a prisoner by the state as a matter of grace and mercy shown by the Commonwealth to a convict who has demonstrated a probability of his ability to function as a law-abiding citizen in society.”

 Here, the record does not support Becker's assertion that the denial of her parole was manifestly unreasonable. First, we note, Becker's gender and concomitant pregnancy are incidental to her well-chronicled heroin addiction. As such, the basis of the Becker's parole denial, as stated by the trial court, was the substantial risk that she would use heroin, not her unique status. In coming to its decision, the trial court expressed concern for the health of Becker's unborn child. However, the trial court did not discuss prisoner access to women's healthcare, prenatal care, child welfare resources or other associated services that might indicate its decision was motivated entirely by Becker's status. Rather, it focused on Becker's prior use of heroin and the dangers it posed to her and others. Specifically, the trial court reiterated its concern with “[Becker] using drugs and ․ harming herself” and the potential for relapse. N.T. Parole Hearing, 8/22/16, at 7, 15–17, 69 (“[S]he has a bad history [of heroin abuse][,] and history dictates when she gets out [of prison], she uses”).

 The trial court's concerns are well founded.

 Becker next claims that the trial court violated her substantive due process rights when it denied her parole based solely on her pregnancy. Becker concedes that in Pennsylvania, “a prisoner has no absolute right to be released from prison on parole upon the expiration of the prisoner's minimum term.” However, citing Block v. Potter, 631 F.2d 233, 235 (3rd Cir. 1980), Becker argues that the trial court based its denial of parole on factors she avers are unconstitutional and/or arbitrary, including gender, pregnancy and the safety of the unborn child.

 Here, Becker asks us to determine whether the trial court's consideration of her gender, pregnancy and the health of the unborn child was, like in Block, an unconstitutional arbitrary government action. We decline to conduct such an analysis.

 Under the Administrative Agency Law, a court can only review an action of a Commonwealth agency where its decision constitutes an adjudication. The Supreme Court found that the act unambiguously defines adjudication to exclude parole decisions. The Court also addressed the theory that parole decisions would be applicable for review under the Due Process Clause of the Fourteenth Amendment of the United States Constitution. The Court rejected this argument, as there was no precedent to support it.

 Becker's next claim on appeal is that the trial court violated her equal protection rights by denying her petition for parole. Equal protection requires that “all persons similarly situated should be treated alike.” Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). Legislative classifications based on gender call for a heightened standard of review. See Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 295 (1993). However, the Supreme Court of the United States has repeatedly held that we cannot reasonably presume opposition to abortion reflects an animus against women and/or pregnant women as a class. See Id. at 269–70;  see also Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983) (finding that discrimination based on pregnancy was discrimination based on gender only because Congress specifically intended it to be when it amended 42 U.S.C. § 2000e). “Where the challenged governmental action does not burden ‘fundamental’ or ‘important’ rights, and does not make a suspect classification or a quasi-suspect classification, it does not offend the Equal Protection Clause as long as it is rationally related to a legitimate governmental interest.” Small v. Horn, 722 A.2d 664, 672 (Pa. 1998) (citations omitted). Furthermore, drug users are not a suspect or a quasi-suspect class. New York City Transit Authority v. Beazer, 440 U.S. 568, 592–93 (1979). This argument affords Becker no relief.

 The trial court based its decision denying Becker's petition for parole on her status as an incarcerated, pregnant heroin addict. The court's action does not burden a fundamental or important right, nor is Becker's status a suspect or quasi-suspect classification. Therefore, the trial court's action need only pass a rational basis test. Small, 772 A.2d at 672. Our Supreme Court has defined the rational basis test as examining a law to find if it is “unreasonable, unduly oppressive or patently beyond the necessities of the case, and the means which it employs must have a real and substantial relation to the objects sought to be attained.” Nixon, 839 A.2d at 286–87 (citation omitted). If it is not, then the discrimination is permissible under the Equal Protection Clause. Id. at 286. Here, we find protecting Becker's unborn child was a legitimate governmental interest. Planned Parenthood, 505 U.S. at 846. By denying Becker parole, the trial court ensured Becker could not use heroin and harm her unborn child. Denying parole until going into labor was reasonable, as the only other alternative was releasing Becker on parole. Therefore, there was no equal protection violation.

October 16, 2017 in Abortion, Constitutional, Family, Pregnancy | Permalink | Comments (0)

CFP Gender Sidelining Symposium

Call for proposals in gender sidelining symposium

California Western School of Law

California Western School of Law invites proposals for its Gender Sidelining Symposium to be held April 26-27, 2018 in San Diego, California.  The symposium will bring together legal academics, practicing lawyers, business leaders, judges, and others to discuss subtle yet pernicious forms of unequal treatment that often are not actionable under anti-discrimination or other laws, but that nonetheless may hinder the ability of women to advance in their respective professions.  We refer to this unequal treatment as Gender Sidelining.  There are a myriad of behaviors, policies, and practices that lead to this phenomenon of Gender Sidelining that the law does not (and arguably should not) proscribe, but which still require solutions.

The Symposium will begin with a panel discussion that will provide the relevant context and background for the concept of Gender Sidelining, followed by a dinner and remarks by a panel of highly respected judges who will provide their thoughts and insights regarding this topic.  The second day will include lunch and a keynote address by American University Washington College of Law Dean Camille Nelson, a well-respected and widely published scholar who focuses on gender inequality.  The second day will also include three salon-style sessions, in which a primary anchor will discuss their work in conjunction with others who will provide commentary and response.  Finally, the Symposium will conclude with a final reception and rap session, where participants will be encouraged to share their reflections in an open discussion.

In seeking to explore this Gender Sidelining phenomenon, we invite proposals for three interactive salon-style sessions surrounding the themes of Employment, Entrepreneurship/Business, and Popular Culture.  Interested participants also are free to suggest other salon session topics that are consistent with the Symposium’s broader theme.  Each individual submitting a proposal should indicate the following: (1) whether you would like to serve as a primary anchor for one of the themed salon-style sessions or (2) have an interest in providing commentary in one of the themed salons. 

Proposals should be submitted to jfink@cwsl.edu no later than November 17, 2017, and include an abstract that indicates the specific themed salon session of interest, the presenter’s proposed role (primary anchor or commentator), a description of the presenter’s research/expertise, and a CV. We also welcome proposals that are fully developed in terms of a primary anchor and commentators. Please include “Gender Sidelining Symposium” in your email subject line.  Please use Microsoft Word or the equivalent, but do not use PDF.    Questions should be directed to Professor Jessica Fink at jfink@cwsl.edu.  More complete descriptions of the salon sessions appear below.

Employment: Women in the workplace often face obstacles which may impede their advancement and success, but which may not – without more – provide grounds for legal action.  For example, women are significantly under-represented in positions of leadership and power across professional sectors; they often are not given adequate credit or recognition for their work; they may find their voices silenced in meetings with their male peers; they may lack appropriate mentors or other professional guidance.  While such barriers and slights, standing alone, generally will not rise to the level of being legally actionable, the aggregation of these incidents leads to egregious inequality in the workplace that begs solutions.  In this salon, participants will contribute to a vibrant discussion on this visible, yet often unactionable, inequality in employment contexts like academia, the military, religious institutions, law enforcement, law, medicine, and beyond.

Entrepreneurship and Business: The news has been replete of late with stories of sexism at tech startups and reports finding gender bias in business funding, especially in the world of venture capital.  For this salon, we invite contributions to a discussion about how gender sidelining plays a role in business and entrepreneurship.  How does gender impact decisions about which entrepreneurs are funded, which markets are “disrupted,” or who is appointed to boards of directors and other leadership positions? How might these decisions affect both women in the business world and women as consumers?  How do issues of intersectionality complicate this analysis?  And is there a role for the law to play in addressing these issues, which are traditionally left to the market to sort out?  Ideally this salon will feature a mix of academics, practitioners, and business leaders.

Popular Culture: Popular culture often contributes to narratives that displace women and make them secondary in status to men within the collective imagination. From sports, to movies, to mainstream news and music, popular culture reproduces cultural norms, practices, and narratives that allow women to be overlooked and disregarded. Proposals that address the relationship between popular culture and gender sidelining might consider any of the following questions: How does mainstream news media coverage overlook the contributions of women politicians, lawyers, judges, and businesswomen, or subject them to different standards than men? How are women athletes and other women in entertainment exposed to unequal conditions due to gender sidelining? How do pop culture portrayals of women politicians, athletes, professionals, and artists create barriers that prevent or discourage women from entering these fields, or make it difficult for women within these fields to advance? Is there a role for the law to mitigate any of these issues?

Thank you,

Symposium Committee

Hannah Brenner

Leslie Culver

Jessica Fink 

Catherine Hardee

India Thusi

Daniel Yeager

October 16, 2017 in Call for Papers, Conferences | Permalink | Comments (0)

The Mansfield Rule for Gender Diversity in Hiring

ABA J, Law Firms Borrow a Concept from the NFL to Address a Lack of Diversity in their Leadership Ranks

The Mansfield rule was inspired by the National Football League’s Rooney rule—named after the late Pittsburgh Steelers owner Dan Rooney—which requires that at least one person of color be interviewed for head coach jobs. Arabella Mansfield was the first woman admitted to practice law in the United States, so the rule mandates that at least 30 percent of a firm’s candidates for leadership positions (defined as firm governance roles, equity partnerships, practice chair positions and seats on compensation committees) be women, attorneys of color or both.

 

According to a June press release, 44 major law firms will utilize the Mansfield rule, including two of the world’s largest firms by lawyer head count: Dentons and DLA Piper. Law firms that implement the rule over the next year will be “Mansfield certified” and can participate in a 2018 client forum, which will pair in-house lawyers with attorneys who are women or people of color for business development opportunities.

 

A group of partners from Am Law 200 law firms and a Stanford Law School student came up with the Mansfield rule idea at the 2016 Women in Law Hackathon. Besides the Diversity Lab, the hackathon was done in conjunction with the law school and Bloomberg Law. The original pitch only addressed women, and it only called for one woman to be considered for leadership choices.

 

According to Mark Helm, a Munger, Tolles & Olson partner who was part of the team that came up with the idea for the rule, it was modified to get more buy-in from law firms. If candidate pools have more women and people of color, he says, it might be easier to convince some decision-makers that the individuals could do the job in question.

 

“My firm has done relatively well with diversity, but at the same time I think it’s relative to other law firms,” he adds. “We all feel that the profession as a whole—including our firm—has a lot more to do.”

 

Indeed, in 2016 only 18.1 percent of equity partners were women, and 5.8 percent were racial or ethnic minorities, according to the National Association for Law Placement.

 

Rather than focus on current data about how many women and people of color are in leadership positions at law firms, the goal of the Mansfield rule project is to encourage the firms to be more mindful about their candidate pools, pipeline and succession planning, says Caren Ulrich Stacy, the Diversity Lab’s CEO. In a hackathon press release, the group is described as being focused on “innovative ways to close the gender gap and boost diversity in law firms and legal departments by leveraging data, behavioral science and design thinking.”    

See the previous post on the Mansfield Rule, The Mansfield Rule: Law Firms' Rooney Rule for Addressing Gender in Hiring

I have previously written about the Rooney Rule, and its limitations, as well as the benefits of targets like the Mansfield Rule.  See Tracy A. Thomas, Reconsidering the Remedy of Gender Quotas, Harvard J. Law & Gender Online (Nov. 2016).

October 16, 2017 in Business, Equal Employment | Permalink | Comments (0)

Friday, October 13, 2017

As Law School Hiring Season Begins, a Look at Gender Bias in the Academy

As hiring season in U.S. law schools is upon us, a few posts today on gender bias in the academy.

Virginia Valia, Beyond Gender Schemas: Improving the Advancement of Women in Academia, 20 Hypatia 198 (2005):

The statistics on women in academia are well documented and summarized in a number of places.


The generality and ubiquity of the problem shows the necessity for a general explanation. Since the phenomena are not confined to a single profession, we need to understand what underlies them. The explanation I focus on is social cognitive; it examines the moment-by-moment perceptions and judgments that disadvantage women. The social-cognitive account relies on two key concepts: gender schemas and the accumulation of advantage. Very briefly: the gender schemas that we all share result in our overrating men and underrating women in professional settings, only in small, barely visible ways: those small disparities accumulate over time to provide men with more advantages than women.

Constance Wagner, Change from Within: Using Task Forces and Best Practices to Achieve Gender Equity, 47 Journal of Legal Education (forthcoming).

This article focuses on the search for gender equity among women faculty in the university setting in the United States. The author advocates for the use of university task forces and the institutionalization of best practices for achieving gender equity as means to remove the persistent barriers to professional advancement experienced by many women faculty. Discriminatory treatment of faculty based on gender may be hidden and remain unacknowledged in some universities, so the process of uncovering such treatment and formulating recommendations for change is an important first step in the process of creating a work environment that is both fair and inviting to women. Many universities have achieved positive outcomes for faculty using this approach, which has the potential to benefit a wider group of women faculty in a more targeted fashion than a strategy that relies on the use of litigation and government agency proceedings. This article documents the disparities in employment status experienced by women faculty in U.S. universities compared to their male counterparts through the use of statistically based gender equity indicators, explores explanations for the existence of such inequities and proposes reasons for their elimination, develops a model framework for the structure and process to be used by a successful gender equity task force, and identifies best practices that have the greatest potential to advance the status of women university faculty. The author draws upon case studies of successful task forces at several U.S. universities, the work of professional organizations representing university faculty and administrators, and the academic literature on the employment status of women faculty in the United States.

This piece contributes to the literature on employment discrimination based on gender in the United States in a novel way by approaching the topic from the perspective of mechanisms for institutional change rather than from a litigation perspective. It fills a gap in the literature by exploring the topic of gender inequity among university faculty from a strategic perspective by drawing on the work of successful task forces and emerging best practices that show promise to improve the status of university women faculty.

Gender Bias in Academe: An Annotated Bibliography:

Studies of the hard data of gender bias—in an era of hard data—should be required reading of all administrators and all faculty who are called upon to make decisions about hiring, tenure, and promotion based on purely quantitative measures such as “productivity” or “citation counts.”  An adage of data scientists is “garbage in, garbage out.” That means if the sample or the data is corrupt or biased when it is first entered, then any conclusions based on mining or crunching that data must be regarded with keen skepticism. You cannot simply count the end product (such as number of articles accepted, reviewed, awarded prizes, or cited) without understanding the implicit bias that pervades the original selection process and all the subsequent choices on the way to such rewards.

 

Book Review, Deborah Rhode, Women and Leadership, 8 ConLawNOW 1 (2017).

October 13, 2017 in Education, Equal Employment, Gender | Permalink | Comments (0)