Gender and the Law Prof Blog

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

Sunday, December 31, 2017

2017: The Year of the Woman--or was it?

There are many new year's lists commemorating 2017 as the "year of the woman."  Most cite the Women's March and the #MeToo movement as key points of evidence, and that "feminism" was the dictionary word of the year (is that a good thing that so many had to look up its meaning??).

However, we have had such years before -- literally -- as 40 years ago when 1977 was dubbed "The Year of the Woman" and celebrated with a government-sponsored national conference in Houston that hoped to rewrite legal and social norms for women's equality conceived in the broadest of terms.  This National Women's Conference is analyzed in detail in Marjorie Spruill's recent book, Divided We Stand. See also prior posts The 40th Anniversary of the National Women's Conference and The 1977 National Women's Rights Conference as the Start of the Political Divide

Thus, while we have seen some visual protests here in 2017, at the end of the year we have little change.  In fact, we have new more regressive laws for women's equality, as Susan Faludi points out.

For "Year of the Woman," see:

2017: The Unexpected (and Inspiring) Year of the Woman

Constance Grady, 2017 Was the Year of Women's Anger, Onscreen and Off

The Year of Women, in Policy and Politics

The Year Women Reclaimed the Web

 

But see contra:

A Close Look at the Many Times We've Anointed "The Year of the Woman" (8 times before)

Susan Faludi, The Patriarchs are Falling: The Patriarchy is Stronger than Ever

American women’s activism has historically taken two forms. One is an expression of direct anger at the ways individual men use and abuse us. It’s righteous outrage against the unambiguous enemy with a visible face, the male predator who feeds on our vulnerability and relishes our humiliation. Mr. Weinstein’s face is the devil’s face du jour, and the #MeToo campaign fits squarely in this camp. The other form is less spectacular but as essential: It’s fighting the ways the world is structurally engineered against women. Tied to that fight is the difficult and ambiguous labor of building an equitable system within which women have the wherewithal and power to lead full lives.

The challenge today is the one faced by [Susan] Anthony and [Frances] Willard: how to bring the outrage over male malfeasance to bear on the more far-reaching campaign for women’s equality. Too often, the world’s attention seems to have room for only the first.

Melissa Harris-Perry, The #MeToo Backlash is Already Here: This is How we Stop It

Barbara Lee, We Don't Need Another "Year of the Woman." We Need Progress for Women Every Year.

 

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

Saturday, December 30, 2017

The Partisanship of Feminism

The Atlantic, The Partisanship of Feminism

The Growing Partisan Divide Over Feminism
Democratic men are 31 points more likely to say that the “country has not gone far enough on women’s rights” than Republican women.

***

This September, Leonie Huddy and Johanna Willmann of Stony Brook University presented a paper at the American Political Science Association. (The paper is not yet published, but Huddy sent me a copy.) In it, they charted the effects of feminism on partisanship over time. Holding other factors constant, they found that between 2004 and 2016, support for feminism—belief in the existence of “societal discrimination against women, and the need for greater female political power”—grew increasingly correlated with support for the Democratic Party. The correlation rose earlier among feminist women, but by 2016, it had also risen among feminist men. A key factor, the authors speculated, was Hillary Clinton. A liberal woman’s emergence as a serious presidential contender in 2008, and then as her party’s nominee eight years later, drove feminists of both genders toward the Democratic Party and anti-feminists of both genders toward the GOP.

 

In other words, Clinton, along with Donald Trump, has done for gender what Barack Obama did for race. Obama’s election, UCLA political scientist Michael Tesler has argued, pushed whites who exhibited more racial resentment into the Republican Party and whites who exhibited less into the Democratic Party. Something similar is now happening around gender. But what’s driving the polarization is less gender identity—do you identify as a man or a woman—than gender attitudes: Do you believe that women and men should be more equal. Democrats aren’t becoming the party of women. They’re becoming the party of feminists.

December 30, 2017 in Pop Culture, Theory | Permalink | Comments (0)

Judges' Rules Help Establish Diverse Attorney Voices in Court

ABA J, Judges Push for Diverse Voices in Court

On the day U.S. District Judge Elizabeth Wolford received a copy of a New York State Bar Association report revealing that women participate in court at lower rates than men, the judge had a meeting to discuss a pending breach-of-contract case.

 

In addition to a male partner, each side had a female associate who, Wolford says, had clearly done the relevant research. With the report in mind, Wolford of the Western District of New York recommended the associates argue at the hearing—and they did.

 

“It was one of the best arguments I have had the privilege of presiding over,” Wolford recalls.

 

According to the July report, female attorneys account for just 25 percent of counsels appearing in commercial and criminal New York state and federal cases. In more complex matters, the percentage declines further. A 2015 ABA report found similar numbers in a study of the Northern District of Illinois.

 

In August, Wolford implemented a standing rule that encouraged young attorney participation. Such rules, which often offer oral argument as incentive, are one way the NYSBA report recommends the bench help address litigation’s gender disparities.

 

Wolford’s rule was inspired by similar guidelines set forth by Judge William Alsup of the U.S. District Court for the Northern District of California. He implemented his rule soon after taking the bench in 1999, but he also requires large firms to document how they will integrate junior attorneys into a case. Alsup says he does so for the good of the profession, as well as for up-and-coming lawyers.

 

“If we don’t train the next generation, then lawyering will suffer and the public will lose confidence” in the system, he says.

 

None of the rules mentions gender or race. But the measures can have the effect of increasing opportunities for women and minorities because they now make up a greater share of young attorneys. In 2016, according to ABA data, women composed more than half of matriculating students at all law schools, and minorities made up more than a third of such students. In 2009, 47 percent of all enrolled students were women and 23 percent were minorities.

 

Attorney Sharon Porcellio, who worked on the New York bar report, says she thinks the rules are an innovative way to address an age-old problem.

 

“Those of us who have been practicing for a long time had hoped that the pipeline theory”—the idea that increasing numbers of women and minorities in law school would lead to equal representation in practice—“would work,” she says. “The pipeline theory has not proven to work.”

December 30, 2017 in Courts, Judges, Women lawyers | Permalink | Comments (0)

Employers Think Men are More Ambitious Than Women

Employers Think Men are More Ambitious Than Women, Finds Survey

Bosses are five times more likely to view men as ambitious than women in the workplace, new research has found.

 

The YouGov survey for the Young Women’s Trust also revealed that men were perceived as more confident whereas women were deemed more “conscientious” at work.

 

Plus, two fifths of recruiters said men were more likely than women to ask for promotions and pay rises.

 

The survey was conducted on 800 employees with human resources decision-making responsibilities.

 

The findings also revealed that one in three of those surveyed believe that sexism exists in their workplace while one in eight of those who work at large companies say that sexual harassment has gone unreported at their organisation.

 

Furthermore, one in 10 were aware of a gender pay gap at their company, in which women are paid less than men for jobs at equal levels of seniority.

 

“Young women do not lack ambition but too often they are held back by employers who – knowingly or not – discriminate against them,” said Dr Carole Easton OBE, chief executive at Young Women’s Trust.

December 30, 2017 in Equal Employment, Workplace | Permalink | Comments (0)

Tuesday, December 19, 2017

CFP Metoo: Oral Histories of Sexual Violence and Harassment

Call For Papers 2018 Oral History Association Annual Meeting. October 10-13, 2018, Montreal, Canada 

From #believesurvivors to #me too, narratives around harassment, abuse, and sexual violence have become increasingly prominent in the media over the last few years. This panel draws on feminist oral history practice to explore critical questions relating to oral narratives of harassment and abuse. Oral history, with its ability to capture personal experiences and intimate narratives, is well-suited to document experiences of sexual violence, harassment, and abuse. The sharing of traumatic memories can also raise a range of ethical issues for narrators and interviewers. This panel explores how interviews exploring experiences of harassment and abuse, particularly within institutions and organizations, can shed new light on contemporary efforts to achieve justice for survivors.

Please send abstracts for papers to kja45@sfu.ca by January 14th. Abstracts must be 300 words or less and accompanied by a 400-word (or less) CV. Applicants will be notified of the status of their paper by January 21st.

 

Potential paper topics include:

 •    Sexual violence within past or present social justice movements

•    Sexual abuse or harassment in the workplace

•    Intersections between sexual violence and other forms of oppression (such as racism, classism, transphobia, ableism, and homophobia)

•    Legal and ethical issues relating to interviews about specific acts of abuse or harassment.

•    Trauma-informed approaches to interviewing.

•    Shared authority as it relates to interviews with survivors or perpetrators of violence.

•    Other ethical issues pertaining to interviewing accused perpetrators of violence and abuse.

•    Oral histories of anti-violence activist movements.

This list is not exhaustive, and we welcome all submissions that explore oral histories of gendered abuse, harassment, and violence.

December 19, 2017 in Call for Papers, Workplace | Permalink | Comments (0)

Sexual Harassment: Why Now? And Where do we Go From Here?

Joanna Grossman, Reflections on America's Reckoning with Sexual Harassment

Many are surprised by the seemingly endless allegations of sexual misconduct. Is there an epidemic of harassment? No more than there ever was. Sexual harassment has been a pervasive problem in the American workplace, as well as in housing, education, the judicial system, on the street, and all other sectors of society, as far back as we look.

 

Two components of the modern story are “new,” however. First, women are showing greater willingness to come forward and report harassment. No matter how unwelcome sexual harassment is, study after study has shown that victims rarely file formal complaints after being harassed. Empirically, doing so is in fact the least likely response of a woman to an incident of sexual harassment at work. Victims tend to complain only about severe harassment, and only when they’ve exhausted all other avenues. As discussed below, women who have been sexually harassed forego complaining. They rightly fear retaliation from the harasser or their workplace, and they often worry about being socially ostracized at work and even about damaging the harasser’s career. At the same time, victims tend to be feel that complaining is futile—that no action will be taken that will make the victim’s situation better. The lack of hope for successful redress provides little by way of counterweight against the justifiable fear of adverse consequences.

 

Second, men facing credible accusations of harassment are suffering consequences. Employers have a long history of taking insufficient action—often no action—despite credible evidence of harassment. Some of their inaction can be explained by the infrequency of complaints, but even when they do investigate complaints, employers tend to be biased against finding evidence of discrimination, to recast harassment and discrimination as a problem of interpersonal conflicts that might justify intervention but not discipline, and to overlook misconduct when the harasser is too valuable to lose.

 

So why the current cascade of complaints?

 

We are experiencing a cultural moment. Despite the powerful deterrents to speaking out, women are coming forward, in droves, to tell their stories. It’s hard to explain why that moment is now, but the dam broke. It could be the power of the anti-Trump resistance movement, which has mobilized women around the country to organize, protest, and stand up for themselves. It could be the raunchy and disturbing nature of the allegations in the first few stories to break. It could be that the victimization of celebrities, at the hands of Harvey Weinstein and James Toback, brought the issue into our consciousness more clearly. It could be any combination of things. But whatever the catalyst, there can be no doubt that this chorus of voices, speaking out against sexual misconduct, is noteworthy.

***

Reporters keep asking me (and others) whether we are experiencing a cultural shift in dealing with sexual misconduct. Whether the moment becomes a shift will turn on how we react to it. The pervasiveness and severity of harassment women face at work is a symptom of broader dysfunction in our society. And the institutions that have allowed it to go unchecked are part of a system that has favored cosmetic preventative measures rather than effectiveness, and window dressing rather than effectiveness. True change will only come when institutional actors decide to hold themselves accountable for the way women are treated.

December 19, 2017 in Equal Employment, Workplace | Permalink | Comments (0)

Men Invited to Give Twice as Many Academic Talks as Women--and its not Because Women Turn them Down or That There Aren't Enough Qualified Women

Women are Invited to Give Fewer Talks than Men at Top US Universities

Colloquium talks, where academics are invited to discuss their research, give speakers a chance to publicize their work, build collaborations with new colleagues, and boost their reputations. The talks can lead to promotions or job offers. They are big opportunities. But as Hebl’s student Christine Nittrouereventually found, they are opportunities that are predominantly extended to men.

 

Nittrouer and her team scanned the websites of the top 50 U.S. universities, as ranked by U.S. News, to build a database of every colloquium speaker from six departments: biology, bioengineering, political science, history, psychology, and sociology. They chose those six to represent a breadth of disciplines, and to exclude departments with either a very low or very high proportion of women. And they found that men gave more than twice as many talks as women: 69 percent versus 31 percent.

 

That result should not be too surprising. Several studies have shown that menoutnumber women among the speakers of several scientific conferences. There’s even a site that collates examples of all-male panels.

 

Why does this happen? Hebl accounted for several of what she calls “yeah-but explanations,” which underplay these figures as the result of anything other than discriminatory biases. For example, some might argue that men outnumber women in many fields, and so any equitable selection process would naturally lead to more male speakers. But the team estimated the full pool of available speakers by counting every professor in their six chosen fields at each of the top 100 U.S. universities. And even after adjusting for the relative numbers of men and women in the various fields or ranks, they found that men are still 20 percent more likely to be invited to give colloquium talks than women.

 

Skeptics might also argue that the problem is a generational one: Science, for instance, has historically been skewed toward men, and when colloquia committees decide whom to invite, they’re prisoners of that history. But if that were true, and the arc of academia was slowly bending toward equality, then when assistant and associate professors—who are younger and more junior than full professors—are selected to give talks, the gender difference should be narrower. Hebl’s team found no such trend. “The people in whom we should see more parity aren’t showing us more parity,” she says.

 
“People sometime say: You know what? Maybe it’s the women,” says Hebl. “Maybe they don’t want to give talks, or they’re declining because they’re staying home with their kids.” That’s not what she found when she surveyed 186 professors who didn’t give colloquium talk at prestigious universities, but were in the same departments as those who did. Their answers clearly showed that women don’t decline colloquium invitations more than men, that they feel just as strongly that these talks are important for their careers, and that they’re no more likely to decline such talks because of family obligations.

 

“This dispels the widely held myth that women are less frequent speakers because they travel less,” says Jo Handelsman, from the University of Wisconsin at Madison. “Clearly, we need to test such assumptions before we absolve ourselves of culpability in creating biased slates.”

 

“Despite their presence in departments, women are not being asked to contribute to the intellectual development of their fields in the most coveted ways,” says Robin Nelson, from Santa Clara University, who has studied the prevalence of harassment in science. “This gendered discrimination minimizes women’s visible contributions to their fields, validating the idea that the greatest intellectual contributions are made by a few brilliant men.”

 

“We can account for all the yeah-buts,” Hebl says, “but we still have this bias, and we need to do something about it.”

 
 One solution is to give women more power over inviting colloquium speakers. The team found that when those committees are chaired by women, half of the invited speakers are women; that’s compared to just 30 percent when the committees are chaired by men.

December 19, 2017 in Conferences, Education, Scholarship | Permalink | Comments (0)

The Judge Kozinski Sexual Harassment Saga: From Beginning to End

Initially, seven women -- three women law professors, including one former dean, and four women externs accuse US Court of Appeal Judge Alex Kozinski of sexual harassment 

Wash Post, Prominent Appeals Court Judge Alex Kozinski Accused of Sexual Misconduct

Seven Women Have Now Accused Judge of Sexual Harassment

NPR, Federal Appeals Judge Alex Kozinski Accused of Sexual Harassment

NYT, Federal Appeals Court Judge is Accused of Sexual Harassment

 

The first accuser, Heidi Bond's responded further on the details on her allegation.

Bond made two important suggestions for structural change to address the problem of sexual harassment in judicial clerkships.  

I want the law clerk handbook distributed by the judiciary to explicitly state that judges may not compel clerk silence on matters like the ones I have described here. I also believe that there should be a person, or persons, or an institution that clerks can turn to in order to find answers. I understand that there are reasons why no such institution exists now—judicial independence and confidentiality must be fiercely protected. I also believe that the judiciary is capable of coming up with a solution to this problem.

A type of ombuds office within the court administrative office might be a way to implement this.

Bond's additional recommendation: 

I want greater honesty regarding judicial clerkships. Law students are often told in glowing terms that a clerkship will be the best year in their career. They are never told that it might, in fact, be their worst—and that if it is their worst, they may be compelled to lie to others in the name of loyalty to their judge.

I also want law schools to start giving our best and brightest students accurate advice about clerkships. Students are often told that if they receive a clerkship offer from a judge, they must say “yes” without hesitation. I cannot imagine a situation more rife for abuse. Students should feel free to say no to any judge who triggers their discomfort for any reason.

However, Nancy Leong counseled against the potential consequences of steering women away from prestigious clerkships.

 

Additional women, including national reporter Dahlia Lithwick shared their metoo stories about Judge Kozinski.

Dahlia Lithwick, Judge Alex Kozinski Made Us All Victims and Acccomplices

Nine More Women Say Judge Subjected Them to Inappropriate Behavior Including Four Who Say He Touched or Kissed Them

 

Attorney Susan Estrich, also a feminist law scholar and professor at USC who wrote "Sex and Power" and "Sex at Work," represented Judge Kozinski.  She also formerly represented Roger Ailes in his sexual harassment case.  See NYT, The Curious Case of Susan Estrich

 

The case triggered much thought and commentary:

Dara Purvis, When Judges Prey on Clerks

Vivia Chen, Can We Get Rid of Alex Kozinski?  

Charlotte Garden, On Judge Kozinski and Open Secrets

Alison Frankel, Breaking the Law Clerks' Code of Silence: The Sexual Misconduct Claims Against Judge Kozinski

Catharine Crump, Clerkships are Invaluable for Young Lawyers. They Can Also be a Setup for Abuse.

Debra Weiss, Will Complaints of Inappropriate Sexual Conduct by Kozinski have any Impact Impact

Judge Alex Kozinski's Opinion in a 2001 Sexual Harassment Case is Alarming 

 

As a result:

An inquiry was initiated.  Chief Judge Initiates Judicial Review of Allegations Against Alex Kozinski

Judge Kozinski retired on December 18, 2017. Alex Kozinski Announces Immediate Retirement Following Accusations of Sexual Misconduct

Chief Justice Roberts amended the law clerk handbook.  Newly Amended Law Clerk Handbook Affirms Harassment Complaints are Permitted.  "Clerks are encouraged to bring such matters to the attention of an appropriate judge or other official," the handbook now says.

December 19, 2017 in Courts, Equal Employment, Judges, Workplace | Permalink | Comments (0)

Sunday, December 17, 2017

Meet Tamar Frankel, 92, First Woman Law Professor at Boston U and Intellectual Godmother of the Fiduciary Rule

WSJ, The 92-Year-Old Woman Who is Still Shaking up Wall Street: Law Professor Tamar Frankel is Considered the Intellectual Godmother of the Fiduciary Rule

Ms. Frankel, a law professor at Boston University, is the intellectual godmother of the fiduciary rule, a regulation from the U.S. Department of Labor requiring anyone being paid to provide investment advice on a retirement account to act in the best interest of the client. At the age of 92, Ms. Frankel still commutes to work five days a week, teaches two courses—and is unfazed that the Labor Department announced on Nov. 27 that it would delay implementing key parts of the fiduciary rule until July 2019.

 

After all, Ms. Frankel has been advocating that brokers should put their clients first for more than 40 years. What’s another 18 months?

 

Born in what was then Palestine in 1925, Ms. Frankel joined the Haganah, the paramilitary movement for Israeli independence, at age 14. Her father was the first president of Israel’s bar association, and she apprenticed in his practice. In 1949, she became the first general counsel of the Israeli Air Force. Two years later, when she was 26, her father died, and she took over his law practice.

 

In 1963, Ms. Frankel came to study at Harvard Law School. She wrote her doctoral dissertation on variable annuities, those mashups of mutual funds and insurance.

“That was perfect, because I knew very little about mutual funds and very little about insurance,” she says. “There are two ways you can react to not knowing: one is to feel afraid of your ignorance, the other is to be consumed by the desire to understand. I felt almost drunk with how much I could learn.”

 

In 1968, as she was still studying to complete her dissertation, Ms. Frankel joined Boston University. The field was so male-dominated that, when she arrived as the law school’s first female professor, BU relegated her office to the basement of the library.

 

“I didn’t have to put the books back on the shelf!” she laughs. “The craving for being part of the group, being accepted, that wasn’t my priority.”

***

 

After she turns 93 next July 4, Ms. Frankel says, she will stop teaching—although she will continue to research and write.

 

What accounts for her longevity? “Caring less and less about what other people think,” she says, “and more and more about questions you don’t have answers to.”

 

Frankel

The BU Law Faculty in 1972 when Prof. Frankel was the only woman professor.

December 17, 2017 in Law schools, Women lawyers | Permalink | Comments (0)

Thursday, December 14, 2017

Pew Research Survey Finds People Sense Significant Gender Differences

Pew Research Report, On Gender Differences: No Consensus on Nature v. Nurture

A new Pew Research Center survey finds that majorities of Americans say men and women are basically different in the way they express their feelings, their physical abilities, their personal interests and their approach to parenting. But there is no public consensus on the origins of these differences. While women who perceive differences generally attribute them to societal expectations, men tend to point to biological differences.

 

The public also sees vastly different pressure points for men and women as they navigate their roles in society. Large majorities say men face a lot of pressure to support their family financially (76%) and to be successful in their job or career (68%); much smaller shares say women face similar pressure in these areas. At the same time, seven-in-ten or more say women face a lot of pressure to be an involved parent (77%) and be physically attractive (71%). Far fewer say men face these types of pressures, and this is particularly the case when it comes to feeling pressure to be physically attractive: Only 27% say men face a lot of pressure in this regard.

 

When asked in an open-ended question what traits society values most in men and women, the differences were also striking. The top responses about women related to physical attractiveness (35%) or nurturing and empathy (30%). For men, one-third pointed to honesty and morality, while about one-in-five mentioned professional or financial success (23%), ambition or leadership (19%), strength or toughness (19%) and a good work ethic (18%). Far fewer cite these as examples of what society values most in women.

 

The survey also finds a sense among the public that society places a higher premium on masculinity than it does on femininity. About half (53%) say most people in our society these days look up to men who are manly or masculine; far fewer (32%) say society looks up to feminine women. Yet, women are more likely to say it’s important to them to be seen by others as womanly or feminine than men are to say they want others to see them as manly or masculine.

December 14, 2017 in Gender | Permalink | Comments (0)

Ohio Passes Law Prohibiting Abortion for Down's Syndrome

Reuters, Ohio Passes Law Barring Abortion over Down Syndrome Diagnosis

Women in Ohio would be prohibited from receiving abortions because of a fetal Down syndrome diagnosis under a bill that passed the state senate on Wednesday and is heading to Republican Governor John Kasich’s desk.

 

Lawmakers voted 20-12 in favor of the law, which criminalizes abortion if the physician has knowledge that the procedure is being sought due to a diagnosis of Down syndrome, a genetic disorder caused when abnormal cell division results in an extra full or partial copy of chromosome 21.Doctors would lose their medical licenses in the state and face a fourth-degree felony charge under the law if they were to perform an abortion with that knowledge. Mothers would not face criminal charges.

 

The bill makes Ohio the third state to pass a law outlawing abortions due to fetal anomalies. Similar laws were passed in Indiana and North Dakota. The Indiana provision was struck down by a U.S. District Judge in September after a lawsuit filed by the American Civil Liberties Union.

 Ohio Senate Sends Down Syndrome Abortion Ban to Gov John Kasich

A bill banning abortion after a fetal diagnosis of Down syndrome has cleared the Ohio General Assembly and will now go to Gov. John Kasich's desk.

 

The Ohio Senate on Wednesday gave final approval to House Bill 214 in a 20-12 vote. The bill was passed by the House in November.

 

Three Republicans, including Gayle Manning of North Ridgeville and Matt Dolan of Chagrin Falls, voted with Democrats against the bill.

 

Kasich, who has signed 18 abortion restrictions into law since 2011, told cleveland.com last month he generally supported the idea but wanted to see the legislation before deciding how to act.

December 14, 2017 in Abortion, Legislation | Permalink | Comments (0)

Wednesday, December 13, 2017

MeToo is Working but MeToo is not Enough

MeToo is Working: New Data Shows Attitudes on Harassment are Changing

Two months after the New York Times published an earth-shattering exposé about Harvey Weinstein's history of alleged sexual harassment and assault, the #MeToo movement shows no signs of slowing down. Every day, it seems there's a new set of stories about men in power using sex as a weapon to humiliate and intimidate women (and sometimes other men). Now Time magazine has named "The Silence Breakers" as Person of the Year, crowning this surge of anger over sexual harassment as one of the most important stories of 2017.

 

It's been a big media story, but has all this righteous anger over sexism really penetrated the consciousness of everyday Americans? Has this genuinely rattled ordinary people and their views on gender and power? A new study out by the research firm PerryUndem provides a surprising and encouraging answer: Yes, the past year has seen something of a feminist awakening in the American public. It's not just about Weinstein or the revelations of the past two months. It's been a year in the making, as evidenced by the outrage over Donald Trump's election and the Women's March in January that was likely the largest single protest event in modern history.

MeToo is Not Enough

As we celebrate the #MeToo movement’s incredible accomplishments, including being recognized as Time Magazine’s “Person of the Year” a mere two months after becoming a viral hashtag, we must guard against the backlash that’s already brewing. Because the simple fact is that far from overreaching, the #MeToo movement has not yet gone far enough, in three important ways. 

  1. We are not paying enough attention to the more routine “complicity machines” that keep women silent.
  2. We are not yet connecting sexual harassment to other discrimination -- or the structures that make women chronically vulnerable to mistreatment.
  3. Men are not yet owning their $%#@.

A new focus on systems that aid and abet sexual misconduct, rather than solely the actions of individuals, could be a welcome opportunity for all of us to begin to locate ourselves in this cultural discussion.

December 13, 2017 in Equal Employment, Workplace | Permalink | Comments (0)

How the Legal World Built a Wall of Silence Around Workplace Sexual Harassment

Professor Minna Kotkin, How the Legal World Built a Wall of Silence Around Workplace Sexual Harassment

A secret about sexual harassment on the job is finally coming to light. It’s not that harassment is still rampant in some industries, recalling the worst of the “Mad Men” days. Or that networks of women quietly help to protect their co-workers from the worst offenders. The real secret is that our regulatory and judicial systems are complicit in protecting harassers from public exposure and opprobrium.***

 

Since 1986, when the Supreme Court first recognized that sexual harassment is a form of discrimination, employers and their attorneys have generally insisted that victims who receive financial settlements as a result of harassment allegations sign confidentiality agreements. In my three decades of research and litigation on harassment claims, corporate officials have always insisted that unless settlements are confidential, firms will be overwhelmed by a deluge of accusations, with every disgruntled employee looking for a payout.

 

A typical confidentiality clause prohibits the employee not only from revealing the amount paid to her but also from discussing the facts and allegations relating to the underlying events. Often, these clauses contain a “liquidated damages” provision: If the facts are revealed, the employee automatically owes the employer some astronomical sum. Liquidated damages generally include the amount paid in the settlement and sometimes much more, especially if the settlement amount was small. This keeps many victims of harassment from making their experiences known to others who might face the same dangers.

 

In some instances, confidentiality clauses might protect an employee as well as her employer: Some women don’t want it known that they have made a harassment complaint, believing that it will hamper their future career prospects. But, according to my research, most confidentiality clauses are one-way, preventing revelations about the employer; they don’t address what can be said about the employee.

 

One reason it takes so long for sexual discrimination cases to emerge is that these lawsuits are governed by a certain timeline. In 1998, the Supreme Court decided that an employee must first make an internal complaint and that employers must have policies to afford workers that opportunity. Many incidents are resolved at this stage, with financial compensation and a confidentiality agreement. These deals never become public, and there is no way of knowing just how many such agreements have been reached with a certain employer.

 

Except for its court filings (which may not name the harasser, since the action is against the company), the EEOC proceeds under guarantees of confidentiality. In fact, Title VII specifically mandates that the agency may not disclose to the public charges of employment discrimination or information about conciliation, with violations punished by fines up to $1,000 or imprisonment for up to a year. 

 

But despite the theoretical openness of court proceedings, much of what happens in litigation still remains secret. Less than 3 percent of employment discrimination cases go to trial, with a public verdict. Legal scholars and researchers estimate that close to 80 percent of the cases result in settlements, with the remainder dismissed before trial. Cases that settle are protected by confidentiality agreements, so we don’t know what the terms look like.

 

Another factor that contributes to secret settlements relates to how attorneys are paid for representing employees and the pressure they may place on their clients. Most employment lawyers work on a contingency-fee basis, receiving a percentage — usually one-third — of the settlement. When an employer offers a sum to make a case go away, it comes attached to a confidentiality clause; if the plaintiff refuses the clause, she gets nothing at all — and neither does her lawyer. Ethical standards enforced by state bar associations and courts require that settlement decisions be made by clients, but attorneys who want to collect their fees have every incentive to steer their clients toward accepting the confidentiality clause.

December 13, 2017 in Equal Employment, Workplace | Permalink | Comments (0)

Tuesday, December 12, 2017

Why Do Men Sexually Harass

 

3 Psychologists Explain Why Men Harass Women in the Workplace

1.  Desire to "protect occupational territory"

Shawn Burn, Ph.D., is a psychology professor at California Polytechnic State University in San Luis. She says "sometimes, sexual harassment is used to intimidate, disempower, and discourage women in traditionally male-dominated occupations" "in fields like the military, tech or politics."

2.  Approval of sexual objectification

Burn says many men are surrounded by a culture that reduces women to sexualized objects, which normalizes female colleague in a less than professional manner.Women in certain jobs, Burn argues, particularly those in which physical appearance plays a role, "sometimes face increased levels of sexual harassment because their jobs implicitly condone their sexual objectification. Some men take this as permission to process and react to these women not as people, but as fantasy sex objects without personal sexual boundaries."

3.  Perceived invincibility 

"There are intense issues of entitlement and power and control that have gone unchecked that lead to situations where men feel it's perfectly fine to engage in these kind of behaviors," says clinical psychologist David Ley.

According to Burn, this behavior is closely linked to abuse of power.

"Not all people handle power and money with grace," she says. "Some use their power to exploit and maltreat others, knowing they can get away with it, and some getting off on it."

4.  Exhibitionist Disorder 

December 12, 2017 in Workplace | Permalink | Comments (0)

Monday, December 11, 2017

Ninth Circuit Judge Kozinski Accused of Sexual Harassment

Three women law professors, including one former dean, and four women externs accuse US Court of Appeal Judge Alex Kozinski of sexual harassment 

Wash Post, Prominent Appeals Court Judge Alex Kozinski Accused of Sexual Misconduct

Seven Women Have Now Accused Judge of Sexual Harassment

NPR, Federal Appeals Judge Alex Kozinski Accused of Sexual Harassment

NYT, Federal Appeals Court Judge is Accused of Sexual Harassment

  

Heidi Bond's further response provides more details on her allegation.

 

Bond makes two important suggestions for structural change to address the problem of sexual harassment in judicial clerkships.  

I want the law clerk handbook distributed by the judiciary to explicitly state that judges may not compel clerk silence on matters like the ones I have described here. I also believe that there should be a person, or persons, or an institution that clerks can turn to in order to find answers. I understand that there are reasons why no such institution exists now—judicial independence and confidentiality must be fiercely protected. I also believe that the judiciary is capable of coming up with a solution to this problem.

A type of ombuds office within the court administrative office might be a way to implement this.

Bond's additional recommendation: 

I want greater honesty regarding judicial clerkships. Law students are often told in glowing terms that a clerkship will be the best year in their career. They are never told that it might, in fact, be their worst—and that if it is their worst, they may be compelled to lie to others in the name of loyalty to their judge.

I also want law schools to start giving our best and brightest students accurate advice about clerkships. Students are often told that if they receive a clerkship offer from a judge, they must say “yes” without hesitation. I cannot imagine a situation more rife for abuse. Students should feel free to say no to any judge who triggers their discomfort for any reason.

However, Nancy Leong counsels against the potential consequences of steering women away from prestigious clerkships.

 

Further Updates as of Dec. 14:

Dara Purvis, When Judges Prey on Clerks

Vivia Chen, Can We Get Rid of Alex Kozinski?  

Dahlia Lithwick, Judge Alex Kozinski Made Us All Victims and Accomplices

Charlotte Garden, On Judge Kozinski and Open Secrets

Alison Frankel, Breaking the Law Clerks' Code of Silence: The Sexual Misconduct Claims Against Judge Kozinski

 

December 11, 2017 in Courts, Judges, Workplace | Permalink | Comments (0)

Complicit Bias in Sexual Harassment

Michele Goodwin, Complicit Bias: Sexual Harassment and Communities that Sustain It

For all of the coverage about sexual harassment in recent weeks, reports lack an accounting for complicity and workplace cultural norms. They fail to probe why certain environments foster harassment while others do not. Sometimes news reports address why women do not come forward. Rarely do reports concentrate on why witnesses and co-workers do not come forward to shut down apparent and known harassment. I’m not talking about hypothetical situations. Rather, known instances of sexually inappropriate conduct goes unchecked by friends, co-workers, and bosses.

 

Unexamined are the challenging issues related to why other women (and men) who witness abuse do not speak up, even when they have the power to do so—such as seniority over their offending colleagues. For that matter, why do senior administrators and executives ignore reported instances of sexual harassment?

 

Many years ago, as a new law professor at a former institution, barely three months into my new tenure-track position, I observed a male colleague forcefully grab a female student’s arm and lick her at a law school fundraiser....By Monday morning, I reported the licking incident to my dean—who happened to be a woman. I expected that the dean would make an inquiry and investigate....By coming forward, I had not anticipated the enormous public backlash, the ultimate firing of the dean, the harassment that I would encounter, and the institution’s paralysis.

***

 

So, why had the institution put up with it for so long?

 

The short answer is fear. For colleagues who have worked together for many years—sometimes their families live in the same neighborhoods; their children school together or play sports on the same teams. They fear losing relationships and disrupting their lives.

 

However, there is also the fear of experiencing exactly what happened to me—retaliation for reporting. Deferring and deflecting is a way to divvy up who has to suffer the burden of speaking up. My colleagues avoided being lumped into the barrage of emails targeting me by not speaking up, while I took the brunt of it along with one other colleague who complained previously about another male colleague’s harassing behavior

 

So, why had the institution put up with it for so long?

 

The short answer is fear. For colleagues who have worked together for many years—sometimes their families live in the same neighborhoods; their children school together or play sports on the same teams. They fear losing relationships and disrupting their lives.

 

However, there is also the fear of experiencing exactly what happened to me—retaliation for reporting. Deferring and deflecting is a way to divvy up who has to suffer the burden of speaking up. My colleagues avoided being lumped into the barrage of emails targeting me by not speaking up, while I took the brunt of it along with one other colleague who complained previously about another male colleague’s harassing behavior

On a legal effort to hold these complict networks accountable, see RICO Claim Against Weinstein and Co-Conspirators in "Sexual Enterprise"

December 11, 2017 in Equal Employment, Workplace | Permalink | Comments (0)

MeToo is Really About Work, Not Sex

Rebecca Traister, This Moment Isn't (Just) About Sex. It's About Work

[I[n the midst of our great national calculus, in which we are determining what punishments fit which sexual crimes, it’s possible that we’re missing the bigger picture altogether: that this is not, at its heart, about sex at all — or at least not wholly. What it’s really about is work, and women’s equality in the workplace, and more broadly, about the rot at the core of our power structures that makes it harder for women to do work because the whole thing is tipped toward men.

 

Sexual assault is one symptom of that imbalance, but it is not the only one. ***

 

Because the thing that unites these varied revelations isn’t necessarily sexual harm, but professional harm and power abuse. These infractions and abuses are related, sometimes they are combined. But their impact, the reasons that they are sharing conversational and journalistic space during this reckoning, need to be clarified. We must regularly remind everyone paying attention that sexual harassment is a crime not simply on the grounds that it is a sexual violation, but because it is a form of discrimination.***

 

In other words, sexual harassment may entail behaviors that on their own would be criminal — assault or rape — but the legal definition of its harm is about the systemic disadvantaging of a gender in the public and professional sphere. And those structural disadvantages do not begin or end with the actual physical incursions — the groping, kissing, the rubbing up against. In fact, the gender inequity that creates the need for civil-rights protections is what has permitted so many of these trespasses to have occurred, so frequently, and for so long; gender inequity is what explains why women are vulnerable to harassment before they are even harassed; it explains why it’s difficult for them to come forward with stories after they have been harassed, why they are often ignored when they do; it clarifies why so many women work with or maintain relationships with harassers and why their reactions to those harassers become key to how they themselves will be evaluated, professionally. Gender inequity is cyclical, all-encompassing.

 

We got to where we are because men, specifically white men, have been afforded a disproportionate share of power. That leaves women dependent on those men — for economic security, for work, for approval, for any share of power they might aspire to. Many of the women who have told their stories have explained that they did not do so before because they feared for their jobs. When women did complain, many were told that putting up with these behaviors was just part of working for the powerful men in question — “That’s just Charlie being Charlie”; “That’s just Harvey being Harvey.” Remaining in the good graces of these men, because they were the bosses, the hosts, the rainmakers, the legislators, was the only way to preserve employment, and not just their own: Whole offices, often populated by female subordinates, are dependent on the steady power of the male bosses. ***

 

What’s more, to cross powerful men is to jeopardize not just an individual job in an individual office; it’s to risk far broader professional harm within whole professions where men hold sway, to cut yourself off from future opportunity. 

 

These are the economics of sexual harassment, but also, simply, of sexism.

 

What makes women vulnerable is not their carnal violability, but rather the way that their worth has been understood as fundamentally erotic, ornamental; that they have not been taken seriously as equalsthat they have been treated as some ancillary reward that comes with the kinds of power men are taught to reach for and are valued for achieving. How to make clear that the trauma of the smaller trespasses — the boob grabs and unwanted kisses or come-ons from bosses — is not necessarily even about the sexualized act in question; so many of us learned to maneuver around hands-y men without sustaining lasting emotional damage when we were 14. Rather, it’s about the cruel reminder that these are still the terms on which we are valued, by our colleagues, our bosses, sometimes our competitors, the men we tricked ourselves into thinking might see us as smart, formidable colleagues or rivals, not as the kinds of objects they can just grab and grope and degrade without consequence. It’s not that we’re horrified like some Victorian damsel; its that we’re horrified like a woman in 2017 who briefly believed she was equal to her male peers but has just been reminded that she is not, who has suddenly had her comparative powerlessness revealed to her.

December 11, 2017 in Equal Employment, Gender, Workplace | Permalink | Comments (0)

Friday, December 8, 2017

Congress Proposes MeToo Act Changing Complaint Process for Congressional Sexual Harassment

MeToo Legislation Aims to Combat Sexual Harassment in Congress

Sen. Kirsten Gillibrand, D-N.Y., is leading the effort in the Senate. She has previously disclosed that she has been harassed by unnamed male colleagues. She has also worked on combating sexual abuse in the U.S. military. "There is a serious sexual harassment problem in Congress and too many congressional offices are not taking this problem seriously at all," Gillibrand said.

  • Waive 30-day requirements each for counseling and mediation sessions before a formal complaint can be filed
  • Create a new, optional in-house victims' counsel position to provide legal advice and representation for complainants
  • Eliminate requirements that complainants to sign nondisclosure agreements as a condition for filing a complaint, although nondisclosures are still allowed as part of a negotiated settlement
  • Create an online system to initiate complaints
  • Require lawmakers to pay out of pocket for any settled claim where they are identified as the harasser. Other claims are still paid for by taxpayers
  • Require public disclosure of the employing office when a claim is settled and to disclose the settlement amount
  • Require an anonymous "climate survey" of congressional employees every two years
  • Extend all employer protections to interns, fellows and pages

December 8, 2017 in Equal Employment, Legislation | Permalink | Comments (0)

New Legislation Would Ban Employment Arbitration Clauses for Sexual Harassment

New Congressional Sexual Harassment Bill Would Stop Employers from Trying to Silence Accusers

Capitol Hill lawmakers on Wednesday introduced another bill to combat sexual harassment, addressing one of the legal mechanisms that employers often use to keep accusers silent.

The bipartisan legislation from Rep. Cheri Bustos (D-Ill.) and Sen. Kirsten Gillibrand (D-N.Y.) would ban employers from holding employees to forced arbitration clauses, which often prevent sexual misconduct survivors from speaking publicly about abuses in the workplace, and places power in the hands of the perpetrator.

Forced arbitration clauses can prohibit an accuser from going to court or dealing with the incident in other public means. They can include a private monetary settlement and/or a nondisclosure agreement. Victims often are forced out of their jobs, while the harasser remains.

“That is not a fair choice, and it is something that no one should have to put up with,” Gillibrand said at a press conference on Capitol Hill.

“To executives who think this should be an episode of ‘Mad Men,’ stop it, and stop it now,” Bustos said. “For the waitress, for the journalist, for the factory worker, for all the women who want to go to their job and do it well, we are to here to say, no more.”

The Senate bill is also backed by Sens. Lindsey Graham (R-S.C.), Lisa Murkowski (R-Alaska) and Kamala Harris (D-Calif.). The House version has support from Reps. Walter Jones (R-N.C.), Elise Stefanik (R-N.Y.), and Pramila Jayapal (D-Wash.).

***

Gillibrand and Rep. Jackie Speier (D-Calif.) recently introduced the Me Too Act, which aims to overhaul that complaint system and make it more transparent and less biased toward the perpetrator.

Bustos is also a co-sponsor on a House bill that would ban taxpayers from having to foot the bill for sexual harassment settlements on Capitol Hill.

December 8, 2017 in Equal Employment, Legislation | Permalink | Comments (0)

Sexism and Misogyny are not the Same Thing

What Everybody Gets Wrong About Misogyny

What is misogyny? How is it different from sexism? And why does the male-dominated status quo seem to persist?

 

new book by Cornell philosophy professor Kate Manne has answers. She argues that misogyny is not about male hostility or hatred toward women — instead, it’s about controlling and punishing women who challenge male dominance. Misogyny rewards women who reinforce the status quo and punishes those who don’t.

 

In this interview, we explore how sexism and misogyny are different, how misogyny is embedded in our customs and institutions***

One way of looking at it is we have these patriarchal social structures, bastions of male privilege where a dominant man might feel entitled to (and often receive) feminine care and attention from women.

I think of misogyny and sexism as working hand-in-hand to uphold those social relations. Sexism is an ideology that says, “These arrangements just make sense. Women are just more caring, or nurturing, or empathetic,” which is only true if you prime people by getting them to identify with their gender.

So, sexism is the ideology that supports patriarchal social relations, but misogyny enforces it when there’s a threat of that system going away.

A prior post on Prof. Manne's book, Down Girl: A Theory of Misogyny is here.

December 8, 2017 in Books, Theory | Permalink | Comments (0)