Gender and the Law Prof Blog

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

Wednesday, March 28, 2018

Limited Legal Recourse for Intersectional Age and Gender Discrimination in Employment

Joanne Song McLaughlin, Limited Legal Recourse for Older Women's Intersectional Discrimination Under the Age Discrimination in Employment Act

Older women compose a large share of labor force in the U.S. There are two federal statutes that can provide protection for older women against employers’ discriminatory behavior: the Age Discrimination in Employment Act (ADEA) and Title VII of the Civil Rights Act (Title VII). Theories and empirical evidence suggest that older women are more discriminated against for being old and female, but there is a concerning policy implication that current legislation does not provide adequate protection for older women. The main reason for this concern is that older women’s intersectional discrimination invokes age-plus-sex or sex-plus-age cause of action. However, the courts do not recognize this cause of action under the ADEA and they have mixed views on this issue under Title VII. This article discusses evidence of older women’s intersectional discrimination and the importance of recognizing this intersectionality in proof structure. It also reviews case laws and the effectiveness of the age discrimination laws on older women’s labor market outcomes. The findings indicate that the ADEA does not provide equal employment opportunities for older women. Older women’s legal recourse for their unique intersectional discrimination for being old and female is constrained under the ADEA and Title VII strictly due to legislative peculiarities in statutes intended to solve this exact problem.

March 28, 2018 in Equal Employment | Permalink | Comments (0)

Pregnancy, Poverty and the State

Michele Goodwin & Erwin Chemerinsky, Pregnancy, Poverty and the State, 127 Yale L. J. (forthcoming)

In Pregnancy, Poverty, and The State, we argue that the core bundle of rights contained in reproductive privacy have been hollowed out through new legislation and court decisions, affecting the actual practice of reproductive privacy. We show how increasingly, even judicial opinions affirming reproductive rights fail to constrain state governments seeking to eviscerate those rights through new legislation. Though court rulings recognize these rights, they ultimately render them meaningless for poor women, particularly poor women of color. These groups are the first victims since they are largely unseen and unheard by those who make the law and policy. As the policies that substantially burden women’s reproductive rights become normalized, these norms will affect broader segments of the population, placing greater numbers of women at risk. 

We view these issues as not simply matters of law, but of human rights, morality, and dignity. The moral hypocrisy of the state is clear in the reproductive health context. That is, when the state coerces women and girls into pregnancies they do not want and to bear children they do not desire to have, it not only creates unconstitutional conditions, but it also acts immorally. Even though legal scholars typically refer to lawmaking that unduly burdens the poor as unjust, we suggest that legislative efforts to eviscerate reproductive rights is far worse than that. 

This project, launches with a review of Professor Khiara Bridges’s daring book, The Poverty of Privacy Rights to problematize the intersections of privacy and morality. We view the state as not only a fallible and problematic arbiter of women’s morality, but argue the state acts immorally when it deprives poor women of privacy, bodily autonomy, and threatens to rob them of life itself. As we document in detail, bounded in the state’s immoral actions toward poor women of color are its historical struggles and campaigns against their personhood and citizenship as well as conscription of their bodies in service to malevolent state agendas such as eugenics and forced sterilization. As we show, this is more than mere indifference, but an historic pattern. We illustrate how the continued effects of more than a century of negative state interventions in the reproductive lives of poor women of color is actually deadly. Finally, we predict that the continued interference in the reproductive lives of poor women creates cultural norms and precedents in medicine, law, and society that will spill over and constrain the rights of all classes of women, regardless of race. That is, historical disregard for the lives and rights of Black women inscribed by judicial doctrine and court opinions as well as state and federal legislation serve as vehicles for contemporary and future disparagement of all women.

March 28, 2018 in Poverty, Pregnancy, Reproductive Rights | Permalink | Comments (0)

British House of Commons Speaker Reprimands Foreign Secretary for Sexist Language

Boris Johnson Told Off by Speaker for "Sexism"

Foreign Secretary Boris Johnson has been reprimanded by Commons Speaker John Bercow for using sexist language.

 

Speaker Bercow intervened - to applause from some Labour MPs - after Mr Johnson referred to shadow foreign secretary Emily Thornberry as Lady Nugee.

 

Ms Thornberry is married to High Court judge Sir Christopher Nugee - but chooses to go by her maiden name.

 

Mr Bercow said it was "inappropriate" and sexist to refer to her as Lady Nugee.

 

He said MPs should be called by their names and not by the titles of their spouses.

 

Mr Johnson had to be reminded of Ms Thornberry's title by MPs, as he answered a question from a Conservative MP on the Commonwealth, calling her "the Baroness, whatever it is, I cannot remember what it is... Nugee".

 

Mr Bercow rebuked the foreign secretary, telling him: "We do not address people by the titles of their spouses.

 

"The shadow Foreign Secretary has a name, and it is not 'Lady something'. We know what her name is. It is inappropriate and frankly sexist to speak in those terms, and I am not having it in this Chamber.

 

"That is the end of the matter. No matter how senior a Member, that parlance is not legitimate. It will not be allowed, and it will be called out."

 

Mr Johnson subsequently apologised for his "inadvertent sexism."

 

Ms Thornberry has occasionally been teased about her formal title by Conservative critics and in February last year complained to Mr Bercow when Theresa May referred to her as Lady Nugee in the Commons.

 

"Is it in order for the prime minister to refer to a member of this House not by her own name, but by the name of her husband?" the Islington South MP said in a point of order.

 

"I have never been a Lady and it will be a great deal more than being married to a Knight of the Realm in order to make me one."

 

Mrs May said: "If the Honourable Lady is concerned about the reference that I made to her, of course I will apologise for that.

 

"I have to say to her, though, that for the last 36 years I have been referred to by my husband's name."

March 28, 2018 in Family, International | Permalink | Comments (0)

Tuesday, March 27, 2018

A Legal Study of Equal Pay in the EU

Petra Foubert, The Enforcement of the Principle of Equal Pay for Equal Work or Work of Equal Value: A Legal Analysis of the Situation in the EU Member States, Iceland,Liechtenstein and Norway (July 2017)

Sixty years after the principle of equal pay for men and women for equal work or work of equal value was first laid down in Article 119 of the EEC Treaty (currently Article 157 of the Treaty on the Functioning of the EU), the EU today faces a gender pay gap that has remained constant at a relatively high level for decades. The most recent Eurostat data show an average figure of 16.3 % (for the year 2015) for the 28 EU Member States. Although there is a big difference between the countries with the lowest pay gap (Italy and Luxembourg, both with 5.5 % in 2015) and the country with the highest pay gap (Estonia, with 26.9 % in 2015), and although these figures represent the so-called "unadjusted" gender pay gap (i.e. not adjusted according to individual characteristics that may explain part of the difference), there are signs that all over Europe sex-based pay discrimination remains a problem that should not be underestimated.

March 27, 2018 in Equal Employment, International | Permalink | Comments (0)

Do Alternative Dispute Resolution Procedures Disadvantage Women and Minorities

Charles Craver, Do Alternative Dispute Resolution Procedures Disadvantage Women and Minorities?

When different legal controversies arise, parties frequently employ alternative dispute resolution procedures to resolve them. Yet some members of ethnic minority groups and women may seek judicial proceedings out of a concern that their ethnicity or gender may undermine their ability to achieve beneficial bargaining outcomes through ADR. This article addresses the real and perceived challenges of ethnic minorities and women in ADR. It draws upon decades of research into dispute resolution bargaining processes to illustrate that most traits associated with ethnicity and gender are irrelevant today with respect to ADR. When persons are taught even minimally about the bargaining process and how it operates, such information greatly enhances their likelihood of interacting effectively. Well-prepared minorities and women should thus be able to seek advantageous terms for themselves in ADR, even when dealing with white-male counterparts. Conversely, there is no guarantee that members of ethnic groups or women would achieve more advantageous outcomes in judicial proceedings. Even the formal rules of judicial proceedings may be influenced by subconscious stereotypes that still influence the ways that judges, jurors, and arbitrators assess litigant situations. Therefore, this article posits that adjudication is not clearly preferable to ADR procedures for minority group members and women.

March 27, 2018 in Courts, Gender | Permalink | Comments (0)

Foundations of Modern Penal Theory that Ignore the Gender Inequality of the Social and Family Context

Catalina Correa, The Foundations of Modern Criminal Law and Gender Inequality, 16 Seattle J. Soc. Justice 1 (2017)

Modern penal theory, like prevalent western theories of law, adopts a determined model of autonomy, one in which people are separable from social and family contexts. Taken to the criminal law context, this model proposes people can be defined without taking into account the social context. The use of prisons thus presupposes that individuals can be removed from their communities and families to be reeducated, readapted, treated or—in the retributive approach—simply punished. This notion of autonomy, however, hides from sight the group of people who not only maintain family ties with the men and women in prison, but who also, in contexts such as the Latin American one, take on the responsibility of supporting the prisoners economically. As this paper shows, this group is not heterogeneous or plural but defined by gender and primarily constituted of the mothers, daughters, wives and sisters of the people who are imprisoned. The data presented in this paper shows that this group of women is marginalized, impoverished and abused by a criminal justice system that not only omits to recognize the serious costs that the system imposes on them, but also omits to acknowledge their existence. This paper argues that this lack of recognition is possible because it is premised on a penal model that assumes a certain idea of autonomy, one which enables societies to erroneously affirm that prison sentences are individual sentences.

March 27, 2018 in Family, Gender, International, Theory | Permalink | Comments (0)

Monday, March 26, 2018

The Flaws and Gendered Assumptions in the New Rape Survivor Child Custody Act

Jennifer Hendricks, The Wages of Genetic Entitlement: The Good, The Bad, and the Ugly in the Rape Survivor Child Custody Act, 112 Northwestern L. Rev. Online 75 (2017)

This Essay analyzes flaws and assumptions in the recently enacted Rape Survivor Child Custody Act. The RSCCA offers a window into the problems with defining parenthood in terms of genes instead of caretaking relationships, which is what led to the problem of rapists being able to claim parental rights in the first place. Rather than address that underlying defect in family law, the statute attempts a solution that might work if all rapists were strangers, all rapists were men, and all rape victims were women, but glosses over complicated problems of violence and coercion in relationships. Despite this failure to grapple with hard cases, the RSCCA helps us see how the biological processes of reproduction are necessarily intertwined with the definition of legal parenthood.

March 26, 2018 in Family, Gender, Legislation | Permalink | Comments (0)

OR Governor Signs Boyfriend Loophole Gun Bill

Oregon Governor Signs "Boyfriend Loophole" Gun Bill

Amidst a crowd of students and advocates rallying for stronger gun regulations, Oregon Gov. Kate Brown signed Monday the first piece of legislation addressing the issue since the deadly shooting at Marjory Stoneman Douglas High School last month.

 

The law expands the prohibition of gun ownership to people convicted of domestic violence against non-married intimate partners — closing the so-called "boyfriend loophole."

 

It also blocks people convicted of misdemeanor stalking from owning a gun. 

 

"Closing the 'intimate partner' is an important step to keep Oregonians safer from gun violence," Brown said. "I'm hopeful that the tide is turning on our nation's gun debate."

 

The legislation was one of Brown's top priorities coming into the short legislative session, which ended Saturday.

March 26, 2018 in Family, Legislation, Violence Against Women | Permalink | Comments (0)

Doubting the Testimony and Dismissing the Experience of Domestic Violence Survivors and Other Women

Deborah Epstein & Lisa Goodman, Discounting Credibility: Doubting the Testimony and Dismissing the Experience of Domestic Violence Survivors and Other Women, 167 U. Penn. L. Rev. (forthcoming)

In recent months, we’ve seen an unprecedented wave of testimonials about the serious harms women all too frequently endure. The #MeToo moment, the #WhyIStayed campaign, and the Larry Nassar sentencing hearings have raised public awareness not only about workplace harassment, domestic violence, and sexual abuse, but also about how routinely women survivors face a Gaslight-style gauntlet of doubt, disbelief, and outright dismissal of their stories. This pattern is particularly disturbing in the justice system, where women face a legal twilight zone: laws meant to protect them and deter further abuse often fail to achieve their purpose, because women telling stories of abuse by their male partners are simply not believed. To fully grasp the nature of this new moment in gendered power relations—and to cement the significant gains won by these public campaigns—we need to take a full, considered look at when, how, and why the justice system and other key social institutions discount women’s credibility.

We use the lens of intimate partner violence to examine the ways in which women’s credibility is discounted in a range of legal and social service system settings. First, judges and others improperly discount as implausible women’s stories of abuse, based on a failure to understand both the symptoms arising from neurological and psychological trauma and the practical constraints on survivors’ lives. Second, gatekeepers unjustly discount women’s personal trustworthiness, based on both inaccurate interpretations of survivors’ courtroom demeanor and negative cultural stereotypes about women and their motivations for seeking assistance. Moreover, even when a woman manages to overcome all the initial modes of institutional skepticism that minimize her account of abuse, she often finds that the systems designed to furnish her with help and protection dismiss the importance of her experiences. Instead, all too often, the arbiters of justice and social welfare adopt and enforce legal and social policies and practices with little regard for how they perpetuate patterns of abuse.

Two distinct harms arise from this pervasive pattern of credibility discounting and experiential dismissal. First, the discrediting of survivors constitutes its own psychic injury--an institutional betrayal that echoes the psychological abuse women suffer at the hands of individual perpetrators. Second, the pronounced, nearly instinctive penchant for devaluing women’s testimony is so deeply embedded within survivors’ experience that it becomes a potent, independent obstacle to their efforts to obtain safety and justice.

March 26, 2018 in Courts, Violence Against Women | Permalink | Comments (0)

Friday, March 23, 2018

Gender, Immigration, and the Travel Ban

Marcia Zug, Make Immigration Great Again: How Morales-Santana Could Signal the End of Sexist Immigration Law and Provide a Way to Fight the Travel Ban, Wake Forest L. Rev. (forthcoming)

Gender plays a surprisingly important, and arguably unjust, role in immigration law. Explicit gender divisions and gender stereotypes are widespread. However, prior to the Supreme Court's recent decision in Morales-Santana, these distinctions have been consistently upheld. Consequently, despite the limited scope of Morales-Santana (it only applies to a single INA provision and does not overturn the Court’s previous cases), the case is extremely important. It indicates that the Court is no longer willing to excuse or attempt to rationalize immigration law’s widespread gender discrimination. Moreover, given immigration law’s long history of gender bias, the possibilities for discrimination claims are numerous and thus, it may be no coincidence that Morales-Santana, which finally confirms gender as an effective means of challenging discriminatory immigration laws, was decided only days before Trump v. International Refugee Assistance Project. International Refugee limited the scope of the government’s proposed travel ban and demonstrated the Court’s concern with the current administration’s attempts to restrict immigrant rights.Reading the two cases together, this essay suggests that gender discrimination claims may provide a new and effective means of challenging the travel ban, particularly if the current race and nationality based challenges fail.

March 23, 2018 in International, SCOTUS | Permalink | Comments (0)

ABA New Guidelines on Zero Tolerance for Sexual Harassment

ABA Unveils New Guidelines to Combat Sexual Harassment

“Zero Tolerance: Best Practices for Combating Sex-Based Harassment in the Legal Profession” is an updated version of a manual first developed by the ABA’s Commission on Women in the Profession in 2007.

 

This latest version focuses on issues of sexual harassment and bullying within the legal profession and provides more explicit policy advice and guidance for legal industry leaders to follow in order to help eradicate misconduct among their ranks.

 

“[Zero Tolerance] updates our understanding of workplace abuse and expands it to include non-sexual abusive behavior, such as bullying and protection for individuals who may be targeted because of their sexuality, gender identity, race and ethnicity, alone or in combination,” said the preface by Hill, who has accused U.S. Supreme Court Justice Clarence Thomas of sexual harassment. “The commission’s manual offers ABA members invaluable information that will benefit the profession.”

 

The new manual outlines sample policies that legal organizations can use in drafting their own policies to prohibit sexual harassment. It also outlines key elements of what a comprehensive policy against sexual harassment should include, as well as guidelines for complaint channels and reporting procedures.

 

The manual also suggests possible sanctions or disciplinary actions that could be used against a harasser or if there was a retaliatory response taken against the victim of such harassment.

 

“The legal profession must have zero tolerance of sexual harassment against any person working within our law firms, our justice system or our law schools,” wrote ABA president and Greenberg Traurig co-president Hilarie Bass in the manual’s foreword. “This book provides a roadmap for our profession to move forward to ensure that sexual harassment is something that the next generation of lawyers can describe as a challenge of the past that has been overcome.”

 

The publication of the updated “zero tolerance” manual comes on the heels of the adoption of a sexual harassment resolution by the House of Delegates at the ABA’s midyear meeting in Vancouver last month, which encouraged all employers in the legal profession to adopt and enforce policies and procedures that “prohibit, prevent, and promptly redress harassment and retaliation.”

March 23, 2018 in Equal Employment, Women lawyers | Permalink | Comments (0)

How Women's Colleges are Handling Transgender Applicants

"What it Means to Be a Woman is Not Static": How Women's Colleges are Handling Transgender Applicants

Back in the late 1800s, when "brain fever" was used as an argument for why women shouldn’t receive a formal education, Mount Holyoke College was among the first to offer an all-female undergraduate program.

But a lot has changed since the first women’s colleges were founded — today there are nearly 40 — and many of them have been grappling with one specific aspect of that identity in recent years: How should transgender applicants be considered?

Propelled by increasing social pressures and Title IX guidelines issued during the Obama administration, many of these institutions have rewritten their admissions policies to change and clarify who will be counted.

Mount Holyoke, for example, now says students who self-identify as women can be considered for admission, according to a policy statement: "We recognize that what it means to be a woman is not static. Traditional binaries around who counts as a man or woman are being challenged by those whose gender identity does not conform to their biology."

The college further emphasizes its commitment as a historic place for women, partly founded on the motto "Go where no one else will go, do what no one else will do."

March 23, 2018 in Education, Gender | Permalink | Comments (0)

Thursday, March 22, 2018

Justifying Sex Segregation in Competitive Sports

Patrick Shin, Sex and Gender Segregation in Competitive Sports: Internal and External Normative Perspectives, 80 Law & Contemporary Problems 47 (2018)

What are the justifications for mandatory sex segregation in competitive sport, and what are the arguments against it? This article takes up these questions. I argue that justifications of sex segregation in sport should be sensitive to two distinct perspectives that can come into play. The “internal” perspective emphasizes considerations rooted in an ethos of athletic competition. The “external” perspective brings into focus broader social norms such as anti-discrimination principles and equality goals. Both perspectives support the general idea of separate men’s and women’s competitions, at least in elite levels of sports that reward physical strength and power. The perspectives may diverge, however, on specific questions about who should be permitted to compete in each division, and more particularly, on the appropriate treatment of transgender athletes. What is important to see is that objections that arise from the external vantage point of equality and anti-discrimination cannot be fully answered by appeal to internal considerations about the competitive integrity of sport. Institutional decisions to exclude classes of individuals from participating in men’s or women’s competitions must consider not only what would be best for the sport, but what is required by antidiscrimination principles and genuine commitment to respect for gender identity and expression.

March 22, 2018 in Gender, Sports | Permalink | Comments (0)

The Long History of Women's Sports

Mary Anne Case, Heterosexuality as a Factor in the Long History of Women's Sports, 80 Law & Contemporary Problems  25 (2017)

Too many accounts of the development of women’s sports tend to posit their origin in the late nineteenth or even the twentieth century, as a belated, slowly developing, and sometimes vehemently resisted addendum to the development of sports for men. To begin a history of women’s sports at such a late date has several important distorting effects. Most simply, it ignores both the much longer history of women’s participation in many kinds of sports and the fact that the history of organized men’s sports as presently conventionally understood itself does not date back appreciably farther than the last century and a half. The history of women’s sports is more complicated than a progress narrative. Rather than seeing women being gradually admitted into more and more sports over time, we have to acknowledge that a variety of sports — from wrestling and boxing to polo and baseball — were played by women and were seen as suitable for women over long history. Women’s recent readmission to competition in some of these sports follows an intervening period of exclusion.

More significantly, to begin the history of women’s sports in the nineteenth century is to begin it in a time period in which men and women were seen, as both a descriptive and a normative matter, to be as different as possible from one another, with men strong and active, women delicate and passive. Thus, the modern history of sport is often seen to begin at precisely the time women were seen as least suited to participate in sports.

This article views the history of sports through a heterosexual matrix. It argues that from the dawn of time through the development of the modern Olympic movement, a culture’s openness to women’s participation in sports was tied to whether that participation was seen to have a heterosexual payoff. In ancient Greece and Africa as well as in medieval and early modern Europe, women’s sports often formed part of mating rituals, and a successful female competitor was seen as a desirable mate. In the nineteenth century, however, athletic and other sporting competition often was seen as doubly debilitating to a woman’s chances for heterosexual success: not only would sweating and the development of muscles make her unattractive, but strenuous physical exercise was thought to risk physiologically compromising her reproductive capacity. Rather than seeing physical fitness as conducive to reproductive fitness as had their ancestors, men like Pierre de Coubertin, founder of the modern Olympic movement, saw the two as in tension with each other.

After considering the extent to which these competing views of women’s athleticism in relation to heterosexuality influenced the development of women’s sports, the article will conclude by observing the remnants of a heterosexual matrix in twenty-first century sports, from figure skating and synchronized swimming to gymnastics and crew.

March 22, 2018 in Gender, Legal History, Sports | Permalink | Comments (0)

Evaluating Leadership Patterns of Modern Canadian Chief Justices

Cindy Ostberg & Matthew Wetstein, Strategic Behavior and Leadership Patterns of Modern Chief Justices

This study uses theories of strategic behaviour, leadership change and feminist theory to examine patterns of judicial activity by the three post-Charter chief justices. Building on prior scholarship, we use various methods to examine patterns of majority voting, dissenting activity, opinion writing, ideological voting, and panel size across the 1973-2014 period. While Chief Justice Lamer and Dickson exhibited clear patterns of task leadership, we find strong evidence of strategic change by Chief Justice McLachlin after her promotion to chief. She moved from a prolific dissenter as an associate justice to a chief that exhibited behaviour of both a task and social leader, which scholars see as highly uncommon. Her efforts to solidify her central role as a collegial leader within her own court are remarkable, and took place during a period of increasing panel sizes and a shrinking court docket.

March 22, 2018 in Courts, International, Judges | Permalink | Comments (0)

Wednesday, March 21, 2018

Before MeToo There was Catharine MacKinnon

 

MacKinnon

NYT, Before #MeToo, There was Catharine MacKinnon and her Book "Sexual Harassment of Working Women"

Catharine A. MacKinnon’s influential work of legal scholarship published in 1979, but it offers the clearest possible illustration of the dynamics that MacKinnon believed were central to the American workplace, a system in which women were judged by the standards imposed on wives and concubines, used and discarded similarly.

 

MacKinnon, whose work has helped shape thinking about harassment, wrote at a time when the trees were beginning to shake in a landscape that still looked a lot like Cheever’s. Women remained employed largely in their capacity to serve as secretaries, receptionists, nurses, typists, telephone operators, research assistants. In the book, MacKinnon draws on the observations of the sociologist Talcott Parsons, who noted that a woman in an “occupational organization” was essentially a “wife-mother,” tasked with ego-building, “housekeeping (tidying up, answering the phone, getting coffee)” and performing the attendant role of “sex object.” In 1976, aRedbook magazine survey examining sex at work brought a kind of loose statistical confirmation, with one in three respondents remarking that appearance was as important as any other qualification when it came to getting hired. MacKinnon cites one woman’s lament that the well-paid jobs always go to the prettiest girls. It was a woman’s fate to either endure the migratory hands of a male boss and earn a decent living, or wish she looked good enough to invite the indignities.

 

These arrangements made the sexual subjugation of women in offices and on factory floors inevitable. “Women tend to be economically valued according to men’s perceptions of their potential to be sexually harassed,” MacKinnon argues. “They are, in effect, required to ‘ask for it.’” These imbalances, built on the subordination of female labor to male desire, meant that coercion and compliance could never be disaggregated — a notion that only now, in the aftermath of so many harassment scandals, with replicating details, is finding its place in our collective recognition. MacKinnon and other feminists who are almost always tagged as “radical” reflexively saw what so many witnesses to the current revelations are still absorbing: Harassment has been endemic to the way we do business. It has been tireless and unyielding.

March 21, 2018 in Equal Employment, Gender, Legal History, Theory | Permalink | Comments (0)

Constitutional Conflict Over Inherent Differences Between the Sexes

Cary Franklin, Biological Warfare: Constitutional Conflict Over 'Inherent Differences' Between the Sexes, Supreme Court Review (forthcoming)

Equal protection law no longer recognizes so-called “inherent differences” among the races as a justification for discrimination. The law takes a different view of sex. It continues to recognize “inherent differences” as a legitimate ground for treating men and women differently — as long as the differential treatment does not perpetuate women’s subordination or reinforce traditional sex stereotypes. This doctrine raises a host of difficult questions, most notably, what counts as an “inherent difference”?

The Court confronted that question twice in its 2016 Term. In Pavan v. Smith, the Court had to decide whether Arkansas could treat same-sex couples differently from different-sex couples with respect to their children’s birth certificates. In Sessions v. Morales-Santana, the question was whether the federal government, for purposes of assigning citizenship, could treat non-marital children born abroad to mixed-nationality couples differently depending on the sex of their U.S. citizen parent. In both cases, the Court rejected the government’s ostensibly biological justification for the differential treatment. But the new and important ways in which it reasoned about biology in these cases has not received much notice. Commentators treated Pavan as an obvious and relatively unimportant extension of the Court’s famous 2015 same-sex marriage decision. Meanwhile, so much was happening in the context of immigration when Morales-Santana came down that it did not attract much attention — and what attention it did attract tended to focus on the unusual remedy the Court adopted, not its reasoning about biology. 

This Article argues that Pavan and Morales-Santana, especially when read together, are surprisingly transformative and consequential decisions. In the past, the Court has declined to apply heightened scrutiny to biologically-justified sex classifications in contexts involving gay people and unmarried fathers. As a result, these contexts have become repositories of specious biological justifications for discrimination; pregnancy, in particular, has been understood to justify all manner of differential treatment in these areas. In Pavan and Morales-Santana, the Court broke with this tradition by genuinely scrutinizing the state’s pregnancy-based justifications for discriminating and finding them constitutionally inadequate. In so doing, it struck a serious blow against the most formidable barrier to equal protection where gay people, unmarried parents — and pregnant women — are concerned.

March 21, 2018 in Constitutional, Family, Gender, SCOTUS | Permalink | Comments (0)

Family Dollar Stores Class Action Pay Discrimination Suit Settles for $45 Million

Class Action Gender Pay Discrimination Case Settles for $45 Million

Family Dollar agreed to pay $45 million to a class of female store managers who sued the company claiming they had been paid less than male store managers.  Earlier this week, a federal court approved the class action settlement.  The pay discrimination claims arose under Title VII of the 1964 Civil Rights Act as well as the Equal Pay Act.

 

In 2002, nearly 50 female Family Dollar store managers filed charges of discrimination with the Equal Employment Opportunity Commission (EEOC).  These charges alleged that the company had paid them less than similarly situated male store managers.

 

Plaintiffs then filed their lawsuit in federal court where it was “vigorously litigated” over the next ten years.  Among the issues contested were whether the class action could proceed in light of the Supreme Court’s watershed ruling on class action issues in the Walmart v. Dukes case in 2011.

 

Eventually, the parties reached a settlement agreement in 2017 and the court held a fairness hearing after which it decided to approve the settlement on March 14, 2018.

 

Under the settlement terms, the class of female Family Dollar store managers will receive a total of $45 million dollars.  The money will be distributed among the class members through the court-appointed settlement administrator.  The attorneys for the class will receive 1/3 of this amount ($15 million) as well as approximately $1 million in litigation expenses.

 

In addition, Family Dollar is required to, among other things, review its compensation practices related to store managers and to consult with labor economists in doing so.

March 21, 2018 in Equal Employment | Permalink | Comments (4)

CFP Journal of Women's History Special Issue on "Migration, Sex, and Intimate Labor, 1850-2000"

Call for Abstracts: Journal of Women’s History Special Issue “Migration, Sex, and Intimate Labor, 1850-2000”

by Jennifer Montgomery - Journal of Women's History

Call for Abstracts—Journal of Women’s History Special Issue “Migration, Sex, and Intimate Labor, 1850-2000”

The Journal of Women’s History is seeking expressions of interest to submit articles to a special issue on migration, sex, and intimate labor in the period between 1850 and 2000, in any local, national, transnational, or global context. It seeks to frame “intimate labor” within the long history of women’s involvement in domestic and sexual markets and their movement across and within borders for myriad forms of care and body work (Boris and Parreñas, 2010). This special issue will be positioned within an emergent historiography that examines the practices, discourses, regulation of, and attempts to suppress what has come to be known as “trafficking,” while foregrounding the ways in which a historical lens can destabilize this term. Such research brings the gendered and sexual history of migration and labor into dialogue with new literatures on the history of globalization, capitalism, citizenship, and mobility. It also speaks to on-going concerns in contemporary politics around the relationship between labor and movement, “forced” and “free” migration, and the politics of humanitarianism. As such, while firmly historical, this special issue will engage with and contribute to ongoing interdisciplinary discussions about “modern slavery,” international law, human rights, and the gendered migrant subject.

We are especially interested in work that:

  • Engages critically with the historical production of categories such as “trafficking,” “smuggling,” and migratory “illegality” as they have pertained to women’s migration
  • Examines sexual labor in the context of gendered migration and the broader category of intimate labor(s)
  • Explores the historical lived experience of migrating for intimate, domestic, and sexual labor
  • Looks at local, national, and international responses to female migrants who were defined as trafficked, illegal, or exploited
  • Places trafficking and women’s intimate labor within a wider discourse of indenture, slavery and un-freedom; as well as imperialism, mobility, and globalization

We are interested in any thematic or methodological approach, but would especially welcome work that focuses on the global south, imperial contexts, and non-white subjects. Work can be locally, nationally, transnationally, globally, or comparatively focused. All submissions must be historical in focus.

Prospective contributors to this special issue are asked to send an extended abstract of 1,000 words to the issue’s guest editors, Julia Laite (j.laite@bbk.ac.uk) and Philippa Hetherington (p.hetherington@ucl.ac.uk) by 1 June 2018. Abstracts should describe the prospective article and how it explicitly engages with the theme of the special issue. Authors should also include a discussion of the sources—archival or published—they will be using in the article.

Selected contributors will be informed within two months and asked to submit a complete manuscript by 1 June 2019, which will go through the JWH’s standard process of peer and editorial review. If the manuscript is accepted for publication at the end of this process, it will be published in the special issue.

March 21, 2018 in Call for Papers, Gender, Legal History | Permalink | Comments (0)

Monday, March 19, 2018

Catharine MacKinnon and Gretchen Carlson Talk Sexual Harassment

Catharine MacKinnon and Gretchen Carlson Have Few Things to Say

Sexual harassment “was not considered anything you could do something about — that the law could help you do something about — until a book was written by a then-young woman named Kitty MacKinnon,” the Supreme Court justice Ruth Bader Ginsburg said at the Sundance Film Festival in January. She was there to attend the premiere of the documentary “RBG,” which will be released this spring. And the book, “Sexual Harassment of Working Women,” published in 1979, argued that sexual harassment in the workplace is sex discrimination and prohibited by equal protection laws.

 

“It was a revelation,” Justice Ginsburg said. “And it was the beginning of a field that didn’t exist until then.”

 

The Supreme Court agreed with Catharine A. MacKinnon. In its first case involving sexual harassment in 1986, with Ms. MacKinnon as co-counsel, the court ruled unanimously that sexual harassment is sex discrimination.

 

For over 40 years, Ms. MacKinnon, 71, has been a pioneer and lightning rod for sex equality. Along with her work on sexual harassment, she has argued, more controversially, that pornography and prostitution constitute sexual abuse of women in the context of social inequality.

 

Ms. MacKinnon now teaches law at the University of Michigan and Harvard. (In 1990, I studied with her, in a class called “Sex Equality,” when she was a visiting professor at Yale Law School.) Her most recent book, “Butterfly Politics,” surveys her four decades of activism.

 

Last month, she met Gretchen Carlson, the former Fox News anchor who, more recently, became a public face of sexual harassment. In July 2016, Ms. Carlson sued Roger Ailes, then chairman and chief executive of Fox News, claiming sexual harassment. After dozens of women came forward with their own accounts of harassment by Mr. Ailes, he was forced to resign.

 

Two months later, 21st Century Fox, the parent company of Fox News, settled Ms. Carlson’s harassment claim for $20 million and issued a rare public apology for her mistreatment. (Mr. Ailes died in May.)

 

Ms. Carlson, 51, is the author of the best-selling book “Be Fierce: Stop Harassment and Take Your Power Back.” A former Miss America, she was named chairwoman of the Miss America board of directors in January.

The article includes an in-depth interview with both women.

March 19, 2018 in Law schools, Violence Against Women, Women lawyers | Permalink | Comments (0)