Gender and the Law Prof Blog

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

Thursday, September 27, 2018

UK Top Judge Says Women Judges Make Better Decisions

UK's Top Judge Justice Brenda Hale: Female Judges Make Better Decisions

One of the world's top judges says female judges improve the quality of judicial decisions.

 

And she admits, in an exclusive New Zealand interview with the Herald, it may be viewed as a "controversial" comment.

 

I was one of only six [female] law school students," the 73-year-old said.

 

"At that stage the first woman High Court judge in England had only just been appointed."

 

However, she said courts still don't have enough women serving on the bench.

 

"This is the most controversial," she went on to say. "Do women make different decisions from men? To which the answer is, having women on the court improves the quality of decision making," she said.

 

"It improves the quality of debate, it makes certain things much more difficult to say and do, counters sub-conscious biases, we all have them ... and just from time to time, having a woman's voice on a decision makes a difference."

 

She explained a woman's life experience allowed for better decision-making.

September 27, 2018 in Courts, Judges, Women lawyers | Permalink | Comments (0)

EEOC Files Pregnancy Discrimination Lawsuit against Walmart

US Agency Accuses Walmart of Pregnancy Discrimination in Lawsuit

The U.S. Equal Employment Opportunity Commission on Friday filed a lawsuit accusing Walmart Inc of forcing pregnant workers at a Wisconsin warehouse to go on unpaid leave and denying their requests to take on easier duties.

 

The EEOC, which enforces federal laws banning discrimination in the workplace, said Walmart’s distribution center in Menomonie, Wisconsin, has discriminated against pregnant employees since 2014. Federal law requires employers to accommodate workers’ pregnancies in the same way as physical disabilities.

 

Friday’s lawsuit, filed in federal court in Wisconsin, stems from a complaint filed by Alyssa Gilliam, an employee at the Walmart warehouse in Menomonie.

 

The EEOC in the lawsuit said Gilliam became pregnant in 2015, and Walmart denied her requests for restrictions on heavy lifting, additional breaks, and a chair to use while working.

 

The commission said Walmart refused similar requests by other pregnant workers at the warehouse, but granted them for workers with disabilities or injuries.

 

The federal Pregnancy Discrimination Act prohibits workplace discrimination against pregnant women. In a 2015 decision involving United Parcel Service Inc, the U.S. Supreme Court said the law requires employers to provide the same accommodations to pregnant women as it does disabled workers.

 

September 27, 2018 in Books, Business, Equal Employment, Pregnancy | Permalink | Comments (0)

A Historical Picture of Eleven Women Who Could Have (or Would Be) on the Supreme Court

Meg Penrose, The Way-Pavers: Eleven Supreme Court-worthy Women, Harvard J. Law & Gender (online) (July 2018)

Four women have served as associate justices on the United States Supreme Court. Since the Court’s inception in 1789, more than 160 individuals have been nominated to serve as Supreme Court justices. Five nominees, or roughly 3 percent, have been women. To help put this gender dearth in perspective, more men named “Samuel” have served as Supreme Court justices than women. Thirteen U.S. presidents have each nominated more people to the Supreme Court than the total number of women that have served on the Court. Finally, there are currently as many Catholics serving on the Supreme Court as the number of women confirmed in the Court’s entire history.

 

Women, once thought of as “one-at-a-time-curiosities” on the bench, now constitute nearly one-third of all state and federal judges. They occupy the highest posts on state supreme courts and can be found, in similar numbers, at the trial and appellate levels. If we limit our consideration to the current Supreme Court, women held one-third of the seats on our Supreme Court at the time of Justice Kennedy’s 2018 retirement. Yet, this number is deceptive since women on the highest court is a modern phenomenon.

 

Qualified women have been available for selection for many years—long before Justice Sandra Day O’Connor became the first woman on the Supreme Court, or FWOTSC, as she refers to herself. It was not until a 1980 campaign promise by then-Governor Ronald Reagan to appoint the first female justice to the Supreme Court that a woman broke one of our government’s last gender barriers. Presidents prior to that time were complicit in allowing male members of the Court, among other influences, to stave off appointments of well-qualified women. So, women waited. But now, women account for four of the last thirteen Supreme Court appointments and five of the past seventeen nominees. Clearly, the numbers are increasing.

 

This Essay presents the second scholarly ranking of female jurists deserving of a seat on the highest court in the land. The list celebrates eleven judicial way pavers: Ruth Bader Ginsburg, Sandra Day O’Connor, Sonia Sotomayor, Elena Kagan, Florence Allen, Constance Baker Motley, Shirley Huftstedler, Patricia Wald, Cornelia Kennedy, Harriet Miers and, Belva Lockwood. Each of these women is, or was, Supreme Court-worthy. Yet only four of them actually occupy or have occupied a place on the Court.

September 27, 2018 in Legal History, SCOTUS, Women lawyers | Permalink | Comments (0)

Thursday, September 20, 2018

Assessing the Sex Diversity Dividend for Corporate Boards

Darren Rosenblum,  When Does Board Diversity Benefit Firms?

Firms embrace diversity, especially with regard to sex. Overtly optimistic predictions of a diversity dividend, some built on sex stereotypes, lead these firms to count on profits that may never materialize. This Article attempts to reset the agenda on how to study corporate board diversity. We can only assess if and how sex diversity yields benefits by understanding the who, what, and where of diversity. Whether sex diversity produces a “diversity dividend” depends on three key factors: (1) the nature of the benefit of including women (whether for their experience or other qualities); (2) the kind of firm and its governance; and (3) the jurisdiction(s) in which the firm operates. Only by further investigating the precise conditions under which diversity will have an effect can we estimate the potential instrumental benefits of sex diversity.

September 20, 2018 in Business, Gender | Permalink | Comments (0)

Why More Colleges are Trying Restorative Justice in Sex-Assault Cases

Why More Colleges are Trying Restorative Justice in Sex-Assault Cases

The College of New Jersey is among a small but growing number of institutions that now offer alternatives to trial-like investigations that critics say can be traumatic for everyone involved. The U.S. education secretary, Betsy DeVos, has indicated, through Title IX guidance issued in 2017 and then in draft regulations obtained and reported last month by The New York Times, that the Trump administration welcomes alternative ways of handling sexual-misconduct disputes.

 

Approaches that start with the offender admitting responsibility and agreeing to repair the harm appeal to some students who aren’t interested in seeing someone suspended or expelled. Proponents see alternative resolution agreements as a way to cut down on Title IX investigations, save colleges money, and potentially be fairer to the accused.

 

But skeptics worry students will feel pressured to bypass a formal investigation and will regret it later on if offenders get off too easily. And asking a student to sit down with an assailant and work out an agreement is not only unrealistic, they argue, but possibly retraumatizing.

 

The agreement reached by the two students at the New Jersey college didn’t require face-to-face conversations, but they did have to agree on certain stipulations. He would attend a workshop on consent and alcohol-education classes. She wanted him to know how different people’s bodies react to alcohol and how it affects their ability to consent to sex. He would view an online seminar on the neurobiology of sexual assault. The seminar, by Rebecca Campbell, a professor of psychology at Michigan State University, had helped her make sense of her confusing emotional reaction to what she later considered an assault.

 

Both students had a few days to view and suggest changes in the two-page agreement.

 

"We don’t want this to be seen as a get-out-of-jail-free card," said Jordan L. Draper, dean of students and Title IX coordinator. "It’s an educational opportunity."

 

Draper is a proponent of what’s known as restorative justice, an umbrella term that covers a variety of interventions aimed at healing rather than assessing blame and punishing.

September 20, 2018 in Education, Violence Against Women | Permalink | Comments (0)

Tracing Catharine MacKinnon's Equality Theory

Chao-Ju Chen, Catharine A. MacKinnon and Equality Theory in Robin West and Cynthia Bowman eds, Research Handbook on Feminist Jurisprudence (2018, Edward Elgar), Forthcoming

This chapter discusses Catharine A. MacKinnon’s theory of sex equality, its application as well as major strands of criticism. Beginning with a radical critique of liberal legalism, feminism and Marxism, MacKinnon conceived a hierarchy-centered theory of substantive equality, shifting the paradigm of equality thinking from questions of sameness and difference to the power structure of dominance and subordination. Drawing on feminist consciousness raising as method, her theory sees gender as an inequality and sexuality as the linchpin of gender inequality. It is also an engaged theory producing sex equality laws to address women’s sexual violations: sexual harassment as a legal injury and a form of sex discrimination; a harm-based civil-rights approach to pornography; an asymmetrical approach to the abolition of prostitution; and an inequality approach to rape as a gender-based crime. Against challenges from anti-essentialist and sex-positive critiques, MacKinnon’s theory embraces intersectionality as a method and pursues equality by resisting sexual oppression.

September 20, 2018 in Theory, Women lawyers | Permalink | Comments (0)

Wednesday, September 19, 2018

The Impact of Liberal Feminism and Critical Race Theory on Reproductive Rights and Justice in the U.S.

Lisa Chiyemi Ikemoto, Reproductive Rights and Justice: A Multiple Feminist Theories Account in Research Handbook on Feminist Jurisprudence (Robin West and Cynthia Bowman eds., Elgar Press, Forthcoming)

This chapter examines the impact of liberal feminism and critical race theory on reproductive rights and justice in the United States. Liberal feminism has played a key role in this fight. Other feminist theories, including, prominently, critical race theory, have taken the mainstream reproductive rights movement to task for marginalizing the voices and experience of women of color and low-income women, thus reinforcing stratified reproduction. This work has put issues like surrogacy, coerced sterilization, welfare family caps and criminal prosecution of pregnant women on the reproductive rights and justice agenda. Interaction among feminist theories has produced a dialectic and evolution that enable them to meet new challenges. Similarly, a multi-theory account of reproductive rights and justice issues produces a more useful analysis and range of strategies than a single theory approach.

September 19, 2018 in Abortion, Family, Race, Reproductive Rights, Technology | Permalink | Comments (0)

On Feminist Theorist Martha Fineman's Legacy and Contribution to the Law

Linda McClain, Formative Projects, Formative Influences: Of Martha Albertson Fineman and Feminist, Liberal, and Vulnerable Subjects, 67 Emory L. J. (2018)

This essay, contributed to a symposium on the work of Professor Martha Albertson Fineman, argues that Fineman is a truly generative and transformative scholar, spurring people to think in new ways about key terms like “dependency,” “autonomy,” and “vulnerability” and about basic institutions such as the family and the state. It also recounts Fineman’s role in creating spaces for the generation of scholarship by others. The essay traces critical shifts in Fineman’s scholarly concerns, such as from a theory of dependency to vulnerability theory and from a gender lens to a skepticism about a focus on identities and discrimination. In evaluating Fineman’s call to move beyond identities and antidiscrimination law, the essay explores the rhetoric of vulnerability in the briefs in the recent Masterpiece Cakeshop litigation. This essay also charts my own critical engagement with Fineman’s critique of liberalism and the liberal subject in my constructing a form of liberal feminist legal and political theory. The essay identifies parallel concerns about the role of the state and civil society, comparing a liberal feminist formative project of fostering capacity and vulnerability theory’s project of building resilience.

September 19, 2018 in Theory | Permalink | Comments (0)

UK Highest Court will Have a Female Majority Hear a Case for the First Time in 600 Years

Female Majority to Hear Supreme Court Case for First Time in History

The UK's highest court is to have a female majority hear a case for the first time in 600 years.

Almost one hundred years after a law was passed allowing women to practice as barristers, three women and two men will decide a case in the highest court in the country.

Three of the five judges who are set to hear a Supreme Court case on October 3 about a 16-year-old with Asperger's Syndrome and learning difficulties are female.

Lady Hale, the court's first female president, has previously spoken out about the need for more women at the top of the judiciary. Earlier this year she said women were "seriously underrepresented" among senior judges, warning that women were forced to move into the public sector because of the difficulty of combining high-flying legal jobs with family and caring responsibilities.

September 19, 2018 in Courts, International, Judges | Permalink | Comments (0)

Tuesday, September 18, 2018

Will Tort Law Have its MeToo Moment

Martha Chamallas, Will Tort Law Have its #MeToo Moment?, Journal of Tort Law (forthcoming)

Using tort law’s treatment of claims for domestic violence and sexual assault as examples, this essay identifies prominent features of a feminist historical approach to law to demonstrate how gender inequality is reproduced over time, despite changes in legal doctrine. When informed by feminist theory, history can function as a critique of past and present regimes of inequality, highlighting the various techniques of exclusion and marginalization that emerge to prevent law from redressing serious, recurring injuries suffered disproportionately by women. The essay explores two such techniques: sexual exceptionalism that treats gender-related torts differently than other harms and the adoption of ostensibly neutral rules that have a disparate impact on women and marginalized groups. The essay speculates as to whether the #MeToo movement can provide the momentum to produce a break from the past, particularly with respect to third-party claims holding employers and other institutional defendants responsible for sexualized harms.

September 18, 2018 in Theory, Violence Against Women, Workplace | Permalink | Comments (0)

Constraining Criminal Law's Influence on the Title IX Process

Margaret Drew, It's Not Complicated: Containing Criminal Law's Influence on the Title IX Process

Title IX processes that address campus sexual assault are undergoing dramatic changes in structure as well as in policy review. After receipt of the Department of Education’s 2011 “Dear Colleague” letter, colleges and universities were impelled to review how their institutions were implementing Title IX. From website information through investigation and decision-making on alleged violations, the ways in which higher education addresses federally guided changes is a matter of national conversation. This article addresses change considering campus sexual assault allegations, and does not explicitly address other forms of Title IX complaints, such as athletic funding and opportunities. This essay limits discussion to sexual harassment and sexual discrimination Title IX claims only, particularly, sexual assault.

 

The primary topic of ongoing concern is how Title IX investigations and hearing processes are conducted. Review, and in some cases revision, of campus policies was prompted by two interconnected influences. The first was the referenced letter from the Department of Education, and the second was due process and other criticisms raised by those who advocate within the criminal justice framework. This essay explores the impact that criminal law and criminal lawyers have had on Title IX processes. Part of this exploration will include the ABA Criminal Justice Section’s recommendations on how Title IX sexual harassment complaints should be handled. Unknown at the time of this writing is whether the administration will be influenced by these recommendations, although to date it has not. As of this publication, Secretary of Education, Betsy DeVos, met with representative survivors and their advocates, as well as those who claim to have been wrongfully accused. The Secretary also accepted comments on deregulation, which included a review of Title IX regulations. The proposed regulation review was part of the administration’s “Enforcing the Regulatory Reform Agenda.” We can anticipate change, although when and what change is undetermined now. To date, the primary action taken by Secretary DeVos was the rescission of the Obama Era “Dear Colleague” letter discussed early in this article. Incorporated throughout this discussion are the changes, as well as the complications, that develop when the Title IX process is viewed through a criminal justice lens. Particularly explored, is how stereotypes regarding women’s credibility forms the foundation of challenges faced by survivors of sexual assault who seek relief. The last section of this essay addresses proposed recommendations to address the needs of those accused as well as protecting the harmed student.

 

More changes from the Secretary of Education are expected, which makes consideration of the concerns addressed in this article vital.

September 18, 2018 in Education, Violence Against Women | Permalink | Comments (0)

Challenging Nuisance Ordinances That Penalize Domestic Violence Victims

ACLU, A Missouri Town Will Finally Stop Banishing Residents for Reporting Domestic Violence

In cities across America, calling 911 can get you evicted. This week, a city less than 10 miles outside of St. Louis agreed to stop enforcing this inhumane policy as part of an extensive settlement.

 

Last year, we filed a federal lawsuit on behalf of Rosetta Watson, a domestic violence survivor who was kicked out of her home and city because she called the police. Under a local ordinance in Maplewood, Missouri, anyone making more than two calls to the police for domestic violence was designated a “nuisance,” with no exception for victims. Ms. Watson called the police four times, when her ex-boyfriend kicked in her front door, punched her, and strangled her. Based on those calls, Maplewood revoked her occupancy permit, and she was banished from living in Maplewood for six months. For years afterwards, she struggled with fear of her abuser, distrust of law enforcement, and the inability to keep a stable home. * * *

 

The case against Maplewood is just the latest in our fight against nuisance ordinances. The Metropolitan St. Louis Equal Housing & Opportunity Council found 69 similar ordinances in the St. Louis region, and we estimate there are thousands across the country. For example, the ACLU published a report with the New York Civil Liberties Union last month, showing how different cities in New York often enforced these kinds of ordinances in communities of color and where poor people live, imposed harsh penalties for low-level offenses, and harmed domestic violence survivors and those in need of emergency aid.  

September 18, 2018 in Family, Violence Against Women | Permalink | Comments (0)

Monday, September 10, 2018

Number of Women Arguing Before the Supreme Court has Fallen Off Steeply

 ABA J, Number of Women Arguing Before the Supreme Court Has Fallen Off Steeply

Justices Ginsburg, Sonia Sotomayor, Elena Kagan and their male colleagues saw fewer women arguing before them in the 2017-18 term, and the fewest to participate in oral argument in at least seven years.

 

During the recently completed term, there were 19 appearances at oral argument by women, or about 12 percent of the total 163 appearances, according to statistics kept by Kedar Bhatia for SCOTUSblog. (There were 113 different advocates who argued for parties or amici in the 63 argued cases, with several lawyers appearing more than once.)

 

The 12 percent figure was a steep drop from the previous term (2016-17), when 21 percent of appearances at oral argument were by women. In the previous five years to that term, the participation rate for women ranged from a low of 15 percent to a high of 19 percent.

 

“The thing that’s most disturbing to me is the consistency in the data,” says Jennifer Crystal Mika, an adjunct professor at American University’s Washington College of Law in the nation’s capital, who has studied the issue of female advocates before the high court. “There has never been much more than 20 percent female advocates over the last 20 years.”

September 10, 2018 in SCOTUS, Women lawyers | Permalink | Comments (0)

Women Lawyers, Particularly Women of Color, Report Persistent Bias at Work in New ABA Study

NYT, Lawyers Say They Face Persistent Racial and Gender Bias at Work

Women and people of color in the legal profession continue to face barriers in hiring, promotions, assignments and compensation, according to a study released Thursday by the American Bar Association.

 

The survey, which proposes strategies for employers to eliminate the barriers, was conducted by the Center for WorkLifeLaw at the University of California, Hastings College of the Law, for the bar association’s Commission on Women in the Profession and the Minority Corporate Counsel Association. *** 

 

The researchers had 2,827 lawyers fill out online surveys in spring 2016 about their experiences at work. The surveys were distributed by the bar association’s email list and other professional networks. The association has 400,000 members.

 

They found that many women and people of color felt they were held to a higher standard than white men. That feeling was most prevalent among women of color, who reported the highest levels of bias in almost every category.

 

About half of the women of color said they felt they had equal access to the kind of “high-quality” assignments that lead to exposure and advancement in an organization. Among white men, that number was 81 percent.

 

Women of all races said they had to walk a “tightrope” in their behavior. They reported pressure to behave “in feminine ways” and a backlash for exhibiting stereotypically male behaviors. They were more often saddled with “office housework,” like taking notes, ordering lunch or comforting a co-worker in distress.

 

In a law firm, that kind of work reduces billable hours, which can hurt compensation. And while it takes up time and energy and helps the organization, it often does not lead to career advancement. The report states that a lack of opportunities to take on challenging work also contributes to high attrition rates among women in law firms.

 

Many women said they felt they were paid less than their colleagues with similar experience. (Almost 70 percent of women of color said so, compared with 60 percent of white women and 36 percent of white men.)

 

And a quarter of female lawyers reported that they had experienced sexual harassment at work, including unwanted sexual comments, physical contact and romantic advances. Those episodes sometimes had career costs. About one in eight white women, and one in 10 women of color, said they had lost opportunities because they rejected sexual advances.

 

Among all respondents, about 70 percent said they had heard sexist comments, stories or jokes at work. And while the numbers were higher among women, lawyers of both genders felt that taking parental leave would have a negative impact on their career.

 

“You’ve got systemic barriers in place,” said Ms. Mayes, who is the chief legal counsel for the New York Public Library. “If you don’t think a woman with children should be promoted, if the woman has children of a certain age or expects to, that’s a huge impediment.”

 

According to the latest report from the bar association’s Commission on Women in the Profession, only 35 percent of active American lawyers in 2016 were women, and they earned less than their male colleagues. Of the top lawyers for Fortune 500 companies, just 26 percent were women. And while women graduate from law schools in large numbers, they made up only 32 percent of law school deans.

 

The report lays out methods and practices for organizations to counter bias, with an emphasis on using metrics to track and encourage fairness. They include abolishing questions about prior salary in job interviews, having boilerplate questions and policies for interviews and performance evaluations, and monitoring supervisors to ensure there are no consistent disparities by demographic group.

September 10, 2018 in Equal Employment, Women lawyers | Permalink | Comments (0)

Are Breastfeeding Protection Laws Anti-Feminist?

Dara Purvis, Are Breastfeeding Protections Anti-Feminist? JOTWELL, reviewing Meghan Boone, Lactation Law, ___ Calif. L. Rev. ___ (forthcoming 2018), available at SSRN.

If one reason that women have been held back in the workforce is difficulty reconciling caregiving responsibilities and work-related duties, then one obvious method of reform should be to require employers to accommodate caregiving, particularly those forms of caregiving that are disproportionately or exclusively fulfilled by women. For example, because a typical full-time work schedule is not conducive to a new mother’s schedule of breastfeeding or pumping breast milk, many women are forced to prioritize work over breastfeeding. In response, both state and federal laws require employers of a certain size to accommodate new mothers returning from maternity leave by providing them with breaks and a suitably private area in the workplace to pump breast milk, allowing them to return to work and continue to feed their babies breast milk. Surely a win for feminism and facilitating women’s employment choices, right?

 

In her forthcoming article Lactation Law, Meghan Boone answers no, at least as such statutes are currently written. From the opening paragraphs, she poses a startlingly counterintuitive example of a Maine teacher whose child was stillborn. In the following days, she began lactating, an understandably traumatic process for someone mourning a stillbirth. As she grieved, she learned of nonprofit organizations that collected donated breast milk and distributed it to babies who would otherwise not be fed breast milk and decided to participate. The school where she worked, however, refused to accommodate her pumping breast milk because the Maine statute that required employers to accommodate lactation only applied to mothers nursing or pumping milk for their own children. Because the teacher’s breast milk would be donated to other babies, the school was not required to accommodate her desire to pump breast milk while she was at work.

 

From this difficult puzzle, Boone identifies a troubling feature of statutes protecting the right to pump breast milk at work or breastfeed in public: such laws do not protect women qua women. They protect infants, justified by the current medical opinion that infants fed breast milk enjoy health advantages that are not available to formula-fed infants. The significance of breastfeeding and pumping breast milk, in other words, has little to do with the lactating woman. Rather, lactation is a service that a mother provides to her child.***

 

This may seem like a distinction without a difference, but Boone persuasively outlines how legal protections for lactation reject decisions that characterize breastfeeding as an autonomy interest that shapes women’s decisions about how to mother, and instead underscore societal perceptions of what mothers should be.

 

On this reading, Boone argues, the current state of lactation law further entrenches gendered expectations, which, at least in some respects, is worse than having no lactation law at all. Existing statutes reinforce the idea of breastfeeding as something that women should do if they are the right kind of mother, but not for too long, and not in ways that fall outside of the norm. Boone proposes fundamental changes to lactation law: focusing on the physiological experience of lactation rather than a maternal relationship, removing the justification tied to an infant biologically related to the lactating woman, and recognizing that promoting women’s health is also a public goal supported by lactation law. Her reforms are a thoughtful and comprehensive solution to the deep-rooted issues with current flawed protections of lactating women. My only quandary is that Boone’s demonstration of the gender and maternal stereotypes embodied in lactation law is so thoroughly persuasive that it makes the prospect of reform seem very unlikely.

September 10, 2018 in Family, Workplace | Permalink | Comments (0)

Tuesday, September 4, 2018

Is MeToo Only a Social Movement or a Legal Movement Too?

L. Camille Hebert, Is "MeToo" Only a Social Movement or a Legal Movement Too?, 22 Employee Rights & Employment Policy J. (2018)

This essay discusses some of the effects of the “MeToo” movement as a social movement, bringing issues of sexual assault and sexual harassment to the forefront. The essay then raises the question of whether that movement might also have implications for the law of sexual harassment. The essay discusses three elements of the law of sexual harassment—the “because of sex” requirement, the requirement that the harassment be subjectively hostile and objectively severe or pervasive, and the standard for employer liability for harassment—and explores the way that the “MeToo” movement might affect the way in which courts apply those elements. The essay then discusses other ways in which the law relevant to sexual harassment claims has been and may be changed by the movement, including with respect to mandatory pre-dispute arbitration agreements and nondisclosure agreements.

September 4, 2018 in Equal Employment, Workplace | Permalink | Comments (0)