Gender and the Law Prof Blog

Reading List for Law & Gender on Halloween

It's Halloween... which for law and gender means time to remember the Salem Witch Trials. 

Most of the victims of the trials were women.  And most of the accusers.  Scholars have talked about the trials as misogyny and at the same time as women's assertion of agency and power.  They also suggested the lax evidentiary standards allowed social judgments about women to be determinative of legal guilt.

Stacy Schiff, The Witches: Salem, 1692 (2015)

Carol Karlsen, The Devil in the Shape of a Woman (1998)

Jane Moriarty, Wonders of the Invisible World: Prosecutorial Syndrome and Profile Evidence in the Salem Witchcraft Trials, 26 Vermont L. Rev. 43 (2001)

Mary Beth Norton, In the Devil's Snare: The Salem Witchcraft Crisis of 1692 (2003)

Peter Hoffer, The Salem Witchcraft Trials: A Legal History (1997)

 

See also a prior blog post: Witchcraft Related Violence: Human Rights Violations Against Women Labeled "Witches"

Exploring the Feminist Critique of #MeToo

Brenda Cossman, #MeToo, Sex Wars 2.0 and the Power of Law, Asian Yearbook of Human Rights and Humanitarian Law (Forthcoming)

In this essay, I explore these contestations between and among feminists within the #MeToo movement. Some feminists have expressed discomfort and disagreement with elements of the #MeToo. This critique was quickly framed as a generational one, with media reports focusing on the conflict between millennials and second wave feminists. I argue that it is more productive to situation the disagreements and contestations of #MeToo within the context of what I refer to as Sex Wars 2.0 – that is, the return of the feminist sex wars of the 1970s and 1980s. I also explore the controversies around role of law in the #MeToo movement. #MeToo critiques, including some feminist voices, have denounced the absence of the rule of law, with individual men losing their livelihoods without the due process of law. I argue that this critique is itself symptomatic of the broader role of law in the legal regulation of sexual violence. Law has long been the arbiter of sexual violence, both defining and harms and deciding whether that harm has occurred. Even in its apparent absence, law is I argue deeply present. It is this power of law that casts a long shadow over #MeToo and helps explain the due process critiques and some of the feminist contestations around the overreach of law.

New Book: First, Sandra Day O'Connor

Evan Thomas, First: Sandra Day O'Connor (forthcoming 2019)

The intimate, inspiring, and authoritative biography of Sandra Day O’Connor, America’s first female Supreme Court justice, drawing on exclusive interviews and first-time access to Justice O’Connor’s archives—by the New York Times bestselling author Evan Thomas.

“She’s a hero for our time, and this is the biography for our time.”—Walter Isaacson

She was born in 1930 in El Paso and grew up on a cattle ranch in Arizona. At a time when women were expected to be homemakers, she set her sights on Stanford University. When she graduated near the top of her law school class in 1952, no firm would even interview her. But Sandra Day O’Connor’s story is that of a woman who repeatedly shattered glass ceilings—doing so with a blend of grace, wisdom, humor, understatement, and cowgirl toughness.

She became the first ever female majority leader of a state senate. As a judge on the Arizona State Court of Appeals, she stood up to corrupt lawyers and humanized the law. When she arrived at the United States Supreme Court, appointed by President Ronald Reagan in 1981, she began a quarter-century tenure on the Court, hearing cases that ultimately shaped American law. Diagnosed with cancer at fifty-eight, and caring for a husband with Alzheimer’s, O’Connor endured every difficulty with grit and poise.

Women and men who want to be leaders and be first in their own lives—who want to learn when to walk away and when to stand their ground—will be inspired by O’Connor’s example. This is a remarkably vivid and personal portrait of a woman who loved her family, who believed in serving her country, and who, when she became the most powerful woman in America, built a bridge forward for all women.

Judiciary Plan to Deal with Sexual Harassment is Not Enough, Say Attorneys and Law Professors

The Judiciary Has a Plan to Deal with Sexual Harassment. Law Students, Former Clerks, and Professors Say It's Not Enough.

The federal judiciary last month proposed a series of changes to its internal rules on sexual harassment and how the courts respond to complaints against judges. Former law clerks, ethics experts, and law students say they don’t go far enough.

 

The courts have been grappling with how best to police themselves in the wake of sexual misconduct allegations against former prominent federal appeals judge Alex Kozinski, who resigned in December after a number of his former clerks accused him of inappropriate behavior. The proposed rules changes include requiring judges to report misconduct by their colleagues — and making it a disciplinable offense not to — adding stronger language defining and condemning harassment, and making clear that rules about court confidentiality don’t prohibit employees from reporting misconduct.

 

In the federal courts, judges run the discipline process, including handling sexual misconduct complaints against their colleagues. The #MeToo movement presents the latest test of whether these systems are strong enough to hold federal judges with lifetime tenure accountable and protect those working alongside them. (There is no binding code of conduct or disciplinary process for the US Supreme Court.)

 

At a public hearing Tuesday, witnesses testified that the draft changes were a good first attempt, but needed to be stronger and more specific. Kendall Turner and Jaime Santos, lawyers who have led a group of former federal law clerks pushing for reforms, testified that the judiciary should be more transparent about complaints against judges and how they’re resolved, bring in outside investigators to handle certain complaints, and do more to involve victims in the process.

 

Renee Knake, a legal ethics expert at the University of Houston Law Center, proposed adding a prohibition on consensual romantic relationships between judges and clerks and other employees, saying it would remove the risk of unwanted overtures and situations where a clerk or court employee felt pressured to agree to a date. She noted many law schools have similar policies. Knake also pitched an annual anonymous survey that includes past and current law clerks. ***

 

“No one should have to endure sexual harassment as a rite of passage into the legal profession,” said Knake, who told the judges that when she was in law school she was warned to avoid clerking for a judge known for mistreating clerks.

 

Carol Needham, a legal ethics expert at the Saint Louis University School of Law, pointed to proposed new language stating that judges “should” perform their “duties with respect for others, and should not engage in behavior that is harassing, abusive, prejudiced, or biased.” Needham suggested changing “should” to “shall” or “must,” saying that sentiment shouldn’t be “aspirational.”

More Perfect Podcast: The Nineteenth Amendment with a Song by Dolly Pardon

The Most Perfect Album: Episode 4

This season, More Perfect is taking its camera lens off the Supreme Court and zooming in on the words of the people: the 27 amendments that We The People have made to our Constitution. We're taking on these 27 amendments both in song and in story. This episode is best listened to alongside 27: The Most Perfect Album, an entire album (an ALBUM!) and digital experience of original music and art inspired by the 27 Amendments. Think of these episodes as the audio liner notes.

Episode Four begins, as all episodes should: with Dolly Parton. Parton wrote a song for us (!) about the 19th Amendment and women (finally) getting the right to vote.

 

Also in this episode: Our siblings at Radiolab share a story with us that they did about how the 19th Amendment almost died on a hot summer night in Tennessee. The 19th Amendment was obviously a huge milestone for women in the United States. But it was pretty well-understood that this wasn’t a victory for all women; it was a victory for white women.

 

Read the lyrics to Dolly Parton's 19th Amendment song here.

Feminist Judgments and #MeToo

Margaret Johnson, Feminist Judgments & #MeToo

The Feminist Judgments book series and the #MeToo movement share the feminist method of narrative. Feminist Judgments is a scholarly project of rewriting judicial opinions using feminist legal theory. #MeToo is a narrative movement by people, primarily women, telling their stories of sexual harassment or assault. Both Feminist Judgments and #MeToo bring to the surface stories that have been silenced, untold, or overlooked. These narrative collections can and do effectuate gender justice change by empowering people, changing perspectives, opening up new learning, and affecting future legal and nonlegal outcomes.

Narrative’s power is evidenced by the #MeToo movement, which resurged on October 16, 2017. People posted their personal stories of being subjected to sexual  harassment or assault—often contradicting previously assumed or accepted narratives told by powerful people. Within twenty-four hours, there were more than twelve million #MeToo posts on Twitter, Facebook, and other social media platforms. And people listened to the en masse telling of how (generally) men had exercised the power and control of sexual assault, harassment or misconduct. The listening shifted power structures. In less than two months, these narratives led to the removal of influential men from their previously vaunted positions. ***

 

The Feminist Judgments Project questions the assumption that published court opinions are the only acceptable narrative of a judicially addressed conflict. In rewriting landmark opinions from a feminist perspective, the project brings to the surface untold, ignored, and suppressed alternative narratives of those conflicts. The project examines court opinions and rewrites them using the same facts and case precedent as the original opinion—but in a new light. That new light is feminist legal theory. With the new perspective, or what Professor Carolyn Grose calls “goggles,” in place, different facts and precedent may come into view.

Online Symposium on Feminist Judgments and Rewritten Opinions of the US Supreme Court

Online Symposium on Feminist Judgments: Rewritten Opinions of the US Supreme Court, 94 Notre Dame Law Rev. Online (2018)

 

Rewriting Judicial Opinions and the Feminist Scholarly Project

Linda L. Berger, Kathryn M. Stanchi & Bridget J. Crawford, 94 Notre Dame L. Rev. Online 1 (2018)

 

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Feminist Judgments and Women's Rights at Work

Gillian Thomas, 94 Notre Dame L. Rev. Online 12 (2018)

 

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Feminist Judgments and the Rewritten Price Waterhouse

Sandra Sperino, 94 Notre Dame L. Rev. Online 17 (2018)

 

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Revisiting Roe to Advance Reproductive Justice for Childbearing Women

Elizabeth Kukura, 94 Notre Dame L. Rev. Online 20 (2018)

 

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How is Sex Harassment Discriminatory?

Noa Ben-Asher, 94 Notre Dame L. Rev. Online 25 (2018)

 

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The Love in Loving: Overcoming Artificial Racial Barriers

Justice Leah Ward Sears (Ret.) & Sasha N. Greenberg, 94 Notre Dame L. Rev. Online 28 (2018)

 

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Looking to the Litigant: Reaction Essay to Feminist Judgments: Rewritten Opinions of the United States Supreme Court

Claire B. Wofford, 94 Notre Dame L. Rev. Online 32 (2018)

 

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Extending the Critical Rereading Project

Gabrielle Appleby & Rosalind Dixon, 94 Notre Dame L. Rev. Online 37 (2018)

 

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Feminist Judgments and the Future of Reproductive Justice

Sarah Weddington, 94 Notre Dame L. Rev. Online 44 (2018)

 

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Feminist Judgments & #MeToo

Margaret E. Johnson, 94 Notre Dame L. Rev. Online 51 (2018)

 

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Pharmacist Refuses Medicine to Woman Having Miscarriage

Michigan Pharmacist Refuses Medicine to Woman Having Miscarriage

An Ionia woman is demanding that Meijer discipline a Petoskey pharmacist and implement a company-wide policy for how pharmacists should handle religious and moral objections to dispensing medication after she was denied a prescription to help complete a miscarriage.

 

Rachel Peterson, 35, alleges a pharmacist at the Meijer store on Lears Road in Petoskey refused to fill her prescription for a drug called misoprostol (brand name Cytotec) in July because of his personal religious views. She says he also refused to transfer the prescription to another pharmacy. 

 

Misoprostol can be used to prevent stomach ulcers and also can be used to induce labor during pregnancy, to aid in the completion of a miscarriage and in the treatment of postpartum hemorrhage. When combined with another drug, it can be used to induce an abortion. 

 

The American Civil Liberties Union of Michigan sent a letter Tuesday on Peterson's behalf to Meijer, saying what the pharmacist did was discriminatory and violated the state's public accommodation laws.

 

"Unfortunately in Michigan, we don’t have an explicit state law that goes so far as to protect patients like Rachel," she said. "What we would hope is that Meijer and other pharmacies would agree that they’re allowed to accommodate the personal beliefs of their employees, but that accommodation cannot include permitting discriminatory denials of care that burden patients and customers. 

First Woman Supreme Court Justice Announces Retirement from Public Life

O'Connor is a Pioneer Again As She Faces Dementia

Now, perhaps fitting of the pioneering tendency she has shown all around, the 88-year-old retired justice revealed on Tuesday that she is in "the beginning stages of dementia, probably Alzheimer's disease."

 

In the letter written from Phoenix, as she explained that she was no longer participating in public life, she again surmounted the stigma that sometimes comes with illness.

"While the final chapter of my life with dementia may be trying, nothing has diminished my gratitude and deep appreciation for the countless blessings in my life," she wrote in the letter released by the Supreme Court.

  

O'Connor, who became an influential author of decisions on abortion rights, racial affirmative action, criminal procedures, and an array of social dilemmas during her quarter century tenure, also has had a deep personal imprint on American life.

Extending the Sex Plus Discrimination Doctrine to Age Discrimination Claims

Marc Chase McAllister, Extending the Sex Plus Discrimination Doctrine to Age Discrimination Claims Involving Multiple Discriminatory Motives, 60 Boston College L. Rev. (forthcoming)

This article examines a double judicial split in age discrimination cases, one pertaining to Title VII and the other to the ADEA. First, this article considers whether the Title VII sex-plus discrimination doctrine should apply to discrimination claims specifically combining sex and age, and contends that such claims should be more routinely permitted to combat discrimination against older female employees. Second, this article considers whether the sex-plus discrimination doctrine should extend to age-plus discrimination claims under the ADEA. In a thorough analysis, this article shows that the ADEA’s “but for” standard of causation permits discrimination claims based on the combination of age and another immutable characteristic, like race or gender. Nevertheless, because Congress has not amended the ADEA to clarify how it applies in cases involving multiple discriminatory motives, courts will likely remain hesitant to recognize ADEA plus discrimination claims. Accordingly, this article proposes that Congress amend the ADEA to state that an ADEA plaintiff may prevail upon proof that his or her age was “a motivating factor for an adverse employment action, even though other discriminatory or illegitimate factors may have also motivated the employer.”

When Smoking was a Feminist Act: Women's Right to Choice and Autonomy

When Smoking was a Feminist Act

Over 100 years ago, a woman was detained by a police officer for smoking a cigarette. After being stopped by an officer on a bicycle on Fifth Avenue in New York City, Mrs. William P. Orrblew smoke in his face and flicked cigarette ash toward him. Her rationale: “Yes, I was smoking a cigarette and I don’t see that I was doing any harm. I have done it in many other places… I think the policeman overstepped his authority.”

 

This incident marked the start of a century-long battle over women’s health, identity and behavior by raising the questions of who could and should smoke. While smoking would eventually become a public health question — cigarette smoking is a leading cause of preventable death — it has continued to generate debates over whether individuals have the right to choose to do something harmful. Throughout history, American women have fought for the right to vote, equal pay and to control their own bodies. But with hard-fought freedom comes choice: must women always choose what others say is right for them?

 

Controlling smoking in the early 20th century frequently was about controlling women’s behavior. Four years after Orr’s detainment for smoking on Fifth Avenue, the Sullivan Ordinance made it illegal for restaurant and bar owners to permit women to smoke in their establishments. The stated rationale from “Bowery moralist and political chieftain” Tim Sullivanwas that “proper” ladies were offended by women’s smoking, and that it certainly wasn’t any kind of attempt by a man to control women’s behavior. Sure.

After MeToo, Using the Law of Agency for Strict Liability for Employers for Sexual Harassment

David Oppenheimer, Twenty Years After Faragher and Ellerth, Is It Time to Revisit Strict Liability for On-the-Job Sexual Harassment?

In 1995, I published the attached article in the Cornell Law Review, arguing that a proper application of agency law would impose strict vicarious liability on employers for nearly all on-the-job sexual harassment. (See Exacerbating the Exasperating: Title VII Liability of Employers for Sexual Harassment Committed by Their Supervisors, 81 Cornell L. Rev. 66 (1995).) Three years later, the U.S. Supreme Court decided the cases Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Ellerth v. Burlington Industries, 524 U.S. 742 (1998), taking a different approach. The Court held that in the absence of a tangible employment decision (such as termination of employment), an employer sued for sexual harassment could assert an affirmative defense that it had an anti-harassment policy that the employee unreasonably failed to invoke, and that it vacted properly once on notice of the harassment.

 

As the #MeToo movement dramatically illustrates, in the ensuing twenty years, the law of harassment has woefully failed to protect women workers. All too often women harassed on the job find their cases dismissed or decided against them on summary judgment because they failed to properly follow their employer’s anti-discrimination policy, even when the employer knew of the harassment. As Lauren Edelman argues in Working Law (2016), courts have accepted the existence of anti-discrimination policies as persuasive proof of a lack of discrimination/harassment, even in the face of evidence that the policies are ineffective, or serve only a symbolic purpose.

 

This may be a good time, then, to return to the common law of agency, and the duties it imposes on employers to protect the safety of employees. For good reasons of public policy, worked out over many years, those rules usually impose strict liability on employers for harm caused by or to employees, and treat these as duties an employer may not delegate to others. Re-visiting Exacerbating the Exasperating seems like a good place to start.

Adopting a Human Rights Perspective in Domestic Violence Law

Margaret Drew, Truth Seeking: The Lenahan Case and the Search for a Human Rights Remedy

It was not until Lenahan v. United States that many U.S. domestic violence advocates incorporated the human rights framework in a conscious and organized way. Part I of this essay addresses the role of determining truth as part of human rights remedies. Truth is essential so that all involved may provide appropriate remedies to those harmed, as well as to open a gateway to whatever level of healing and change is possible under the circumstances. Part II discusses the procedural history of Town of Castle Rock v. Gonzales and explores the comparative findings and goals of the U.S. legal system within the human rights framework. The U.S. and IACHR Gonzales-Lenahan cases are used as comparative exemplars. The application of truth seeking principles to the Lenahan case is then discussed. Part III addresses needed change within the U.S. civil law systems if the country is to affectively adopt a human rights perspective in matters of domestic violence and other human rights abuses.

Watching the Bandwagon Effect of New Laws on Sexual Harassment Training

Erin Mulvaney, Watching the Bandwagon Effect for Mandatory Sexual Harassment Training

The #MeToo movement inspired progressive legislatures this year to revisit mandatory sexual harassment training programs statewide for nearly all workers and supervisors, part of the sweeping effort confronting power imbalances between men and women in the workplace.

 

The most comprehensive sexual harassment policies were passed in California and New York, two states that are often leaders on new initiatives in the employment law space. New York’s state rules went into effect this month, and employers have until October 2019 to implement training programs. California bolstered its existing training requirement.

 

Very few states have mandatory sexual harassment training requirements. Delaware’s new sexual harassment training law, signed in August, takes effect in January 2019. That law imposes training requirements on employers with at least 50 employees in the state, according to a Jackson Lewis P.C. analysis.

 

A handful of states this year, including Maryland and Louisiana, also bolstered or added sexual harassment training requirements for government employees, according to the National Conference of State Legislatures, which tracked the dozens of measures proposed and enacted this year aimed at tackling the issue.

 

Few states and local governments followed suit since California’s first training law was passed more than a decade ago, but employment attorneys say the newly passed measures could push momentum.

 

“Other states and jurisdictions will see the lead that California and New York have taken,” said Jason Habinsky, an employment partner at Haynes and Boone in New York. “There is sometimes a bandwagon effect.”

The Merchandising of Ruth Bader Ginsburg

ABA J, Supreme Icon: From Shirts to Action Figures to Movies and an Album, Justice Ruth Bader Ginsburg has Become an Unlikely Pop Culture Icon

On the website Etsy, which sells crafts and vintage items, typing “Ruth Bader Ginsburg” into the search bar yields more than 1,000 results.

 

You can buy a birthday card with the associate justice’s image and the phrase “small and mighty” written in pink. There’s also a tank top bearing her stern visage and “I dissent” written underneath. There are posters of her as Rosie the Riveter, peg dolls of her in full judicial regalia and even prayer candles portraying her as “the Patron Saint of the Supreme Court.”

 

If Etsy isn’t your thing, you can find a Ginsburg action figure on Kickstarter, complete with gavel, pointing finger and her “iconic jabot,” a frilly, fancy-looking collar perfect for making “fashion and judicial statements.” The initial funding goal was $15,000. As of September, it had raised well over $600,000. “She is a rock star. She is an inspiration. She is constantly fighting. She is brilliant and fearless,” the introductory video to the Kickstarter page states. “She is an icon.”

 

The items aren’t all kitschy. There are plenty of posters, coffee mugs and shirts featuring inspirational and even strident quotes from her speeches and opinions. One oft-used line came from an interview she gave shortly after Sonia Sotomayor was nominated to the Supreme Court in 2009: “Women belong in all places where decisions are being made.” Another popular one for product designers is: “Fight for the things you care about.”

 

That latter quote was from a 2015 luncheon at the Radcliffe Institute for Advanced Study at Harvard University in Justice Ginsburg’s honor. Oftentimes, these products will leave off the last part of Ginsburg’s sentence, which was “but do it in a way that will lead others to join you.” That outlook may explain why Ginsburg has become a cottage industry, generating countless products—none of which she has likely endorsed but has often been a good sport about.

 

And that’s just the tip of the iceberg. There is a music album inspired by her life story. There are websites and memes that celebrate her jurisprudence, her fiery dissents and her dedication to civil rights, gender equality and social justice. There’s even a recent documentary and an upcoming Hollywood film chronicling her long and storied career as a litigator fighting on behalf of gender equality.

Women Owned Law Firms Surge Amid Gender Disparity in the Profession

Women Owned Law Firms Surge Amid Gender Disparity in the Profession

Work-life balance is often pegged as the reason women leave traditional law firms. But for the growing number of women establishing their own firms, their departure is often rooted more deeply in gender inequality in the profession than in raising children or having more free time.

 

“If women were feeling valued, were getting properly rewarded for their efforts, were getting their fair share and it wasn’t a constant struggle to get your origination credit, and feel you are part of the team—then you would stay,” said Nicole Galli, who in 2017 co-founded a trade association, Women Owned Law, which has already grown to 200 members.***

 

By founding their own firms, women are crafting new game rules that provide for fair compensation, equal promotions, full inclusion and better career development opportunities.

 

“There are women further along in their careers—partners in firms—who’ve done everything ‘right.’ They leaned in. They figured out the work-life balance, as it is. They made it to a measure of objective success. They have books of business. They have clients. It’s still death by a thousand paper cuts. It’s still a struggle,” said Galli, managing partner in the Law Offices of N.D. Galli in Philadelphia.

 

Data shows a mass exodus of female attorneys who leave traditional firms before they reach the upper echelon. The National Association of Women Lawyers found in a 2017 survey that women make up 46 percent of associates but just 30 percent of non-equity partners. Only 19 percent of equity partners are women, the American Bar Association’s Commission on Women in the Profession reported in January.

MeToo One Year Later: More Awareness, More EEOC Success, New Laws in CAL and NY

A Year After it Began has #MeToo Become a Global Movement

In the year since, the global conversation about sexual harassment — and worse — has shifted, but the lasting impact of the moment remains unclear.

From Stockholm to Seoul, from Toronto to Tokyo, a torrent of accusations has poured forth. Survivors spoke out, and many were taken seriously. Powerful men lost their jobs. A few went to prison. How diverse societies — some liberal, others conservative — saw sexual harassment seemed to be changing.

On Friday, a year after the New York Times and the New Yorker published their stories about Weinstein, two activists who have sought to end sexual violence in conflict zones — Congolese gynecologist Denis Mukwege and Yazidi assault survivor Nadia Murad — were awarded the 2018 Nobel Peace Prize.

But for all the early anticipation that things had changed forever, in many countries the #MeToo movement either fizzled or never took flight.

1 Year Later, How MeToo is Changing America

Joanna Grossman, Beneath the Fray: Federal Courts Continue the Work of Enforcing Sexual Harassment Laws

This week marks the one-year anniversary of Harvey Weinstein’s fall from grace, after the New York Times published a bombshell investigative article about a lifetime of egregious sexual misdeeds. One year later, the #MeToo movement came into sharp contrast with the GOP-controlled Senate, which voted to elevate Judge Brett Kavanaugh to the US Supreme Court despite credible allegations of sexual misconduct. But while we ponder questions big and small about the problem of sexual misconduct and how to deal with it, courts continue the everyday work of hearing sexual harassment cases. In a recent case, EEOC v. Favorite Farms, Inc., a federal district court in Florida did exactly that, refusing to grant an employer’s motion for summary judgment in a workplace rape case that deserves a full trial on the merits.

Eric Bachman, In Response to #MeToo Movement, EEOC is Filing More Sexual Harassment Lawsuits, and Winning

The Equal Employment Opportunity Commission (EEOC) recently announced how the #MeToo movement has impacted its enforcement efforts, which has implications across the country and particularly in corporate America.

Not surprisingly, the heightened awareness about sexual harassment-including what constitutes harassment and the harm it inflicts-generated by the #MeToo campaign has resulted in the EEOC filing "a 50% increase in suits challenging sexual harassment over FY 2017."  More broadly, the total number of EEOC Charges of Discrimination alleging sexual harassment increased by about 12% from last year, and the EEOC found reasonable cause to believe discrimination had occurred in nearly 20% more charges in 2018 than in 2017.

Allyson Hobbs, One Year of #MeToo: The Legacy of Black Women's Testimonies, New Yorker

We can create a more inclusive narrative. As the legal scholar Kimberlé Crenshaw recently argued, “black feminist frameworks have been doing the hard work of building the social justice movements that race-only or gender-only frames cannot.” To do better by all women, we must listen and recognize the historical and contemporary circumstances that shape their experiences and have real consequences on their lives. The historian Elsa Barkley Brown has written, “We have still to recognize that being a woman is, in fact, not extractable from the context in which one is a woman—that is, race, class, time, and place.”

Congress Still Can't Pass its Own Sexual Harassment Bill

The House and the Senate passed two different bills earlier this year—but months after those votes, lawmakers are doubtful that they can reconcile the two pieces of legislation before the midterm elections.

“Here on Thursday, there is this very high-profile hearing and questions of sexual harassment, and yet Congress is allowing this bill to deal with sexual harassment in Congress [to languish],” said Meredith McGehee, the executive director at Issue One, a government watchdog group that advocates for stronger ethics laws.

Sen. Roy Blunt (R-MO), who along with Sen. Amy Klobuchar (D-MN) is overseeing the process of reconciling the House and Senate versions, predicted that the effort would not be completed before the midterm elections.

“[The] discussion continues to be active,” he told The Daily Beast. “I think we’ll get this done, but I do not think we’ll get it done before the election.”

See also 2018 Legislation on Sexual Harassment in the Legislature

 California Law Prohibits Nondisclosure Agreements as Part of Sexual Harassment Settlements

NY Enacts Sweeping Sexual Harassment Legislation

Amid #MeToo NY Employers Face Strict New Sexual Harassment Laws

Is California's Mandate of Gender Quotas for Corporate Boards Constitutional?

Vikram Amar & Jason Mazzone, Is California's Mandate That Public Companies Include Women on their Boards of Directors Constitutional?

Earlier this week, California Governor Jerry Brown signed into law SB 826, a landmark measure that requires each publicly held corporation whose principal executive offices are located in California to have, by the end of 2019, at least one woman on its board of directors. By 2021, each such corporation is required to have at least two women board members if the corporation has five directors, and at least three women board members if the corporation has six or more directors.

 

In today’s column, Part One in a series, we begin to spot and analyze some of the cutting-edge constitutional questions SB 826 raises. More specifically, in the space below we address aspects of federal equal protection review, focusing on what it means under federal intermediate scrutiny to for a state to “substantially further” a government objective. In Part Two we ask which government objectives—both in enacting and implementing SB 826—are appropriate for a state to pursue consistent with equal protection law and constitutional principles more generally, and we also discuss a separate potential constitutional problem: the impact that SB 826 has on corporations chartered in other states. Throughout, we shall train our analysis on issues under the federal Constitution, even though we recognize (and in some instances note) that California constitutional limitations may pose additional problems for the measure.

For prior posts on the new California law, see Cal Becomes First State to Require Publicly Held Corporations to Include Women on Boards

CFP Women and the Law

2019 Detroit Mercy Law Review Symposium: Women and the Law

Call for Papers and Presentations

Deadline: November 9, 2018

The Law Review at University of Detroit Mercy School of Law will be hosting its 103rd annual symposium: Women and the Law.

Call for Proposals

The Detroit Mercy Law Review is accepting proposals for the 2019 Symposium: Women and the Law. The Detroit Mercy Law Review Symposium will take place on Friday, March 8, 2019 (International Women’s Day) in Detroit, Michigan. Possible topics include, but are not limited to: the history of women in the law, how women have impacted the law, how the law impacts women today, how future legal decisions could affect women’s rights (e.g. if Roe v. Wade, 410 U.S. 113 (1973) were to be overturned), what challenges women still face in the legal profession, the role of gender in the law, and any other topic regarding women and the law.

Proposals should be approximately 250-500 words, double-spaced, and detail the proposed topic and presentation.

Submission Procedure

The deadline to submit proposals is Friday, November 9, 2018 at 5PM EST. All proposals should be submitted to Samantha Buck, Symposium Director, at bucksl@udmercy.edu. Please indicate whether your proposal is for a presentation only or if you would also like to publish an article with the Detroit Mercy Law Review on your presentation topic. If you are interested in submitting an article, it will be due to the Law Review on Friday, March 15, 2019. Please submit a current CV or resume along with your proposal. We will notify chosen speakers by November 30, 2018. Preference will be given to those willing to submit an article for publication. 

CFP Applied Feminism and MeToo

The Center for Applied Feminism at the University of Baltimore announces its call for papers its call for papers for the 2019 Feminist Theory Conference.  

2019 Feminist Legal Theory Conference
Call for Papers

APPLIED FEMINISM AND #METOO

The Center on Applied Feminism at the University of Baltimore School of Law seeks paper proposals for the Eleventh Feminist Legal Theory Conference.  We hope you will join us for this exciting conference on Friday, April 12, 2019.  The theme is the #MeToo movement.

 

The resurgent #MeToo movement and the Kavanaugh confirmation hearings have put a spotlight on sexual harassment and sexual assault in our society.  Across America, the #MeToo movement has spurred women to share their stories of sexual harassment, run for office, advocate for change, litigate abuses, and build coalitions.  As a result of this social movement, there are emerging proposals to change the law, workplaces, schools and family dynamics to decrease sexual harassment and assault and ensure better responses to complaints.  In addition, the Kavanaugh hearings have created discussions about credibility, trauma, anger, and employment qualifications.  In sum, we are at a critical moment, a reckoning, of the persistent systemic sexual harassment and assaults of women.  At the same time, certain voices seem less visible in the movement, such as men who are harassed and assaulted, women who are low-income, women of color, women living with disabilities, and those who are imprisoned or subject to police violence.  And proposals for change may be too limited. 

 

We seek submissions of papers that focus on the topic of Applied Feminism and #MeToo.  This conference aims to explore the following questions: What impact has #MeToo had on feminist legal theory, critical race feminist theory, class crit feminist theory, and other critical legal theories? How has #MeToo changed law and social policy? What more needs to be done, and how? How can #MeToo be expanded to address all victims and survivors of sexual harassment and assault? How can we respond to intersecting forms of oppression like race, class, and disability? How can law and theory address the barriers to persons making claims of sexual harassment and assault? How can law and theory address distrust and anger towards sexual harassment and assault claims? What should be individual and systemic responses to sexual harassment and assault claims? What more can be done to eradicate sexual harassment and assault in the workplace, institutional, and other settings? 

 

We welcome proposals that consider these questions and any other related questions from a variety of substantive disciplines and perspectives. As always, the Center’s conference will serve as a forum for scholars, practitioners, and activists to share ideas about applied feminism, focusing on connections between theory and practice to effectuate social change. The conference will be open to the public and will feature a keynote speaker. Past keynote speakers have included Nobel Laureate Toni Morrison, Dr. Maya Angelou, Gloria Steinem, Senators Barbara Mikulski and Amy Klobuchar, NOW President Terry O’Neill, EEOC Commissioner Chai Feldblum, U.S. District Judge Nancy Gertner, and Obama administration official Jocelyn Frye.

 

To submit a paper proposal, by Friday, November 2, 2018, please complete this form and include your 500 word abstract: https://docs.google.com/forms/d/e/1FAIpQLSeTVf_gKjDmLaMlx_OX_AvKY9iUPCNy-CULsiThkpb_ie89ZQ/viewform?usp=sf_link.  We will notify presenters of selected papers by early December. About half the presenter slots will be reserved for authors who commit to publishing in the annual symposium volume of the University of Baltimore Law Review. Thus, the form requests that you indicate if you interested in publishing in the University of Baltimore Law Review's symposium issue. Authors who are interested in publishing in the Law Review will be strongly considered for publication. For all presenters, working drafts of papers will be due no later than March 22, 2019. Presenters are responsible for their own travel costs; the conference will provide a discounted hotel rate as well as meals. 

 

We look forward to your submissions. If you have further questions, please contact Prof. Margaret Johnson at majohnson@ubalt.edu. For additional information about the conference, please visit law.ubalt.edu/caf.