Gender and the Law Blog

The Patchwork of Gender Equality: How State Equal Rights Amendments Can Impact the Federal ERA

Maryann Grover, The Patchwork Quilt of Gender Equality: How State Equal Rights Amendments Can Impact the Federal Equal Rights Amendment" 

After progress on the federal Equal Rights Amendment stalled in the late 1970s, states began to take matters into their own hands by adopting their own Equal Rights Amendments. In the forty-plus years since the federal Equal Rights Amendment was initially passed by Congress, twenty-eight states have adopted some form of their own Equal Rights Amendment. In that time, both state and federal courts have been tasked with interpreting these state Equal Rights Amendment. This decisional authority is uniquely relevant to the question of how the federal Equal Rights Amendment is likely to be interpreted if and when it is made a part of the United States Constitution. This essay endeavors to explore the subject matter areas in which state Equal Rights Amendment litigation has been prevalent and how that litigation is likely to impact the interpretation of the federal Equal Rights Amendment

Why It Remains So Difficult for Employers to Prevent and Respond Effectively to Workplace Harassment

Suzanne B. Goldberg, Harassment, Workplace Culture, and the Power and Limits of Law, American University Law Review, Vol. 70, 2020

This article asks why it remains so difficult for employers to prevent and respond effectively to harassment, especially sexual harassment, and identifies promising points for legal intervention. It is sobering to consider social-science evidence of the myriad barriers to reporting sexual harassment—from the individual-level and interpersonal to those rooted in society at large. Most of these are out of reach for an employer but workplace culture stands out as a significant arena where employers have influence on whether harassment and other discriminatory behaviors are likely to thrive. Yet employers typically make choices in this area with attention to legal accountability rather than cultural contribution. My central claim is that these judgment calls—about policy, procedures, training, and operations—shape workplace culture and that it is a mistake to view them only through a compliance lens. With this insight, it becomes clear that each of these will be more effective in shaping culture when the employee user-experience is a focal point, and this article suggests many ways to achieve this result.

By seeing harassment prevention and response as an opportunity for culture creation in addition to being a compliance obligation, it also becomes clear that harassing behavior may negatively affect the targeted employee and the broader workplace even when there is no risk of liability. This includes “lowgrade harassment,” a category I use to describe behaviors that are intentionally harassing but not severe or pervasive enough to meet doctrinal thresholds. Also relevant are microaggressions and interactions that reflect implicit bias, as these are unlikely to expose a firm to liability because they lack the discriminatory intent required by legal doctrine but nonetheless can create significant challenges for employees and organizations. This is not to suggest that employers should respond in an identical way to all of these occurrences. Rather, the point is that inattention to experiences that go beyond legal-accountability requirements is likely to spill over into the broader workplace culture and diminish the effectiveness of other harassment prevention and response efforts.

The good news is that there are specific steps an employer can take to have harassment prevention and response become part of the workplace culture rather than being sidelined as compliance. Thoughtfully crafted legislative and policy interventions, along with litigation settlements, also can bridge this gap and create a more seamless set of cultural expectations for how employees interact with each other at work and what they can expect from their employer when challenges arise.

Normalizing Menopause and Finding the Appropriate Legal Frameworks

Naomi Cahn, Justice for the Menopause: A Research Agenda,  Columbia Journal of Gender and Law, vol. 41 (forthcoming 2021)

This short essay, prepared for a symposium on menstruation, is an initial effort to catalogue various legal approaches to menopause and to set out areas for further analysis. It argues for consideration of menopause in the movement for menstrual and gender justice. It briefly explores cultural images of menopause and post-menopausal women, including the ubiquitous hot flashes and a sexuality, analyzes potential legal claims based on age, sex, and disability for menopausal justice, and suggests the interrelationship between such approaches and social attitudes towards menopause, menstruation, and gender. It suggests that “normalizing” menopause, acknowledging its realities, is one means for removing the associated stigma and disabilities and might result in reinterpreting existing laws and future legal reforms.

Working Mothers and the Postponement of Women's Rights from the Nineteenth Amendment to the Equal Rights Amendment

Julie Suk, Working Mothers and the Postponement of Women's Rights from the Nineteenth Amendment to the Equal Rights Amendment,   Forthcoming, University of Colorado Law Review, Vol. 92, No. 3, 2021

The Nineteenth Amendment’s ratification in 1920 spawned new initiatives to advance the status of women, including the proposal of another constitutional amendment that would guarantee women equality in all legal rights, beyond the right to vote. Both the Nineteenth Amendment and the Equal Rights Amendment (ERA) grew out of the long quest to enshrine women’s equal status under the law as citizens, which began in the nineteenth century. Nearly a century later, the ERA remains unfinished business with an uncertain future. Suffragists advanced different visions and strategies for women’s empowerment after they got the constitutional right to vote. They divided over the ERA. Their disagreements, this Essay argues, productively postponed the ERA, and reshaped its meaning over time to be more responsive to the challenges women faced in exercising economic and political power because they were mothers. An understanding of how and why the amendment stalled speaks directly to the current controversy in Congress and the courts about whether a congressional time limit should stop the ERA from achieving full constitutional status. Such an understanding recognizes that suffragists disagreed in the immediate aftermath of the Nineteenth Amendment’s ratification over the ERA, and that these divisions undermined the ERA’s prospects for at least a few decades. Ultimately, however, the ERA that earned congressional adoption and 38 ratifications over almost a century was stronger because of this postponement.

The Disparate Impact of COVID on Single Mother Families and the Argument for Human Rights Protections

Theresa Glennon, Alexis Fennell, Kaylin Hawkins, Madison McNulty, "Shelter from the Storm: Human Rights Protections for Single Mother Families in the Time of COVID-19"  , 27 Wm. & Mary J. Race, Gender & Soc. Justice ___ (2021 Forthcoming)

This Article assesses the effects in the US of COVID-19, with particular attention to its impact on single mother families. It scrutinizes decades of deliberate legal and policy choices that have left them financially vulnerable and exposed to enormous risks to their health and well-being. To remedy this situation, this Article argues for adopting a human rights framework that can reverse this disastrous course.

This Article conveys the pandemic experiences of some single mothers and their place in larger demographic trends. It identifies the disparate impacts that the pandemic has had on single mother families and the laws and policies that have either supported these individuals and their families or left them adrift. The Article then examines the structure of employment and family assistance laws and policies. Inadequate employment discrimination protections contribute to the financial vulnerability of single mother households. These vulnerabilities force some single mothers into welfare and other assistance programs that are materially inadequate and purposefully humiliating. Government officials have used sexist and racist tropes to vilify single mothers as immoral, lazy and opportunistic to justify this denigration. After reviewing this statutory framework, the Article briefly explains why constitutional law has not provided an adequate remedy. It reviews the Supreme Court’s use of extremely deferential standards of review of government decisions that negatively and disparately affect single mothers, including BIPOC single mothers, regarding employment laws and social and welfare programs. Finally, to address these problems the Article proposes use of a human rights framework. Such a framework would bring the US in line with most other developed states that have embraced these principles. More importantly, it would help protect against multiple forms of discrimination that currently fall outside of constitutional protection and help ensure adequate provision of material resources to the most vulnerable among us.

In Another Shadow Docket Order, SCOTUS Stays Abortion In-Person Medication Requirement During COVID Found Unconstitutional by District Court

In another shadow docket ruling, the Supreme Court stayed a district court's preliminary injunction enjoining the unconstitutional application of a Covid abortion requirement that women seeking medicated abortions appear in person.

The order is here,  FDA v. American College of OB/GYNS (Jan. 12, 2021), with concurrence by Justice Roberts and dissent by Justice Sotomayor.

NYT, Supreme Court Revives Abortion Pill Restriction

In the Supreme Court’s first ruling on abortion since the arrival of Justice Amy Coney Barrett, the court on Tuesday reinstated a federal requirement that women seeking to end their pregnancies using medications pick up a pill in person from a hospital or medical office.

The court’s brief order was unsigned, and the three more liberal justices dissented. The only member of the majority to offer an explanation was Chief Justice John G. Roberts Jr., who said the ruling was a limited one that deferred to the views of experts.

The question, he wrote, was not whether the requirement imposed “an undue burden on a woman’s right to an abortion as a general matter.” Instead, he wrote, it was whether a federal judge should have second-guessed the Food and Drug Administration’s determination “because of the court’s own evaluation of the impact of the Covid-19 pandemic.”

“Here as in related contexts concerning government responses to the pandemic,” the chief justice wrote, quoting an earlier opinion, “my view is that courts owe significant deference to the politically accountable entities with the ‘background, competence and expertise to assess public health.’”

In dissent, Justice Sonia Sotomayor, joined by Justice Elena Kagan, said the majority was grievously wrong.

“This country’s laws have long singled out abortions for more onerous treatment than other medical procedures that carry similar or greater risks,” Justice Sotomayor wrote. “Like many of those laws, maintaining the F.D.A.’s in-person requirements” for picking up the drug “during the pandemic not only treats abortion exceptionally, it imposes an unnecessary, irrational and unjustifiable undue burden on women seeking to exercise their right to choose.”

Symposium: COVID Care Crisis and the Impact on Women in Legal Academia

Symposium, COVID Care Crisis, Jan. 14 & 15 (Zoom) (registration free)

The COVID care crisis and other multiplying effects of related shutdowns, embedded inequalities, and health and safety risks are likely disproportionately impacting people with caregiving responsibilities in academia. The division that separates work from home has collapsed, threatening the very notion of “work-life balance.” Increasingly, employers have begun to reshape what used to be the private domain of family and home through “work at home” or in-person presence requirements that disregard the ways in which care work happens.

At the same time, schools and other institutions providing support to families and marginalized groups are temporarily closed, permanently shutting down, or buckling in response to state or local mandates as well as financial and personnel pressures.

In the months since the start of the COVID-19 pandemic, women’s scholarly output and publications have dropped in various disciplines, while service and care responsibilities that fall disproportionately on junior or marginalized faculty and staff have likely increased. Compounding these pressures, Black faculty and faculty of color more generally have also been coping with the emotional effects of the police killings of George Floyd and others, at the same time that COVID-19’s health effects are concentrating along lines of race and inequality in these communities specifically. All of these factors threaten the output, visibility, status and participation of women and other primary caregiving faculty and staff in legal academia.

Left unaddressed, these disparities also have the potential to alter the landscape of legal academia and further marginalize women and the perspectives they bring to legal scholarship, education, and public dialogue. This symposium seeks to raise awareness of the current COVID care crisis and its impacts on academia, and to begin a dialogue on concrete and innovative responses to this crisis.

New Book: The First American Women Law Professors

I enjoyed hearing about this new book at the AALS conference this year.  Understanding the history, and discrimination of women law professors from those featured in the book and on the panel was interesting if also frustrating.  

Herma Hill Kay, Paving the Way: The First American Women Law Professors, edited by Patricia Cain (forthcoming April 2021, U California Press)

Book Blurb: When it comes to breaking down barriers for women in the workplace, Ruth Bader Ginsburg’s name speaks volumes for itself—but, as she clarifies in the foreword to this long-awaited book, there are too many trailblazing names we do not know. Herma Hill Kay, former Dean of UC Berkeley School of Law and Ginsburg’s closest professional colleague, wrote Paving the Way to tell the stories of the first fourteen female law professors at ABA- and AALS-accredited law schools in the United States. Kay, who became the fifteenth such professor, labored over the stories of these women in order to provide an essential history of their path for the more than 2,000 women working as law professors today and all of their feminist colleagues.

Because Herma Hill Kay, who died in 2017, was able to obtain so much first-hand information about the fourteen women who preceded her, Paving the Way is filled with details, quiet and loud, of each of their lives and careers from their own perspectives. Kay wraps each story in rich historical context, lest we forget the extraordinarily difficult times in which these women lived

The point made by Melissa Murray was also well taken that the limitations of this study, focused as it was on ABA accredited and AALS schools, omitted many important women of color who taught at other institutions.  For an earlier post about one of these women, Lutie Lytle, see The Story of the First Woman -- and the First Black Woman -- Law Professor, Lutie Lytle (2/1/2019) 

COVID, Abortion Restrictions, and Public Health in the Culture Wars

Laura D. Hermer, COVID-19, Abortion, and Public Health in the Culture Wars, 47 Mitchell Hamline L.Rev. (2020)  

At the start of the COVID-19 pandemic, 36 governors ordered or requested a halt to all elective health care visits, procedures, and tests in March or April 2020 to conserve scarce personal protective equipment (PPE) and testing supplies and to help prevent the spread of the virus. Among those states, at least nine expressly chose to include many or most abortion services within the order’s scope, whether directly or through informal clarification. Civil liberties and women’s health care organizations rapidly filed suit in eight of the states to enjoin the various orders. Over the course of about three weeks, federal district courts in six of the cases granted plaintiffs’ requests for temporary restraining orders. The Sixth, Tenth, and Eleventh Circuits upheld the district courts’ decisions on appeal, but the Fifth and Eighth Circuits reversed. Both of those reversals were ultimately rendered moot when Texas and Arkansas each permitted elective procedures to resume. Three other cases settled.

The states that implemented abortion restrictions generally took substantial efforts to protect their populace from COVID-19, except in health care contexts involving abortion. At the same time, the lower-income women and women of color who disproportionately provided essential services during the pandemic and were infected with and suffered more severe cases of Covid-19 also disproportionately need abortion services. While they were making the greatest sacrifices for all of us, they also found their reproductive safety net in grave jeopardy.

Documents filed in the litigation over state-level COVID abortion restrictions make it clear that the states that sought to use pandemic PPE shortages to restrict abortions were not concerned about the health or welfare of any of the parties involved, including fetuses. The article examines the arguments that they and their amici made to support their policy choices and details the implications of those policies on the patients seeking abortions, their health care providers, their fetuses, and their loved ones in the context of the pandemic. The evidence demonstrates that the restrictions had nothing to do with protecting anyone’s life or health or conserving scarce PPE. The juxtaposition of these restrictions against our society’s fierce fight against the pandemic makes the disparities in how we treat certain biological problems rather stark. The time is ripe for a re-evaluation of when, if ever, it may be reasonable for a state to restrict the right to an abortion.