Thursday, March 31, 2022

Arguing for an Alternative to Roe in Federal Legislative and Executive Action

Carliss Chatman, We Shouldn't Need Roe, UCLA Women's L J. (forthcoming)

In the face of state-by-state attacks on the right to choose, which result in regular challenges to Roe v. Wade in the Supreme Court, this essay asks whether Roe is needed at all. Building on prior works that challenge the premise of fetal personhood and highlighting the status of Roe-based rights after decades of challenges, this essay proposes an alternative solution to Roe. Decades of state law encroachments cause Roe to fail to properly protect the right to choose. Federal legislative and executive efforts, including the Women’s Health Protection Act, are necessary to ensure the constitutionally guaranteed right to choose remains accessible to all pregnant persons.

March 31, 2022 in Abortion, Constitutional, Healthcare, Legislation | Permalink | Comments (0)

Women are Calling Out Medical Gaslighting

NYT, Women are Calling Out "Medical Gaslighting"

Patients who have felt that their symptoms were inappropriately dismissed as minor or primarily psychological by doctors are using the term “medical gaslighting” to describe their experiences and sharing their stories on sites like Instagram. The term derives from a play called “Gaslight” about a husband’s attempt to drive his wife insane. And many patients, particularly women and people of color, describe the search for accurate diagnosis and treatment as maddening.

“We know that women, and especially women of color, are often diagnosed and treated differently by doctors than men are, even when they have the same health conditions,” said Karen Lutfey Spencer, a researcher who studies medical decision-making at the University of Colorado, Denver.

Studies have shown that compared with men, women face longer waits to be diagnosed with cancer and heart disease, are treated less aggressively for traumatic brain injury, and are less likely to be offered pain medications. People of color often receive poorer quality care, too; and doctors are more likely to describe Black patients as uncooperative or non-compliant, which research suggests can affect treatment quality.***

Women say doctors frequently blame their health problems on their mental health, weight or a lack of self-care, which can delay effective treatment. For instance, Dr. Spencer’s research suggests that women are twice as likely as men to be diagnosed with a mental illness when their symptoms are consistent with heart disease.***

Women may be misdiagnosed more often than men, in part, because scientists know far less about the female body than they do about the male body, even though “there are biological differences that go down to the cellular level,” said Chloe Bird, a senior sociologist at Pardee RAND Graduate School who studies women’s health.

In 1977, the U.S. Food and Drug Administration began recommending that scientists exclude women of childbearing years from early clinical drug trials, fearing that if enrolled women became pregnant, the research could potentially harm their fetuses. Researchers were also concerned that hormonal fluctuations could muddle study results.

Today — thanks in large part to a law passed in 1993 that mandated that women and minorities be included in medical research funded by the National Institutes of Health — women are more systematically included in studies, yet there are still huge knowledge gaps.

March 31, 2022 in Gender, Healthcare, Science | Permalink | Comments (0)

A Legal Roadmap to the Interjurisdictional Abortion Wars After Roe's Demise

David Cohen, Greer Donley & Rachel Rebouche, The New Abortion Battleground, 123 Columbia L.Rev. (forthcoming 2023)

This Article examines the paradigm shift that will occur if (and, likely, when) the Supreme Court overturns Roe v. Wade this coming summer. While most commentators are focusing on what a post-Roe world looks like within individual states, this Article examines the challenging legal issues that will arise across state borders and between the state and federal government. We emphasize how these issues intersect with innovations in the delivery of abortion, which can now occur entirely online and transcend state boundaries. The interjurisdictional abortion wars are coming, and this Article is the first to provide the roadmap for what lies ahead.

Judges and scholars have long claimed that abortion law will become simpler if Roe is overturned, but that is woefully naïve. Overturning Roe will create a novel world of complex, interjurisdictional legal conflicts over abortion. Some states will pass laws banning their citizens from out-of-state abortions while others will pass laws insulating their providers from out-of-state prosecutions. State legislatures are already introducing and drafting bills to this effect . The federal government will also stake a claim. Beyond promoting access to medication abortion, federal regulations may preempt state abortion bans and federal land could provide shelter for abortion services. Ultimately, once the constitutional protection for pre-viability abortion disappears, the impending battles over abortion access will transport the half-century war over Roe into a new arena, one that will make abortion jurisprudence more complex than ever before.

This Article is the first to offer insights into this fast-approaching transformation of abortion rights, law, and access. We explore the interjurisdictional issues sure to arise while looking ahead to creative strategies to promote abortion access in a country without a constitutional abortion right.

March 31, 2022 in Abortion, Constitutional, Courts, Reproductive Rights | Permalink | Comments (0)

Wednesday, March 30, 2022

Gender Identity - The New Legal Sex

Noa Ben-Asher, Gender Identity, The New Legal Sex, 

The American legal system is in the final stages of a legal sex change. This Article reveals, names, and assesses a new legal landscape in which gender-identity is gradually becoming the new legal sex. That is, across different areas of policy, law, and regulation, legal sex is now defined in a different way than it was even two decades ago. From legal sex located somewhere in the real or imagined physical body, it is now, for a growing number of purposes, located in the gendered mind. The Article will show that while at the turn of the twenty-first century legal sex was strictly defined as sex designated at birth, usually based on the appearance of genitals, today the trend is towards defining legal sex as gender-identity. For a process that has taken only two decades this is shocking. It is thus no surprise that conservative think tanks appear panicked and are fighting back. It is also no surprise that the target is children and youth– they are the future transgender or non-binary adults. The article examines both the gains of this legal and cultural shift, but also its costs, including (1) medicalization (2) an imposition of a notion of an immutable, inner-true self; (3) vulnerability to epistemic critique of legal and social conservatives; and (4) a commitment to a binary sex system.

March 30, 2022 in LGBT, Theory | Permalink | Comments (0)

Maryland Approves Bill to Improve Access to Abortion

Maryland Approves Bill to Improve Access to Abortion

In the most sweeping change to Maryland’s abortion laws in three decades, state lawmakers passed a bill Tuesday that would dramatically expand who could perform abortions and forbid most insurers from charging patients out-of-pocket costs for the procedure.

The abortion-access legislation, passed by Democrats on a party-line vote, is one of a handful of contentious bills General Assembly leaders suspect might provoke a veto from Gov. Larry Hogan (R).


The Democratic-controlled legislature is rushing its priorities on abortion, climate change, paid family leave and gun control, among others, to Hogan’s desk by Friday so they would have time to override him before they are required to adjourn April 11.***


“It makes sure that everybody has equal access to care,” said Del. Ariana B. Kelly (D-Montgomery), the sponsor of the bill. “We are treating abortion care just like we treat all other health care. We’re applying the same rules to abortion that we do to other health care.”

The measure comes as state lawmakers across the country address the uncertainty of abortion care in the United States if the Supreme Court decides to roll back the landmark Roe v. Wade case.


Maryland currently only allows physicians to perform abortions, a restriction abortion advocates said left two-thirds of the state’s counties without a single abortion provider. The bill would let physician assistants, midwives and nurse practitioners, as well as other properly trained medical providers, perform the procedure as 14 other states do.


It would also set aside $3.5 million to train providers who may have attended medical schools in other states that do not offer such education. And it would force insurance companies to cover the procedure without co-pays or deductibles, reducing the expense for women.

March 30, 2022 in Abortion, Legislation, Reproductive Rights | Permalink | Comments (0)

Judge Approves Million Dollar Sexual Harassment Settlement Against Video Company Activision Blizzard

Judge Approves Activision Blizzard $18 Million Settlement in Sexual Harassment Suit

A California judge says she will approve a settlement between video game giant Activision Blizzard and the U.S. Equal Employment Opportunity Commission.


The case stems from a complaint the federal agency filed in September, after a years-long investigation, alleging that employees at Activision Blizzard were subjected to severe sexual harassment and pregnancy discrimination, and that the company engaged in retaliation against employees who complained.


The settlement includes an $18 million fund for eligible claimants who worked at the company starting in Sept. 1, 2016.


"Our goal is to make Activision Blizzard a model for the industry, and we will continue to focus on eliminating harassment and discrimination from our workplace," said Activision Blizzard CEO Bobby Kotick in a statement. "The court's approval of this settlement is an important step in ensuring that our employees have mechanisms for recourse if they experienced any form of harassment or retaliation."


The EEOC's lawsuit is just one that the company has faced recently for its alleged toxic workplace culture.


The California Department of Fair Employment and Housing is also suing the company for equal pay violations, sex discrimination and sexual harassment.

March 30, 2022 in Business, Equal Employment | Permalink | Comments (0)

2022 New Women Law Deans

Updated August 25, 2022

Each year Gender & the Law Prof tracks the new appointments of women deans in law schools.  We begin the list here, expecting updates as the spring progresses.

Michele Alexandre, Loyola Chicago (former Dean, Stetson)

Nicola Boothe, Univ. Illinois, Chicago (former Interim Dean, Associate Dean, Florida A&M)

Camille Carey, New Mexico (former Vice and Associate Dean, New Mexico)

Lisa Freudenheim, New England (former Co-Acting and Associate Dean, New England)

Leah Chan Grinvald, UNLV (former Associate Dean, Suffolk)

Emily Janoski-Haehlen, Akron (former Associate Dean, Akron)

Melanie Jacobs, Louisville (former Associate Dean, Michigan State)

Tamara Lawson, Washington (former Dean, St. Thomas)

Sudha Setty, CUNY (former Dean, Western New England)

Melanie Wilson. Washington & Lee (former Dean, Tennessee)


For the 2021 list, see 2021 New Women Law Deans, Gender & the Law Prof, which also includes some historic data and discussion.

See also Diversity Increases With Law School Deans, According to New Study

The number of women and people of color in law school dean positions is growing, but those hired through search firms were mostly white men, according to a new study released by the Association of American Law Schools.


The American Law School Dean Study surveyed 197 deans of ABA-accredited law schools and 222 former deans who served between 2010 and 2020. It was also compiled by the National Opinion Research Center at the University of Chicago, also known as the NORC.


According to the study, released Tuesday, women headed 41% of law schools in 2020, compared to 18% in 2005. Also, 31% of the law schools in 2020 had deans who were people of color or Hispanic, compared to 13% in 2005.


According to the study, 18% of the law school deans in 2020 identified as Black or African American, and 6% identified as Hispanic or Latino. The number of law school deans who identify as American Indian, Alaska Native, Asian, Native Hawaiian or other Pacific Islander was also increasing, in small amounts, according to the study.


March 30, 2022 in Law schools, Women lawyers | Permalink | Comments (0)

Monday, March 28, 2022

Shanta Trivedi on "Supreme Mom Guilt" in Ms. Magazine

Shanta Trivedi writes for Ms. Magazine The Supreme Mom Guilt is Real: Judge Ketanji Brown Jackson and Motherhood. 

The struggles of employed motherhood in a society that is not built to support mothers (formal wage-earners or stay-at-home moms) has been documented time and again. But, in many ways, what Jackson was expressing is unique to Black women. Black women have historically been more likely to be a part of the workforce than their white counterparts. Black women and other women are color are also more likely to do work that supports white women’s ability to work outside the home, such as caregiving and housecleaning. And, for many Black women, they are the “only” of both their gender and race at work, putting even more pressure on them in already complicated work settings where they regularly face microaggressions, harassment or blatant misogynoir—the toxic, combined discrimination against Black females.

* * *

All mothers feel pressure to be perfect and the judgment that they face is real, but Black mothers face a microscope unlike no other, particularly when compared to the upper-middle class white version of Pinterest and Etsy-fueled parenting. In the midst of an exercise designed to scrutinize her and her life, despite her perfect resume, she highlighted her perceived imperfection as a parent. But perhaps there is no better evidence to the contrary than from her own children. 

March 28, 2022 in Courts, Judges, Women lawyers, Work/life | Permalink | Comments (0)

National Birth Equity Collaborative Launches "Respectful Maternity Care Initiative"

The National Birth Equity Collaborative has launched its "Respectful Maternity Care Initiative." It describes the work as follows:  

The maternal health crisis in the U.S. is worsening, and we need a culture of Respectful Maternity Care to change it. Maternal health inequities weigh on Black and Indigenous communities, and data shows that it is due to structural and interpersonal racism. We need to be honest about how Black women are treated during maternity care.  

Systems acknowledging the ways racism affects birth outcomes requires exploring innovative anti-racist models and tools for quality improvement. Despite the prevalence of racist microaggressions and bias fueling disrespect in labor and delivery care in the U.S., there are limited tools that can measure disrespect or that support provider behavior change. Health systems are ready for accountability and quality improvement measures for racism, starting with obstetric racism.

Read its report titled The Cycle to Respectful Care: A Qualitative Approach to the Creation of an Actionable Framework to Address Maternal Outcome Disparities to learn more about this issue. The abstract is excerpted here: 

Despite persistent disparities in maternity care outcomes, there are limited resources to guide clinical practice and clinician behavior to dismantle biased practices and beliefs, structural and institutional racism, and the policies that perpetuate racism. Focus groups and interviews were held in communities in the United States identified as having higher density of Black births. Focus group and interview themes and codes illuminated Black birthing individual’s experience with labor and delivery in the hospital setting. Using an iterative process to refine and incorporate qualitative themes, we created a framework in close collaboration with birth equity stakeholders. This is an actionable, cyclical framework for training on anti-racist maternity care. The Cycle to Respectful Care acknowledges the development and perpetuation of biased healthcare delivery, while providing a solution for dismantling healthcare providers’ socialization that results in biased and discriminatory care. The Cycle to Respectful Care is an actionable tool to liberate patients, by way of their healthcare providers, from biased practices and beliefs, structural and institutional racism, and the policies that perpetuate racism.

The National Birth Equity Collaborative is hosting a webinar on Tuesday, March 29th at 9:30 a.m. to launch the initiative. Register here

March 28, 2022 in Healthcare, Pregnancy, Race, Reproductive Rights | Permalink | Comments (0)

Pennsylvania District Court Rules ABA Model Rule 8.4(g) Unconstitutional

ABA Model Rule of Professional Conduct 8.4(g) prohibits attorneys from “knowingly engag[ing] in conduct constituting harassment or discrimination based upon race, sex, gender identity or expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, or socioeconomic status.” The Eastern District of Pennsylvania granted plaintiff's motion for summary judgment in the case of Greenberg v. Goodrich finding a likelihood that the rule will chill speech.

While [the Office of Disciplinary Counsel] asserts that the Amendments only prohibit verbal conduct that actually targets an individual, not speech that is perceived to be discriminatory or harassing, this is nonsensical and subjective at best. It is nonsensical to say that an individual's perception is irrelevant where the Rule relies on complaints filed by the public to start an investigation into the attorney's conduct. It is also nonsensical to consider anything under the umbrella of harassment to be devoid of perception. Whether an individual perceives another's conduct to be welcome or unwelcome is a basic premise for harassment. For example, if a person in a protected class hears an otherwise offensive joke from a friend at a Pennsylvania Bar event, it may not be considered by that person as discrimination or harassment, while the same exact joke made by a panelist at a CLE would more likely be deemed offensive. * * * Outside of the third party's perception, it is also the subjective assessment of ODC as to whether the verbal conduct is actual or perceived. The standards for that assessment are, at best, subjective, and, at worst, completely unknown to both Pennsylvania licensed attorneys like Mr. Greenberg and even ODC itself. Therefore, speech . . . . will continue to be so affected under the revised Rule. 

* * * This assures that attorney's speech is targeted by the Rule and will continue to be broadly monitored and subject to government censure under this Rule. The Rule limits what a lawyer may say and it serves as a warning to Pennsylvania lawyers to self-censor during the course of their interactions that fall within the Board's broad interpretation of the practice of law. * * * 

Read the full opinion here

March 28, 2022 in Constitutional, Women lawyers | Permalink | Comments (0)

Thursday, March 24, 2022

Legal History of 1983 SCOTUS Decision in Akron Abortion Case May Provide Playbook for Post-Roe Legislation

My research and legal history of the US Supreme Court's decision in Akron v. Akron Center for Reproductive Health, 461 U.S. 416 (1983), on abortion regulations is featured in this deep dive feature in the Akron Beacon Journal.  Doug Livingston & Seyma Bayram, How Catholic Democrats in Akron Helped Write the Conservative Playbook to Overturn Roe, ABJ, Mar. 23, 2022. [Download article here (without photos)]

In 1978, hundreds of protesters marched in downtown Akron or outside the city's four abortion clinics in their first year of operation. The civil unrest, from threats of violence to documented arson, burned even as the Storm of the Century buried Akron in more than 3 feet of snow. 

Akron City Council moved public hearings on 16 proposed abortion restrictions to the Morley Health Center to accommodate a standing-room only crowd of 300 people, evenly split in support or opposition. A national audience followed along as the three major news channels of the day covered sweeping restrictions crafted by national anti-abortion lawyers and sponsored by Catholic Democrats on Akron City Council. 

The debate was intense. Council members shouted long after some hearings ended.

In a 7-6 vote on the last day in February, national leaders in the anti-abortion movement had found in Akron willing participants in the creation of "the playbook” to incrementally unravel Roe v. Wade.***

By 1976, a few states tried and none succeeded in chipping away at the landmark 1973 ruling that legalized abortion in the United States. A Missouri law requiring a husband’s consent was the latest to fail that year. 

By the late 1980s, though, a more conservative bench would revisit Roe, giving increased deference to state and local restrictions.

“It’s the nibble theory,” said Tracy Thomas, Seiberling chair of constitutional law at the University of Akron.

Going further and earlier than others in the effort to restrict abortion, Democrats on Akron City Council would not nibble. They chomped.

Thomas has chronicled the legal history of abortion in Akron in multiple judicial reviews. In 2013, she examined the legacy of the 1978 restrictions passed by City Council and a later case out of Akron, which resulted in one of the first of several national rulings pulling at the loose threads of a woman’s right to access an abortion. Thomas’ research drew on “archives and long-forgotten files in dusty basements” and “interviews with key players in the cases,” including a couple now in their 80s or 90s and unwilling to return a call from the Beacon Journal.

As the first stand-alone clinics opened in the city, Akron passed an ordinance requiring all abortions after three months to be done in a hospital. In 1978, they approved 16 more restrictions — waiting periods requiring multiple patient visits, parental consent for minors and the inclusion of religious and non-medical language designed to discourage people from seeking abortions.

In 1983, the justices who decided Roe a decade earlier ultimately overturned the new laws in Akron. The ruling gave abortion-rights advocates their earliest and strongest reaffirmation of a woman’s reproductive rights and the Reagan administration, which joined the case alongside legal counsel for the city of Akron, its first national “embarrassment." 

But the lasting legacy is that Akron lawmakers, at the bidding of anti-abortion groups, “created that conservative playbook” for the eventual fall of Roe, which Thomas said “is definitely not going to survive … in any way, shape or form.”

The high court rejected nibbles that went too deep, Thomas explained. Within a decade, though, several restrictions got through, gradually battering Roe to the point of teetering on collapse.***

 “What was immediately drafted in opposition to Roe becomes the playbook because eventually all of those (Akron restrictions) are upheld” in separate court cases that followed, Thomas said. “As a case, Akron becomes a much more important example of how it can be done. I think it will come back to life with restrictions passed by the states. And cities are obviously easier to get things through.” 

The research is here:

Tracy Thomas, Back to the Future of Regulating Abortion in the First Term, 29 Wisconsin J. Gender & Law 47 (2014)

Tracy Thomas, The Struggle for Gender Equality in the Northern District of Ohio, in Justice and Legal Change on the Shores of Lake Erie: A History of the US District Court for the Northern District of Ohio (Paul Finkelman & Roberta Alexander, eds. 2012).


A demonstration against an anti-abortion ordinance in City Council marches east on Bowery Street toward downtown on Feb. 13, 1978.

March 24, 2022 in Abortion, Constitutional, Legal History, Legislation, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Wednesday, March 23, 2022

Book, Why Women in the Judiciary Really Matter

Sally Kenney, Book, Gender and Justice: Why Women in the Judiciary Really Matter 

[T]his book explores different questions in different North American and European geographical jurisdictions and courts, demonstrating the value of a gender analysis of courts, judges, law, institutions, organizations, and, ultimately, politics. Gender and Justice argues empirically for both more women and more feminists on the bench, while demonstrating that achieving these two aims are independent projects.

"In this impressive work of seminal scholarship, Professor Kenney documents and articulates a persuasive case for the value a gender analysis of legal systems and decisions, as well as there needing more politically and judicially astute women appointed to the bench. – Library Bookwatch, Midwest Book Review

March 23, 2022 in Books, Courts, Judges, Women lawyers | Permalink | Comments (0)

The Exclusion of Women from the Judicial Process

Susan Tolchin, The Exclusion of Women from the Judicial Process, Signs J. (1977)

Amid the areas from which women are excluded one stands out, neglected by scholars, public officials, representatives of women's groups and the national media: the representation of women in the judicial system. Only when Supreme Court vacancies open is there public dialogue on the feasibility of appointing women. Then the tone of debate is too often one of frivolity or outrage. ***


The key to judicial selection lies in the political system. The exclusion of women from the bench is therefore a reflection of women's lack of political power, which has enabled both major political parties to ignore them. The power to select judges rests with selected elites. Whom they choose as judges depends on a variety of factors, not the least of which are their political and personal obligations.3 Bar association elites, for example, often predominate in merit-selection plans (such as the Missouri Plan) since they overwhelm the laymen on the selection panels, while party leaders tend to dominate the election process. Since judgeships are still regarded as relatively unimportant by the public at large, party leaders who slate nominees for judicial office wield greater control over judgeships than over offices which attract more public attention.


On the federal level, the American Bar Association exercises an extraordinary amount of influence over judicial appointments. The composition of the officers and board of governors of the ABA may best reveal why women occupy less than 2 percent of all federal judgeships. Of the seven officers and twenty-two members of the board of governors, not one is a woman.

My own work on Florence Allen, the first woman appointed to a federal appellate court (Sixth Circuit, 1934 by FDR), bears out this idea and history.  See Tracy Thomas, The Jurisprudence of the First Woman Judge, Florence Allen, 27 W&M J. Race, Gender & Soc. Justice 293 (2021). 

March 23, 2022 in Judges, Legal History, SCOTUS, Women lawyers | Permalink | Comments (0)

Monday, March 21, 2022

April 4th Event: "Bodies Under Siege: Connecting Race, Reproductive Justice and IPV Movements"

Confluence is hosting an event on Monday, April 4, 2022 from 4:00 - 6:00 p.m.  The event features scholars and advocates doing work involving race, reproductive justice and gender violence. Interested blog readers can register here
Come learn more about how reproductive justice issues include so much more than the right to access a safe abortion. This conversation is critical for anti-violence advocates in these times. Reproductive justice has never been readily accessible nationally. This is particularly true for Black and Native American women who also experience the highest rates of sexual violence and pregnancy related deaths.
With ever-increasing government restrictions that further the criminalization and family regulation of survivors of intimate partner violence, our goal is to hold a learning space for advocates working with survivors of intimate partner violence.  We will hear the experiences and perspectives of advocates working on the front lines of reproductive and family justice in order to better identify and understand the movements' intersections, develop survivor centered responses and develop allyship.

March 21, 2022 in Abortion, Race, Reproductive Rights | Permalink | Comments (0)

Maybell Romero on "Ruined"

Maybell Romero has posted the forthcoming article "Ruined" on SSRN. This article will be published in the Georgetown Law Review. The abstract previews: 

Judges play a critical role in one of the most important states of a criminal case’s adjudication—sentencing. While there have been substantial limitations placed on the discretion judges can exercise in devising punishments, there are little to none on what judges say at such hearings when articulating their rationales for the sentences they impose on convicted defendants. This Article examines the language judges use when sentencing defendants convicted rape, sexual assault, and sexual abuse that describes victims of those crimes and the harms they have sustained, especially language that describes victims as “ruined,” “broken,” or “destroyed.” The use of such language, while apparently meant to be empathetic, only serves to uphold misogynistic understandings of rape and sexual assault and actively harms victims. Judges trying to justify harsh sentences for defendants convicted of sex crimes also engage in shaming and exploitation of victims when saying that defendants have left victims “ruined” at sentencing.

In this Article I use traditional scholarly methods of reviewing and analyzing cases and legal doctrine to show why the use of such language is harmful to victims and flouts the purposes of criminal punishment. However, I also engage in autoethnographic methods, relying on my own experiences of rape and sexual assault, as well as prosecuting such cases. This Article considers at how other fields such as medicine and public health have approached destigmatizing other historically stigmatized conditions like substance use and mental illness, arguing that judges should take similar steps to destigmatize being a victim of rape and sexual assault by more carefully considering their language use at sentencing. I conclude by reflecting on the use of personal narrative in legal scholarship and in the classroom and argue that it can be a powerful tool that scholars should more openly embrace.

March 21, 2022 in Healthcare, Violence Against Women | Permalink | Comments (0)

6th Cir. Rules Sexual Assault of H.S. Student by Campus Police Officer On Campus Does Not Fall Under Title IX

The Sixth Circuit decided the case of Arocho v. Ohio University. The facts of the case are as follows: 

Arocho was a student at Federal Hocking High School during the 2005–2006 school year. Parsons was an Ohio University police officer, and the “designated liaison to Federal Hocking High School.” During the 2005–2006 school year, Arocho attended a career day that Ohio University provided in partnership with the high school. Parsons represented the Ohio University Police Department at the career day. He met Arocho during the event and made “inappropriate communications of a sexual nature” to her. He then “made plans to have sex” with her “later that evening.”

“Over a period of many months” during the 2005-2006 school year, Parsons sexually assaulted Arocho on multiple occasions during “work hours and at work-related locations,” including in his Ohio University police cruiser. He sexually assaulted her “[o]n at least one occasion ... on or around the premises” of Ohio University.

The court considered the extent to which this conduct occurred in connection with an "educational program or activity" under Title IX:

She alleges that Parsons sexually assaulted her during his “work hours and at work-related locations,” and in his Ohio University police cruiser. The only “education activity or program” that Arocho alleges is the career day that she attended at Ohio University. To determine whether Arocho can maintain a Title IX claim based on her allegations about career day, we consider the relationship between Arocho and Ohio University, and the relationship between Ohio University and Arocho’s high school * * *.  Arocho alleged that career day was an “Ohio University and Ohio University Police Department sanctioned event.” * * * She also alleges that it was a “vocational career development activity through the Ohio University/Ohio University Police Department and Federal Hocking High School.” When Arocho went to career day, Parsons made “inappropriate communications of a sexual nature” to her and “made plans to have sex with [her] ... later that evening.”

The court concluded that: 

Arocho was not paying Ohio University for its services, nor does she allege that she participated in or planned to participate in education programs such as taking Ohio University classes as a high school student “to receive college credit.” The amended complaint provides little to no information about the “educational opportunities” and “vocational training activities” of Ohio University that Arocho was deprived of participating in. Based on the amended complaint, the full extent of Arocho’s relationship with Ohio University was her participation in career day. Arocho also does not allege that she intended to partake in any Ohio University education program or activities in the future. * * * At bottom, Arocho’s complaint does not allege her connection to an Ohio University “education program or activity” and fails to show that she “is so closely tied to [the] university that [she] is essentially a student of [Ohio University].” * * *  

March 21, 2022 in Violence Against Women | Permalink | Comments (0)

Thursday, March 17, 2022

Critiquing the Use of Artificial Intelligence for MeToo Enforcement in the Workplace

Leora Eisenstadt, #MeTooBots and the AI Workplace, U. Penn. J. Business L. (forthcoming)

Responding to the #MeToo Movement, companies across the United States and Europe are beginning to offer products that use AI to detect discrimination and harassment in digital communications. These companies promise to outsource a large component of the EEO compliance function to technology, preventing the financial costs of toxic behavior by using AI to monitor communications and report anything deemed inappropriate to employer representatives for investigation. Highlighting the problem of underreporting of sexual harassment and positing that many victims do not come forward out of a fear of retaliation, these “#MeTooBots” propose to remove the human element from reporting and rely on AI to detect and report unacceptable conduct before it contaminates the workplace.

This new technology raises numerous legal and ethical questions relating to both the effectiveness of the technology and the ways in which it alters the paradigm on which anti-discrimination and anti-harassment doctrine is based. First, the notion that AI is capable of identifying and parsing the nuances of human interactions is problematic as are the implications for underrepresented groups if their linguistic styles are not part of the AI’s training. More complicated, however, are the questions that arise from the technology’s attempt to eliminate the human reporter: (1) How does the use of AI to detect harassment impact employer liability and available defenses since the doctrine has long been based on worker reports? (2) How does this technology impact alleged victims’ vulnerability to retaliation when incidents may be detected without a victim’s report? (3) What is the impact on the power of victim voice and autonomy in this system? and (4) What are the overall consequences for organizational culture when this type of technology is employed?

This Article examines the use of AI in EEO compliance and considers whether the elimination of human reporting requires a reconsideration of the U.S.’s approach to discrimination and harassment. Appearing on the heels of revelations about the use of non-disclosure agreements and arbitration clauses to silence victims of sexual harassment, this Article posits that the use of AI to detect and report improper communications, an innovation that purports to help eradicate workplace harassment, may, in reality, be problematic for employers and employees alike, including functioning as a new form of victim abuse. Lastly, the Article considers the difficult work of creating open, healthy workplace cultures that encourage reporting, and the impact of outsourcing this work to Artificial Intelligence. Rather than rejecting what may be an inevitable move towards incorporating artificial intelligence solutions in the workplace, this Article suggests more productive uses of AI at work and adjustments to employment discrimination doctrine to be better prepared for an AI-dependent world.

March 17, 2022 in Business, Equal Employment, Technology | Permalink | Comments (0)

Congress Passes Law Prohibiting Forced Arbitration in Sexual Harassment Cases

Wash Post, Bill on Forced Arbitration for Sexual Harassment Victims

Congress, you may be surprised to learn, passed a bipartisan bill this week meant to address a genuine injustice. It’s an unquestionable success, both for the people directly affected and for the institution, which still manages to accomplish a few things here and there — even at a moment of filibuster-induced paralysis.


But the limits of the bill raise an important question: Why stop there?


The bill is the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. It passed by a 335-to-97 vote in the House (all the No votes were Republicans), and by a voice vote in the Senate. President Biden is expected to sign it soon.


The bill goes after all-too-common clauses in employment contracts that forbid people from filing lawsuits if they are mistreated or abused on the job — though in this case, just lawsuits for sexual assault and harassment.


Instead, they’re forced into an arbitration process where the deck is stacked against them. The arbitrator is selected and paid by their employer (who might even be the harasser himself), and these kinds of contracts often limit the amount of compensation someone can receive even if they manage to win the case.

All it took to pass the bill was years of work and time, and some famous women willing to tell their own stories of harassment, including former Fox News anchor Gretchen Carlson and actor Eliza Dushku.

March 17, 2022 in Business, Equal Employment, Legislation | Permalink | Comments (0)

Why March is National Women's History Month

Why March is National Women's History Month

Local Celebrations

As recently as the 1970s, women’s history was virtually an unknown topic in the K-12 curriculum or in general public consciousness. To address this situation, the Education Task Force of the Sonoma County (California) Commission on the Status of Women initiated a “Women’s History Week” celebration for 1978.


The week March 8th, International Women’s Day, was chosen as the focal point of the observance. The local Women’s History Week activities met with enthusiastic response, and dozens of schools planned special programs for Women’s History Week. Over one-hundred community women participated by doing special presentations in classrooms throughout the country and an annual “Real Woman” Essay Contest drew hundreds of entries. The finale for the week was a celebratory parade and program held in the center of downtown Santa Rosa, California.


Mobilizing a Movement

In 1979, Molly Murphy MacGregor, a member of our group, was invited to participate in The Women’s History Institute at Sarah Lawrence College, which was chaired by noted historian, Gerda Lerner and attended by the national leaders of organizations for women and girls. When the participants learned about the success of the Sonoma County’s Women’s History Week celebration, they decided to initiate similar celebrations within their own organizations, communities, and school districts. They also agreed to support an effort to secure a “National Women’s History Week.”


Presidential and Congressional Support

The first steps toward success came in February 1980 when President Carter issued the first Presidential Proclamation declaring the Week of March 8th 1980 as National Women’s History Week. In the same year, Representative Barbara Mikulski, who at the time was in the House of Representatives, and Senator Orrin Hatch co-sponsored a Congressional Resolution for National Women’s History Week 1981. This co-sponsorship demonstrated the wide-ranging political support for recognizing, honoring, and celebrating the achievements of American women.


A National Lobbying Effort

As word spread rapidly across the nation, state departments of education encouraged celebrations of National Women’s History Week as an effective means to achieving equity goals within classrooms. Maryland, Pennsylvania, New York, Oregon, Alaska, and other states developed and distributed curriculum materials for all of their public schools. Organizations sponsored essay contests and other special programs in their local areas. Within a few years, thousands of schools and communities were celebrating National Women’s History Week, supported and encouraged by resolutions from governors, city councils, school boards, and the U.S. Congress.


Each year, the dates of National Women’s History Week, (the week of March 8th) changed and every year a new lobbying effort was needed. Yearly, a national effort that included thousands of individuals and hundreds of educational and women’s organizations was spearheaded by the National Women’s History Alliance.


National Women’s History Month

By 1986, 14 states had already declared March as Women’s History Month. This momentum and state-by-state action was used as the rational to lobby Congress to declare the entire month of March 1987 as National Women’s History Month. In 1987, Congress declared March as National Women’s History Month in perpetuity. A special Presidential Proclamation is issued every year which honors the extraordinary achievements of American women.


Presidential Message 1980

President Jimmy Carter’s Message to the nation designating March 2-8, 1980 as National Women’s History Week.

From the first settlers who came to our shores, from the first American Indian families who befriended them, men and women have worked together to build this nation. Too often the women were unsung and sometimes their contributions went unnoticed. But the achievements, leadership, courage, strength and love of the women who built America was as vital as that of the men whose names we know so well.


As Dr. Gerda Lerner has noted, “Women’s History is Women’s Right.” – It is an essential and indispensable heritage from which we can draw pride, comfort, courage, and long-range vision.”


I ask my fellow Americans to recognize this heritage with appropriate activities during National Women’s History Week, March 2-8, 1980.


I urge libraries, schools, and community organizations to focus their observances on the leaders who struggled for equality – – Susan B. Anthony, Sojourner Truth, Lucy Stone, Lucretia Mott, Elizabeth Cady Stanton, Harriet Tubman, and Alice Paul. Understanding the true history of our country will help us to comprehend the need for full equality under the law for all our people.

This goal can be achieved by ratifying the 27th Amendment to the United States Constitution, which states that “Equality of Rights under the Law shall not be denied or abridged by the United States or by any state on account of sex.”

Women's History Month: How It Started, Why we Celebrate

March 17, 2022 in Education, Pop Culture | Permalink | Comments (0)

Professor Awarded $3 Million in Sex Discrimination Case for Denial of Tenure Due to Pregnancy

UT Austin Must Pay Professor $3 Million in Sex Discrimination Case

The University of Texas at Austin must pay an engineering professor denied tenure $3 million, because it would have promoted her in 2019 if she hadn’t been a woman, and pregnant, a federal jury in Texas decided.


The assistant professor, Evdokia Nikolova, was awarded $1 million for past pain and suffering in the gender- and pregnancy-discrimination case and $2 million in future damages, plus $50,000 in back pay and benefits.


Nikolova is still employed by UT Austin as an assistant professor in the department of electrical and computer engineering. Her lawyer, Bob Schmidt, declined to say whether she’s still seeking tenure, citing the university’s right to appeal the verdict. Awarding Nikolova tenure was beyond the jury’s purview, he said.


Above all, Schmidt said he hopes the jury’s decision restores Nikolova’s reputation as a scholar after it was so damaged by the illegal tenure denial.


“The jury heard five days of compelling evidence from lots of witnesses, looked at hundreds of exhibits and documents,” he said. “But the No. 1 thing is how qualified Dr. Nikolova was, and how clearly she met the standards for tenure at UT.”***


Peter Glick, Henry Merritt Wriston Professor in the Social Sciences at Lawrence University, who studies overcoming biases and stereotyping, served as an expert witness for Nikolova during the trial. He said in an interview that there’s a tension between notions of the ideal worker and the ideal mother, and that fields in which workers are perceived to be especially devoted to what they do—think academic science—may be especially punitive for mothers. (On the flip side, he added, men have been shown to gain favor in the workplace when they become fathers, since notions of the ideal worker and the ideal father don’t clash like they do for mothers, as men are idealized as primary providers instead of primary caregivers.) And while much research on gender bias in the workplace examines hiring practices, Glick said, the literature as a whole suggests that bias against women is much more “robust”—meaning worse—when it comes to how institutions promote and reward workers than in hiring.

March 17, 2022 in Education, Equal Employment | Permalink | Comments (0)