Friday, November 9, 2018
Google Has New Sexual Harassment Policies Following Employee Walkout, Including Ending Forced Arbitration
Google said it would end its requirement for employee sexual-harassment claims to be handled in private arbitration, a move that comes one week after thousands of workers walked out of the company’s offices around the world to protest its handling of workplace issues.
In a memo on Thursday, Chief Executive Sundar Pichai told staff that Google will also include greater detail on sexual-harassment claims in regular reports and provide more services to employees who raise concerns, including counseling and career support.
The policy change for harassment claims is a victory for the organizers of the world-wide walkout, in which employees huddled outside of Google offices from Singapore to San Francisco chanting “Time’s Up!” and holding signs that read “Worker’s rights are women’s rights.”
The protest organizers published a letter with five demands, including an end to forced arbitration, a system that encourages HR staff to treat victims of harassment fairly and greater transparency around the reports on harassment claims. In its steps announced Thursday, Google didn’t address two of the demands: that the company commit to end pay inequity for women and minorities; and that the company’s chief diversity officer report directly to the CEO.
In a separate statement, Google outlined its commitments and actions policies in detail. Most significantly, the company will make arbitration optional for individual sexual harassment and sexual assault claims (according to the note, it has never required confidentiality in the arbitration process). It will make its policies on harassment, discrimination, retaliation, standards of conduct and workplace concerns more public to workers. It will also create an investigations practice guide and publish it internally so employees understand how the company handles concerns. The policies only apply to full-time employees, however.
Monday, November 5, 2018
America's corporate boards are insufficiently diverse. Too few women and ethnic minorities are at the table. California's SB 826 seeks to remedy this situation by imposing penalties on publicly traded corporations with headquarters in California, regardless of where they are chartered, if their boards have fewer than a legislatively mandated number of self-identified women directors. While well intentioned, this legislation will not achieve its intended effect because it is unconstitutional as applied to the vast majority, if not all, of publicly held corporations headquartered in California. The internal affairs doctrine will limit the law’s application to only 72 corporations headquartered and chartered in California, or 1.59 percent of all publicly traded corporations. The bill will increase the number of board seats occupied by women by trivial amounts, if at all. These trivial changes will, however, come at great risk to the evolution of affirmative action jurisprudence. California's own legislative analysis concludes that "the use of a quota-like system, as proposed by this bill … may be difficult to defend." A successful equal rights challenge means that SB 826 will have no effect at all. The legislation thus offers a poor bargain for diversity advocates: gain a trivial number of board seats, if any, but increase the risk of judicial rulings inimical to broader affirmative action initiatives. There is a better way. California can use its significant capital market influence to induce major institutional investors to mount more aggressive activist campaigns that can rapidly and materially increase boardroom diversity. These campaigns have a demonstrated history of success. They will not generate years of litigation, will not be limited to California-chartered corporations, and will pose no risk to affirmative action jurisprudence. Properly structured shareholder activism is the better, smarter way to proceed.
Thursday, October 18, 2018
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.
Wednesday, October 10, 2018
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.
Tuesday, October 9, 2018
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
Monday, October 1, 2018
California employers can no longer require workers to sign nondisclosure agreements as part of sexual harassment, discrimination or assault cases under a bill signed by Gov. Jerry Brown on Sunday.
SB820 by Sen. Connie Leyva, D-Chino (San Bernardino County), was one of several bills to come out of the Legislature in response to the #MeToo movement. Leyva said banning mandatory secret settlements will ensure victims are not forced to keep quiet while serial offenders remain employed.
The bill applies to both private and public employers, including the Legislature, which previously required its own workers to sign nondisclosure agreements as part of settlements. The new law goes into effect Jan. 1.
California became the first state to require its publicly held corporations to include women on their boards after Gov. Jerry Brown signed a bill into law on Sunday.
The bill, which applies to companies “whose principal executive offices” are in California, requires them to have at least one woman on their boards by the end of 2019.
In 2021, the companies must have a minimum of two or three women, depending on the size of their boards.
Hundreds of companies will be affected by the law, according to The Los Angeles Times, and those that fail to comply can be fined $100,000 for a first violation and $300,000 for a second.
In signing the legislation, Mr. Brown acknowledged that critics have raised “serious legal concerns” about it, which he conceded “may prove fatal to its ultimate implementation.” ***
Hannah-Beth Jackson, a Democratic state senator who represents Santa Barbara and helped write the legislation, applauded its signing on Twitter.
She has said that a quarter of California’s publicly traded companies do not have a woman on their boards, despite studies showing that companies that do are more profitable and productive. (Some research, however, has suggested that the findings are less conclusive.) For instance, Stamps.com — which has its headquarters in El Segundo, Calif., but is incorporated in Delaware — has an all-male, five-member board, and told The Los Angeles Times on Sunday that it “is reviewing the law.”
For thoughts on the potential legal problems with the quota law, see:
Kimberly Krawic, Board Diversity in the News Again
I have detailed at some length, both here, in a series of papers (co-authored with Lissa Broome and John Conley), in a piece for the NY Times, and in a recent public radio debate, why these studies that simply confirm the well-known correlation between board gender diversity and firm performance cannot be taken as evidence that gender diversity causes superior performance. This is more than just a recitation of the old “correlation doesn’t equal causation” argument. In this case there are strong empirical and theoretical reasons to believe that such a conclusion is premature.
Opponents of the legislation are mainly focusing on equal protection arguments, claiming that neither the U.S. nor the California constitutions prohibit the sort of quotas contemplated by the bill. I think there’s another issue raised by the statute, however.
Virtually all U.S. corporations are formed (“incorporated”) under the laws of a single state by filing articles of incorporation with the appropriate state official.The state in which the articles of incorporation are filed is known as the “state of incorporation.” Selecting a state of incorporation has important consequences, because of the so-called “internal affairs doctrine”—a conflicts of law rule holding that corporate governance matters are controlled by the law of the state of incorporation.
For thinking about gender quotas more broadly, including corporate board quotas in Europe and the remedial need for quotas, see my article Reconsidering the Remedy of Gender Quotas, Harvard J. Law &Gender (online)
Thursday, September 27, 2018
The U.S. Equal Employment Opportunity Commission on Friday filed a lawsuit accusing Walmart Inc of forcing pregnant workers at a Wisconsin warehouse to go on unpaid leave and denying their requests to take on easier duties.
The EEOC, which enforces federal laws banning discrimination in the workplace, said Walmart’s distribution center in Menomonie, Wisconsin, has discriminated against pregnant employees since 2014. Federal law requires employers to accommodate workers’ pregnancies in the same way as physical disabilities.
Friday’s lawsuit, filed in federal court in Wisconsin, stems from a complaint filed by Alyssa Gilliam, an employee at the Walmart warehouse in Menomonie.
The EEOC in the lawsuit said Gilliam became pregnant in 2015, and Walmart denied her requests for restrictions on heavy lifting, additional breaks, and a chair to use while working.
The commission said Walmart refused similar requests by other pregnant workers at the warehouse, but granted them for workers with disabilities or injuries.
The federal Pregnancy Discrimination Act prohibits workplace discrimination against pregnant women. In a 2015 decision involving United Parcel Service Inc, the U.S. Supreme Court said the law requires employers to provide the same accommodations to pregnant women as it does disabled workers.
Thursday, September 20, 2018
Darren Rosenblum, When Does Board Diversity Benefit Firms?
Firms embrace diversity, especially with regard to sex. Overtly optimistic predictions of a diversity dividend, some built on sex stereotypes, lead these firms to count on profits that may never materialize. This Article attempts to reset the agenda on how to study corporate board diversity. We can only assess if and how sex diversity yields benefits by understanding the who, what, and where of diversity. Whether sex diversity produces a “diversity dividend” depends on three key factors: (1) the nature of the benefit of including women (whether for their experience or other qualities); (2) the kind of firm and its governance; and (3) the jurisdiction(s) in which the firm operates. Only by further investigating the precise conditions under which diversity will have an effect can we estimate the potential instrumental benefits of sex diversity.
Tuesday, August 14, 2018
A new study says that women lawyers who display anger, assertive behavior, or self-promotion are going to be seen more negatively than a male lawyer seen acting the same way.
The findings come from a new survey by the Center for Worklife Law together with the American Bar Association Commission on Women in the Profession and the Minority Corporate Counsel Association.
The full report, a survey of nearly 3,000 lawyers, is slated for release in September but a detailed article in the ABA Journal laid out the specifics of the survey’s finding that emotions displayed by women lawyers receive different treatment than those of their male counterparts.
Survey results found that fewer women than men felt free to express anger at work when it’s justified.
Only 44 percent said they were free to do so compared to 56 percent of white men who felt that they could. Even fewer women of color – only 40 percent – felt they could show anger at work on an appropriate occasion.
The report is called “You Can’t Change What You Can’t See: Interrupting Racial & Gender Bias in the Legal Profession.”
The authors declined to comment on the report until its release date, but the anger display findings dovetail with other studies that show women lawyers persistently receive different treatment in similar circumstances.
Two years ago, the ABA addressed the frequent use of words like “honey” and “darling” directed at women lawyers in work settings such as depositions and courtrooms. The lawyers’ association adopted an ethics rule that it is professional misconduct to discriminate against or another lawyer in the course of practicing law.
Tuesday, June 19, 2018
The CAL state senate passed a bill that would require public companies with "principal executive offices" in CAL to have a minimum of one woman on their corporate board. That increases to two women in the second year of the bill, and three women in the third year for boards of more than 6 people.
The full text of the bill is here: SB-826: Corporations: Board of Directors
"[F]ive other states (MA, IL, PA, OH and CO) have already passed precatory resolutions encouraging corporations within their states to promote gender diversity in the boardroom." See California State Senate Passes Bill That Would Impose Gender Quotas on Public Company Boards
For my thoughts and legal analysis in support of gender quotas, see Tracy A. Thomas, Reconsidering the Remedy of Gender Quotas, Harv. J. L. & Gender (online) (Nov. 2017).
Friday, April 6, 2018
The year 2017 marked an inflection point in the evolution of social norms regarding sexual harassment. While victims of workplace harassment had long suffered in silence, the surfacing of serious sexual misconduct allegations against Hollywood producer Harvey Weinstein encouraged many more victims to tell their personal stories of abuse. These scandals have spread beyond Hollywood to the rest of corporate America, leading to the departures of several high-profile executives as well as sharp stock price declines at a number of firms. In the past year, shareholders at four publicly traded companies have filed lawsuits alleging that corporate directors and officers breached their fiduciary duties and/or violated federal securities laws in connection with sexual harassment scandals at those firms. More such suits are likely to follow in the months ahead.
In this Article, we examine the role of corporate and securities law in regulating and remedying workplace sexual misconduct. We specify the conditions under which corporate fiduciaries can be held liable to shareholders under state corporation law for perpetrating sexual misconduct or allowing it to occur at their firms. We also discuss the circumstances under which federal securities law requires issuers to disclose sexual misconduct allegations against top executives and to reveal payments made to settle sexual misconduct claims. After building a doctrinal framework for analyzing potential liability, we consider the strategic and normative implications of using corporate and securities law as tools to address workplace-based sexual misconduct. We conclude that corporate and securities law can serve to publicize the scope and severity of sexual harassment, incentivize proactive and productive interventions by corporate fiduciaries, and punish individuals and entities that commit, conceal, and abet sexual misconduct in the workplace. But we also address the potential discursive and distributional implications of using laws designed to protect shareholders as tools to regulate sexual harassment. We end by emphasizing the promise as well as the pitfalls of corporate law as a catalyst for organizational and social change.
Friday, March 16, 2018
Priya-Alika Elias, What Does Dressing "Professionally" Mean for Women of Color?
The schools did give us certain guidelines. . . . But generally, they avoided specific rules. “Be discreet,” they said. “Dress professionally, like the older lawyers do. Blend in.”
When you’re a woman of color, that’s almost impossible. You learn quickly that your body is hypervisible, because it is probably the only one of its kind in the courtroom. You are constantly among men, white men, who notice how different you look from the usual faces they see. And because you’re hypervisible, you are subject to the harshest, most unforgiving scrutiny. Does that girl belong here? What is she doing here? they wonder. And when they wonder, they seize upon the easiest thing to criticize, the first thing anybody would notice: the way you’re dressed.....
The selective enforcement of rules continued all through law school. We didn’t get a handbook at my summer internship telling us what to wear: It was left to my supervisors to enforce the dress code. They did it in the most arbitrary fashion; my coworker wasn’t admonished for wearing a white suit to court, but I was sent home again and again to change.
Nobody tells you what too much means, in the context of the workplace. They don’t go into detail, because it’s an embarrassing conversation to have with another adult. That reluctance is normal, and it makes employers resort to coded language, like “unprofessional” and “excessive.” Unfortunately, it is this vagueness, this lack of specificity, that is exploited to the detriment of women of color. When you don’t have a clear set of rules to follow, you’re open to the judgment of a subjective authority — often a white male authority. In the eye of that authority, your very presence is a violation.
h/t Sahar Aziza
Thursday, March 15, 2018
Gender diversity on company boards is becoming an increasingly important issue. The theoretical bases for the desirability of gender diversity regulations can be understood under three categories i.e. social benefits; business benefits; and corporate governance benefits. Since corporate governance is the main task of the board of directors, the corporate governance case for board gender diversity needs to be developed further. This article tests the corporate governance benefits of board gender diversity by conducting a qualitative content analysis of Delaware cases. The observations from this study are then analysed against the quantitative and qualitative literature on the about the corporate governance benefits of board gender diversity. The findings suggest that gender diversity might help boards overcome some impediments to effective functioning in certain cases but also suggests other complementary solutions to make boards more effective. The article thus, builds the corporate governance case for board gender diversity, but also sets out its limits.
Tuesday, March 6, 2018
Few people watching Sunday night’s Oscar awards knew what Frances McDormand was talking about as she ended her Best Actress acceptance speech with an obscure bit of legalese: “inclusion rider.”
One exception was Kalpana Kotagal, a civil rights lawyer in Washington who has spent the last year or so crafting the concept with colleagues, but had no idea the novel method for increasing diversity in Hollywood would get such a high-profile shout-out.
The gist is this: powerful actors and film makers could use their star power to get a studio to hire more women, gay people, disabled people and people from racial minorities to the cast and crew by stipulating it as a rider in their contract.***
“I just found out about this last week,” McDormand, who won the Best Actress Oscar for her portrayal of a mother searching for her daughter’s killer in “Three Billboards Outside Ebbing, Missouri,” told reporters backstage during a ceremony notable for its activism.
Kotagal said she worked on creating model language for the rider with Stacy Smith, a communications professor at the University of Southern California who mentioned the “inclusion rider” idea in a 2016 talk on the lack of diversity in the film industry.
“The objective is to have the films that we see every day be a better reflection of the world that we live in,” Kotagal said, suggesting that casting directors look at a more diverse array of people when filling smaller speaking roles and background parts. “That means, for example, 50 percent women.
"I have two words to leave with you tonight, ladies and gentlemen: inclusion rider."
Two simple words they may be, but when Frances McDormand closed her acceptance speech with them at the Academy Awards, not a whole lot of people had heard those terms paired that way. The big spike in Google searches for the phrase Sunday night reflects the frantic clatter of people across the world summoning those key words.
So, what is an inclusion rider, exactly?
Simply put: It's a stipulation that actors and actresses can ask (or demand) to have inserted into their contracts, which would require a certain level of diversity among a film's cast and crew.
For instance, an A-list actor negotiating to join a film could use the inclusion rider to insist that "tertiary speaking characters should match the gender distribution of the setting for the film, as long as it's sensible for the plot," Stacy L. Smith explained in a 2014 column that introduced the idea in The Hollywood Reporter.
Smith, who directs the Annenberg Inclusion Initiative at the University of Southern California, told NPR's Mary Louise Kelly she had "absolutely no idea" McDormand would bring up the concept at the Oscars. "But," Smith added, "talk about being elated and thrilled to hear those two words broadcast around the world."
Smith has pushed for years for more diverse representation in film — delivering a TED Talk on the topic while she was at it — and the inclusion rider has been a crucial arrow in her quiver.
"The goal really is to figure out: How do we move from all the lip service in Hollywood to actually see the numbers that we study every year move?" Smith said.
Tuesday, February 27, 2018
Massachusetts Sen. Elizabeth Warren and Nevada Rep. Jacky Rosen introduced legislationTuesday that would require public companies to publicly report allegations of sexual harassment and other types of harassment in the workplace.
The Democrats argue investors are entitled to know the specifics of harassment allegations — and any settlements public companies have made. The legislation, called the “Sunlight in Workplace Harassment Act,” was first reviewed by BuzzFeed News before its introduction.
If passed, Warren and Rosen’s legislation would require public companies to annually report the number of settlements they entered related to sexual harassment and the total amount of money spent on them. It would also require reports on settlements made based on complaints related to race, religion, sex, gender identity, genetic information, sexual orientation, national origin, disability, service-member status, or age discrimination.
The bill would also require the companies to report the “average length of time” for an employer to resolve a complaint regarding sexual harassment. But the bill specifically prohibits the disclosure of the names of employees involved in the settlements.
“What the #MeToo movement has taught us is that we're not going to change the culture where this misconduct is brushed aside or openly tolerated in workplaces across America without more transparency on how these issues are being handled.”
Tuesday, February 13, 2018
Alessandra Malito, Older Women will Soon Rule the World, MIT Professor Says
In his new book, “The Longevity Economy: Unlocking the World’s Fastest-Growing, Most Misunderstood Market,” (published by PublicAffairs) Joseph Coughlin, founder and director of the MIT Age Lab, a research program that studies the population 50 and older as well as the technology that impacts their lives, says the narrative on retirement needs a major update. Society puts so much emphasis on the years between birth and 65 years old, but life spans have lengthened over the last century to well into the 80s (and some say citizens of well developed countries can expect to live into the 100s) which means that Americans now may spend a third or more of their lives in retirement.
The catalyst won’t be the engineer or marketing person or someone doing advertisements on Madison Avenue, the future is distinctly female. She lives longer, she is the primary caregiver and the chief consumption officer of the home, so if she doesn’t buy it or envision it, she frankly won’t be living in it and the country and family is missing a big opportunity on what she knows and what she likes and what she will buy. We find the venture capital community ignoring women — we have a vision of innovation as a 27-year-old male wearing sneakers.
MarketWatch: Can you expand on “the future is female” comment? Women haven’t always been considered for such a role — why now?
Coughlin: They weren’t just marginalized — they were invisible. Female consumers today have more education in all fields except engineering, and that’s world wide. That makes her a dedicated researcher. Entrepreneurialism is a new women movement — women have startups employing Americans equal to large corporations. And while she is doing all that, she remains the caregiver, not just to her own children but to her parents. She’s influencing the majority of auto decisions, she understands what the needs and wants are in the population. Women are starting companies about downsizing services to clean up houses and services to provide care in homes — they see the problems and the opportunities.
MarketWatch: You had some tips for businesses looking to invest in the longevity economy — what are some?
Coughlin: With some irony, companies these days are very much liking to advertise that they are consumer-focused. But most companies ignore 51% of the population: the female population. To understand the aging marketplace, they need to look particularly at women 50 and older. The second thing is usable design does not have to be big, beige and boring — transcendent design is not just usable and functional, but genuinely delights the buyer. The third is to create new stories, new rituals, new myths — why don’t we have downsizing parties? Grandparent registries? If you think about it, business and society have all holidays and punctuation marks for 0-65 years old. After that you have a retirement party and everyone else’s parties. For one-third of your life, it’s not about you at all. And the last part is, if we are going to be living longer, we need to rewrite the way we think of retirement. Not just extending work span, but remaining engaged, productive. And frankly, most have a social network where we work, not where we live.
The push for gender diversity on public companies' boards has been gaining traction. Advocacy groups, institutional investors, regulators and companies themselves have all recognized the need for more diverse boards. However, gender parity is still absent from most public companies' boards, and a significant number of companies still have no women on their boards.
Current public and academic discourse has focused on the number of women serving on the board and their percentage compared to men as the litmus test for gender diversity. However, academic studies and the public push for more diversity have mostly failed to account for another important measure of board gender diversity - the actual role and clout that female directors have within the boardroom. This is what the Article terms as substantive gender diversity.
Substantive gender diversity matters. It is at the core of both the social cause and the business case for gender diversity on boards. This Article explores this substantive component of board gender diversity through empirical data relating to the role that men and women play on corporate boards. The Article finds statistically significant differences between the roles of female and male directors. Building on these findings, the Article asserts that regulators, investors and companies must focus not only on increasing the number of women on boards but also on ensuring that female directors enjoy similar parity once elected. The Article then proposes a shift towards a Substantive Gender Diversity Disclosure regime, which would measure and report the substantive aspect of gender diversity in boardrooms.
Tuesday, January 16, 2018
Thomas Jefferson School of Law, Women and the Law Conference 2018: Her Place at the Bargaining Table: Gender, Negotiation and “Risky” Decision-Making
Thomas Jefferson School of Law’s 18th Annual Women and the Law Conference, Her Place at the Bargaining Table: Gender, Negotiation and “Risky” Decision-Making, will be held on Friday, February 9, 2018 at Thomas Jefferson School of Law.
This conference brings together leading experts and practitioners to focus exclusively on issues related to gender and the law to address the issue of women at the bargaining table. How does gender affect the way we approach and manage negotiations in a variety of settings?
Explorations into the enduring wage gap between men and women prompt us to examine this important topic. Despite advances, women on average continue to earn roughly 80 cents for each male dollar earned. In 1960, women earned approximately 64 cents for each male dollar and experts estimate that the gap will likely not close for at least another 40 years...longer for Latina or African American women. What accounts for this gap? Is it explicit sexism, implicit bias, male and female divergent life choices?
Negotiation experts maintain that women’s antipathy to negotiation and risk-taking provides a partial explanation. This year’s topic explores women and decision-making, with particular attention paid to the art and science of bargaining for advantage.
Professor Linda C. Babcock will deliver the Ruth Bader Ginsburg Lecture. Babcock
continues in a long line of illustrious speakers who have been honored as the Ruth Bader Ginsburg Lecturer, a lecture series Justice Ginsburg generously established for Thomas Jefferson in 2003.
Monday, November 27, 2017
Maria Contreras-Sweet, who led the U.S. Small Business Administration under President Obama, has submitted a bid to acquire the Weinstein Co., the embattled film studio grappling with multiple allegations of sexual harassment or assault against its former co-chairman, Harvey Weinstein. It includes a group of investors with female leaders from private equity, venture capital and Hollywood, according to a source familiar with the deal. It proposes retaining the company's employees and has the blessing of lawyer Gloria Allred, who is representing some of Weinstein's accusers.
But one aspect of the bid is getting the most attention: Its proposal to install a majority-female board of directors, with Contreras-Sweet as chairman.
That's partly because, some researchers argue, having more women in leadership roles is a better answer to solving sexual harassment problems than installing more training programs or anti-harassment policies. Research has shown that having male-dominated management teams can lead to the tolerance of a sexualized environment, said Alexandra Kalev, a professor at Tel Aviv University and the co-author of a recent Harvard Business Review article on the topic. "Having more women in management increases the share of women who can work to promote women and create a working environment that allows women to flourish," she said.
Moreover, Kalev said, having more than just one or two token women on the board is important for female board members' contributions to be heard and for them to not be viewed as outsiders who represent a woman's point of view. She said research has shown that companies are actually more likely to adopt a diversity program when they have no women on the board than when 5 percent of the board is women. Having a single woman makes boards feel as though they've taken some action, and they "feel less of an urge to adopt programs that increase diversity."
It's not until they get to 15 or 20 percent of directors that they start to make a difference, Kalev said. "They're not seen as representing their gender anymore, but representing the board," she said. "It mainstreams women in positions of power."
Frequently cited research from 2006, based on interviews with female directors, also found that it seems to take at least three women for them to create "a critical mass where women are no longer seen as outsiders" and can influence decision-making.
I have written some about altering the gender balance on corporate boards, as well as balancing the power structures of other institutions such as legislative bodies, academia, and workplaces to reflect gender parity of 50/50 women. Reconsidering the Remedy of Gender Quotas, Harvard J. Gender & Law Online (Nov. 2016).
key feminist insight on these systemic problems has focused on the importance of power. The lack of women’s power as decision makers in the workplace, politics, or science means the perpetuation of the patriarchy (yes, patriarchy) and male privilege from the top down.
Generations at the top may be outdated, but they continue to transmit the same outmoded assumptions of women’s inferiority and disqualification, reinvigorating a new generation with the same discriminatory norms and practices.