Gender and the Law Prof Blog

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

Tuesday, April 2, 2019

Model Rule 8.4 and Ethical Implications of Sexual Harassment for Lawyers

Ashley Badesch, Lady Justice: The Ethical Considerations and Impacts of Gender Bias and Sexual Harassment in the Legal Profession on Equal Access to Justice for Women, 31 Georgetown J. Law & Ethics 497 (2018) [Westlaw link only]

Over twenty-five years ago, the American Bar Association (ABA) adopted a recommendation resolving to take action on the problem of sexual harassment in the workplace and legal profession. The report, compiled by the ABA Commission on Women in the Profession, was released in the wake of Anita Hill's testimony during the Supreme Court confirmation hearings for Justice Clarence Thomas. These hearings sparked public debate about sexual harassment as a “matter of national concern” for the first time. Failed attempts to adopt an anti-bias amendment to the Model Rules of Professional Conduct punctuated the following two decades of limited progress in reducing issues of gender bias and sexual harassment. Then in August of 2016 advocates for efforts to increase inclusivity and prevent bias and discrimination in the practice of law toward women, minorities, and other groups garnered long-awaited progress with the American Bar Association's August 2016 adoption of Model Rule 8.4(g).
 
Model Rule 8.4(g) makes it professional misconduct for a lawyer to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” Comment [3] expounds upon *498 the meaning of discrimination and harassment within the rule, indicating that “discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others,” while “harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct ... [such as] unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature.” The rule's comments point to substantive discrimination and harassment law as a guide for applying Rule 8.4(g) in the disciplinary context.
 
States are currently considering whether to adopt 8.4(g) against a backdrop of unprecedented national media attention on sexual harassment in the workplace. In October of 2017, the New York Times broke an explosive story detailing decades of allegations of sexual harassment and assault against the powerful Hollywood producer Harvey Weinstein,igniting the viral “#MeToo” hashtag that took social media by storm. The ensuing flood of accusations against famous and powerful men across industries has brought the issue of sexual harassment under greater national scrutiny than ever before. Initial skepticism as to the significance and staying power of the “#MeToo moment” has been answered with a daily news cycle in which prominent figures are losing their careers and credibility within the media, entertainment industry, and political world as a result of allegations of misconduct. Whether this becomes a true watershed moment in our culture depends upon how the shifting understanding of what constitutes sexual harassment and how it should be addressed becomes codified into workplace codes of conduct, corporate governance, and the law.
 

April 2, 2019 in Business, Equal Employment, Women lawyers | Permalink | Comments (0)

Legal Implications of the #MeToo Movement for Employment Law and Practices

Elizabeth C. Tippett, The Legal Implications of the #MeToo Movement, 103 Minnesota L. Rev. 229 (2018)

This Article examines the implications of the MeToo movement for employment law and employment practices. Employers are likely to face increased liability for harassment, as courts eventually update their standards for what qualifies as “severe or pervasive” harassment, and demand more of employers seeking to establish the Faragher/Ellerth defense. Employers also face greater risks of public scandals, as employees speak out and state legislatures limit the enforceability of non-disclosure agreements.

 

Consequently, employers can be expected to take a more punitive approach to documented instances of harassment. This will not only include termination, but also meaningful intermediate forms of discipline like a demotion or the removal of supervisory responsibilities. To limit their potential liability associated with these more punitive measures, employers are likely to modify standard language in executive employment agreements and privacy policies.

 

Lastly, the Article explores how standard harassment policies may have contributed to the problems exposed by the MeToo movement. The Article advocates for transparent harassment policies that disclose the contextual factors that influence disciplinary decisions. Employers should also draft broader discrimination policies that treat discriminatory and harassing comments by supervisors as a breach of trust. These changes would harmonize employer policies with their underlying litigation risks, and better convey employer expectations in the MeToo era.”

April 2, 2019 in Business, Courts, Equal Employment, Workplace | Permalink | Comments (0)

Friday, March 15, 2019

Using AI to Overcome Implicit Gender Bias in Employment Decision-Making in the Tech Industry

Kimberly Houser, Can AI Solve the Diversity Problem in the Tech Industry? Mitigating Noise and Bias in Employment Decision-Making, 22 Stanford Tech. L. Rev. (forthcoming)

After the first diversity report was issued in 2014 revealing the dearth of women in the tech industry, companies rushed to hire consultants to provide unconscious bias training to their employees. Unfortunately, recent diversity reports show no significant improvement, and, in fact, women lost ground during some of the years. According to a 2016 Human Capital Institute survey, nearly 80% of leaders were still using gut feeling and personal opinion to make decisions that affected talent-management practices. By incorporating AI into employment decisions, we can mitigate unconscious bias and variability in human decision-making. While some scholars have warned that using artificial intelligence (AI) in decision-making creates discriminatory results, they downplay the reason for such occurrences – humans. The main concerns noted relate to the risk of reproducing bias in an algorithmic outcome (“garbage in, garbage out”) and the inability to detect bias due to the lack of understanding of the reason for the algorithmic outcome (“black box” problem). In this paper, I argue that responsible AI will abate the problems caused by unconscious biases and noise in human decision-making, and in doing so increase the hiring, promotion, and retention of women in the tech industry. The new solutions to the garbage in, garbage out and black box concerns will be explored. The question is not whether AI should be incorporated into decisions impacting employment, but rather why in 2019 are we still relying on faulty human-decision making?

March 15, 2019 in Business, Equal Employment, Science, Technology, Workplace | Permalink | Comments (0)

Monday, March 11, 2019

"Defensive Glass Ceilings" as Unlawful Structural Barriers to Women's Equal Employment Opportunities

Anthony Michael Kreis, Defensive Glass Ceilings, 88 GW L. Rev. (forthcoming)

The #MeToo Movement is a grassroots effort mobilized by victims of sexual assault and sexual harassment to end sexual violence and sex-based discrimination against women. Though in its infancy, the movement has been a catalyst for significant legal and cultural reform. It has also claimed the careers of prominent men credibly accused of various sex-based misconduct. Nervous men have reacted in poor form in response, electing to avoid women in the workplace and hedge against allegations of wrongdoing or the appearance of impropriety. The American workplace stands to be more sex-segregated if this trend takes hold as a consequence.

At the same time, women are punished on the job for being too friendly at work or discriminated against because they are perceived as too attractive, mistreatment stemming from men’s fears that they could fall victim to their ow inability to exercise self-control, that women are “overly-sensitive,” or that women might make baseless accusations against them. Too often courts have declined to recognize these invidious employment practices as unlawful sex discrimination because judges fail to see these behaviors as part of a systemic gender policing. Judges, instead, chalk it up to a few bad apples misbehaving. This Article posits that defensive work environments must be viewed as products of structural bias, not individual malevolence.

The goal of this Article is to use the hue and cry of this paradigm-shifting moment as an opportunity to reconsider the law’s prior understanding of sexual harassment and sex discrimination in the workplace. This Article argues that employment practices that create different rules of engagement for the primary benefit of men— erecting defensive glass ceilings— should be understood in the aggregate as a product of ambivalent sexism that creates a structural barrier to women’s employment opportunities in the workplace and are thus unlawful.

March 11, 2019 in Business, Equal Employment, Workplace | Permalink | Comments (0)

Wednesday, March 6, 2019

Judge Orders Trump Administration to Reinstate EEOC Pay Reporting Rule by Gender and Race

Wash Post, "Victory for Equal Pay": Judge Rules Trump Administration Must Require Companies to Report Pay by Gender, Race

A federal judge on Monday ordered the Trump administration to reinstate an Obama-era rule that required companies to report pay data by race and gender, a move advocates say will help shrink the wage gap.

 

Tanya S. Chutkan, a U.S. district judge for the District of Columbia, ruled that the Trump administration violated the law when it halted the Equal Employment Opportunity Commission’s efforts to collect pay data by race and gender from large companies. In defending its decision to freeze the rule, Chutkan wrote, the government failed to demonstrate that the requirements would “meaningfully increase the burden on employers.”

 

Chutkan ordered the government to move forward with collecting the data, a decision that women’s rights groups hailed as a crucial step toward fighting employer discrimination of women and minorities.***

 

The rule, which was finalized in September 2016, required firms with 100 or more employees to provide additional employee and salary information to the EEOC on an existing form, known as the EEO-1. Companies would have been required to submit their reports by March 31, 2018.***

 

The rule also created an incentive for an employer to “look under the hood” and evaluate their own pay practices, Yang said. The EEOC planned to then publish the aggregate data publicly, allowing employers, advocates and academics to benchmark pay inequities in the workforce, said Yang, who is now a strategic partner at Working Ideal and a fellow at the Urban Institute.

 

But the data collection requirement was met with intense criticism from the U.S. Chamber of Commerce and other industry groups that argued it put an unfair and expensive burden on employers. While the EEOC estimated the data collection would cost $25 million a year, or about $416 per company, the Chamber of Commerce claimed it would carry a total burden of $1.3 billion per year for all businesses with 100 or more employees, with “no accompanying benefit."

 

Then, in August 2017, Neomi Rao, then the administrator of the Office of Information and Regulatory Affairs, sent a memorandum to Victoria Lipnic, the Acting Chairwoman of the EEOC, stating that the Office of Management of Budget had decided to freeze the EEOC’s new collection of pay data.

 

Rao, who is now President Trump’s nominee to replace Supreme Court Justice Brett M. Kavanaugh on the U.S. Court of Appeals for the District of Columbia Circuit, wrote in the memo that “aspects of the revised collection of information lack practical utility, are unnecessarily burdensome, and do not adequately address privacy and confidentiality issues.”

March 6, 2019 in Business, Equal Employment, Race | Permalink | Comments (0)

Friday, February 22, 2019

Change is Happening: An ABA Summary of Changes After MeToo

ABA, Change is Happening

 has been more than a year since the advent of the #MeToo movement and, as its impact continues, it is not too soon to ask: What has changed about sexual harassment in the workplace and, more broadly, about the chances for women to advance at the same rate and into the same senior roles as men?

 

In the legal profession, a number of crucial steps took place in 2018 for bringing the problem of sexual harassment into the open and giving all members of the profession the tools needed for eliminating sexual harassment in the workplace.

 

The American Bar Association (ABA) has taken a leading role. At the ABA Annual Meeting in Chicago in August 2018, the House of Delegates unanimously passed the Commission on Women in the Profession’s Resolution 300, urging legal employers not to require arbitration in cases of sexual harassment. [https://www.americanbar.org/content/dam/aba/administrative/house_of_delegates/2018_am_300.pdf]

At the February 2018 ABA Midyear Meeting in Vancouver, British Columbia, the House of Delegates unanimously passed the Commission’s Resolution 302, which lays out the policies and procedures needed for all employers to eliminate sexual harassment in the workplace. [https://www.americanbar.org/content/dam/aba/events/women/2018_mm_302.pdf]

 

Both of these resolutions highlight ways to eliminate the most common forms of sexual harassment: “quid pro quo” harassment, involving sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature; and harassment based on sexual advances, requests or conduct that creates an intimidating, hostile, or sexually offensive work environment. They also speak to the intersectionality of gender and race, the combined effects of racial discrimination and gender discrimination on the advancement of women—a phenomenon that deserves more recognition and focus than it has received.

 

Happily, the ABA is not the only organization that has taken strong actions. There are meaningful proposals to amend the Congressional Accountability Act of 1995, to reform procedures for the initiation, investigation, and resolution of sexual harassment claims by congressional employees. The amended legislation will hopefully become law by the time this issue of Perspectives is published. Many states—including New York, California, Massachusetts, Maryland, Minnesota, Delaware, Tennessee, and Louisiana—have strengthened the relief available to victims of sexual harassment and proposed new measures to prevent future harassment.

February 22, 2019 in Business, Equal Employment | Permalink | Comments (0)

Monday, February 11, 2019

Business Groups Concerned about New Sexual Harassment Bill Approved by MN House Committee

Sexual Harassment Bill Unanimously Approved by MN House Committee

A Minnesota House committee voted unanimously to move ahead with a bill strengthening sexual harassment laws in the work place, but some business groups are worried the law may go too far.

 

“The managers routinely made me choose between being able to pay for rent and food, and being sexually harassed and stalked,” Ami said.

 

Minnesota lawmakers heard sexual harassment horror stories from a server at a Golden Valley Perkins restaurant, who asked WCCO not to use her full name. She said she endured a year of touching and stalking from customers, and her managers refused to stop it.

 

She sued the company but lost the case, which didn’t fit Minnesota’s high standard for “severe and pervasive” sexual harassment. Now one lawmaker is trying to change that.

 

“This bill is necessary to insure that workers are safe in their workplaces,” Rep. Kelly Moller (DFL) said. “As the #MeToo movement has highlighted, we need to change workplace behavior.”

 

The House is debating a sexual harassment bill giving more credibility to employees who report an intimidating, hostile or offensive environment. Business groups say no one supports harassment, but changing the reporting standard could cause a blizzard of lawsuits.

 

“We are not here to say the sky is falling. We are here to say we have tremendous concerns about the language that is being proposed, because it will increase the amount of litigation. There is just no question about that,” Melissa Raphan, from the Minnesota Employment law Council, said.

February 11, 2019 in Business, Equal Employment, Workplace | Permalink | Comments (0)

Tuesday, February 5, 2019

Insurers Begin to Limit Coverage for #MeToo Liability

This industry action on insurance was recommended by Prof. Marci Hamilton  in one of the earliest legal analyses of the #MeToo movement and how to redress the problem.  See Blog, Systemic Solutions for Sexual Harassment Legislation and Insurance Industry Change (Nov. 2017)

Insurers Blacklisting Industries Over #MeToo Liability

Sixteen months into #MeToo, companies seeking sexual harassment insurance are facing intense scrutiny from insurers — a trend that could put pressure on firms to institute organizational change.

 

A recent report, authored by an insurance industry consultant, reveals new measures that insurers are taking to mitigate the risks of writing harassment policies, including decisions to exclude entire industries from their portfolios.

 

The increased vigilance comes as harassment complaints filed with the U.S. Equal Employment Opportunity Commission are on the rise, perhaps sparked by the wave of #MeToo revelations. The EEOC received 7,609 sexual harassment charges in its 2018 fiscal year, up nearly 14 percent from 2017. These numbers don’t include an unknown number of complaints settled by victims who never contacted the federal regulator.

 

Ten of the 32 insurance companies polled by Richard S. Betterley, publisher of the Betterley Report, said they were not underwriting the legal industry. Financial firms, including brokers, investment banks, and venture capital operations landed on the prohibited lists of eight insurers. Seven insurers said they’d blacklisted companies in the entertainment industry. Betterley shared a copy of his report, completed in December, exclusively with The Intercept and Type Investigations.

 

Betterley reached out to the biggest companies offering what is called “employment practices liability insurance,” or EPLI, which covers sexual harassment, sex discrimination, and other employee claims. Among the companies responding to Betterley’s survey were AIG, Chubb, The Hartford, and Travelers.

 

EPLI insurers christen their products with names like “ForceField” and “Employment Edge” and sometimes market their wares with #MeToo paranoia in mind. A blogger at a Manhattan insurance brokerage asks readers, “Is your industry a snake pit for sexual harassment claims?” At Nationwide, a webpage devoted to EPLI insurance warns that “a business is more likely to have an employment claim than experience a fire.” To attract clients for their expensive policies, which can demand seven-figure premiums for large firms, some insurers offer extras, such as free consultations with an outside law firm and sample employee handbooks.

 

Betterley said in an interview that, with dozens of insurers offering EPLI policies, being blocked by some major providers doesn’t mean that companies in frowned-upon industries can’t get insurance at all. But it could now mean agreeing to higher premiums and deductibles and demonstrating that their problems “are under control and have been addressed,” he said. 

 

For example, a problem company might have to show that it had set up a confidential outside service for employees to report complaints anonymously, Betterley said. Or that the company had circulated anti-harassment policies and set up sexual harassment compliance programs. A large employer with a history of harassment complaints might see a deductible soar from $1 million to $5 million, he said.

 

Companies with high-profile executives, big-name stars, or iffy corporate cultures are getting increased scrutiny, several insurers who participated in the survey told Betterley. One insurer said it had become more cautious about underwriting “any account with celebrity involvement.” Another said it was taking a more in-depth look at companies’ track records on pay equity.

 

When Betterley began tracking the insurance market for sexual harassment and other employee claims in 1991, he said, there were only five companies in the business. “But EPLI really got big after Anita Hill testified in the Clarence Thomas hearings, when insurance companies saw a business opportunity,” said Paula Brantner, senior adviser to Workplace Fairness, a nonprofit organization that advocates for workers’ rights.

February 5, 2019 in Business, Equal Employment, Workplace | Permalink | Comments (0)

Tuesday, January 15, 2019

Study Shows Ending Sexual Harassment Requires Change in Organizational Climate, not Merely Ousting "Bad Men"

Want to End Sexual Harassment? Landmark Study Finds Ousting "Bad Men" Isn't Enough

When sexual harassment happens, it’s easy ― and not wrong ― to blame individual perpetrators, i.e., the “bad men.” And over the past couple of years, lots of men have been fired, demoted, arrested and publicly shamed for various acts of sexual misconduct.

 

But a major study from the National Academies of Sciences, Engineering, and Medicine outlines a more comprehensive way of looking at sexual harassment within organizations and identifies the strongest predictor of such behavior. Surprisingly, it has little to do with individual perpetrators.

 

The study finds that the strongest, most potent predictor of sexual harassment is essentially the culture of the company ― what the researchers call “organizational climate.” 

 

If employees believe that their organization takes harassment seriously, then harassment is less likely to happen, according to the 311-page report released Tuesday. That faith in fair treatment acts as a deterrent against bad actors and encourages workers to speak up about harassment ― key to keeping bad behavior at bay.  

 

“It’s not about rooting out the bad apples; we need to focus on the whole barrel,” said Lilia Cortina, a professor of psychology and women’s studies at the University of Michigan and one of 21 experts who authored the report. “When organizations really cultivate a climate that makes clear it will not tolerate sex harassment, employees are much less likely to engage in sexual harassment,” she said.

January 15, 2019 in Business, Equal Employment | Permalink | Comments (0)

Friday, November 9, 2018

Google Has New Sexual Harassment Policies Following Employee Walkout, Including Ending Forced Arbitration

Google to End Forced Arbitration for Sexual Harassment Claims

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.

After #GoogleWalkout, Google CEO Rolls Out New Sexual Harassment Policies

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.

 

November 9, 2018 in Business, Workplace | Permalink | Comments (0)

Monday, November 5, 2018

The Inevitable Failure of California's Law Mandating Gender Diversity in the Corporate Boardroom

Joseph Grundfest, Mandating Gender Diversity in the Corporate Boardroom: The Inevitable Failure of California’s SB 826

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.

November 5, 2018 in Business, Constitutional | Permalink | Comments (0)

Thursday, October 18, 2018

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

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

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

 

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

 

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

October 18, 2018 in Business, Equal Employment, Theory, Workplace | Permalink | Comments (0)

Wednesday, October 10, 2018

Women Owned Law Firms Surge Amid Gender Disparity in the Profession

Women Owned Law Firms Surge Amid Gender Disparity in the Profession

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

 

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

 

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

 

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

 

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

October 10, 2018 in Business, Equal Employment, Women lawyers, Workplace | Permalink | Comments (0)

Tuesday, October 9, 2018

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

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

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

 

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

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

October 9, 2018 in Business, Constitutional, Gender | Permalink | Comments (0)

Monday, October 1, 2018

New California Law Prohibits Nondisclosure Agreements as Part of Sexual Harassment Settlements

SF Chronicle, California Bans Secrecy Requirement Requirement in Workplace Sex-Harassment Suits

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.

October 1, 2018 in Business, Equal Employment, Legislation | Permalink | Comments (0)

CAL Becomes First State to Require Gender Quotas for Publicly Held Corporate Boards

NYT, California's Publicly Held Corporations will Have to Include Women on Their Boards

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 herein 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.

Stephen Bainbridge, Can California Require Delaware Corporations to Comply with California's New Board of Director Gender Diversity Mandate

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.[1]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)

October 1, 2018 in Business, Gender, Legislation | Permalink | Comments (0)

Thursday, September 27, 2018

EEOC Files Pregnancy Discrimination Lawsuit against Walmart

US Agency Accuses Walmart of Pregnancy Discrimination in Lawsuit

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

 

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

 

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

 

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

 

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

 

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

 

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

Thursday, September 20, 2018

Assessing the Sex Diversity Dividend for Corporate Boards

Darren Rosenblum,  When Does Board Diversity Benefit Firms?

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

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

Tuesday, August 14, 2018

Women Lawyers Seen More Negatively then Men Lawyers for Anger and Assertive Behavior

Women Lawyers Held to Tougher Standard when it Comes to Anger

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.

August 14, 2018 in Business, Women lawyers | Permalink | Comments (0)

Tuesday, June 19, 2018

CA Senate Passes Bill Requiring Gender Quotas for Corporate Boards

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).

 

June 19, 2018 in Business, Legislation | Permalink | Comments (0)