Tuesday, March 31, 2020
5th Circuit Upholds Texas Ban on Abortions During Coronavirus Pandemic, Staying Contrary Ruling of District Court
A federal appeals court on Tuesday ruled that Texas can temporarily enforce a ban on abortions as part of its coronavirus response.
The 5th Circuit Court of Appeals issued a temporary stay on a ruling from a lower court that had blocked Texas from enforcing the ban. State officials argue the ban is intended to conserve medical supplies for health workers on the front lines of the coronavirus response. But abortion rights advocates say states are using the pandemic as an excuse to block access.
In a 2-1 opinion, the appeals court ruled that the order from the lower court be stayed until an appeal from Texas is considered. The two judges who ruled in favor of a stay were nominated to their posts by President Trump and former President George W. Bush.
"The temporary stay ordered this afternoon justly prioritizes supplies and personal protective equipment for the medical professionals in need," Texas Attorney General Ken Paxton said in a statement Tuesday.
Circuit Court Judge James Dennis, a Clinton appointee, dissented, writing “a federal judge has already concluded that irreparable harm would flow from allowing the executive order to prohibit abortions during this critical time.”
Texas Gov. Greg Abbott (R) issued a directive earlier this month suspending nonessential medical procedures in an effort to conserve masks and gloves for health workers on the front lines of the pandemic.
Several states have issued similar orders, but a divide has emerged between red and blue states about whether abortion is an essential procedure.
Thursday, March 19, 2020
The Legal and Ethical Implications of Non-Disclosure Agreements and Arbitration Clauses in the MeToo Era
We’ve heard the horrific reports of sexual assault on children, women, and men, in the context of the workplace, Hollywood, sports, and even sacred places. Now. But often these incidents took place many years ago, and we are just learning why and how. Secret settlements. Deals reached in private to buy secrecy in exchange for the release and dismissal of claims. Oftentimes through private and alternative dispute resolution (ADR) processes such negotiation, mediation, or arbitration. In most cases, the parties were represented by lawyers, loyal advocates, who are also officers of the court; third-party neutrals serving as mediators or arbitrators administered the dispute resolution process. While the immediate cases were privately resolved, the accused harasser/predator remained at large. This paper examines the role, use, and possible misuse or complicity of lawyers, neutrals, and ADR in the process of procuring and enforcing “secret settlements” in cases that effectively shielded predators, harassment, and other misconduct and left similarly situated non-parties at risk. This Article examines the existing rules, structures, and rationales for confidentiality and private dispute resolution, alongside the ethical considerations for lawyers, neutrals, and the ADR process in reaching and enforcing “secret settlements.” The paper explores the legal and ethical considerations for the professionals involved in situations where a secret settlement or provision for non-disclosure leaves similarly situated non-parties at risk. The Article counsels that lawyers, neutrals, and ADR consider the impact on others and protection of vulnerable persons from potential harm as professional ethics obligations in the advocacy and representation of parties to private settlements in order to ensure integrity of people, process, and substantive outcomes.
Thursday, March 5, 2020
The Navajo Nation Council confirmed Tina Tsinigine as an associate justice for the tribe's Supreme Court.
Tsinigine will serve alongside Chief Justice JoAnn Jayne and Associate Justice Eleanor Shirley, marking the first time three women will serve simultaneously on the three-member court.
It is an outcome that Delegate Mark Freeland noted before casting a vote in favor of Tsinigine's appointment.
"That is a testament for Navajo women. … Our women are strong," Freeland said.
The confirmation ends nearly a decade-long vacancy on the high court and Tsinigine will serve a probationary period of two years then undergo the process for permanent appointment.
The council considered the legislation for Tsinigine's appointment during the winter session on Jan. 28 in Window Rock, Arizona.
Tsinigine spoke to delegates about her career, which started as a mathematics instructor for the Tuba City Unified School District in Arizona before she earned a master's degree in Indigenous Nations Studies from the University of Kansas in 2003 followed by a Juris Doctor from the University of New Mexico School of Law in 2007.
Friday, February 28, 2020
On Monday morning, a Manhattan jury found Harvey Weinstein guilty of two of the five charges prosecutors brought against him: criminal sexual act in the first degree and rape in the third degree. The jury also acquitted Weinstein of two counts of predatory sexual assault, the most serious charges prosecutors had brought against him, which would have required the jury to conclude that Weinstein had committed first-degree sex crimes against two or more victims. In other words, the verdict is a mixed bag: Harvey Weinstein has now been convicted of rape. The counts that he was acquitted on, however, seem at odds with the number of allegations that have publicly surfaced against him.
This was just one trial, set up to evaluate a specific set of crimes and circumstances. But it has been impossible to think of it as anything other than a referendum on the entire contemporary #MeToo movement. Weinstein was the person whose long-ignored abuses and alleged assaults spurred thousands of women to reassess their own experiences. Donna Rotunno, Weinstein’s lead attorney, has spent her weeks in the spotlight accusing rape survivors of failing to take responsibility for their own mixed signals and explaining how the #MeToo movement has denied men their due process rights, even as her own client was enjoying his in the courtroom. Since the fall of 2017, when dozens of women first shared their stories about Weinstein, countless defenses and dismissals of the sexual misbehavior of other men have rested on the conviction that if sexual offenses don’t rise to the level of Weinstein’s misbehavior, they don’t merit consideration under the purview of #MeToo. Weinstein’s trial morphed into the ultimate #MeToo test: If a jury couldn’t convict Weinstein, the benchmark against which all other alleged abusers are now measured, what hope does any other survivor have of holding a rapist accountable in the criminal justice system?
On Monday, the system worked.
Jurors found Harvey Weinstein, a disgraced media mogul who has been accused of assault or harassment by at least 100 women, guilty of sexual assault and rape. His verdict, along with that of comedian Bill Cosby in 2018, sends a strong message that the jurors are capable of believing survivors over powerful men. A legal process in which less than 1% of sexual assault cases lead to convictions sided with survivors over a millionaire whose sexual misconduct has been an open secret for decades.
It was empowering. But while Weinstein’s guilty verdict is progress, it won’t fix a deeply broken system.
Many experts and survivors told HuffPost they thought the conviction was important but ultimately, and unfortunately, symbolic. While high-profile cases help shift cultural attitudes toward sexual assault, that doesn’t always change how the legal system treats average victims whose cases may not get the widespread media attention, the high-profile legal representation or the support of multiple accusers that the Weinstein trial did. ***
“A high-profile conviction just says that, in this case, there was enough to convict this person,” said Leigh Goodmark, the director of the gender violence clinic at the University of Maryland Carey School of Law. “But it doesn’t make any grand pronouncements for me about the system’s friendliness to people who’ve been raped and sexually assaulted.”***
There is silent, everyday violence and suffering committed against women that just don’t meet the threshold of public interest,” said Aya Gruber, a law professor at the University of Colorado.
“And Harvey Weinstein going to jail isn’t going to do anything for them.”
In the swirl surrounding Harvey Weinstein’s mixed conviction and acquittal on rape and related charges, it can be easy to overlook what hasn’t changed in the wake of #MeToo. The movement has put a spotlight on the starkly divergent views that Americans hold about what kinds of behaviors cross the line into unwanted — and, at times, criminal — acts, and about what should happen when they do.***But Weinstein’s trial and all the other changes #MeToo has brought won’t put an end to the roiling debates about what counts as consent and how we should judge long-ago assaults. We’ll continue to disagree, too, about what legal and social sanctions should apply to conduct that is “bad but not as bad” as Weinstein’s.
This is a good thing. As uncomfortable and frustrating as these conversations can be, we cannot afford to stop talking about what we expect from each other when it comes to sex and to workplace interactions.
Wednesday, February 12, 2020
In the #MeToo era, women who make sexual misconduct allegations against powerful men can count on public support, but the rape trial in New York of former movie producer Harvey Weinstein has shown that accusers should brace for far less friendly treatment in a court of law. ***
During the trial that began on Jan. 6, Weinstein’s attorneys have questioned his accusers about their appearance at the time of the alleged attacks, their drinking habits and whether they used Weinstein to land a Hollywood acting job.
“Just because we live in the Me Too era doesn’t mean you don’t attack in defense of your clients,” said Tom Mesereau, who represented comedian Bill Cosby in his sexual assault trial.***
Legal experts said the movement has complicated the work of defending someone like Weinstein because a jury is more likely to sympathize with the alleged victims.
But accusers should not expect a shift in legal standards or tactics, experts said.
***As more survivors have come forward to call out perpetrators of sexual assault and harassment, a legal backlash to the MeToo movement has been brewing. While it’s well known that powerful men have preemptively quashed accusations with payoffs and nondisclosure agreements, less well known is that dozens of men who claim they are victims of false allegations have sued their accusers for speaking out publicly. The plaintiffs include celebrities and college students, professional athletes, professors, and politicians. At least 100 defamation lawsuits have been filed against accusers since 2014, according to Mother Jones’ review of news reports and court documents. Prior to October 2017, when the MeToo hashtag went viral, almost three in four claims were brought by male college students and faculty accused of sexual misconduct; they usually sued their schools as well as their accusers. Since MeToo took off, cases have been filed at a faster rate, with three in four coming from nonstudents.
This list of cases is not comprehensive, but attorneys confirm that these suits are becoming more common. The Time’s Up Legal Defense Fund, which helps workplace harassment victims pay their legal bills, has assisted 33 accusers, including Lopez, who have been sued for defamation in the past two years—nearly 20 percent of its caseload. As the number of cases grows, so does the chilling effect: Defamation lawsuits are being used “more and more to try to silence people from coming forward,” says Sharyn Tejani, director of Time’s Up. “It was not something that we expected would take as much of our time and money as it has.”
Bruce Johnson, a Seattle lawyer who specializes in First Amendment cases, says that before fall 2017, he was contacted twice a year by women who were worried about being sued if they spoke out about sexual violence or harassment or who were threatened with legal retribution for doing so. Now it’s every two weeks, he says. Alexandra Tracy-Ramirez, a lawyer who represents both survivors and accused perpetrators in campus-related cases in Colorado and Arizona, has also noticed more accusers speaking out and facing the prospect of being sued.
Wednesday, December 4, 2019
Kate Webber Nunez, Persuasive or Pipe Dream? The Feminist Judgments Project's Potential Influence on Judicial Decision Making, British Journal of American Legal Studies (Vol. 9 2020 Forthcoming)
The Feminist Judgments Project (“FJP” or the “Project”) rewrites existing judicial opinions from a feminist perspective. This article explores whether and how the FJP’s alternative jurisprudence can influence future decisions. The FJP rewrites the law in order to reveal the underlying biases that exist in purportedly neutral decision making. In doing so, the FJP seeks to influence future advocacy and, ultimately, change the law. According to the Project’s commentary, this change will come by revealing unconscious bias and opening judicial minds to previously unknown perspectives; a method that draws on psychological theories of decision making, such as cultural cognition. This article takes a different approach and evaluates the FJP using theories from political science on how judges decide cases. The article’s analysis is relevant because certain prominent theories in the political science field would challenge the utility of the Project. Specifically, given an increasingly conservative judiciary and Republican administration, the attitudinal and strategic theories of decision making would give the FJP little prospect of actually influencing the law. This article explains, however, that the field of political science would not universally nor completely dismiss the Project’s efforts. An alternative line of thought, historical institutionalism, presents a theoretical explanation for why and how the FJP’s re-envisioned law could possibly create persuasive arguments that will influence the judiciary. This article applies historical institutionalist concepts to the FJP, exploring how, and the degree to which, this view of decision making supports the Project’s utility. Ultimately, it concludes that the path of persuasion is somewhat narrow and limited, but possible.
This past summer, I sat in an eight-hour mediation circle with the man who raped me. My mom and sister also participated as impacted community members. Two mediators held the space and actively worked to safeguard triggers. They asked us only one question: What brought you here today?
All of this occurred after several months of therapy and extensive education in consent and patriarchy for my assailant. It was the outcome that I fought for.
This was an exercise in restorative justice (RJ)—and my mediation circle marked one of the first times in North America that a sexual assault case in the legal system concluded with one.***
When I was subpoenaed for a criminal trial, I considered dropping the charges completely—but I was still holding onto my justice dream. At the urging of a friend, I began researching ways to make it happen. I connected with an RJ-aligned lawyer, and we called a meeting with the crown; my proposal was met with a condescending assumption that I didn’t understand how bad rape is.
My response? “I believe that rape is so bad that we have to consider alternative options. We know that incarceration often leads to recidivism and that acquittals are too common. Rates of sexual assault are not declining. It’s time to try something different.” Despite the push back from prosecutors aligned with the punitive system, we eventually got a yes.
Tuesday, November 26, 2019
The New York Times won a Pulitzer and helped ignite the #MeToo movement with its reporting on sexual harassment. But the Times still doesn’t understand what sexual harassment is. In its official definition and the stories it pursues, the Times employs a sexualized conception of sexual harassment that is twenty years out of date in the law. It’s also disconnected from the lived experience of most people and from the findings of social science research. In this, the Times is not alone. Even the two leading enforcers of federal antidiscrimination law — the EEOC and the Department of Justice — still at times issue pronouncements that fail to reflect current Title VII law or even those agencies’ own enforcement priorities.
Lost in these outdated but still pervasive definitions of sexual harassment are the many ways employees are undermined, excluded, sabotaged, ridiculed, or assaulted because of their sex, even if not through words or actions that are “sexual” in nature. “Put-downs” and not simply “come-ons,” these types of sexual harassment are even more pervasive than the overtly sexualized forms. Relegating them to another category or term such as “gender harassment” or “sex-based harassment” treats them as secondary to the sexualized forms, causes society to misunderstand the dynamics at play even in the latter, and skews the focus of workplace training (and subsequent reporting) about sexual harassment. With the #MeToo movement giving unprecedented attention to the problem of sexual harassment, now is the time to better understand that term.
Monday, September 30, 2019
Sara Kimble, Of "Masculine Tyranny" and the Women's Jury": The Gender Politics of Jury Service in Third Republic France, Law & History Review (2019)
In 1905 Hyacinthe Bélilon (1846–1913) and Camille Bélilon (1851–1930), two sisters working under pseudonyms as writers, began attending criminal trials and issuing unofficial verdicts as part of a new organization: the jury féminin, the women’s jury. Led by the sisters, this organization consisted of a panel of twelve female jurors who attended trials in Paris. As witnesses to the courtroom spectacle, these women would have been seated as members of the public audience, behind the gates of the barreau, the open space where attorneys and witnesses addressed the judges. Following each trial, the jury féminin issued their own unofficial verdicts and published their reasoning in the monthly newspaper Journal des femmes over a period of 5 years. The resulting trove of verdicts for eighty cases highlights the ways in which these unauthorized female jurors made decisions to exonerate or assign responsibility to the defendants.
The jury féminin contributed to a sustained public protest against male bias in the justice system, a condemnation of official all-male juries’ role in perpetuating a double moral standard and the inequalities of the French civil and penal codes. Their feminist legal commentary on criminal cases challenged the assumption that the legal system provided equal treatment for female victims or defendants. These activists’ courtroom appearances and published articles were forms of protest that furthered the political campaign to admit women to criminal juries, and by extension, to promote an enlarged role in civic life for women.
Tuesday, September 3, 2019
Jessica Clarke, How the First Forty Years of Circuit Precedent Got Title VII's Sex Discrimination Provision Wrong, Texas Law Review Online, Forthcoming
The Supreme Court will soon decide whether, under Title VII of the Civil Rights Act of 1964, it is discrimination “because of sex” to fire an employee because of their sexual orientation or transgender identity. There’s a simple textual argument that it is: An employer cannot take action on the basis of an employee’s sexual orientation or transgender identity without considering the employee’s sex. But while this argument is simple, it was not one that federal courts adopted until recently. This has caused some judges to object that the simple argument must be inconsistent with the original meaning of Title VII. In the words of one Fifth Circuit judge, “If the first forty years of uniform circuit precedent nationwide somehow got the original understanding of Title VII wrong, no one has explained how.”
This Essay explains how the first forty years of circuit precedent got Title VII wrong. It demonstrates that, rather than relying on the statutory text, early appellate decisions relied on their era’s misunderstanding of LGBTQ identities as pathological, unnatural, and deviant. The errors of the early cases persisted as a result of stare decisis, until the old doctrine was rendered indefensible by changing social attitudes, the rise of textualism, and the Supreme Court’s recognition that Title
Tuesday, August 13, 2019
Chronicle, The Revolt of the Feminist Law Professors
In the fall of 2011, the Department of Education’s Office for Civil Rights issued informal, non-binding guidance on how colleges should treat claims of sexual assault and harassment in a document now referred to as the Dear Colleague letter. It was accompanied by public claims of an ongoing crisis of sexual violence on universities made by President Barack Obama and Vice President Joe Biden. In 2014, Gersen and three of her colleagues — Elizabeth Bartholet, Janet Halley, and Nancy Gertner — led a contingent of their peers in calling out the system of investigation and adjudication that emerged during the Obama years as “so unfair as to be truly shocking.” The four were joined by 24 of their Harvard Law colleagues in an open letter published in The Boston Globe decrying Obama’s Title IX recommendations as “overwhelmingly stacked against the accused.”
In a statement called “Fairness for All Students Under Title IX,” jointly authored with Halley, Bartholet, and Gertner, Gersen noted that at many colleges, investigators are trained to start by believing the complainant. Many schools would “improperly house the functions of investigation and adjudication” in the same office, with “strong incentives” to keep the schools in the Office for Civil Rights’ “good graces.” “Some schools,” they wrote, “allow appeals only on very narrow grounds such as new evidence or procedural error, providing no meaningful check on the initial decisionmaker.” The evidentiary threshold required was the lowest one, the “preponderance of the evidence” standard, meaning anything greater than 50 percent certainty should yield a finding of wrongdoing.
Monday, July 29, 2019
Erin Mulvaney & Hassan Kanu, Anonymous Workplace Harassment Suits Double in #MeToo Era
The workers wanted to hold their former employers accountable for alleged harassment and discrimination. What they feared was using their names to do so.
Since the start of 2019, courts have confronted: a woman who didn’t want the details of an alleged sexual assault made public; a man who said he was harassed for being gay but didn’t want his sexuality revealed to his family; and a group of women who feared “career suicide” as they challenged what they describe as a fraternity culture in their workplace.
They wanted to sue under pseudonyms. But in each case, workers wrestled with the difficult choice of whether to go forward publicly, risking retaliation and embarrassment. Attorneys who represent workers say forcing employees to proceed under those circumstances can create a chilling effect, provide leverage to companies, and may mean that alleged victims fear coming forward.
These cases are among the growing number of discrimination lawsuits filed in recent years that forced courts to balance potential harm to plaintiffs with the company and public’s right to an open judicial system.
A Bloomberg Law analysis showed that discrimination and harassment lawsuits filed anonymously doubled in the wake of the ongoing #MeToo movement. There were 52 of those suits filed in 2018, up from 24 the previous year and just 17 in 2016. They’re on pace to reach 2018 levels this year as well, with 24 filed through the first half of 2019—about as many as in all of 2015 through 2016.
The Cleveland Plain Dealer has some recent articles highlighting Judge Florence Allen and calling for her recognition. Allen is colloquially known as "the first woman judge" as she was the first woman elected to a trial court of general jurisdiction (Cuyahoga County Court of Common Pleas, Cleveland), the first woman elected to a state supreme court (Ohio 1922), the first woman appointed to a federal appellate court (U.S. Court of Appeals for the Sixth Circuit, 1932), and the first woman shortlisted for the U.S. Supreme Court.
Andrea Simakis, Before RBG, A Cleveland Judge Made History
Allen is the subject of my current book project, "'A Manly Mind': Judge Florence Allen, The First Woman Judge." The book is an intellectual biography of this famous first, seeking to exploring her ideas, motivations, and jurisprudence. I've spent two years reviewing the historical and legal archives, and now am writing in earnest. A shorter journal article summarizing some of the findings from the research and on Allen's life will be forthcoming in the journal of the new Ohio Legal History Project, an initiative of the Ohio State Bar Foundation.
Florence Allen was an icon of the woman's suffrage movement as both an activist and an advocate. Her suffrage work led to her inclusion as one of the inaugural members of the Social Justice ParkSocial Justice Park, in Columbus, Ohio. Allen was a moderate, believing strongly in the nonpartisan nature of the judiciary, tempering her decisions with logic and reason, and searching within the system for a practical solution. She prided herself on hard work, logic and intellect, and rejected society's limited role for women.
Tuesday, June 11, 2019
Melissa Hamilton, The Sexist Algorithm, 38 Behavioral Sciences & the Law 145 (2019)
Algorithmic risk assessment tools are informed by scientific research concerning which factors are predictive of recidivism and thus support the evidence‐based practice movement in criminal justice. Automated assessments of individualized risk (low, medium, high) permit officials to make more effective management decisions. Computer generated algorithms appear to be objective and neutral. But are these algorithms actually fair? The focus herein is on gender equity. Studies confirm that women typically have far lower recidivism rates than men. This differential raises the question of how well algorithmic outcomes fare in terms of predictive parity by gender.
This essay reports original research using a large dataset of offenders who were scored on the popular risk assessment tool COMPAS. Findings indicate that COMPAS performs reasonably well at discriminating between recidivists and non‐recidivists for men and women. Nonetheless, COMPAS algorithmic outcomes systemically overclassify women in higher risk groupings. Multiple measures of algorithmic equity and predictive accuracy are provided to support the conclusion that this algorithm is sexist.
Friday, May 17, 2019
Study Examining Whether Women Judges are More Likely than Men Judges to Affirm Reproductive Health Rights
Michele Goodwin & Mariah Lindsay, American Courts and the Sex Blind Spot: Legitimacy and Representation, 87 Fordham L. Rev. (2019)
We argue the legacy of explicit sex bias and discrimination with relation to political rights and social status begins within government, hewn from state and federal lawmaking. As such, male lawmakers and judges conscribed a woman’s role to her home and defined the scope of her independence in the local community and broader society. Politically and legally, women were legal appendages to men—objects of male power (vis-à-vis their husbands and fathers). In law, women’s roles included sexual chattel to their spouses, care of the home, and producing offspring. Accordingly, women were essential in the home, as law would have it, but unnecessary, and even harmful and sabotaging, to a participatory democracy.
Building from two years of empirical research and examining each federal appeals court’s record on abortion and each judge’s vote on a particular case, this project studies whether women are more likely than their male counterparts to affirm reproductive health rights. We examined 302 cases across each federal appellate circuit, including the District of Columbia and the Federal Circuit. Our findings have both normative and sociological implications. This project tells an important story about the composition of the federal appellate judiciary and the slow climb for women, including women of color, within the elite branches of the courts. This is a story expressed in numbers and it reflects the historical marginalization of women within the law and the problem of homogeneity in the courts.
Thursday, April 25, 2019
Kathryn Stanchi, Bridget Crawford, & Linda Berfer, Why Women: Judging Transnational Courts and Tribunals, Connect. J. of Int'l Law (forthcoming)
Calls for greater representation of women on the bench are not new. Many people share the intuition that having more female judges would make a difference to the decisions that courts might reach or how courts arrive at those decisions. This hunch has only equivocal empirical support, however. Nevertheless legal scholars, consistent with traditional feminist legal methods, persist in asking how many women judges there are and what changes might bring more women to the bench. This essay argues that achieving diversity in international courts and tribunals – indeed on any bench – will not happen simply by having more female judges. Instead, judges with diverse perspectives and life experiences, regardless of their gender, will make a difference in the substance and form of judicial decisions.
This essay makes two contributions to the dialogue about judicial diversity. First, the essay posits that the overall justice project would be better served by abandoning binary categories like “men” and “women” in favor of recognizing that there is great diversity in both sex (however measured) and gender identity (however expressed). Framing any policy discussion in terms of “men” and “women” will fail to account for biological variety, individual difference, diverse gender identities, multiple sexual orientations, and the significant role that law and society play in constructing these identifiers.
The essay’s second intervention employs an expansive view of feminism as a broad justice project to consider that multiple facets of a judge’s lived experience, identity and perspective inform decision-making. Bias and elitism in legal education and the legal profession occlude the judicial pipeline. Instead of carrying a flag for more “women” in the judiciary, advocates for more diverse courts and tribunals should focus on elevating those with the least professional capital: people of color, low-income people, immigrants, graduates of non-elite schools, professionals from rural areas, and people with non-cisgender identities, to name a few groups. Adding more women to the bench may seem to be an immediate solution, but it will not achieve the goal. Attaining true diversity will be more difficult.
Tuesday, April 9, 2019
Catherine Ross Dunham & Christopher Leupold, Third Generation Discrimination: An Empirical Analysis of Judicial Decision Making in Gender Discrimination Litigation
In this progressive era of #MeToo and other movements which highlight the reality of women’s experiences in the workplace and other settings, the question arises as to why discrimination-based civil lawsuits are not more successful for female litigants. The courts have served as an important tool in reforming discriminatory workplace cultures by directly addressing and punishing overtly discriminatory workplace behavior such as blatant pregnancy and gender discrimination or grievous acts of sexual harassment. But the same courts have not been able to function as a safe haven for women who have their careers curtailed by implicit bias-based gender discrimination brought under Title VII. Gender discrimination lawsuits brought under a theory of bias-based discrimination, more specifically bias-based gender discrimination, have not offered reliable remedies for female litigants and have not impacted workplace culture in any meaningful way.
Bias-based gender discrimination theory involves structural discrimination – facially neutral workplace policies that are applied to favor the male dominant group and consequently written and managed by a male-dominated upper hierarchy. Successful litigants in bias-based gender discrimination cases must convince the judicial decision-maker not only that the law of Title VII applies, not only that the facts at issue constitute discrimination, but also that the workplace is mired in multi-layer structural discrimination flowing from an implicit bias against female employees. In order for the federal courts to function fully as interpreters of Title VII, policing our workplaces for equity and inclusion, the judicial gatekeepers must engage their own biases and preconceptions when evaluating the subject workplace.
This article follows an earlier piece which theorized there is an additional layer of implicit bias-based discrimination which inhibits the success of plaintiffs in Title VII lawsuits. That article argued that lawsuits seeking relief under facts of implicit bias-based workplace discrimination are further inhibited by bias in the courts, specifically the implicit biases of the federal judges who monitor the progress of the plaintiff’s case. This additional layer of implicit bias-based discrimination, Third Generation Discrimination, theorizes that a federal judge may be influenced by his or her own traits when evaluating gender discrimination cases which involve bias-based theories of gender discrimination.
This article is based on the authors’ study of Title VII cases in federal district courts over a ten-year period. The authors studied the judicial rulings on dispositive motions in Title VII cases and compared those outcomes to demographic information for the deciding judge, including race, gender, age and political affiliation. Part II of the article summarizes the theories of Second and Third Generation Discrimination, creating a framework for the research to follow. Part III of the article describes and explains the relevant research by outlining the parameters of the sample, explaining the statistical method followed, and discussing the research results. Part IV of the article analyzes the results of the authors’ research and theorizes how the authors’ findings can inform future discussions of gender discrimination.
Reproductive Rights Stories: FMLA and the Supreme Court's Decision in Nevada Dept of Human Resources v. Hibbs
Sam Bagenstos, Nevada Department of Human Resources v. Hibbs: Universalism and Reproductive Justice"
Reproductive Rights and Justice Stories (Melissa Murray, Kate Shaw & Reva Siegel, eds., Forthcoming)
The Family and Medical Leave Act (FMLA) was the first bill signed into law by President Bill Clinton — just two weeks after he took office. Enactment of the statute was a longstanding goal of the Democratic Party. It also represented a legislative victory for what I will call feminist universalism — the notion that sex equality is best served by rules and policies that reject differentiation between women and men. Ten years after Congress enacted the FMLA, the Supreme Court upheld the statute against a constitutional challenge in Nevada Department of Human Resources v. Hibbs. The Hibbs Court, in a surprising opinion by Chief Justice Rehnquist, relied heavily on feminist universalist arguments. Even at the time of Hibbs, though, evidence was accumulating that the FMLA’s universalist approach was not sufficient to achieve the underlying goals of feminist lawyers and activists: disestablishing gender-role stereotypes and promoting equal opportunities for women and men throughout society. Hibbs thus represents the triumph of feminist universalism, even as it highlights the limitations of the feminist universalist project.
Thursday, April 4, 2019
Linda Greenhouse, Why R.B.G. Matters, NY Times
For the judicial icon otherwise known as R.B.G., Justice Ruth Bader Ginsburg’s past few roller-coaster months have included being lionized by Hollywood, laid low by cancer surgery, and most recently issuing one of the Supreme Court term’s more important decisions, placing limits on civil forfeiture, within a day of returning to the bench. People who know almost nothing about the court and can’t name another justice know her name. In a celebrity-saturated age, she is one of the culture’s most unlikely rock stars.
Yet for all the accolades that have come her way, I’m willing to bet that among the most meaningful to her is one that doesn’t even mention her name. I’m referring to the decision last week by a federal district judge in Houston that declared the current male-only draft registration system to violate the constitutional requirement that the government treat men and women equally.
Justice Ginsburg’s influence shone through the spare and refreshingly direct 19 pages of Judge Gray H. Miller’s opinion. He held that the old arguments against registering (and theoretically drafting) women accepted by the Supreme Court when it last considered the question 38 years ago no longer apply now that women are welcomed by the military and eligible for all roles, including combat positions, for which they meet the sex-neutral qualifications.
As might be expected in a case dealing with women in the military, Judge Miller quoted liberally from Justice Ginsburg’s 1996 opiniondeclaring unconstitutional the exclusion of women from the state-supported Virginia Military Institute. Any justification for excluding one sex or the other “must not rely on overbroad generalizations about the different talents, capacities or preferences of males and females,” Justice Ginsburg wrote in one passage Judge Miller cited.
What really caught my attention was how, beyond the V.M.I. references, Justice Ginsburg’s pre-judicial career is embedded throughout Judge Miller’s opinion, National Coalition for Men v. Selective Service System. It’s not that Judge Miller directly cited many of the cases that the young lawyer Ruth Ginsburg won, and in which she methodically showed the nine men of the 1970s Supreme Court how to construct a jurisprudence of sex equality. Rather, he cited the cases that built on the cases that relied on Ruth Ginsburg’s Supreme Court victories. Reading his opinion is like opening a set of Russian dolls, each one nested inside the one that just opened.