Gender and the Law Prof Blog

MeToo - What Next?

Deborah Rhode, #MeToo: Why Now? What Next?, Duke L. J. (2019)

This Essay explores the evolution, implications, and potential of #MeToo. It begins by reviewing the inadequacies of sexual harassment law and policies that have permitted continuing abuse and that prompted the outrage that erupted in 2017. Discussion then turns to the origins of the #MeToo movement and assesses the changes that it has propelled. Analysis centers on which changes are likely to last and the concerns of fairness and inclusion that they raise. A final section considers strategies for sustaining the positive momentum of the movement and directing its efforts toward fundamental reform.

Minnesota Supreme Court Reaffirms Severe and Pervasive Standard for Sexual Harassment

Minnesota's Top Court Declines to Toss Out "Severe or Pervasive" Test in Bias Cases

The Minnesota Supreme Court has reaffirmed the requirement that workers alleging they were subjected to a hostile work environment under state law prove that harassment was “severe or pervasive” in order to prevail.

The seven-member court in a unanimous decision on Wednesday rejected a bid by Assata Kenneh, who says nonprofit residential care facility operator Homeward Bound Inc fired her for complaining about sexual harassment, to lower the bar for plaintiffs to show that discrimination interfered with their ability to work.

To read the full story on Westlaw Practitioner Insights, click here: bit.ly/2Bz9E9o

Minnesota's "severe or pervasive" standard was borrowed from jurisprudence developed under Title VII of the Civil Rights Act of 1964, the federal law barring workplace discrimination. Kenneh argued that the standard was confusing, and was not necessary because unlike Title VII, Minnesota law contains a precise definition of sexual harassment.

 

But the court said the standard reflected a "common-sense understanding" that sexual harassment must be "more than minor" to create a hostile work environment.

 

Homeward Bound hired Kenneh to work at a residential facility for people with disabilities in 2014, and two years later she transferred to a different facility and transitioned into a role as a program resource coordinator. Kenneh claims that in the few months after her transfer, the company's maintenance supervisor routinely made sexually-charged comments and gestures, including licking his lips and telling Kenneh she was "beautiful" and "sexy."

 

Kenneh complained and while the maintenance supervisor denied her claims, he was told to cease the behavior and not to be alone with Kenneh. But the harassment did not stop, she says, and she was ultimately fired after asking for a more flexible schedule so she could avoid the supervisor.

 

Kenneh sued Homeward Bound in state court in Minneapolis, accusing the company of creating a hostile work environment and retaliation in violation of state anti-discrimination law. Homeward Bound denied the claims and said Kenneh was fired over performance and attendance issues.

 

A state judge in 2018 granted the company's motion to dismiss. He said the supervisor's conduct was "boorish and obnoxious," but that Kenneh had failed to meet the high bar of showing that it was either severe or pervasive.

 

A mid-level appeals court last year affirmed. Kenneh appealed, arguing that requiring plaintiffs to prove conduct was severe or pervasive places a higher bar on them than the text of the state law. The law defines sexual harassment as "unwelcome sexual advances or communication of a sexual nature (that) has the purpose or effect of substantially interfering with an individual's employment."

 

Kenneh's lawyers argued that the federal standard, which Minnesota courts began applying to state-law claims in 1986, has been applied inconsistently and created confusion, and was different from proving substantial interference.

 

The Minnesota Supreme Court on Wednesday disagreed. Anti-discrimination law is not a "general civility code," Justice Anne McKeig wrote for the court, and the severe or pervasive standard ensures that only conduct that a reasonable person would find abusive or hostile is actionable.

 

The case is Kenneh v. Homeward Bound Inc, Minnesota Supreme Court, No. A18-0174.

Women Employees Over 55 Face Dual Threat from Covid-19 Layoffs

Older Female Employees Face Double Jeopardy During Covid-19 Layoffs

According to AARP employment data, women over the age of 55 face a dual threat to their careers and earning power amid the financial and labor market turmoil due to Covid-19. In April, approximately 20 million jobs were lost in the United States and the unemployment rate reached a staggering 14.7%.

 

Between March and April, the unemployment rate for women age 55 and over catapulted from 3.3% to 15.5%, the largest increase reported by the Department of Labor’s Bureau of Labor Statistics.

 

This stark data is consistent with numerous studies that have found that the stereotypes leading to ageism and sexism are exacerbated when combined in a single employee.

Why Are Older Women Impacted So Acutely?

Various factors have converged to magnify the labor-market toll on two separate sets of workers: female and older employees. It is thus an unfortunate reality that older female employees will be hit harder by the unforgiving Covid-19 employment landscape. As discussed below, this is often referred to as “sex-plus” discrimination, meaning sex discrimination plus some other protected characteristic such as age or race. . . . 

Discounting Credibility: Doubting the Stories of Women Survivors of Sexual Harassment

Deborah Epstein, Discounting Credibility: Doubting the Stories of Women Survivors of Sexual Harassment" 

For decades, federal and state laws have prohibited sexual harassment on the job; despite this fact, extraordinarily high rates of gender-based workplace harassment still permeate virtually every sector of the American workforce. Public awareness of the seriousness and scope of the problem increased astronomically in the wake of the #MeToo movement, as women began to publicly share countless stories of harassment and abuse. In 2015, the Equal Employment Opportunity Commission’s Task Force on the Study of Harassment in the Workplace published an important study analyzing a wide range of factors contributing to this phenomenon. But the study devotes only limited attention to a factor that goes straight to the heart of the problem: our reflexive inclination to discount the credibility of women, especially when those women are recounting experiences of abuse perpetrated by more powerful men. We will not succeed in ending gender-based workplace discrimination until we can understand and resist this tendency and begin to appropriately credit survivors’ stories.

How does gender-based credibility discounting operate? First, those charged with responding to workplace harassment--managers, supervisors, union representatives, human resource officers, and judges—improperly discount as implausible women’s stories of harassment, due to a failure to understand either the psychological trauma caused by abusive treatment or the practical realities that constrain women’s options in its aftermath. Second, gatekeepers unjustly discount women’s personal trustworthiness, based on their demeanor (as affected by the trauma they often have suffered); on negative cultural stereotypes about women’s motives for seeking redress for harms; and on our deep-rooted cultural belief that women as a group are inherently less than fully trustworthy.

The impact of such unjust and discriminatory treatment of women survivors of workplace harassment is exacerbated by the larger “credibility economy”—the credibility discounts imposed on many women-victims can only be fully understood in the context of the credibility inflations afforded to many male harassers. Moreover, discounting women’s credibility results in a particular and virulent set of harms, which can be measured as both an additional psychic injury to survivors, and as an institutional betrayal that echoes the harm initially inflicted by harassers themselves.

It is time—long past time--to adopt practical, concrete reforms to combat the widespread, automatic tendency to discount women and the stories they tell. We must embark on a path toward allowing women who share their experiences of male abuses of workplace power to trust the responsiveness of their employers, judges, and our larger society.

How the Gender Pay Gap Affects Black Women in Law

LaCrisha McAllister, "Quarters in the Court: How the Gender Pay Gap Affects Black Women in Law" 

Women constitute almost half of the national workforce. For half of American families, they are the sole source of income or they are a co-breadwinner. They earn more degrees than men. They work in a broad spectrum of professions and industries and they serve in a multitude of capacities, from administrators to upper management to laborers and everything between. Despite these things, women are paid significantly less than their male counterparts. Efforts to address this have been fodder for discussion for some time. Currently, less than 1% of elected prosecutors are Black women, less than 8% of judges are Black Women in State Trial Courts and State Appellate courts respectively, and a report from the National Association for Law Placement found that Black Women make up about 1.73% of all attorneys included in their survey. This paper seeks to address the ways that the Gender Pay Gap affects Black women in the legal field and how the legal profession can place equity in pay at the base of its mission.

Why This Recession is a "She-cession"

NYT, Why Some Women Call This Recession a "Shecession"

The unemployment numbers released on Friday confirmed what we had all anticipated: The economic crisis brought on by the coronavirus pandemic is staggering, or as one research analyst at Bank of America put it to The Times, “literally off the charts.”

 

The scale of the crisis is unlike anything since the Great Depression. And for the first time in decades, this crisis has a predominantly nonwhite, female face.

 

“I think we should go ahead and call this a ‘shecession,’” said C. Nicole Mason, president and chief executive of the Institute for Women’s Policy Research, in a nod to the 2008 recession that came to be known as the “mancession” because more men were affected.

 

Women accounted for 55 percent of the 20.5 million jobs lost in April, according to the Bureau of Labor Statistics, raising the unemployment rate for adult women to about 15 percent from 3.1 percent in February. In comparison, the unemployment rate for adult men was 13 percent.

 

Women of color fared worse, with unemployment rates for black women at 16.4 percent and Hispanic women at 20.2 percent.

 

 

According to an analysis by the National Women’s Law Center, this is the first time since 1948 that the female

unemployment rate has reached double digits.

 

The April jobs represent an abrupt, disappointing reversal from a major milestone in December, when women held more payroll jobs than men for the first time in about a decade.

 

The biggest reason for these losses is that the industries hardest hit by the pandemic — leisure, hospitality, education and even some parts of health care — are “disproportionately nonwhite and female,” said Diane Lim, senior adviser for the Penn Wharton Budget Model, a nonpartisan research initiative.

BelieveWomen and the Presumption of Innocence

Kimberly Kessler Ferzan, #BelieveWomen and the Presumption of Innocence: Clarifying the Questions for Law and Life, forthcoming NOMOS: Truth and Evidence

The presumption of innocence and #BelieveWomen both embody compelling considerations, and we may wonder how to reconcile them. My project does not aim to reconcile the positions, but rather, it is prior to it. My goal in this paper is to better explicate the claims that underlie both #BelieveWomen and the presumption of innocence in law and life, as well as to identify instances in which cross-pollination, between our everyday evaluations and the legal system, is contaminating our thinking.

First, I begin with #BelieveWomen and sort through various ways to interpret this demand (though my survey is not exhaustive). I spend additional time on one particular interpretation, an understanding that ties a cry for trust to a non-reductionist position with respect to the justification for believing testimony — that is, the idea that we have reason to believe someone, and are justified in so doing, just on her say-so. Although it is not my contention that this view is superior to other understandings, I believe it has received less attention in the literature and thus warrants additional examination. Next, I demonstrate how complicated our calculations are in life. Then, I turn to law. Here, I show how the various interpretations of #BelieveWomen raise distinct legal questions, but also note that flat footed understandings of this demand have created confusions. I suggest the law may meet the demands of #BelieveWomen through a corrective of the kind proposed by Miranda Fricker, evidentiary instructions, and (potentially by) alterations of the burden of proof, but that full belief may be too much to ask in this context. That is, law may be unable to accommodate a demand that we believe women, though it may be able to treat them respectfully as epistemic agents. In making this claim, I reject that increasing one’s credence in light of testimony “counts” as believing someone.

Second, I look at the presumption of innocence, noting that under the Supreme Court’s jurisprudence it amounts to no more than the requirement that in a criminal trial, the prosecution must prove its case beyond a reasonable doubt. Additionally, following Larry Laudan, I endorse the view that the presumption in law is simply the claim that a juror has no evidence. But that is not what we want in life. The questions we want to ask in life are (1) what do we owe each other and (2) when there are contested factual situations, what is the default position. The presumption of innocence rhetoric assumes the answers to these questions.

Papers from the Feminist Legal Theory Research Network at Next Week's Law & Society Association Virtual Meeting

I am probably one of the few people in the world who is thrilled that the Law & Society Annual Conference is virtual -- since I will now be able to attend.  In general virtual conferences open up access to some barriers to participation due to finances,  travel, family, disability, and health issues.

You can register for the virtual conference here at the Law & Society Association website.  

Scheduled papers to be presented from the Feminist Legal Theory Research Network:

 

Time	Title	Type
Wed, 5/27 1:00 PM - 2:45 PM	#MeToo: The Narrative of Resistance Meets the Rule of Law	Plenary Session
Thu, 5/28 11:00 AM - 12:45 PM	Moving Rules: Struggles for Reproductive Justice on Uneven Terrain	Paper Session
Thu, 5/28 11:00 AM - 12:45 PM	Sexual Harassment: Victims and Survivors	Paper Session
Thu, 5/28 1:00 PM - 2:00 PM	CRN07: Feminist Legal Theory Business Meeting	Business Meeting
Thu, 5/28 2:15 PM - 4:00 PM	Families, Laws, and Institutions	Paper Session
Thu, 5/28 2:15 PM - 4:00 PM	The State and Violence: New Proposals for Stopping the Cycle	Paper Session
Fri, 5/29 11:00 AM - 12:45 PM	Normativity in Men, Women, and Bodies	Paper Session
Fri, 5/29 11:00 AM - 12:45 PM	The Politicization of Safety: Critical Perspectives on Domestic Violence Responses	Roundtable Session
Fri, 5/29 1:00 PM - 2:15 PM	Sexual Harassers, Sex Crimes, and Accountability	Paper Session
Fri, 5/29 4:00 PM - 5:45 PM	Women's Rights in the Shadow of the Constitution	Paper Session
Sat, 5/30 11:00 AM - 12:45 PM	Perspectives on Sex, Work and New Legal Orders	Paper Session
Sat, 5/30 1:00 PM - 2:45 PM	Trans and Queer Life in Private and Public	Paper Session
Sat, 5/30 4:00 PM - 5:45 PM	Human Rights in an Unequal World: Autonomy, Status, and Other Stories	Paper Session
Sun, 5/31 11:00 AM - 12:45 PM	Feminist Legal Theory in a Public/Private World	Paper Session
Sun, 5/31 11:00 AM - 12:45 PM	Laws of Social Reproduction	Paper Session
Sun, 5/31 1:00 PM - 2:00 PM	Intimate Lies and the Law	Author Meets Reader (AMR) Session
Sun, 5/31 2:15 PM - 4:00 PM	Feminist Judgments on Reproductive Justice and Family Law	Roundtable Session
Sun, 5/31 2:15 PM - 4:00 PM	Women and Gender in Private, Public, and Places in Between: Old Doctrines Meet New Realities in the Twenty-First Century	Paper Session

The Causation Problem of "Because of Sex" in the Trio of Supreme Court Cases on Title VII, Gender Identity and Sexual Orientation, and a Proposed Solution

Shirley Lin, Aimee Stephens and Preserving Our Broader Understandings of Sex, JURIST

Just last week, we were saddened by the loss of Aimee Stephens at age 59. Ms. Stephens was a Detroit funeral director who, in 2013, announced a gender transition that exposed her employer’s deep intolerance toward transgender people. For seven years, she challenged the harsh dismissal and loss of livelihood that followed the announcement. Although she will not hear the Supreme Court’s decision in her case, Ms. Stephens’ unwavering commitment to workplace dignity made history in 2018 in her landmark victory before the Sixth Circuit Court of Appeals, in one of the most nuanced examinations of sex discrimination ever issued.

 

The decision in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. is best understood as a doctrinal correction to the current ideological drift in causation theory in discrimination law. Since 1989, a segment of the Court has pursued approaches that needlessly narrow the effectiveness of Title VII through causation analysis and anti-classification.

 

The law’s plain language prohibits discrimination against any individual “because of such individual’s…sex.” An employer generally cannot use an employee’s protected trait — here, her sex — to harm or otherwise disadvantage her. Under a different provision, the causation element of proving discrimination against an employee is a factual question due to other reasons employers may point to as the genuine, non-discriminatory reason for its action against the employee. In other words, it is a separate element from the trait element. Thus, “because of…sex” has been interpreted to encompass not only claims regarding women being passed over for men because they are women, but also contextual subordination that relies upon our sex trait, including gender stereotyping, sexual assault, quid pro quo sexual harassment, and hostile work environment. No less than race or religion, sex is a protected trait from which we infer meaning, and experience harm, based upon variable circumstances of time and place.

 

Thus, the Sixth Circuit unanimously held that “it is analytically impossible to fire an employee based upon that employee’s status” as a transgender person or lesbian employee “without being motivated, at least in part, by the employee’s sex.” But the panel took the farther step of affirming the non-binary sex spectrum. ***

 

However, buried in the Second Circuit’s en banc opinion in Zarda v. Altitude Express (also pending within the Title VII trio of cases the Court heard with Ms. Stephens’s case) was an outlier within the groundswell of courts seeking to course-correct causation analysis. There, a plurality ventured that a gay man’s status was the “but-for cause” of his dismissal, because if he had been a heterosexual woman married to a man, rather than a gay man, his status was determinative of the outcome. This theory, raised on appeal among other theories, conflates the social trait and causation elements of disparate treatment claims and thus competes with the approach of examining the social context of the sex trait. If misapplied to future sex and other trait discrimination cases, but-for causation could flatten existing sex discrimination analysis at a time when society has made significant strides toward recognizing intersex, non-binary, and gender-fluid people.

Shirley Lin, Dehumanization "Because of Sex": The Multiaxial Approach to the Title VII of Sexual Minorities, Lewis & Clark L. Rev. (forthcoming)

Although Title VII prohibits discrimination against any individual “because of such individual’s . . . sex,” legal commentators have not yet accurately appraised Title VII’s trait and causation requirements embodied in that phrase. Since 2015, however, many courts have read “sex” in Title VII as a socially defined trait and evaluate social construction of a protected trait before identifying causation when a court detects subordination. This Article builds on this judicial consensus by introducing “multiaxial analysis,” a framework with which judges and stakeholders identify the role of Title VII’s protected traits as socially constructed along four axes: the aggrieved individual’s self-identification, the defendant-employer, society, and the state. This context-sensitive approach to subordination gives fuller effect to Title VII’s provisions and purposes as compared to sex stereotyping theory or the “but-for causation” method recently raised with the Supreme Court in the Title VII suits brought by gay and transgender plaintiffs. Uncoupling causation from the sex trait analysis will realize the statute’s civil rights protections as localities increasingly recognize the scope of sex beyond a fixed binary.

CFP Legal and Judicial Ethics in the Post-#MeToo World, AALS Section on Professional Responsibility

Call for Papers

AALS Section on Professional Responsibility 2021

Co-Sponsored by AALS Sections on Civil Rights,

Employment Discrimination Law, Leadership, and Minority Groups

 

Legal and Judicial Ethics in the Post-#MeToo World

The Section on Professional Responsibility seeks papers addressing the role of legal and judicial ethics in the Post-#MeToo world. This program calls for scholars to confront big questions facing the profession about sexual discrimination, harassment and other misconduct. In 2016, the American Bar Association amended Model Rule 8.4(g)  to say that it is professional misconduct 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 socio-economic status in conduct related to the practice of law.” Few jurisdictions have adopted this change, and some explicitly rejected it on First Amendment grounds. In 2019, the federal judiciary amended the Code of Conduct for U.S. Judges to make clear that misconduct includes engaging in unwanted, offensive, or abusive sexual conduct and to protect those who report misconduct, but some argue the reforms do not go far enough and they do not apply to state judges or to the U.S. Supreme Court. Congress held hearings on sexual misconduct in the federal judiciary in early 2020. Lawyers and members of the judiciary have avoided investigations into credible allegations of sexual assault, discrimination, and harassment by resigning their positions, only to move on in other positions in the legal profession and, in some instances, repeating the same misconduct. Headlines regularly feature attorneys and their involvement in sexual misconduct in the workplace and beyond, whether as bystanders, facilitators, or perpetrators. This program seeks contributions to address these complex and controversial issues. Panelists will discuss the role of lawyer and judicial ethics as a means to remedy the enduring sexual misconduct in the legal profession and beyond.  Jaime Santos, founder of Law Clerks for Workplace Accountability and commentator for the acclaimed podcast Strict Scrutiny, is confirmed as a presenter. At least two additional presenters will be competitively selected from this call for papers.

Topics discussed at the program might include:

• Does ABA Model Rule 8.4(g) addressing sexual harassment run afoul of the First Amendment? 
• Is ABA Model Rule 8.4(g) merely a values statement or is it a source for discipline?
• What obligations, if any, do disciplinary authorities have to investigate credible, public information about alleged sexual misconduct by the lawyers licensed to practice in their jurisdictions?
• Should regulators adopt new rules or policies to address sexual misconduct, including the ability of lawyers and judges to avoid investigations by resigning their positions?
• If other areas of law (criminal, civil) do not cover aspects of sexual misconduct, is there a role for professional conduct rules to do so because of the lawyer’s special role in society?
• What reporting obligations do law schools have as they certify students’ fitness in bar admission applications? How does this fit within the Title IX framework?
• Should ethical rules on sexual misconduct that apply to the federal judiciary also apply to the U.S Supreme Court?
• How should reporting systems be improved?

To be considered, please email your paper to Renee Knake, Chair of the Section on Professional Responsibility, no later than August 1, 2020 at rknake@uh.edu Preference will be given to completed papers, though works-in-progress are eligible for selection.  The Call for Paper presenters will be responsible for paying their registration fee and hotel and travel expenses.  Please note that AALS anticipates that the Annual Meeting will go forward (https://am.aals.org/), and the theme is The Power of Words.

Women Submitting Less to Academic Journals Should Scare You

Ms., Women Submitting Less to Academic Journals Should Scare You

The New York Times recently published a report on the impacts of COVID-19 on working moms.

 

“I feel like I have five jobs: mom, teacher, C.C.O., house cleaner, chef,” Sarah Joyce Wiley—chief client officer at a Massachusetts health services company—told the New York Times. “My kids also call me ‘Principal mommy’ and the ‘lunch lady.’ It’s exhausting.”

 

It’s not that men aren’t feeling stressed—but in heterosexual relationships, domestic responsibilities, more often than not, tend to fall on the mother.  As Andrea Flynn, director of health equity at the Roosevelt Institute, wrote in a viral op-ed for Ms.:

Three weeks ago, most of us—proud feminists and progressives—would have said we shared the burden of parenting relatively evenly. (I say relatively because research shows that, despite couples feeling they have egalitarian relationships, women still do the lion’s share of domestic labor.)

 

Why then, at times of crisis, do these imbalances emerge? 

 

Because structural sexism is always lurking just below the surface, ready to rear its ugly head and quickly upset any semblance of intra-household gender equity. 

 

The scary thing? The pressure of women to balance everything at home isn’t just going to go away once COVID-19 ends. Women’s careers are at sake. 

 

Recently, the Lily published a report on the impacts of COVID-19 on academia—specifically how it can impact tenure and future opportunities for women and men. 

 

[COVID-19] threatens to derail the careers of women in academia, says Leslie Gonzales, a professor of education administration at Michigan State University, who focuses on strategies for diversifying the academic field: When institutions are deciding who to grant tenure to, how will they evaluate a candidate’s accomplishments during coronavirus? 

 

Prior to the pandemic, some studies showed that in recent years, the gender gap in academia—specifically related to tenure and doctorate degrees—was beginning to level out.

 

However, since the onset of coronavirus, editors have noticed a trend: Women academics are submitting fewer papers during coronavirus—with some fields like astrophysics reporting a 50 percent productivity loss among women. This could mean the gender gap in higher education is rearing its ugly head again. 

 

“We don’t want a committee to look at the outlier productivity of, say, a white hetero man with a spouse at home and say, ‘Well, this person managed it,’” Gonzales told the Lily. “We don’t want to make that our benchmark [of deciding tenure or not].”

See also No Room of One's Own: Data Suggests COVID Negatively Affecting Women's, but Not Men's, Research Productivity

Challenging the Legitimacy of CEO Predatory Behavior in Business and Gender Equality Terms

June Carbone & William Black, The Problem with Predators, 43 Seattle U. L. Rev. 44 (2020) 

Both corporate theory and sex discrimination law start with presumptions that CEOs seek to advance legitimate ends and design the internal organization of business enterprises to achieve such ends. Yet, a growing literature questions why CEOs and boards of directors nonetheless select for Machiavellianism, narcissism, psychopathy, and toxic masculinity, despite the downsides associated with these traits. Three scholarly literatures—economics, criminology, and gender theory—draw on advances in psychology to shed new light on the construction of seemingly dysfunctional corporate cultures. They start by questioning the assumption that CEOs—even CEOs of seemingly mainstream businesses—necessarily seek to advance “legitimate” ends. Instead, they suggest that a persistent issue is predation: the exploitation of asymmetries in information and power to the disadvantage of shareholders, creditors, customers, or employees. These literatures then explore how such CEOs may rationally choose to employ seemingly dysfunctional practices, such as “masculinity contests,” which reward employees more likely to buy into ethically dubious activities that range from predatory lending to sexual harassment. This Article maintains that questioning the presumption of legitimacy has profound and largely unexplored implications for corporate theory and anti-discrimination law. It extends the theory of “control fraud” central to white-collar criminology to a new concept of “control predation” that includes conduct that is ethically objectionable, if not necessarily illegal. This Article concludes that only by questioning the legitimacy of these practices in business terms can gender theory adequately address women’s workplace equality.

US Women's Soccer Loses Key Part of Discrimination Case, with Judge Focusing on Men's Entitlement

Not Even the USWNT Could Beat Male Entitlement

In the fight for equal pay, the hardest thing to beat is not a judge or corporation or a piece of case law. It’s an attitude. The real opponent is a fearful illogic that says to grant a single dollar to a woman for her excellence somehow comes at the expense of a man. That illogic, that unreasoning resistance, is written all through Judge R. Gary Klausner’s latest opinion on the U.S. women’s soccer pay discrimination case, a ruling that is a setback — for now — to the idea that gold medal-winning American women should make a merely equitable wage for better and more work.

 

All you have to know about Klausner’s ruling is that it leads with and lingers on the men’s national soccer team and what it doesn’t get. You stare at the page, mouth agape, wondering whether your eyes are seeing right. Why, you wonder, is Klausner going on about men? Where are the women? Where are Megan Rapinoe and Carli Lloyd?

 

Ahh there they are. On Page 3. Halfway down.

 

As you read on, you realize that Klausner has not really ruled here. He has just stewed. For 32 pages he mulls with an ill-concealed agenda over the nerve these women had to ask for things. Things the men don’t have. Things that have nothing to do with the case.

 

If you had to summarize the ruling in a sentence, it would be this: The real victims are men.***

 

Klausner has gone one better than U.S. Soccer officials, who at least are up front in their sexist argument that the women’s game is inferior and so players aren’t entitled to more. Their counsel literally argued “market realities are such that the women do not deserve equal pay.” Former chief Carlos Cordeiro flatly admitted in 2017 in a public statement, “our female players have not been treated equally.”

 

Which provokes Klausner’s most offensive contortion of all. Just because U.S. Soccer officials admitted that women players are paid less “does not make it true,” he writes. 

See also Wash Post, Judge Rules Against U.S. Women's Soccer Team in Equal Pay Dispute

[F]ederal judge R. Gary Klausner, ruling in U.S. District Court for the Central District of California in Pasadena on Friday, was unpersuaded by the women’s legal case for that demand. Klausner rejected the U.S. women’s soccer team’s argument that it has been underpaid relative to the U.S. men in the gender-discrimination suit filed in March 2019.

 

In a ruling delivered late Friday, Klausner sided with the players’ employer, the U.S. Soccer Federation, which argued the claim of unequal pay based on gender discrimination should be dismissed.

Klausner ruled that the players’ additional claims of unequal treatment in terms of travel, medical staff and training equipment can go forward. A trial is scheduled to begin on those questions June 16

Motherhood Penalty May Fuel Workplace Lawsuits From Pandemic

Motherhood Penalty May Fuel Workplace Lawsuits in Pandemic

Stephanie Jones struggled to balance her day job for Eastern Airlines with new responsibilities after her 11-year-old son’s school closed in March as part of her Pennsylvania town’s response to the coronavirus.

 

The single mother, who served as the airline’s director of revenue management, said her repeated requests to have two hours a day off were met with the blunt response that it “was not in the interest of the company or yourself.” She was fired soon after, allegedly because she had “conflict” with co-workers.

 

Earlier this month, Jones filed one of the first federal lawsuits under the Families First Coronavirus Response Act, which requires paid sick leave for parents when schools or daycare centers close because of the virus. Eastern Airlines and its attorney didn’t respond to a request for comment.

 

Jones’ lawsuit is an early indicator of potential lawsuits from parents and caregivers—especially women—as a result of Covid-19, employment law attorneys and academics warn.

 

“We are at risk for a whole new round and increased interest in family responsibilities discrimination,” said Joan Williams, a law professor at the University of California Hastings and director of the Center for WorkLife Law. “You have a recipe for discrimination. Inevitably, there will be assumptions about who is valuable and who is performing up to snuff. That’s where the lawsuits start.”

 

The “motherhood penalty” has been oft-used to describe persistent gender disparities that working mothers can encounter, as documented by a surge in discrimination lawsuits related to caregiving in recent decades as more women enter the workforce.

 

It’s exacerbated during the pandemic, lawyers and professors say, and could lead to more claims of sex discrimination in hiring, firing, pay, and promotions; pregnancy bias from mothers who must choose between their safety and getting paid; and family leave law violations.

Review of Judge Diane Wood, Sexual Harassment Litigation in the Real World

Brooke Coleman, JOTWELL, The Real World: Reviewing Diane Wood, Sexual Harassment Litigation with a Dose of Reality, 2019 U. Chi. Legal F. 395.

Judge Wood is a beloved jurist and renowned civil-procedure expert. This makes her real-world take on the state of sexual harassment litigation a great read. Judge Wood reminds us that Title VII of the Civil Rights Act has been on the books for more than fifty-five years. As the #MeToo movement starkly revealed, however, Title VII and similar laws meant to prohibit sex discrimination in the workplace and beyond have not done the job. This is true even when there is Supreme Court precedent that should be working. Cases such as Meritor Savings Bank v. Vinson (recognizing harassment in the absence of a quid pro quo) or Oncale v. Sundowner Offshores Services, Inc. (recognizing sexually harassment by a person of the same sex) have been in place for decades. But Judge Wood shows that in the real world, “even blatant cases of sexual harassment frequently fail” in our federal district and appellate courts.

 

To unpack why, Judge Wood surveys a set of Seventh Circuit sexual harassment cases. The cases are startling. First, lest anyone think that corporations and individuals are routinely slapped with sexual harassment lawsuits over “innocuous or misunderstood” behavior, these cases prove the opposite. The stories are harrowing. One female employee endured repeated sexual advances by her supervisor, including an episode where he followed her while she was on a walk and grabbed her. Another female worker was told by her supervisor that he could see down her blouse during her interview. That supervisor also repeatedly said things such as, “You know you want me, don’t you?” And still another male supervisor grabbed a female employee’s breasts and buttocks and, on another occasion, simulated a sexual act on her while holding a zucchini between his legs. In all of these cases and most others Judge Wood details, the female employees did not prevail.

 

Judge Wood explains that while her data are not comprehensive, these cases provide a unique window into how sexual harassment cases are handled in the real world. Sexual harassment cases are under-reported, and even when a court case is filed, it often settles. Thus, the cases in her survey represent the small number that proceed to summary judgment or trial. In many of these cases, the parties appealed on an agreed factual record.  This provides interesting insight. The agreement on the facts reveals what is actually occurring in the workplace. And the trial and appellate courts’ responses, as detailed in their opinions, provide a better sense of why these cases are unsuccessful.

 

What Judge Wood observes overall is that substantive and procedural blockades, combined with judicial skepticism of sexual harassment claims, render even the most dreadful of sexual-harassment cases dead on arrival.

Decoding MeToo Defenses

Charlotte Alexander, Sorry (Not Sorry): Decoding #MeToo Defenses, 99 Texas L. Rev. (forthcoming)  

This Article examines the text of over two hundred public statements issued by people accused of work-related sexual harassment and misconduct as a part of the #MeToo movement. Using both computational and manual text analytics approaches, the project constructs a typology of the statements' substantive content, including admissions, denials, defenses, and apologies; their emotional content, including anger, anxiety, and sadness; and their cognitive content, including authenticity and certainty. The project also tracks specific themes throughout the statements, including attacks on the accusers, references to changing workplace norms, addiction and mental health stories, and concerns about due process. Building on this descriptive picture, the Article uses the statements to assess the #MeToo movement's progress in holding individual perpetrators to account, and in achieving structural change.

What Taylor Swift and Beyonce Teach Us About But-For Causation in Sex Discrimination Cases

Robin Dembroff, Issa Kohler-Hausmann & Elise Sugarman, What Taylor Swift and Beyoncé Teach Us About Sex and Causes, U. Penn. L. Rev. (forthcoming)

In the consolidated cases Altitude Express v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. EEOC, the Supreme Court will decide whether or not Title VII prohibits discrimination on the basis of sexual orientation or gender identity. Although the parties disagree as to the appropriate formulation of a but-for test to determine whether or not there was a discriminatory outcome, all parties do agree to the use of such a test, which asks “whether the evidence shows ‘treatment of a person in a manner which but for that person’s sex would be different.’” City of Los Angeles, Dep’t. of Water and Power v. Manhart, 435 U.S. 702, 711 (1978). However, but-for tests confuse more than they clarify the inquiry; a discriminatory outcome cannot be explained by appeal to just a discrete characteristic of a particular person. Individuals are not discriminated against because of these characteristics per se. Rather, they are discriminated against because of the social meanings and expectations that attach to these characteristics. Beyoncé and Taylor Swift illustrate the difference between individual-level causation and social explanation in two separate songs, “If I Were a Boy” and “The Man.” The explanation for why the counterfactual ‘male’ Beyoncé and Swift are evaluated differently than their current ‘female’ versions does not lie in individual-level features considered apart from the social world, but in social-level roles and expectations associated with those features. For this reason, a social explanation test—one that asks whether the social meanings of sex characteristics, rather than the characteristics per se, explain the outcome in question—is more suitable for determining whether or not Title VII has been violated. 

How the 1918 Flu Pandemic Helped Advance Women's Rights

How the 1918 Flu Pandemic Helped Advance Women's Rights

***One hundred years ago, a powerful strain of the flu swept the globe, infecting one third of the world’s population. The aftermath of this disaster, too, led to unexpected social changes, opening up new opportunities for women and in the process irreversibly transforming life in the United States.

 

The virus disproportionately affected young men, which in combination with World War I, created a shortage of labor. This gap enabled women to play a new and indispensible role in the workforce during the crucial period just before the ratification of the 19th Amendment, which granted women suffrage in the United States two years late

 

Why did the flu affect more men than women?

 

Known as the Spanish flu, the 1918 “great influenza” left more than 50 million people dead, including around 670,000 in the United States.

 

To put that in perspective, World War I, which concluded just as the flu was at its worst in November 1918, killed around 17 million people – a mere third of the fatalities caused by the flu. More American soldiers died from the flu than were killed in battle, and many of the deaths attributed to World War I were caused by a combination of the war and the flu.

 

The war provided near perfect conditions for the spread of flu virus via the respiratory droplets exhaled by infected individuals. Military personnel – predominantly young males – spent months at a time in close quarters with thousands of other troops. This proximity, combined with the stress of war and the malnutrition that sometimes accompanied it, created weakened immune systems in soldiers and allowed the virus spread like wildfire.***

 

It was more than just male conscription in war, however, that led to a greater number of men who were infected and died from the flu. Even at home, among those that were never involved in the war effort, the death rate for men exceeded that of women. Demographic studies show that nearly 175,000 more men died than women in 1918.

 

In general, epidemics tend to kill more men than women. In disease outbreaks throughout history, as well as almost all of the world’s major famines, women have a longer life expectancy than men and often have greater survival rates.

 

The exact reason why men tend to be more vulnerable to the flu than women continues to elude researchers. The scoffing modern term “man flu” refers to the perception that men are overly dramatic when they fall ill; But recent research suggests that there may be more to it than just exaggerated symptoms.

 

Flu Brought More women into the Workforce

 

The worker shortage caused by the flu and World War I opened access to the labor market for women, and in unprecedented numbers they took jobs outside the home. Following the conclusion of the war, the number of women in the workforce was 25 percent higher than it had been previously and by 1920 women made up 21 percent of all gainfully employed individuals in the country. While this gender boost is often ascribed to World War I alone, women’s increased presence in the workforce would have been far less pronounced without the 1918 flu.***

 

Women began to move into employment roles that were previously held exclusively by men, many of which were in manufacturing. They were even able to enter fields from which they had been banned, such as the textile industry. As women filled what had been typically male workplace roles, they also began to demand equal pay for their work. Gaining greater economic power, women began more actively advocating for various women’s rights issues – including, but not limited to, the right to vote.***

 

How the Flu Helped Change People's Minds

 

Increased participation in the workforce allowed many women to obtain social and financial independence. Leadership positions within the workforce could now be occupied by women, especially in the garment industry, but also in the military and police forces. The U.S. even got its first woman governor, when Nellie Taylor Ross took her oath of office, in 1923, in Wyoming. An increased ability to make decisions in their personal and professional lives empowered many women and started to elevate their standing.

 

With the war over and increased female participation in the labor force, politicians could not ignore the critical role that women played in American society. Even President Woodrow Wilson began to argue in 1918 that women were part of the American war effort and economy more broadly, and as such, should be afforded the right to vote.

 

Outside of work, women also became more involved in community decision-making. Women’s changing social role increased support for women’s rights. In 1919, the National Federation of Business and Professional Women’s Clubs was founded. The organization focused on eliminating sex discrimination in the workforce, making sure women got equal pay and creating a comprehensive equal rights amendment.

See also Rebecca Onion, Did We Fail to Memorialize Spanish Flu Because Women Were the Heroes?

And yet, for years, Americans didn’t talk about it much in public. Historians of the flu, starting with Alfred Crosby, whose 1976 book America’s Forgotten Pandemic was the first comprehensive account of the outbreak in the United States, have long wondered at the curious fact that this terrible experience left so little mark on the cultural record. Looking at major American newspapers and political discourse in the years after the flu ended, Crosby found that the whole thing seemed to have vanished without a trace. “The flu never inspired awe, not in 1918 and not since,” Crosby wrote. Crosby notes that the major writers of that generation, who were busy memorializing the experience of the Great War and probing the depths of the “modern” soul, didn’t talk much about the flu either. It was left to a few scattered authors less central to the canon—Katherine Anne Porter, William Maxwell, Thomas Wolfe—to write about the epidemic in the ensuing decades. It wasn’t until the end of the 20^th century that American historians and documentarians turned their attention to the pandemic.

 

What was it about the flu that provoked this silent response? Is there something about mainstream American culture, with its optimism and pride, that simply refuses to reckon with the idea of mass death from an unstoppable illness? A close read of recent history suggests that the 20^th century silence about the flu epidemic of 1918–19 shows how uneasy many Americans have been with failure, death, and loss, and how strongly most of the nation seems to prefer stories that celebrate heroic achievement to those that memorialize acts of caregiving. Indeed, as the flu came and went, the only people who felt like they’d done anything to help were nurses, who offered palliative care to alleviate symptoms as the sick suffered on. Given America’s somewhat pathological focus on results-oriented medicine, and aversion to the acceptance of death, it’s little wonder that these women’s efforts went unhailed.

 

Confronting and Debunking the Common Reasons Given for Slow Progress for Gender Equity in Corporate Leadership

Kellye Testy, From Governess to Governance: Advancing Gender Equity in Corporate Leadership, 87 G.W. Law Rev. 1095 (2019)

Even as corporate influence on every aspect of life continues to grow, women (overall, and especially women of color) remain woefully underrepresented in corporate governance roles, particularly on boards of directors. This lack of gender diversity in the corporate boardroom is prevalent not only in more established companies but also persists — often at even higher levels — in new ventures as well. This Essay details the persistent lack of progress over more than a half century in diversifying leadership in corporate governance. This progress is especially concerning given that the benefits of diversity for sound decision-making and overall corporate welfare have been established empirically, putting into question whether those boards that fall short on gender equity are meeting their fiduciary duties of good governance. The Essay confronts and debunks the common reasons given for slow progress and outlines specific steps that corporate boards and others seeking to improve gender equity in corporate governance can deploy to make faster and more consistent progress.

This Essay is part of the George Washington Law Review's 2018 symposium, Women and Corporate Governance: A Conference Exploring the Role and Impact of Women in the Governance of Public Corporations.

Commission to Recommend to Congress that Women Be Included in Registration for Military Draft

NYT, Women Should Have to Register for Military Draft, Too, Commission Tells Congress

Women have been serving in the United States military since the Revolutionary War, helping to sew uniforms, heal the wounded and, eventually, fight in combat. But they have never been required to register for a military draft.

 

That could soon change. Under a new recommendation to Congress by a national commission, all Americans ages 18 to 25 — and not just young men as currently covered by the law — should be required to register with the government in case of a military draft. The move sets up a debate over a divisive issue that has been simmering for years.

 

The question of whether to expand draft registration to women was among the most contentious issues considered over the past two years by the National Commission on Military, National, and Public Service, a bipartisan group that was appointed by Congress to address the issue of conscription. The commission is set to release it recommendations to Congress on Wednesday.