Wednesday, July 17, 2019
Harvard Business Review, A Study Used Sensors to Show that Men and Women are Treated Differently at Work
Gender equality remains frustratingly elusive. Women are underrepresented in the C-suite, receive lower salaries, and are less likely to receive a critical first promotion to manager than men. Numerous causes have been suggested, but one argument that persists points to differences in men and women’s behavior.
Which raises the question: Do women and men act all that differently? We realized that there’s little to no concrete data on women’s behavior in the office. Previous work has relied on surveys and self-reported assessments — methods of data collecting that are prone to bias. Fortunately, the proliferation of digital communication data and the advancement of sensor technology have enabled us to more precisely measure workplace behavior.
We decided to investigate whether gender differences in behavior drive gender differences in outcomes at one of our client organizations, a large multinational firm, where women were underrepresented in upper management. In this company, women made up roughly 35%–40% of the entry-level workforce but a smaller percentage at each subsequent level. Women made up only 20% of people at the two highest seniority levels at this organization.***
But as we analyzed our data, we found almost no perceptible differences in the behavior of men and women. Women had the same number of contacts as men, they spent as much time with senior leadership, and they allocated their time similarly to men in the same role. We couldn’t see the types of projects they were working on, but we found that men and women had indistinguishable work patterns in the amount of time they spent online, in concentrated work, and in face-to-face conversation. And in performance evaluations men and women received statistically identical scores. This held true for women at each level of seniority. Yet women weren’t advancing and men were.
The hypothesis that women lacked access to seniority, in particular, had little support. In email, meeting, and face-to-face data, we found that both men and women were roughly two steps, or social connections, away from senior management (so if John knows Kate and Kate knows a manager, John is two steps from a manager).
Some have argued that women lack access to important, informal networks because they don’t reach out to or spend time with “the boys club.” But this didn’t hold up in our data. We found that the amount of direct interaction with management was identical between genders and that women were just as central as men in the workplace’s social network.
Our analysis suggests that the difference in promotion rates between men and women in this company was due not to their behavior but to how they were treated. This indicates that arguments about changing women’s behavior — to “lean-in,” for example — might miss the bigger picture: Gender inequality is due to bias, not differences in behavior.
Farnush Ghadery, "#MeToo – Has the ‘Sisterhood’ Finally Become Global or Just Another Product of Neoliberal Feminism?" , Transnational Legal Theory (vol. 02, 2019)
The article discusses the #MeToo movement by reflecting on its origins and recent developments to consider its position within feminist theory. On the one hand, the cross-border proliferation of this hashtag revived the question once posed by liberal feminist Robin Morgan: Has the ‘sisterhood’ finally become global? Others questioned the deeper meaning of the ‘me’ as part of #MeToo, wondering whether the need for individual responsibility to come forward indicates that the movement fits only too well with what has been coined neoliberal feminism. Disagreeing with both categorisations, the article positions #MeToo as a transnational feminist consciousness-raising endeavour which can be traced across different places worldwide. Referring to some of these contextualised uses of #MeToo, the article argues that #MeToo has been able to manifest itself as a transnational feminist phenomenon, as it has allowed groups in distinct spaces and localities to take ownership of the varying manifestations of #MeToo.
Tuesday, July 16, 2019
Center for Applied Feminism, Univ. of Baltimore, Video Recordings from Applied Feminism and #MeToo (April 2019)
The center co-sponsored with the UB Law Review the 11th Feminist Legal Theory Conference: Applied Feminism and #MeToo. The conference mixed activism and scholarship focusing on sexual harassment and gender-based violence law. Sixteen scholars and practitioners presented papers concerning a wide array of legal topics, from sexual assaults during police searches to the credibility of survivors in courtrooms.
The keynote speaker was Debra Katz, the lawyer who represented Christine Blasey Ford during the confirmation hearings for now-Justice Brett Kavanaugh. In addition, hotel workers from a union presented about being sexually harassed and their campaign to end such treatment in hotels. Center members continued to work with UB law students and the Reproductive Justice Inside coalition to create model policies for reproductive health care and menstrual hygiene product access for Maryland correctional facilities.
Thursday, July 11, 2019
Joan Williams, Jodi Short, Margot Brooks, Hilary Hardcastle, Tiffanie Ellis, Rayna Saron, "What's Reasonable Now? Sexual Harassment Law after the Norms Cascade" , Michigan State L. Rev. (2019)
This Article asks whether Brooks v. San Mateo and four other appellate hostile-environment sexual harassment cases that have each been cited more than 500 times remain good precedent in the light of the norms cascade precipitated and represented by #MeToo. The analysis is designed to interrupt the “infinite regression of anachronism,” or the tendency of courts to rely on cases that reflect what was thought to be reasonable ten or twenty years ago, forgetting that what was reasonable then might be different from what a reasonable person or jury would likely think today. These anachronistic cases entrench outdated norms, foreclosing an assessment of what is reasonable now. To interrupt this infinite regression, this Article pays close attention to the facts of the cases-in-chief discussed below enabling the reader, and the courts, to reassess whether a reasonable person and a reasonable jury would be likely to find sexual harassment today.
National Review, US Women's Soccer: Equal Pay Lawsuit Not a Simple Case
The team’s lawsuit alleging pay discrimination against the U.S. Soccer Federation has done much to define its identity. A nearly perfect run through the World Cup has been widely interpreted as vindication of the merits of its case, so much so that fans chanted “equal pay” after the U.S. victory in the final over the Netherlands and booed the head of FIFA, the sponsor of the World Cup, during the trophy ceremony.
It is true that the American women, who sweat and practice as much as their male compatriots (perhaps more, given their superior results), don’t make as much. But the women’s game isn’t as popular or profitable, which fundamentally drives pay.
The total prize money for the women’s 2019 World Cup was $30 million, with the champion taking away about $4 million. The total prize money for the men’s 2018 World Cup was $400 million, with the champions winning $38 million.
The 28 players on the women’s national team sued the federation in March, alleging that they are paid less than their counterparts on the US men’s national team even though they win more games and bring in more money. According to the suit, a top-tier women’s player could earn as little as 38 percent of what a top-tier men’s player makes in a year, a gap of $164,320. That gap closed a bit with a new collective bargaining agreement in 2017, but the players still say they’re paid unfairly.
“These athletes generate more revenue and garner higher TV ratings but get paid less simply because they are women,” said Molly Levinson, a spokesperson for the team in their lawsuit, in a statement to Vox. “It is time for the Federation to correct this disparity once and for all.”
The soccer federation agrees that the men’s and women’s teams are not paid the same but has said it’s impossible to compare the teams because their pay structures are so different. The two groups have agreed to mediation in an effort to resolve the suit out of court.
Gender Law Prof Blog, US Women's Soccer Team Sues US Soccer for Gender Discrimination (March 2019)
Friday, June 14, 2019
Connecticut is poised to become the seventh state in the U.S. to provide paid time off to new parents and caregivers, adding further fuel to paid family leave as an issue in the 2020 elections.
Democratic governor Ned Lamont plans to sign the bill “ASAP,” according to a spokeswoman. When he does, Connecticut will join New York and New Jersey in offering the benefit, effectively making the New York metropolitan area a paid family leave zone for new parents.
If signed, then starting in 2021, workers in Connecticut would get 12 weeks off to care for a new baby, a seriously ill family member or loved one or to deal with their own illness. The benefit will be funded by a payroll tax on workers of 0.5 percent. Benefits will cover 95 percent of low-wage workers’ pay up to $900 a week, the most generous level of wage replacement in the country. New York currently offers 55 percent wage replacement, increasing to 66 percent when its policy is fully phased in.***
The new law adds fuel to the growing momentum behind paid family leave. Since 2016, three other states and Washington, D.C., have passed paid leave. And another bill is moving forward in Oregon as well.
Thursday, June 13, 2019
Jeffrey Meli & James Spindler, Salary History Bans and Gender Discrimination
A number of important jurisdictions have recently enacted salary history bans to combat the gender pay gap. This paper examines the effect of such bans by developing a novel, tractable economic model of unconscious bias in the workplace: some firms consistently but unconsciously under-evaluate the productivity of their female workers. In a Bayesian setting, a worker and his or her employer learn about worker quality over time by observing worker productivity; a worker’s salary thus conveys information about the employer’s inference of worker quality. A lateral employee market exists, and female workers who find themselves underpaid may choose to switch firms. We find that, under assumptions of non-strategic firm behavior, bans can reduce the gender wage gap, but do so at the expense of high-performing women; switching from discriminatory employers requires high-performing women to give up their history of high performance, and they may be effectively trapped at discriminatory firms. When firms are strategic (meaning they infer the reasons for employees’ switching behavior), bans do not reduce the gender wage gap; adverse selection results, which has an even more pronounced effect of trapping high-performing women by imposing greater switching costs on them. We find that a well-functioning job-switching market ameliorates unconscious bias and the gender wage gap, and that the wage gap (and the welfare of working women, particularly high-performers) is better addressed through policies that promote efficient job switching.
Why the ABA's New Rule Addressing Harassment and Discrimination is So Important for Women Working in the Legal Profession Today
Kristy D'Angelo-Corker, Don't Call me Sweetheart!:Why the ABA's New Rule Addressing Harassment and Discrimination is so Important for Women Working in the Legal Profession Today, 23 Hofstra L. Rev. 263 (2019)
Popular culture has recently shone a spotlight on the inequality and discrimination faced by women in many professions. With the “Me Too” and “Time’s Up” campaigns in full swing, it is clear that women are ready to fight to be respected and receive equal treatment. Although there are a plethora of news stories highlighting the issues that women are facing today, this Article will focus specifically on the effect of bias, prejudice, harassment, and discrimination against women in the legal profession. This discrimination and marginalization of women finds its way into law firms, courtrooms, and the corporate arena generally, and impacts not only the female attorneys and judges themselves, but also the clients and litigants that these women are serving. The American Bar Association (“ABA”), long committed to diversity and leading the professional legal community regarding “appropriate” conduct, has finally put an anti-discrimination, anti-harassment provision into effect to combat
discriminatory behavior on a national level.
This Article argues that although the ABA’s adoption of Resolution 109 to amend Rule 8.4 is a necessary first step to remedy the issues that women in the legal profession are currently facing, education and training initiatives must also be established. This training should take the form of Bias Training in law schools (as part of the Professional Responsibility requirements), in law firms, and as mandatory CLE requirements for practicing attorneys.
Wednesday, June 12, 2019
New book, Linda Hirshman, Reckoning: The Epic Battle Against Sexual Abuse and Harassment (2019)
Linda Hirshman, acclaimed historian of social movements, delivers the sweeping story of the struggle leading up to #MeToo and beyond: from the first tales of workplace harassment percolating to the surface in the 1970s, to the Clinton/Lewinsky scandal—when liberal women largely forgave Clinton, giving men a free pass for two decades. Many liberals even resisted the movement to end rape on campus.
And yet, legal, political, and cultural efforts, often spearheaded by women of color, were quietly paving the way for the takedown of abusers and harassers. Reckoning delivers the stirring tale of a movement catching fire as pioneering women in the media exposed the Harvey Weinsteins of the world, women flooded the political landscape, and the walls of male privilege finally began to crack. This is revelatory, essential social history.
Hirshman also wrote the book, Sisters in Law: How Sandra Day O'Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World.
Monday, April 22, 2019
Supreme Court Grants Cert to Resolve Circuit Split on Whether LGBTQ Bias is "Sex" Discrimination under Title VII
The US Supreme Court granted cert today in Altitude Express v. Zarda, RG & GR Harris Funeral Homes v. EEOC, and Bostock v. Clayton County on the question of "Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins, 490 U. S. 228 (1989)."
The Supreme Court on Monday added what could be landmark issues to its docket for the next term: whether federal anti-discrimination laws protect on the basis of sexual orientation and gender identity.
The court accepted three cases for the term that begins in October. They include a transgender funeral home director who won her case after being fired; a gay skydiving instructor who successfully challenged his dismissal; and a social worker who was unable to convince a court that he was unlawfully terminated because of his sexual orientation.
The cases shared a common theme: whether Title VII of the Civil Rights Act of 1964, which forbids discrimination on the basis of sex, is broad enough to encompass discrimination based on gender identity or sexual orientation.
At least nine federal circuit courts ruled in decisions prior to 2007 that sexual orientation wasn’t covered by Title VII of the 1964 Civil Rights Act, which prohibits bias against workers and job applicants based on their “sex.” The tide began to shift in 2015, when the Equal Employment Opportunity Commission decided in a federal sector case that Title VII does apply to sexual orientation.
In a groundbreaking decision in 2017, the U.S. Court of Appeals for the Seventh Circuit became the first federal appeals court to rule that Title VII covers sexual orientation when it said a lesbian job applicant could sue an Indiana community college for discrimination. While the Eleventh Circuit decided earlier that year that the law doesn’t apply to sexual orientation, the Second Circuit deepened the split in the courts with its 2018 ruling that it does.
The Court agreed to hear three cases that have to do with whether existing federal bans on sex discrimination in the workplace also prohibit discrimination based on sexual orientation or gender identity. In the consolidated Altitude Express Inc. v. Zarda and Bostock v. Clayton County, Georgia, a skydiving instructor and a child welfare services coordinator, respectively, said they were fired for being gay. And in R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, a funeral home employee said she was fired because she came out as transgender.***
The cases cover a big gap in LGBTQ rights in the US: Under federal and most states’ laws, LGBTQ people aren’t explicitly protected from discrimination in the workplace, housing, or public accommodations (like restaurants, hotels, and other places that serve the public).
Monday, April 15, 2019
A group of Democratic lawmakers on Tuesday unveiled a bill aimed at strengthening protections against harassment in the workplace, including sexual harassment.
Sen. Patty Murray (D-Wash.) and Democratic Reps. Katherine Clark (Mass.), Ayanna Pressley (Mass.), Elissa Slotkin (Mich.) and Debbie Mucarsel-Powell(Fla.) introduced the "Be HEARD Act," which stands for Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination in the Workplace.
Several 2020 Democratic presidential contenders have also signed onto the legislation, including Sens. Kamala Harris (D-Calif.), Elizabeth Warren(D-Mass.), Kirsten Gillibrand (D-N.Y.), Bernie Sanders (I-Vt.), Amy Klobuchar(D-Minn.) and Cory Booker (D-N.J.), among other senators.
The legislation aims to eliminate the tipped minimum wage, which largely leaves service worker pay up to customers, as well as end mandatory arbitration and pre-employment nondisclosure agreements and give workers more time to report harassment, among other provisions.
On Tuesday, Democrats in Congress will introduce legislation aimed at helping those workers. Called the Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination (BE HEARD) in the Workplace Act, it would close loopholes in federal discrimination law that leave many domestic workers without legal protections from sexual harassment. It would authorize grants for low-income workers to help them seek legal recourse if they are harassed. And, crucially for food service workers like Tucker, it would eliminate the lower minimum wage for tipped workers, which many say makes servers vulnerable to harassment by customers.
“Some women did and do still think that in order to make the extra tip, they have to ignore unwanted touches and unwanted comments,” Tucker said, “and we shouldn’t have to.”
The legislation could face an uphill battle in a Republican-controlled Senate. But it’s an example of a larger move toward systemic changes that would go beyond deposing a few big-name men, and help the many workers in America whose harassment never makes the news.
Legal Rules of Professional Ethics as an Enforcement Mechanism Against Gender Violence and Harassment
Katherine Yon Ebright, Taking #MeToo Seriously in the Legal Profession, 32 Georgetown J. Legal Ethics (2019)
With the advent of the #MeToo movement, we have seen unprecedented interest in taking, and real initiatives to take, gender violence and harassment seriously. Actors and directors have been forced out of Hollywood. Conductors have been forced out of their concert halls, chefs out of their kitchens, professors out of the hallowed halls of academia. What of the legal profession? Attorneys are rarely professionally sanctioned for committing rape, sexual assault, sexual harassment, or domestic violence. Indeed, some jurisdictions have interpreted these gendered acts as falling outside the ambit of the rules of professional conduct.
This Article examines how the legal profession has thus far addressed gender violence and harassment, as well as how it might do so in the future. Part I reviews different states’ rules of professional conduct and their interpretations with respect to gender violence and harassment. It homes in on state-to-state discrepancies in interpreting certain shared provisions that could be used for disciplining rape, sexual assault, sexual harassment, and domestic violence. Part II then reviews enforcement patterns for states that either do or might professionally sanction gender violence and harassment. Noting that enforcement rates are staggeringly low, Part II identifies deficiencies in the rules of professional conduct that permit abusers to keep practicing without professional sanction. Part III concludes by proposing a series of reforms that would harmonize states’ understandings of gender violence and harassment and address, to some extent, the enforcement problem.
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.
Thursday, April 4, 2019
Catharine MacKinnon, What #MeToo Has Changed
But #MeToo has been driven not by litigation but by mainstream and social media, bringing down men (and some women) as women (and some men) have risen up. The movement is surpassing the law in changing norms and providing relief that the law did not. Sexual-harassment law prepared the ground, but #MeToo, Time’s Up, and similar mobilizations around the world—including #NiUnaMenos in Argentina, #BalanceTonPorc in France, #TheFirstTimeIGotHarassed in Egypt, #WithYou in Japan, and #PremeiroAssedio in Brazil among them—are shifting gender hierarchy’s tectonic plates.
Until #MeToo, perpetrators could reasonably count on their denials being credited and their accusers being devalued to shield their actions. Many survivors realistically judged reporting to be pointless or worse, predictably producing retaliation. Complaints were routinely passed off with some version of “She isn’t credible” or “She wanted it” or “It was trivial.” A social burden of proof effectively presumed that if anything sexual happened, the woman involved desired it and probably telegraphed wanting it. She was legally and socially required to prove the contrary. In campus settings, in my observation, it typically took three to four women testifying that they had been violated by the same man in the same way to even begin to make a dent in his denial. That made a woman, for credibility purposes, one quarter of a person.***
The #MeToo movement is finally breaking this paralyzing logjam. Structural misogyny, with sexualized racism and class inequalities, is being challenged by women’s voices. No longer liars, no longer worthless, today’s survivors are initiating consequences few could have gotten through any lawsuit—in part because the laws do not permit relief against individual perpetrators, more because the survivors are being believed and valued as the law seldom has.***
The #MeToo mobilization, this uprising of the formerly disregarded, has made increasingly untenable the assumption that the one who reports sexual abuse is a lying slut. That is already changing everything. A lot of the sexual harassment that has been a constant condition of women’s lives is probably not being inflicted at this moment.
Wednesday, April 3, 2019
Jessica Clarke, The Rules of #MeToo, Univ. Chicago Legal Forum (forthcoming)
Two revelations are central to the meaning of the #MeToo movement. First, sexual harassment and assault are ubiquitous. And second, traditional legal procedures have failed to redress these problems. In the absence of effective formal legal procedures, a set of ad hoc processes have emerged for managing claims of sexual harassment and assault against persons in high-level positions in business, media, and government. This Article sketches out the features of this informal process, in which journalists expose misconduct and employers, voters, audiences, consumers, or professional organizations are called upon to remove the accused from a position of power. Although this process exists largely in the shadow of the law, it has attracted criticisms in a legal register. President Trump tapped into a vein of popular backlash against the #MeToo movement in arguing that it is “a very scary time for young men in America” because “somebody could accuse you of something and you’re automatically guilty.” Yet this is not an apt characterization of #MeToo’s paradigm cases. In these cases, investigative journalists have carefully vetted allegations; the accused have had opportunities to comment and respond; further investigation occurred when necessary; and the consequences, if there were any at all, were proportional to the severity of the misconduct. This Article offers a partial defense of the #MeToo movement against the argument that it offends procedural justice. Rather than flouting due process values, #MeToo’s informal procedures have a number of advantages in addressing sexual misconduct while providing fair process when the accused person is a prominent figure.
Tuesday, April 2, 2019
Today is Equal Pay Day, the symbolic day when women's earnings finally catch up to men's earnings from the previous year. It takes a few extra months because of the 23 percent gender wage gap that women typically face. However, this is not the day for every woman, as the wage gap varies by race and ethnicity.
Equal Pay Day was originated by the National Committee on Pay Equity (NCPE) in 1996 as a public awareness event to illustrate the gap between men's and women's wages.
The Equal Pay Act bars wage differences between male and female employees for comparable work—except in cases of seniority, merit, quantity or quality of production, or “any other factor other than sex.”
The Lilly Ledbetter Fair Pay Act provides "that pay discrimination claims on the basis of sex, race, national origin, age, religion and disability 'accrue' whenever an employee receives a discriminatory paycheck, as well as when a discriminatory pay decision or practice is adopted, when a person becomes subject to the decision or practice, or when a person is otherwise affected by the decision or practice."
Most states also have equal pay acts.
US Dep't of Labor, Equal Pay:
When the Equal Pay Act was signed into law by President Kennedy in 1963, women were earning an average of 59 cents on the dollar compared to men. While women hold nearly half of today's jobs, and their earnings account for a significant portion of the household income that sustains the financial well-being of their families, they are still experiencing a gap in pay compared to men's wages for similar work. Today, women earn about 81 cents on the dollar compared to men — a gap that results in hundreds of thousands of dollars in lost wages. For African-American women and Latinas, the pay gap is even greater.
Women's demand for equal pay goes back to the beginning of the women's rights movements. Part of the Declaration of Sentiments of women's rights proclaimed at Seneca Falls in 1848 criticized the "scant remuneration" women were paid and demanded equality. "Equal pay for equal work" was a mantra of the 1894 women's rights convention, continuing the longstanding demand for equal opportunity and equal pay.
Last year, the Ninth Circuit Court of Appeals (en banc) held in Rizo v. Yovino that the use of salary histories violates the equal pay act.
A dated, but still important article: Sara Zeigler, Litigating Equality: The Limits of the Equal Pay Act
This article assesses the effectiveness of legal remedies available under the Equal Pay Act (EPA) in closing the gender gap in pay. Although employers frequently attribute women’s lesser pay to lags in seniority and the life choices made by women, the evidence suggests that the narrow language of the EPA, its omission of the more subtle forms of sex discrimination, and the powerful disincentives for most women to pursue claims under the act have rendered it largely ineffective in curtailing sex discrimination in compensation. Through an examination of recent developments in the area of pay equality, the article demonstrates that the act, as enforced, has produced neither equality nor equity. Arguing that the reality of sex discrimination in pay shapes life choices (rather than the reverse), the article identifies the obstacles to closing the pay gap and strategies for more effective enforcement.
The proposed Paycheck Fairness Act seeks to address some of these limitations.
Rep. Rosa DeLauro (D–Conn.) has introduced the bill in every Congress since 1997. But that’s not to say the bill is without momentum; the House voted on the Paycheck Fairness Act for the first time in eight years last week—and passed it by its highest vote total ever.
When DeLauro first proposed the legislation, its stated purpose was to “revise and increase remedies and enforcement on behalf of victims of discrimination in the payment of wages on the basis of sex.” In essence, giving sharper teeth to the Equal Pay Act of 1963 that was supposed to enshrine the concept of ‘equal pay for equal work’ in the law.
In the intervening two decades, the bill’s language hasn’t changed dramatically because the problem it targets—the reality of women’s unequal pay for equal work—remains. The gender pay gap was 26% in 1997; it now hovers in the 20% range, according to Census data.
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  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.
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.”
Friday, March 15, 2019
The federal judiciary will change its response to workplace sexual misconduct charges effective immediately, the policy-making body for the federal courts announced today.
It is itself “misconduct not to report misconduct,” Chief Judge Merrick Garland, of the U.S. Court of Appeals for the D.C. Circuit, said in a press briefing following the bi-annual Judicial Conference meeting.
The changes clarify what behavior is prohibited, address informal methods to report misconduct, and provide for training mechanisms to educate employees on prohibited behaviors, said Garland, who heads the Executive Committee of the Judicial Conference.
The changes stem from a June 2018 report Chief Justice John G. Roberts Jr. commissioned after sexual harassment allegations against then-Ninth Circuit Judge Alex Kozinski emerged. Kozinski has since retired.
Roberts’ year-end report detailed the steps the judiciary has already taken to address concerns in the #MeToo era, including the creation of a working group to address inappropriate workplace conduct for law clerks and court employees.
The working group made the recommendations implemented today and Garland said it will remain in place to “keeps tabs” on the judiciary’s progress and perhaps make suggestions in the future.
The codes of conduct don’t officially apply to Supreme Court justices, but they have previously said they consult and follow them.
Justice Elena Kagan said during a budget hearing March 7 that Roberts is currently studying whether to develop a code of conduct that applies specifically to Supreme Court justices. It’s something that’s being “very seriously” weighed, she said.