Gender and the Law Prof Blog

New Book: The Woman Behind the Supreme Court's Decision in West Coast Hotel v. Parrish

Helen Knowles, Making Minimum Wage: Elsie Parrish v. West Coast Hotel Company

The US Supreme Court’s 1937 decision in West Coast Hotel v. Parrish, upholding the constitutionality of Washington State’s minimum wage law for women, had monumental consequences for all American workers. It also marked a major shift in the Court’s response to President Franklin D. Roosevelt’s New Deal agenda. In Making Minimum Wage, Helen J. Knowles tells the human story behind this historic case.

West Coast Hotel v. Parrish pitted a Washington State hotel against a chambermaid, Elsie Parrish, who claimed that she was owed the state’s minimum wage. The hotel argued that under the concept of “freedom of contract,” the US Constitution allowed it to pay its female workers whatever low wages they were willing to accept. Knowles unpacks the legal complexities of the case while telling the litigants’ stories. Drawing on archival and private materials, including the unpublished memoir of Elsie’s lawyer, C. B. Conner, Knowles exposes the profound courage and resolve of the former chambermaid. Her book reveals why Elsie—who, in her mid-thirties was already a grandmother—was fired from her job at the Cascadian Hotel in Wenatchee, and why she undertook the outsized risk of suing the hotel for back wages.

Minimum wage laws are “not an academic question or even a legal one,” Elinore Morehouse Herrick, the New York director of the National Labor Relations Board, said in 1936. Rather, they are “a human problem.” A pioneering analysis that illuminates the life stories behind West Coast Hotel v. Parrish as well as the case’s impact on local, state, and national levels, Making Minimum Wage vividly demonstrates the fundamental truth of Morehouse Herrick’s statement.

Recognizing the Problem of Discrimination Against Women as Business Owners and Investors

Ann Lipton, Capital Discrimination, Houston L.Rev. (forthcoming)  

The law of business associations does not recognize gender. The rights and responsibilities imposed by states on business owners, directors, and officers do not vary based on whether the actors are male or female, and there is no explicit recognition of the influence of gender in the doctrine.

Sex and gender nonetheless may pervade business disputes. One co-owner may harass another co-owner; women equity holders may be forced out of the company; men may refuse to pay dividends to women shareholders.

In some contexts, courts do recognize and account for these dynamics, such as when married co-owners file for divorce. But business law itself has no vocabulary to engage the influence of sex and gender, or to correct for unfairness traceable to discrimination. Instead, these types of disputes are resolved using the generic language of fiduciary duty and business judgment, with the issue of discrimination left, at best, as subtext. The failure of business law doctrine to confront how gender influences decisionmaking has broad implications for everything from the allocation of capital throughout the financing ecosystem to the lessons that young lawyers are taught regarding how to counsel their clients.

This Article will explore how courts address – or fail to address – the problem of discrimination against women as owners and investors. Ultimately, the Article proposes new mechanisms, both via statute and through a reconceptualization of fiduciary duty, that would allow courts to recognize, and account for, gender-based oppression in business.

Menstruation Discrimination under the Pregnancy Discrimination Act and the Problem of Shadow Precedents

Deborah Widiss, Menstruation Discrimination and the Problem of Shadow Precedents" 
Columbia Journal of Gender and the Law, Forthcoming

The movement calls attention to menstruation-related discrimination in workplaces, schools, prisons, and many other aspects of life. In recent years, a few courts have suggested such discrimination could violate Title VII, the federal law that prohibits sex discrimination in employment. Their analysis focuses on the Pregnancy Discrimination Act (PDA), an amendment to Title VII passed to override a Supreme Court case that had held pregnancy discrimination was not sex discrimination.

This essay, written for a symposium at Columbia Law School, applies my earlier research on the statutory interpretation of Congressional overrides to highlight two potential challenges this nascent litigation campaign may face, and to suggest how to avoid them. The first risk is that courts will simply deny such claims, reasoning that menstruation is not directly addressed by the text of the PDA and therefore should not be recognized as sex discrimination. The second—which is more subtle, and also perhaps more likely—is that courts could find such discrimination to be actionable, but do so relying solely on the PDA’s explicit reference to “medical conditions” related to pregnancy. While that would be helpful for addressing discrimination in workplaces, it could open the door to arguments that menstruation is outside the ambit of sex discrimination laws that do not include comparable language.

Theorists and advocates should instead seek to establish that menstruation discrimination is discrimination the basis of “sex” itself, in that it is a condition linked to female reproductive organs (although transmen and boys and non-binary persons may also menstruate) and associated with stereotypical assumptions about women’s proper role in society. That reasoning, which suggests that the PDA is properly interpreted as signaling Congress’s disapproval with the Supreme Court’s unduly cramped understanding of what constitutes sex discrimination in the earlier pregnancy case, should apply not only to Title VII, but also to the interpretation of statutory and regulatory prohibitions on sex discrimination in non-employment contexts.

SCOTUS Denies Cert in Challenge to Male Only Draft, but 3 Justices Write Separately

National Coalition for Men v. Selective Service System, Denial of Cert (June 7, 2021)

The petition for a writ of certiorari is denied.

 

Statement of JUSTICE SOTOMAYOR, with whom JUSTICE BREYER and JUSTICE KAVANAUGH join, respecting the denial of certiorari.

 

The Fifth Amendment to the United States Constitution prohibits the Federal Government from discriminating on the basis of sex absent an “‘exceedingly persuasive justification.’” Sessions v. Morales-Santana (quoting United States v. Virginia); see Califano v. Westcott; Califano v. Goldfarb; Weinberger v. Wiesenfeld; Frontiero v. Richardson. Cf. Bolling v. Sharpe. The Military Selective Service Act requires men, and only men, however, to register for the draft upon turning 18. See 85 Stat. 353, 50 U. S. C. §3802(a). In Rostker v. Goldberg, 453 U. S. 57 (1981), this Court upheld the Act’s gender-based registration requirement against an equal protection challenge, citing the fact that women were “excluded from combat” roles and hence “would not be needed in the event of a draft.” 

 

The role of women in the military has changed dramatically since then. Beginning in 1991, thousands of women have served with distinction in a wide range of combat roles, from operating military aircraft and naval vessels to participating in boots-on-the-ground infantry missions. Women have passed the military’s demanding tests to become U. S. Army Rangers, Navy SEALs, and Green Berets.  As of 2015, there are no longer any positions in the United States Armed Forces closed to women. Petitioners ask the Court to overrule Rostker in light of these developments.

 

Petitioners, however, are not the only ones asking whether a male-only registration requirement can be reconciled with the role women can, and already do, play in the modern military. In 2016, Congress created the National Commission on Military, National, and Public Service (NCMNPS) and tasked it with studying whether Selective Service registration should be conducted “regardless of sex.” 

 

On March 25, 2020, the Commission released its final report, in which it recommended “eliminat[ing] male-only
registration.” Inspired to Serve: The Final Report of the [NCMNPS] 111. Among other things, the Commission
found that “[m]ale-only registration sends a message to women not only that they are not vital to the defense of the country but also that they are not expected to participate in defending it.” Just a few months ago, the Senate Armed Services Committee held a hearing on the report, where Chairman Jack Reed expressed his “hope” that
a gender-neutral registration requirement will be “incorporated into the next national defense bill.”

 

It remains to be seen, of course, whether Congress will end gender-based registration under the Military SelectiveService Act. But at least for now, the Court’s longstanding deference to Congress on matters of national defense and military affairs cautions against granting review while Congress actively weighs the issue. I agree with the Court’s decision to deny the petition for a writ of certiorari.

Vox, Justice Kavanaugh Hands Down Some Surprisingly Good News for Women's Equality

Justice Brett Kavanaugh just handed down a subtle but potentially very significant signal that he will protect at least some of the feminist victories won by Ruth Bader Ginsburg two decades before she joined the Supreme Court. Kavanaugh’s move does not mean that he is likely to tack left on questions like abortion, but it does suggest there are some limits to this Court’s willingness to toss out earlier victories by liberals.***

 

On Monday, the Supreme Court announced that it will not hear National Coalition for Men v. Selective Service System, a lawsuit challenging a federal law that requires men — and not women — to register for the draft when they turn 18.

 

That might seem like bad news to anyone hoping the court would apply gender nondiscrimination precedents to a new area. But the good news comes in a brief opinion that Justice Sonia Sotomayor wrote.

 

In it, she suggests that she believes that gender discrimination in the selective service program is unconstitutional — the main reason she’s not interested in taking up the case, she seems to say, is that Congress is considering legislation that could expand selective service registration to women.

 

Kavanaugh joined the opinion in full. And that opinion begins with a quote summarizing many of the Court’s gender equality decisions — the Constitution “prohibits the Federal Government from discriminating on the basis of sex absent an ‘exceedingly persuasive justification,’” Justice Sotomayor wrote in her opinion — followed by a long list of citations to the Court’s gender equality decisions.

 

So, in joining this opinion, Kavanaugh signaled that he agrees with Sotomayor, and with the gender equality decisions that Sotomayor cites.

 

That does not mean that these decisions are completely safe — on a 6-3 Court, Kavanaugh could be outvoted by the other five Republican appointees — but it is a hopeful sign for feminism. Kavanaugh is the Court’s median vote in most contentious cases, so it is unlikely that the Court will overrule a major line of precedents without his approval.

"Unentitled," The Power of Titles and Designation in the Legal Academy

 Rachel Lopez, Unentitled: The Power of Designation in the Legal Academy, 73 Rutgers L. Rev. 101 (2021)  

Last December, the Wall Street Journal published an op-ed that questioned whether Dr. Jill Biden should more appropriately be addressed as Madame First Lady, Mrs. Biden, Jill, or even kiddo, characterizing her desire to be called doctor “fraudulent” and a “touch comic.” Many were understandably outraged by the lack of respect afforded to Dr. Biden, which had a distinctly gendered dimension. More recently, after a controversial decision by the University of North Carolina’s board of trustees to deny her tenure, Nikole Hannah-Jones, a Pulitzer Prize and MacArthur “genius grant” winner, was instead appointed as a “Professor of Practice” on a five year fixed term contract. These high-profile examples put in sharp focus what many women of color in the legal academy already know all too well: labels have an innate power to confer or diminish status. This Essay explores the role that titles play in the legal academy and, in particular, their often depreciative consequences for women of color. Drawing from my story, those relayed to me by others, and other empirical evidence, I will show how titles perpetuate stereotypes and entrench existing racial and gender hierarchies in the legal academy, although they appear race- and gender- neutral.

It is no secret that the legal academy is extraordinarily hierarchical, with women and people of color often populating the lower ranks of the totem pole. There is a stinging irony to this. As Ruth Gordon eloquently put it, “many of us spend our professional lives contesting hierarchy and exclusion—whether on the basis of race, gender, or class—but when it comes to academia—and I would suggest especially legal academia—we appear to have finally found a hierarchy we can believe in.” There is a problem of academic exceptionalism in the legal academy—hierarchy and exclusion are others’ problems, not our own.

Labels, in the form of titles, help cement these disparities, concretizing them into a caste system that justify unequal pay, less power in faculty governance, and, at times, abusive behavior. While doctrinal professors are “Professors of Law,” the academic archetype, the legal academy has developed a virtual cottage industry of other professional designations. These titles denote “the other teachers” in the legal academy: Clinical Professor, Professor of Practice, Teaching Professor, and Legal Writing Instructor, to name a few. The message is that “Professors of Law” are the ones who really teach the law, while those with the other titles teach something else less important.

If law schools truly aspire to be anti-racist institutions, as so many have pledged to be, we must acknowledge and hopefully someday soon address the racial and gendered (often intersectional) dynamics of titles in the legal academy.

Equalizing Parental Leave

Deborah Widiss, Equalizing Parental Leave, 105 Minnisota Law Review 1275 (2021)

The United States is the only developed country that fails to guarantee paid time off work to new parents. Just 21% of American workers— and just 9% of the lowest quartile of earners—receive paid parental or family leave from their employers. As a result, many new parents, particularly low-wage workers, are forced to go back to work extremely soon after a birth or adoption. Fortunately, a growing number of states have stepped into the breach, enacting their own laws to provide this paid time off to new parents. Additionally, in December 2019, Congress passed a law providing paid parental leave to most federal workers, and the coronavirus pandemic has heightened calls for a more comprehensive federal solution. The new laws are a significant step forward from the prior baseline of no paid leave, but their structure systematically disadvantages nonmarital families and thus exacerbates inequality on the basis of class, race, and sex.

The unequal treatment of nonmarital families under parental leave laws has been overlooked—in both academic scholarship and policy debate—because in America, leave is typically assessed from the perspective of parents, not families or children. Under the state and federal laws, each parent of a new child receives income replacement during time taken off work to provide care. Mothers and fathers receive the same benefits; this structure is intended to encourage fathers to play a hands-on role in infant care. This is an important objective. Among married different-sex couples, women often curtail paid work when children are born, which has long-term ramifications on married women’s economic and social status. The pandemic has intensified this concern, with women being far more likely than men to disrupt their own work to meet children’s needs—or to have dropped out of the workforce entirely for at least a period of time.

Early evidence from states with paid parental leave programs suggests the gender-neutral structure, which provides equal benefits to each parent, is helping achieve better gender parity. Men are claiming benefits at relatively high rates. However, every step forward in achieving the gender equality envisioned by these laws—that is, the aspiration that both mothers and fathers will fully utilize their benefits—will widen the gap between families with one parent and families with two.

This is a significant issue. Nearly 40% of new mothers in the United States are unmarried; nonmarital birth rates are much higher for women who lack a college degree, as well as for certain racial minorities. This is the result of a large and growing “marriage gap” in our country. When unmarried parents are living together, or otherwise both involved in childcare, it makes sense that each should be able to take parental leave. But many nonmarital children are cared for by a single parent, usually their mother. This is particularly true for Black women; almost one-third of Black women with children under the age of one are the sole adult in their household—unmarried, un-partnered, and not living with extended family. Most single mothers will ultimately bear primary responsibility for both breadwinning and caregiving. But because the state and federal leave laws provide benefits to individual parents, single-parent families are eligible for only half as much support as two-parent families. In other words, the new laws disadvantage the families that are likely to need them the most.

This Article exposes the structural inequality built into paid leave laws and then proposes potential solutions. In the process, the Article makes several contributions. The first are descriptive and doctrinal. The emergence of the state paid family and medical leave laws, and the policy for federal workers, address a major gap in American labor and social welfare policy. A few articles in the legal literature have touched upon these new laws, but this Article provides a far more detailed description of their structure. It then breaks new ground by analyzing how the parental leave laws interact with the state laws that establish legal parentage and custodial responsibility, and shows that this has the—likely unintended—consequence of disadvantaging nonmarital families.

Second, the Article uses this analysis to suggest that our current theoretical approach to assessing “equality” in the context of parental leave laws is incomplete. Parental leave policies implicate foundational questions of sex discrimination doctrine and theory because they respond to key biological and social differences between (cisgender) men and women. American law adopts a formal equality approach, requiring equal benefits for each parent. Most other countries, by contrast, provide maternity leaves that are much longer than paternity leaves, specifically permitting such “special” treatment of mothers under their sex discrimination doctrine. There are merits to both approaches. But the myopic focus on what constitutes “equal” treatment of parents obscures other important vectors of analysis, such as equal treatment of children or families. Further, by shortchanging single parents, disproportionately women of color, the American structure perpetuates other forms of inequality. In this respect, the Article builds on other scholarship that has exposed how labor policies privileging ideals of formal equality may disadvantage women and exacerbate class and race-based disparities.

Finally, the Article applies this expanded theoretical frame to suggest policy reforms that would address the inequitable treatment of single-parent families without abandoning the aspects of the current structure that are helping shift gender norms around caretaking in two-parent families. Drawing on models used in other countries, the Article proposes that sole parents (which could be defined according to legal parentage, legal custody, or the use of other factors to gauge the level of involvement by a second-parent) would be able to access an extended period of benefits, or that a broader range of family members be able to claim benefits to care for a newly-born, newly-adopted, or newly-fostered child. It also suggests that leave policies be structured to provide medical benefits separate from newborn bonding benefits, which helps ensure that a mother with medical needs during pregnancy still has access to paid time off after the birth; this is important for all birth mothers, but it is particularly essential for single parents. These solutions could be readily achieved without unduly burdening any individual employer because the costs of benefits are spread through an insurance-based approach.

Women Law Deans, Gender Sidelining, and Presumptions of Incompetence

Laura Padilla, Women Law Deans, Gender Sidelining, and Presumptions of Incompetence, 35 Berkeley J. Law & Gender 1 (2021)

In 2007, I wrote A Gendered Update on Women Law Deans: Who, Where, Why, and Why Not? which examined the number of women law deans, including women of color, their paths to deanships, and what the future might hold for decanal leadership from a gendered and racialized lens. A Gendered Update reported that in the 2005 2006 period, thirty one law deans at the 166 Association of American Law Schools (“AALS”) member schools were women (18.7%).  Only three of the thirty-one women law deans were women of color (1.8%).***

 

This Article starts with updated data on the number of women law deans, including women of color, and demonstrates increased numbers of both women and women of color in deanships. It then shifts to plausible explanations for this growth: some optimistic and some more skeptical. On the positive side, it is logical that new appointments reflect women’s increased representation in the broader legal population, which serves as the source of most new dean hires. In addition, there seems to be some recognition that women bring something new and different to leadership: a greater willingness to change, be flexible, and approach old problems in new ways. On the other hand, running a law school has become more challenging because of a decline in applications and credentials since 2011, which has translated into smaller classes and budgets, voluntary and involuntary layoffs, more work, and less pay.  It may be no coincidence that as the job became less desirable, women were appointed in greater numbers.

 

Next, this Article provides narrative descriptions of women’s experiences in leadership, including experiences unique to women of color, such as common stories of presumptions of incompetence, and gender sidelining. The stories are culled from surveys sent to all women law deans.  The survey responses reveal challenges in leadership roles, risks taken, and battles won and lost, and display increased obstacles for women of color.

 

The next Part of this Article develops ideas on how to continue increasing the number of women law deans and provide them support for success

Judicial Ethics in the MeToo World

Renee Knake Jefferson, Judicial Ethics in the #MeToo World, 89 Fordham L. Rev. 1197 (2021)

This Article examines the judicial role in professional ethics regulation through the lens of the judiciary’s own self-governance on sexual misconduct. The #MeToo movement exposed the long-enduring silence of the courts. Headlines featured judges like Alex Kozinski, who retired from the Ninth Circuit in 2018 after numerous former clerks went to the media with credible allegations of sexual misconduct. In 2019, at the instruction of Chief Justice Roberts, the federal judiciary amended the Code of Conduct for United States Judges to make clear that misconduct includes unwanted, offensive, or abusive sexual conduct and to include protections for those who report such behavior. But many argue the reforms do not go far enough. Congress, in the wake of media outcries, held hearings in early 2020. The judiciary’s tepid response holds consequences not only for the judges and the survivors of sexual misconduct but also for the legal profession as a whole. Leaving meaningful #MeToo remedies to journalists and lawmakers threatens judicial independence; it sets a precedent that could influence further intervention into other areas of professional conduct governance that is traditionally reserved for the courts. After offering additional reforms for addressing sexual misconduct in the judiciary, this Article concludes by reflecting on lessons that can be drawn about the judicial role in professional ethics regulation more broadly.

Gender, Race and Faculty Workload Inequities

Joya Misra, Alexandra Kuvaeva, KerryAnn O’Meara, Dawn Kiyoe Culpepper, Audrey J. Jaeger,  Gender, Race, and Faculty Workload Inequities

Faculty members carry out many different tasks – teaching, research, advising, and administrative and leadership work (often called “service”). How these tasks are weighed in faculty rewards systems may differ from institution to institution – with teaching valued more heavily in some settings, and research valued more heavily in others. Across settings, mentoring and service are often devalued.

Within this system, workload inequities are rampant. Women report a greater mismatch than men between what they want to spend time on and what they actually spend time on. Women faculty members tend to spend less time on highly valued research. Service work is often particularly devalued, and men are much more effective at avoiding it, while women are more likely to be good team players. Students also expect more mentoring and support from women faculty members. Time spent on campus service, teaching, mentoring and advising appear can reduce the time that would otherwise be spent on research.

This problem is worse for women of color, who face an identity tax, carrying out more service and mentoring than other faculty members. Women of color also often feel overburdened with responsibility for the much-needed diversity work on their campuses. These inequalities in workload have long-term effects. Faculty members who focus on research are often more likely to get recognized and promoted, while the good citizens of the department go unrewarded, hindering their career progression.

Our article in Gender & Society draws on our NSF-ADVANCE funded project, which carried out a survey of 957 faculty members from fifty-three mostly STEM departments, primarily located in research-intensive universities. 

We find that white women, by and large, feel that the workload distribution in their departments is unfair, and are less likely to think that their colleagues are committed to having a fair and equitable workload. This finding supports what we already knew about women doing more of the less-valued mentoring and service work in their departments. We further find that women of color are more concerned about how their workload is valued. Women of color indicate that the essential teaching, mentoring, and campus service work they do is not credited within their department rewards system. The work that women of color see as important appears to be devalued by their colleagues and goes unrecognized and unrewarded. * * * 

However, our study also had some good news. There are a number of strategies that departments can use to create workload policies that faculty view as more equal. For example, faculty in departments with transparent workload systems, clarity about workload expectations, and fair teaching and service assignments are more likely to see workload as fair, regardless of their race and gender. Similarly, faculty members in departments with clarity about workload expectations and fair teaching and service assignments are more likely to see workload as fairly valued, regardless of their race and gender. 

Study on Military Sexual Assaults Concludes that Rate of Assaults is Lower, Rate of Prosecution Higher, and Victims Report More Often than in Civilian Society

David Schlueter & Lisa Schenck, National, Military, and College Reports on Prosecution of Sexual Assaults and Victims' Rights: Is the Military Actually Safer Than Civilian Society, 56 Gonzaga Law Review (2021)  

In response to recent calls for major reforms to the American military justice system, which are apparently based on continuing congressional concerns about sexual assaults in the military, the authors present statistical data on sexual assaults from a number of sources: national crime statistics; military crime statistics; crime statistics from several states; and statistics from a university. The authors also present information on the tremendous strides that have been made in recent years to protect the rights of military victims of sexual assault, noting that some of those rights are not found in federal or state criminal justice systems. Finally, the authors conclude that the rate of sexual assaults in the military is lower than other civilian jurisdictions. Military victims report offenses at a higher rate than the jurisdictions examined. The military conviction rate for founded or cleared offenses available for prosecution is higher than in the jurisdictions examined. The military prosecutes a higher percentage of sexual assault crimes as compared to the total number of crimes than civilian jurisdictions. They recommend that Congress take careful and very deliberative steps in deciding what, if any, major changes to make to the American military justice system.

How to Reduce Discrimination in Veterans' Preference Laws

Craig Westergard, Questioning the Sacrosanct: How to Reduce Discrimination and Inefficiency in Veterans' Preference Law, 19 Seattle Journal for Social Justice 39 (2020)

Veterans’ preference law grants military veterans decisive advantages when applying for government positions. While rewarding veterans and assisting their transition back to civilian life may be worthy goals, veterans’ preference has at least two major defects. First, veterans’ preference disparately affects women, LGBT persons, disabled persons, and others because of the military’s traditional exclusion of these groups. Second, veterans’ preference unnecessarily reduces the quality of the federal workforce because it prioritizes military service over merit and competition. Potential statutory and constitutional solutions have been precluded by the courts, and so these problems persist. This Note recommends that Congress modify veterans’ preference by imposing limitations on its duration and usage; in the alternative, it suggests other ways in which veterans’ preference law might be improved.

How Much Process is Due for Sexual Misconduct? Inconsistent Standards Based on Place

Nicole B. Porter, "#MeToo and the Process That's Due: Sexual Misconduct Where We Live, Work, and Learn" 

The #MeToo movement has been instrumental in bringing attention to the pervasiveness of sexual harassment and sexual assault (collectively, sexual misconduct ) in all walks of life and in all environments, including at work, school, home, and out in public. But the movement has also brought with it a great deal of confusion about how we define sexual misconduct and whether and when legal liability attaches. Part of that confusion can be blamed on the fact that at least three discrete areas of law can possibly apply to sexual misconduct—criminal law, Title VII (when the sexual misconduct takes place in the workplace), and Title IX (when the sexual misconduct takes place in schools and universities). Adding to that confusion is that there are several inconsistencies between how these three areas of the law address issues surrounding sexual misconduct. The most prominent of these inconsistencies is the varied due process protections that apply, depending on where the sexual misconduct takes place. This article will discuss these inconsistencies, and will address the issue of whether these differences can be justified. In the end, this article concludes that the increased due process protection for Title IX cases (compared to Title VII cases) cannot be justified. Thus, it proposes a compromise response to answer the question—how much process is due?

Why It Remains So Difficult for Employers to Prevent and Respond Effectively to Workplace Harassment

Suzanne B. Goldberg, Harassment, Workplace Culture, and the Power and Limits of Law, American University Law Review, Vol. 70, 2020

This article asks why it remains so difficult for employers to prevent and respond effectively to harassment, especially sexual harassment, and identifies promising points for legal intervention. It is sobering to consider social-science evidence of the myriad barriers to reporting sexual harassment—from the individual-level and interpersonal to those rooted in society at large. Most of these are out of reach for an employer but workplace culture stands out as a significant arena where employers have influence on whether harassment and other discriminatory behaviors are likely to thrive. Yet employers typically make choices in this area with attention to legal accountability rather than cultural contribution. My central claim is that these judgment calls—about policy, procedures, training, and operations—shape workplace culture and that it is a mistake to view them only through a compliance lens. With this insight, it becomes clear that each of these will be more effective in shaping culture when the employee user-experience is a focal point, and this article suggests many ways to achieve this result.

By seeing harassment prevention and response as an opportunity for culture creation in addition to being a compliance obligation, it also becomes clear that harassing behavior may negatively affect the targeted employee and the broader workplace even when there is no risk of liability. This includes “lowgrade harassment,” a category I use to describe behaviors that are intentionally harassing but not severe or pervasive enough to meet doctrinal thresholds. Also relevant are microaggressions and interactions that reflect implicit bias, as these are unlikely to expose a firm to liability because they lack the discriminatory intent required by legal doctrine but nonetheless can create significant challenges for employees and organizations. This is not to suggest that employers should respond in an identical way to all of these occurrences. Rather, the point is that inattention to experiences that go beyond legal-accountability requirements is likely to spill over into the broader workplace culture and diminish the effectiveness of other harassment prevention and response efforts.

The good news is that there are specific steps an employer can take to have harassment prevention and response become part of the workplace culture rather than being sidelined as compliance. Thoughtfully crafted legislative and policy interventions, along with litigation settlements, also can bridge this gap and create a more seamless set of cultural expectations for how employees interact with each other at work and what they can expect from their employer when challenges arise.

Normalizing Menopause and Finding the Appropriate Legal Frameworks

Naomi Cahn, Justice for the Menopause: A Research Agenda,  Columbia Journal of Gender and Law, vol. 41 (forthcoming 2021)

This short essay, prepared for a symposium on menstruation, is an initial effort to catalogue various legal approaches to menopause and to set out areas for further analysis. It argues for consideration of menopause in the movement for menstrual and gender justice. It briefly explores cultural images of menopause and post-menopausal women, including the ubiquitous hot flashes and a sexuality, analyzes potential legal claims based on age, sex, and disability for menopausal justice, and suggests the interrelationship between such approaches and social attitudes towards menopause, menstruation, and gender. It suggests that “normalizing” menopause, acknowledging its realities, is one means for removing the associated stigma and disabilities and might result in reinterpreting existing laws and future legal reforms.

Symposium: COVID Care Crisis and the Impact on Women in Legal Academia

Symposium, COVID Care Crisis, Jan. 14 & 15 (Zoom) (registration free)

The COVID care crisis and other multiplying effects of related shutdowns, embedded inequalities, and health and safety risks are likely disproportionately impacting people with caregiving responsibilities in academia. The division that separates work from home has collapsed, threatening the very notion of “work-life balance.” Increasingly, employers have begun to reshape what used to be the private domain of family and home through “work at home” or in-person presence requirements that disregard the ways in which care work happens.

At the same time, schools and other institutions providing support to families and marginalized groups are temporarily closed, permanently shutting down, or buckling in response to state or local mandates as well as financial and personnel pressures.

In the months since the start of the COVID-19 pandemic, women’s scholarly output and publications have dropped in various disciplines, while service and care responsibilities that fall disproportionately on junior or marginalized faculty and staff have likely increased. Compounding these pressures, Black faculty and faculty of color more generally have also been coping with the emotional effects of the police killings of George Floyd and others, at the same time that COVID-19’s health effects are concentrating along lines of race and inequality in these communities specifically. All of these factors threaten the output, visibility, status and participation of women and other primary caregiving faculty and staff in legal academia.

Left unaddressed, these disparities also have the potential to alter the landscape of legal academia and further marginalize women and the perspectives they bring to legal scholarship, education, and public dialogue. This symposium seeks to raise awareness of the current COVID care crisis and its impacts on academia, and to begin a dialogue on concrete and innovative responses to this crisis.

How Americans Talk About MeToo and Law

Lesley Wexler, #MeToo and Law Talk, 29 Univ. Chicago Legal F (2019)  

How Americans talk when they talk about #MeToo is often deeply rooted in the law—even in non-legal settings, participants in the #Me-Too conversation often deploy legal definitions of victims and perpetrators, reference legal standards of proof and the role of legal forums, draw explicit or implicit comparisons to legal punishments, and derive meaning from legal metaphors and legal myths. In this essay, I identify and assess the deployment of such law talk to help understand both how legal rhetoric may facilitate the national #MeToo conversation and related legal reforms, but may also simultaneously limit and obscure some of the #MeToo’s more transformative possibilities. Such critical engagement seeks to open space for selective pushback, including initial thoughts on the possibilities of reclaiming colloquial law talk to better match the interests at stake in non-legal settings as well as bringing to the forefront the therapeutic, informative, and structural issues law talk might crowd out.

The MeToo Movement's Effect on Juror Bias in Sexual Assault Cases

Mary Graw Leary, Is the #MeToo Movement for Real? Implications for Juror's Biases in Sexual Assault Cases, 81 Louisiana L. Rev. 1 (2020)  

For decades the conventional wisdom asserted that law enforcement, the judiciary, and jurors were skeptical of claims of sexual violence and largely unsympathetic to the plight of victims. Many high profile cases highlighted this reality. These include the acquittal of R. Kelly for rape despite some video evidence, the sentencing of Brock Turner to less than a year incarceration for sexual assault of an unconscious woman, and the guilty plea of Jeffrey Epstein to minor charges despite significant evidence of the sex trafficking of minors. This perception of a lack of justice for sexual violence victims is also generally supported by the documented attrition rates of sexual violence cases as they progress through the criminal justice system. Scholars suggest many reasons for this bias against sex crime victims including victim blaming, discrimination, a desire to not want to believe the abuse occurred, stereotypes of the victims, acceptance of the rape myth, or the perceived credibility of the offenders.

In October of 2017, a public social movement against sexual harassment and sexual assault emerged on the national level (although it previously existed), entitled the “Me Too Movement.” This movement awakened a revelation in the United States of the prevalence of the sexual harassment and abuse experienced by women. By underscoring the frequency with which women are assaulted, the movement forced a reluctant public to face the breadth of the problem and the trauma experienced by these women.

A body of research exists regarding the lack of sympathy of jurors to victims of sexual violence. A new body of research is emerging documenting the effect of the #Me Too Movement on societal perceptions of rape and other forms of sexual violence. This article examines the latter focusing on the effect the movement could have on contemporary societal norms regarding sexual assault. It explores whether these effects may alter previously accepted assumptions regarding jurors, perhaps suggesting a shift not only in public perception, but jury perception of sexual violence. It argues that the Movement has significant potential to ameliorate the attrition problem in sexual assault cases, but not in expected ways. For this positive change to occur, it requires work of prosecutors and judges in these trials rethink evidence and jury selection and incorporate some of the lessons learned.

How Pregnant Employees Fare When Denied Workplace Accommodations, Some Improvement 5 Years After Young v. UPS

Nicole B. Porter, Accommodating Pregnancy Five Years After Young v. UPS: Where We Are & Where We Should Go,  14 St. Louis U. J. Health L. & Pol'y, Forthcoming

This Article will explore how pregnant employees fare when they are denied accommodations in the workplace that would have allowed them to work safely through their pregnancies. The two most commonly used legal avenues for pregnant plaintiffs are the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA). Successful cases under the ADA were very rare until Congress expanded the ADA’s definition of disability in 2008. And PDA claims became easier after the Supreme Court’s 2015 decision in Young v. United Parcel Service, Inc.1 Five years after that decision, this Article will analyze the body of PDA cases decided since Young, and all of the ADA cases where pregnancy is the claimed disability since the ADA was amended in 2008. Although the picture is not quite rosy for pregnant plaintiffs, it is perhaps more positive than many scholars predicted it would be. Nevertheless, there remain many gaps in protection — some caused by the statutes’ limitations — but many caused by litigants’ and judges’ inability (or unwillingness) to properly interpret these two statutes. This Article will explain where we are and explore options for where we should go in the future.

How Sexual Harassment Law Failed its Feminist Roots

L. Camille Hebert, How Sexual Harassment Law Failed its Feminist Roots, 22 Georgetown J. Gender Law (forthcoming)

The dawn of sexual harassment law showed so much promise. But in spite of the hopefulness with which the legal recognition of sexual harassment was greeted, the intervening years have shown that the law of sexual harassment has not lived up to its potential. Rather than creating a cause of action empowering women to challenge employment practices that have subjected them to degrading treatment while limiting their workplace opportunities, courts have instead recognized a number of elements of a cognizable claim of sexual harassment that have effectively sanctioned the continuance of the conduct, while effectively blaming women for its occurrence. The judicial imposition of the elements of a claim for sexual harassment and the judicial gloss placed on those elements has turned the cause of action for sexual harassment into something far different than the feminists who worked for recognition of the cause of action envisioned. The courts have turned that promise into a cause of action that seeks to protect the workplace from women who would make claims of sexual harassment, rather than a cause of action that seeks to protect women from discriminatory workplaces. This article explores how some of that lost promise might be recaptured, first through a reshaping of the law by the courts and legislatures within the frame of the existing structure of the cause of action, explaining how the courts could apply the existing elements of the cause of action in a way more consistent with the purpose of Title VII to assure women of the right to workplace equality. The article then imagines a more fundamental reshaping of the law of sexual harassment, exploring what the law of sexual harassment might look like if it were designed by feminists, forged by an overriding concern about ensuring women’s workplace equality rather than protecting existing workplace norms.

Equal Pay Lawsuits by Women Law Professors Allege Significant Continuing Gender Discrimination in Academia

ABA J, Recent Equal Pay Lawsuits by Female Law Professors has Shined a Light on Academic Compensation Process 

*** Linda Mullenix’s annual salary, however, is at least $31,000 less than three male law professors at her school. Like Mullenix, some of these male professors teach civil procedure. However, they have had shorter careers and fewer publications than she has, and for the most part, similar student evaluations, according to the Equal Pay Act lawsuit she filed in the U.S. District Court for the Western District of Texas in December 2019. The complaint also alleged sex discrimination and retaliation under Title VII of the Civil Rights Act of 1964. Additionally, she alleged her raise for the 2018-2019 academic year was only $1,500, while other UT law professors with fewer accomplishments received $10,000 raises.

 

And this is not the first time Mullenix has complained to the university about compensation issues. In 2011, she retained counsel and sent a demand letter asserting an equal pay claim after she discovered a male professor with less experience annually earned $50,000 more than she did. Eight years later, that pay gap had decreased—by $17; that professor now earns $49,983 more than Mullenix, per her 2019 lawsuit. As a result of her actions, she has been described as “poison” by school administrators, according to the complaint, because she repeatedly speaks out about pay inequity at the law school.

 

In May, a Texas federal judge granted the university’s motion to partially dismiss Mullenix’s lawsuit on the basis that she failed to allege a causal connection between her pay complaints and receiving the lowest raise of any law school faculty member. The order dismissed Mullenix’s Title VII retaliation claim; her Equal Pay Act and sex discrimination claims are ongoing.

 

Mullenix’s lawyer, Colin Walsh of the Austin firm Wiley Walsh, told the ABA Journal he will continue with her Title VII discrimination and Equal Pay Act claims and looks forward to entering the discovery phase. Meanwhile, a spokesman for the university told the Journal the institution “strongly supports” equal pay based on merit and performance, and it has done work to ensure salary equity for faculty members. Law school faculty pay, he wrote in an email, is decided by “a committee review of teaching, service and scholarship with professional criteria applied to make these determinations.”

 

At least five equal pay lawsuits have been filed by female law professors since 2016; the actions involve four schools. One of those schools has been sued more than once, and three of the lawsuits remain open.

 

Although law schools may rely on several factors in determining compensation, in actuality, law school deans often have significant discretion in deciding what to pay professors, and their unchecked decisions can be tainted by gender bias, according to lawyers interviewed by the ABA Journal. Salaries, raises and appointments should be based on teaching, service and scholarship. But dean evaluations in those areas can be biased as well, some say, with men getting better appointments and more respect for their research and writing, with little regard for the work’s quality and importance.

 

Moreover, professors who have filed Equal Pay Act claims have seen their careers impacted in other ways. For instance, more than one used the word “poison” to describe how they were viewed after confronting law school leadership with discrimination concerns. Others found themselves removed from important faculty committee assignments (a factor used in determining pay) and put on “‘do nothing’ committees.”

‘Institutional misogyny’

Walsh says pay discrimination against women is just as much of a problem in the law schools as it is in the private sector.

 

“It may be a bit worse because of instances of institutional misogyny. Any place you have a large contingency of older white men, you’re going to have a pay gap,” Walsh adds.

 

In all of the Equal Pay Act lawsuits, plaintiffs say they were treated worse by the schools after suing.

 

See also Chronicle of Higher Ed, A Raft of Pay-Gap Lawsuits Suggests Little Progress for Academic Women

Last week, five female professors at Rutgers University filed a lawsuit in state court accusing their institution of paying them tens of thousands of dollars less than their male colleagues. Days earlier, Princeton University agreed to a settlement, worth nearly $1.2 million, after a U.S. Department of Labor review found that 106 female full professors had been paid less than their male counterparts between 2012 and 2014. And in September, four female professors at Northern Michigan University settled their own pay-discrimination lawsuit for $1.46 million.

 

The University of Arizona resolved a pair of similar cases in 2019, doling out $190,000 to a trio of female former deans and $100,000 to an associate professor, all of whom alleged they’d been underpaid. And the University of Denver settled in 2018 with seven female law professors to the tune of $2.66 million.

 

To understand the raft of pay-discrimination lawsuits, The Chronicle spoke to Jennifer A. Reisch, who represented the lead plaintiff in the Denver case and argued on behalf of a professor at the University of Oregon who awaits a ruling on her own gender-discrimination case