Gender and the Law Prof Blog

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.

The Legal and Ethical Implications of Non-Disclosure Agreements and Arbitration Clauses in the MeToo Era

Maureen Weston, Buying Secrecy: Non-Disclosure Agreements, Arbitration, and Professional Ethics in the #MeToo Era, 

We’ve heard the horrific reports of sexual assault on children, women, and men, in the context of the workplace, Hollywood, sports, and even sacred places. Now. But often these incidents took place many years ago, and we are just learning why and how. Secret settlements. Deals reached in private to buy secrecy in exchange for the release and dismissal of claims. Oftentimes through private and alternative dispute resolution (ADR) processes such negotiation, mediation, or arbitration. In most cases, the parties were represented by lawyers, loyal advocates, who are also officers of the court; third-party neutrals serving as mediators or arbitrators administered the dispute resolution process. While the immediate cases were privately resolved, the accused harasser/predator remained at large. This paper examines the role, use, and possible misuse or complicity of lawyers, neutrals, and ADR in the process of procuring and enforcing “secret settlements” in cases that effectively shielded predators, harassment, and other misconduct and left similarly situated non-parties at risk. This Article examines the existing rules, structures, and rationales for confidentiality and private dispute resolution, alongside the ethical considerations for lawyers, neutrals, and the ADR process in reaching and enforcing “secret settlements.” The paper explores the legal and ethical considerations for the professionals involved in situations where a secret settlement or provision for non-disclosure leaves similarly situated non-parties at risk. The Article counsels that lawyers, neutrals, and ADR consider the impact on others and protection of vulnerable persons from potential harm as professional ethics obligations in the advocacy and representation of parties to private settlements in order to ensure integrity of people, process, and substantive outcomes.

Finland's Women-Led Government Equalizes Family Leave for Both Parents

Finland's Women-Led Government has Equalized Family Leave

People often ponder how the world might be different if more women were in political power. In Finland, where women lead the five parties in the coalition government, here's one change they're making: equal paid leave for both parents in a family.

 

Finland's government, led by 34-year-old Prime Minister Sanna Marin, has announced a new policy that will grant nearly seven months of paid leave to each parent, for a total of 14 months of paid leave. The pregnant parent also can receive one month of pregnancy allowance even before the parental leave starts.

 

The new policy is designed to be gender-neutral and will come into effect as soon as fall 2021. It will eliminate gender-based allowances that currently grant about four months of paid leave to mothers and about two months to fathers.

 

Parents will be permitted to transfer 69 days from their own quota to the other parent. A single parent will have access to the allowance for both parents.

 

The government estimates that the increased leave will cost 100 million euros (about $110 million). Reuters reports that Finland's previous center-right government explored parental leave reform in 2018 but decided it would be too expensive.

The Coronavirus Gender Gap

The Coronavirus Gender Gap

A staggering majority of nurses, flight attendants, teachers, domestic workers and service industry workers are women, dealing with the front lines of the outbreak.

Additionally, in the majority of homes around the world, women bear the most care-taking responsibilities, creating for many a “second shift” of providing care for children, the elderly and other family members who may be sick or simply in need of additional attention.

“The challenge of the emergency really puts additional strain on existing inequalities,” said Laura Addati, a policy specialist in women and economic empowerment for the International Labor Organization. “If there’s not already an egalitarian sharing of child care or housework, it will be women who are responsible for remote school, for ensuring there’s food and supplies, for coping with this crisis.”

Women are Bearing the Brunt of the Coronavirus Disruption

The vast majority of nurses, flight attendants, teachers and service industry workers are female, and their jobs put them on the front lines of the outbreak. At home, women still do more caretaking, so when the virus closes schools, restricts travel, and puts aged relatives at risk, they have more to do. “The challenge of the emergency really puts additional strain on existing inequalities,” says Laura Addati, a policy specialist in women and economic empowerment for the International Labor Organization. “If there’s not already an egalitarian sharing of child care or housework, it will be women who are responsible for remote school, for ensuring there’s food and supplies, for coping with this crisis.”

Legal Scholars Weigh in on the Harvey Weinstein Sexual Assault Verdict

Slate, The Weinstein Verdict is Both a Victory and a Disappointment

On Monday morning, a Manhattan jury found Harvey Weinstein guilty of two of the five charges prosecutors brought against him: criminal sexual act in the first degree and rape in the third degree. The jury also acquitted Weinstein of two counts of predatory sexual assault, the most serious charges prosecutors had brought against him, which would have required the jury to conclude that Weinstein had committed first-degree sex crimes against two or more victims. In other words, the verdict is a mixed bag: Harvey Weinstein has now been convicted of rape. The counts that he was acquitted on, however, seem at odds with the number of allegations that have publicly surfaced against him.

 

This was just one trial, set up to evaluate a specific set of crimes and circumstances. But it has been impossible to think of it as anything other than a referendum on the entire contemporary #MeToo movement. Weinstein was the person whose long-ignored abuses and alleged assaults spurred thousands of women to reassess their own experiences. Donna Rotunno, Weinstein’s lead attorney, has spent her weeks in the spotlight accusing rape survivors of failing to take responsibility for their own mixed signals and explaining how the #MeToo movement has denied men their due process rights, even as her own client was enjoying his in the courtroom. Since the fall of 2017, when dozens of women first shared their stories about Weinstein, countless defenses and dismissals of the sexual misbehavior of other men have rested on the conviction that if sexual offenses don’t rise to the level of Weinstein’s misbehavior, they don’t merit consideration under the purview of #MeToo. Weinstein’s trial morphed into the ultimate #MeToo test: If a jury couldn’t convict Weinstein, the benchmark against which all other alleged abusers are now measured, what hope does any other survivor have of holding a rapist accountable in the criminal justice system?

The Weinstein Verdict is a Complicated Win for Survivors

On Monday, the system worked.

 

Jurors found Harvey Weinstein, a disgraced media mogul who has been accused of assault or harassment by at least 100 women, guilty of sexual assault and rape. His verdict, along with that of comedian Bill Cosby in 2018, sends a strong message that the jurors are capable of believing survivors over powerful men. A legal process in which less than 1% of sexual assault cases lead to convictions sided with survivors over a millionaire whose sexual misconduct has been an open secret for decades.

 

It was empowering. But while Weinstein’s guilty verdict is progress, it won’t fix a deeply broken system. 

 

Many experts and survivors told HuffPost they thought the conviction was important but ultimately, and unfortunately, symbolic. While high-profile cases help shift cultural attitudes toward sexual assault, that doesn’t always change how the legal system treats average victims whose cases may not get the widespread media attention, the high-profile legal representation or the support of multiple accusers that the Weinstein trial did. ***

 

“A high-profile conviction just says that, in this case, there was enough to convict this person,” said Leigh Goodmark, the director of the gender violence clinic at the University of Maryland Carey School of Law. “But it doesn’t make any grand pronouncements for me about the system’s friendliness to people who’ve been raped and sexually assaulted.”***

 

There is silent, everyday violence and suffering committed against women that just don’t meet the threshold of public interest,” said Aya Gruber, a law professor at the University of Colorado.

 

“And Harvey Weinstein going to jail isn’t going to do anything for them.”

Suzanne Goldberg, #MeToo is Just Beginning, Wash Post

In the swirl surrounding Harvey Weinstein’s mixed conviction and acquittal on rape and related charges, it can be easy to overlook what hasn’t changed in the wake of #MeToo. The movement has put a spotlight on the starkly divergent views that Americans hold about what kinds of behaviors cross the line into unwanted — and, at times, criminal — acts, and about what should happen when they do.***

 

 

But Weinstein’s trial and all the other changes #MeToo has brought won’t put an end to the roiling debates about what counts as consent and how we should judge long-ago assaults. We’ll continue to disagree, too, about what legal and social sanctions should apply to conduct that is “bad but not as bad” as Weinstein’s.

 

This is a good thing. As uncomfortable and frustrating as these conversations can be, we cannot afford to stop talking about what we expect from each other when it comes to sex and to workplace interactions.

Grilling MeToo Accusers in the Courtroom

Weinstein Rape Trial Shows #MeToo Accusers Should Prepare for Courtroom Grilling

 In the #MeToo era, women who make sexual misconduct allegations against powerful men can count on public support, but the rape trial in New York of former movie producer Harvey Weinstein has shown that accusers should brace for far less friendly treatment in a court of law. ***

 

 During the trial that began on Jan. 6, Weinstein’s attorneys have questioned his accusers about their appearance at the time of the alleged attacks, their drinking habits and whether they used Weinstein to land a Hollywood acting job.

 

“Just because we live in the Me Too era doesn’t mean you don’t attack in defense of your clients,” said Tom Mesereau, who represented comedian Bill Cosby in his sexual assault trial.***

 

Legal experts said the movement has complicated the work of defending someone like Weinstein because a jury is more likely to sympathize with the alleged victims.

 

But accusers should not expect a shift in legal standards or tactics, experts said.

How Libel Law is Being Used Against MeToo Accusers

She Said, He Sued: How Libel Law is Being Turned Against MeToo Accusers

***As more survivors have come forward to call out perpetrators of sexual assault and harassment, a legal backlash to the MeToo movement has been brewing. While it’s well known that powerful men have preemptively quashed accusations with payoffs and nondisclosure agreements, less well known is that dozens of men who claim they are victims of false allegations have sued their accusers for speaking out publicly. The plaintiffs include celebrities and college students, professional athletes, professors, and politicians. At least 100 defamation lawsuits have been filed against accusers since 2014, according to Mother Jones’ review of news reports and court documents. Prior to October 2017, when the MeToo hashtag went viral, almost three in four claims were brought by male college students and faculty accused of sexual misconduct; they usually sued their schools as well as their accusers. Since MeToo took off, cases have been filed at a faster rate, with three in four coming from nonstudents.

 

This list of cases is not comprehensive, but attorneys confirm that these suits are becoming more common. The Time’s Up Legal Defense Fund, which helps workplace harassment victims pay their legal bills, has assisted 33 accusers, including Lopez, who have been sued for defamation in the past two years—nearly 20 percent of its caseload. As the number of cases grows, so does the chilling effect: Defamation lawsuits are being used “more and more to try to silence people from coming forward,” says Sharyn Tejani, director of Time’s Up. “It was not something that we expected would take as much of our time and money as it has.”

 

Bruce Johnson, a Seattle lawyer who specializes in First Amendment cases, says that before fall 2017, he was contacted twice a year by women who were worried about being sued if they spoke out about sexual violence or harassment or who were threatened with legal retribution for doing so. Now it’s every two weeks, he says. Alexandra Tracy-­Ramirez, a lawyer who represents both survivors and accused perpetrators in campus-­related cases in Colorado and Arizona, has also noticed more accusers speaking out and facing the prospect of being sued.

Third Circuit Upholds Philadelphia Ban on Employers Asking About Salary History Against First Amendment Challenge

Appeals Court Sides with Philly on Salary History Ban

In a decision that could have national implications for the wage equity movement, a federal appeals court Thursday sided with the city of Philadelphia, saying it can ban employers from asking job applicants their salary history.

 

The U.S. Court of Appeals for the Third Circuit partly reversed a 2018 lower court decision that said the city could not ban employers from asking about salary history, but could ban them from relying on it to set wages. The Greater Philadelphia Chamber of Commerce sued the city after the law was passed in 2017, claiming it violated the commercial-speech rights of employers.***

 

The 67-page unanimous opinion, representing the three-judge panel, was written by Judge Theodore McKee, who wrote that while the provision does limit employers’ speech, it is “only because that limitation prevents the tentacles of any past wage discrimination from attaching to an employee’s subsequent salary.”***

 

Philadelphia was the first city in the country to pass such a ban, following a statewide ban in Massachusetts. More than a dozen states and municipalities followed suit, including New Jersey.

 

Here is the decision: Greater Philadelphia Chamber of Commerce v. City of Philadelphia (3d. Cir. Feb. 6, 2020) 

SCOTUS Grants Cert On Religious Exemption to Healthcare Contraception Coverage Mandate

The Supreme Court grant cert today in Trump v. Pennsylvania and the related Little Sisters of the Poor regarding religious exemptions for the federal healthcare mandate that employers provide women employees birth control.

See Trump Gets High-Court Review on Contraceptive Coverage Opt-Out

From the Petition for Cert, Questions Presented:

The Patient Protection and Affordable Care Act (ACA), 42 U.S.C. 18001 et seq., requires many group health plans and health-insurance issuers that offer group or individual health coverage to provide coverage for preventive services, including women’s preventive care, without cost-sharing. See 42 U.S.C. 300gg-13(a). Guidelines and regulations implementing that requirement promulgated in 2011 by the Departments of Health and Human Services, Labor, and the Treasury mandated that such entities cover contraceptives approved by the Food and Drug Administration. The mandate exempted churches, and subsequent rulemaking established an accommodation for certain other entities with religious objections to providing contraceptive coverage. In October 2017, the agencies promulgated interim final rules expanding the exemption to a broad range of entities with sincere religious or moral objections to providing contraceptive coverage. In November 2018, after considering comments solicited on the interim rules, the agencies promulgated final rules expanding the exemption. The questions presented are as follows:

 

1.  Whether the agencies had statutory authority under the ACA and the Religious Freedom Restoration
Act of 1993, 42 U.S.C. 2000bb et seq., to expand the conscience exemption to the contraceptive-coverage mandate. 

 

2.  Whether the agencies’ decision to forgo notice and opportunity for public comment before issuing the interim final rules rendered the final rules—which were issued after notice and comment—invalid under the Administrative Procedure Act, 5 U.S.C. 551 et seq., 701 et seq.

 

3. Whether the court of appeals erred in affirming a nationwide preliminary injunction barring implementation of the final rules.

New Book: Work, Parenting and Inequality--Workplace Laws and Policies from 1898 to 2018

Candace-Saari-Kovacic-Fleischer, Work, Parenting and Inequality: Workplace Laws and Policies from 1898 to 2018

Work, Parenting and Inequality: Workplace Laws and Policies from 1898 to 2018 considers whether laws in the United States make it difficult for people to be employees and parents at the same time. The book covers constitutional law, employment law, social security law, poverty law, discrimination law, disability law, and veterans law in historical context beginning with the 1890s. To do this, the book includes copies of primary sources—reports, bills, laws as originally passed, signing statements, amendments, and bills not passed—and court cases arranged chronologically by topic. Because the book focuses on policies and consequences of laws, it explains how to understand each law before introducing it in statutes and cases. Thus, it is intended that the book be a reference for people in a variety of disciplines.

Challenging the Idea that Non-Compete Agreements Exacerbate the Innovation Gender Gap

Amy Madi & Lisa Ouellette, "Policy Experiments to Address Gender Inequality Among Innovators" 
Houston Law Review, Forthcoming

In her Frankel Lecture, Professor Orly Lobel has set forth an intriguing hypothesis: that non-compete agreements, non-disclosure agreements, and other legal restrictions on employee exit and voice exacerbate the innovation gender gap. The unequal participation of women in science, technology, and innovation is an issue of increasing concern for many public- and private-sector stakeholders, and those interested in increasing innovation by women would be well advised to consider Lobel’s ideas. But as we emphasize in this Commentary, the underlying causal mechanisms for inequalities among innovators remain highly contested, and policymakers should not overstate the existing evidence for potential interventions out of a desire for rapid progress. Nor should they use this lack of evidence as an excuse for inaction. Rather, we argue that institutions interested in this issue should look for opportunities to rigorously and transparently test the most promising interventions.

Weinstein Settlement Shows Not Much Has Changed

Meghan Twohey & Jodi Kantor, Weinstein and His Accusers Reach Tentative $25M Deal

After two years of legal wrangling, Harvey Weinstein and the board of his bankrupt film studio have reached a tentative $25 million settlement agreement with dozens of his alleged sexual misconduct victims, a deal that would not require the Hollywood producer to admit wrongdoing or pay anything to his accusers himself, according to lawyers involved in the negotiations.

 

The proposed global legal settlement has gotten preliminary approval from the major parties involved, according to several of the lawyers. More than 30 actresses and former Weinstein employees, who in lawsuits have accused Mr. Weinstein of offenses ranging from sexual harassment to rape, would share in the payout — along with potential claimants who could join in coming months. The deal would bring to an end nearly every such lawsuit against him and his former company.

 

The settlement would require court approval and a final signoff by all parties. It would be paid by insurance companies representing the producer’s former studio, the Weinstein Company. Because the business is in bankruptcy proceedings, the women have had to make their claims along with its creditors. The payout to the accusers would be part of an overall $47 million settlement intended to close out the company’s obligations, according to a half-dozen lawyers, some of whom spoke about the proposed terms on the condition of anonymity.

Slate, The Weinstein Settlement Reveals Nothing Has Changed

The $25 million, down from a $90 million victims fund that was contemplated at one point, would be paid by an insurance company for the Weinstein Company, which is now in bankruptcy proceedings because of everything Weinstein did. The agreement further stipulates that another $12 million would go toward legal fees for Weinstein, his brother, and other board members. It would also protect Weinstein and the board from future suits. In short: Besides not having to pay a dime himself, or admit to any wrongdoing, the millions of dollars it cost for the legal jiujitsu that made this extraordinary outcome possible will also be covered—by the company Weinstein’s own actions helped bankrupt. The victims, 18 of whom can get a maximum of $500,000 under this agreement, will be among other creditors trying to collect from the embattled company.

Professor Linda Mullenix Files Equal Pay Lawsuit Against University of Texas Law School

 

From the complaint in Mullenix v. University of Texas (W.D. Tex. filed 12/12/19)

Plaintiff Linda Susan Mullenix files Plaintiff’s Original Complaint & Jury Demand, and sues the University of Texas for violations of the Equal Pay Act, as well as for sex discrimination and retaliation. Over the past three years, Professor Linda Mullenix, one of UT Law’s most distinguished professors, has been paid $134,449 less than male professor Robert Bone. Professor Bone has the same above-average teacher evaluation rating as
Professor Mullenix, but almost a decade less overall teaching experience, fewer than a third of Professor Mullenix’s overall publications, and fewer professional honors. This pay gap is sex discrimination.

 

Moreover, UT Law has retaliated against Professor Mullenix for opposing the law school’s unequal pay practices. For the last several years, Professor Mullenix has received among the lowest raises of any tenured faculty. For example, Professor Mullenix received a $1,500 raise for the 2018-2019 academic year, which was the lowest raise given to any faculty member. That same year Professor Bone, and many other professors less accomplished than Professor Mullenix, received $10,000 raises, some of the highest raises given. Dean Farnsworth also retaliated against Professor Mullenix and attempted to chill reports of discrimination by telling Professor Mullenix that he would pay her the same as Professor Bone only if she agreed to resign in two years. At that time and at present, Professor Mullenix has no plans to resign.

 

Another example of retaliation is that despite Professor Mullenix’s repeated requests to be appointed Associate Dean for Research or to be put on the prestigious Budget Committee, she has been relegated to “do-nothing” committees that have little impact on the governance of the law school. Most disturbingly, because of Professor
Mullenix’s opposition to UT Law’s unequal pay practices, she has been made a pariah by the administration. New professors are told to stay away from her and that she is “poison.” Professor Mullenix’s marginalization is also held out as a warning to other professors who might speak out.

 

UT Law has reason to be worried about others speaking out about unequal pay and sex discrimination. For at least the last three years, UT Law has, on average, paid tenured female professors over $20,000 less than tenured male professors. By paying Professor Mullenix less than a similarly-situated male professor and retaliating against her for opposing unequal pay based on gender, UT Law has violated Title VII, the Equal Pay Act, and the Texas Labor Code.

Using the Model Rules to Redress Sexual Harassment in the Legal Profession

Wendy Hess, Addressing Sexual Harassment in the Legal Profession: The Opportunity to Use Model Rule 8.4(G) to Protect Women From Harassment, 94 Univ. Detroit Mercy L. Rev.579  (2019)  

This Article explores options available to legal professionals in order to become more aware of and address sexual harassment within the profession. The potential avenues of redress for sexual harassment by those in the legal profession vary. The applicable remedy depends on factors such as: jurisdiction, nature of the harassment, context of the harassment (site of conduct, identity of harasser, and identity of target), and relief sought. This Article discusses two primary avenues: antidiscrimination and anti-harassment protections under Title VII and disciplinary proceedings pursuant to attorney ethics rules. In Part I, the Article explores the ways in which Title VII has not adequately protected women from sexual harassment. Part II of the Article explores potential redress from attorney ethics rules, focusing specifically on Model Rule 8.4(g). The Article discusses advantages of state adoption of Rule 8.4(g) and adds a new perspective to the scholarship about Rule 8.4(g) by addressing the potential disadvantage of reliance on anti-discrimination laws to interpret the rule.

Hushing Contracts and the Public Policy Defense to Enforcing Nondisclosure Agreement About Sexual Wrongdoing

David Hoffman & Erik Lampmann, Hushing Contracts, 96 Wash. U. L. Rev.  165 (2019)

The last few years have brought a renewed appreciation of the costs of nondisclosure agreements that suppress information about sexual wrongdoing. Recently passed bills in a number of states, including New York and California, have attempted to deal with such hush contracts. But such legislation is often incomplete, and many courts and commentators continue to ask if victims of harassment can sign enforceable settlements that conceal serious, potentially metastasizing, social harms. In this Article, we argue that employing the public policy doctrine, courts ought to generally refuse to enforce hush agreements, especially those created by organizations. We restate public policy as a defense which should to be concerned with managing externalities, and which expresses a legitimating account of contract law.

Understanding the Outdated but Pervasive Legal Definitions of Sexual Harassment

Brian Soucek & Vicki Schultz, Sexual Harassment by Any Other Name, 2019 U. Chi. Legal F. 229

The New York Times won a Pulitzer and helped ignite the #MeToo movement with its reporting on sexual harassment. But the Times still doesn’t understand what sexual harassment is. In its official definition and the stories it pursues, the Times employs a sexualized conception of sexual harassment that is twenty years out of date in the law. It’s also disconnected from the lived experience of most people and from the findings of social science research. In this, the Times is not alone. Even the two leading enforcers of federal antidiscrimination law — the EEOC and the Department of Justice — still at times issue pronouncements that fail to reflect current Title VII law or even those agencies’ own enforcement priorities.

Lost in these outdated but still pervasive definitions of sexual harassment are the many ways employees are undermined, excluded, sabotaged, ridiculed, or assaulted because of their sex, even if not through words or actions that are “sexual” in nature. “Put-downs” and not simply “come-ons,” these types of sexual harassment are even more pervasive than the overtly sexualized forms. Relegating them to another category or term such as “gender harassment” or “sex-based harassment” treats them as secondary to the sexualized forms, causes society to misunderstand the dynamics at play even in the latter, and skews the focus of workplace training (and subsequent reporting) about sexual harassment. With the #MeToo movement giving unprecedented attention to the problem of sexual harassment, now is the time to better understand that term.

New Laws Aim at Closing the Gender Gap by Prohibiting Questions About Salary History

NYT, Don't Ask Me About My Salary History

Massachusetts became the first state to ban employers from posing this question to job candidates back in 2016. Since then, 17 other states and as many local jurisdictions have passed versions of the ban, including New Jersey, whose law will go into effect in January; Illinois, which took effect last month; and Kansas City, Mo., where a ban will go into effect next week.

Why does this matter?

The new laws are designed to protect job seekers — like former me — from receiving starting salaries that are tied to low past salaries. This is mostly aimed at women, and many of the bills directly address equal pay and the gender wage gap. The idea is that if a woman is paid less from the get-go, and then limited by her past salary at each subsequent job, it may be impossible for her to catch up.

“This bill provides a means of narrowing the wage gap by making it less likely for employers to unintentionally perpetuate the gap by basing salary offers for new hires on their previous salary,” New Jersey Assemblywoman Joann Downey said of her state’s bill, which she sponsored. She added that the practice had a disproportionate effect on women.

Is the ban active in my state?

HR Dive, a human resources news and analysis site, keeps a list of state and local governments that have salary history bans on the docket. (You can check the status of your state or locality here.) Salary.com also has a list of state and local bans.

Some states have passed bans that won’t go into effect until 2020 or later. For example, Colorado signed the Equal Pay for Equal Work Act into law earlier this year, but it won’t take effect until Jan. 1, 2021.

Each bill is also a little different. While Alabama’s law doesn’t ban the question outright, it does prohibit employers from refusing to “interview, hire, promote, or employ” any job applicant who declines to answer. In California, not only is the question banned, but employers are also required to answer if an applicant asks about a pay range. Other versions may ban not only employers’ questions about compensation history but also those about benefits like a 401(k).