Gender and the Law Blog

Mary P. Trevor and Cynthia Bemis Abrams on "Power Plays: Women and Progressive Television Battle Quid Pro Quo Sexual Harassment"

Mary P. Trevor and Cynthia Bemis Abrams have published "Power Plays: Women and Progressive Television Battle Quid Pro Quo Sexual Harassment" in Volume 9 of the Howard Human & Civil Rights Law Review. The introduction explains the author perspectives and writing objectives: 

The authors of this article, Baby Boomers who grew up in the mid-to-late twentieth century United States, experienced the impact of Title VII, Title IX, Roe v. Wade, and other women’s rights milestones. These milestones did not alter women’s lives overnight, and hoped-for progress still lagged by century’s end. But legal and cultural developments did gradually effect significant changes to women’s status in many aspects of daily life, including, to some extent, the portrayal of women in contemporary popular culture--as exemplified, during the pre- and early Internet era, by television. This article will describe how prime-time television depictions of one type of sexual harassment--quid pro quo--reflected and supported those positive changes.

The article concludes:

The quid pro quo harassment episodes analyzed in this article were products of their time, and various aspects may seem strange to the modern viewer. Further, the harassment situations were occasionally left unresolved by the episode’s end or were resolved in ways that current viewers may find frustrating or objectionable. Some women characters relied on their own wiles and judgment to challenge themselves, their harasser, or the system. Only occasionally did a character call the harassment an abuse of power, a relatively new concept at the time having nothing to do with romance or how the woman dressed. Only one threatened a lawsuit, and only a few initiated a complaint. But references to the possibility of legal action did increase as legal protections themselves increased. In the aggregate, the episodes demonstrate both the characters’ awareness of legal protections being put in place and their lack of confidence in the power of the safeguards to help them in their daily lives. In that regard, perhaps the episodes will not feel strange to the modern viewer.

Yet, despite their shortcomings, the episodes discussed in this article represented a step forward. Many scenes highlighted the woman’s agency, a liberation from what had been portrayed for women in the past. Discussions in many episodes assured women having similar experiences that harassing behavior from a superior (or anyone) is inappropriate and painful, and that if allowed to continue, might happen to other women. Women and girls who were uncomfortable with sharing these sorts of stories, or who were the first in their families to work outside the home, could learn through television that they were not alone. History could never document how many watercooler conversations about “last night’s episode of ___” were also partly informed by a reallife situation left unshared. But recognition of the reality of harassment served an important role.

* * * 

Viewers of the last half of the twentieth century grew up bombarded by images and stories that were often far from the reality of the lived experiences of women. The thirty-eight television episodes discussed in this article that took on quid pro quo harassment as a serious topic were in the minority. They showed viewers that even by the end of the century, more than thirty years after Title VII’s enactment, challenging sexual harassment at work remained a difficult battle that often had a frustrating outcome. The #MeToo movement and related stories in this century show us that now, sixty years after Title VII’s enactment, workplace quid pro quo harassment continues to happen. It would seem that despite law and society’s professed intolerance of the (mostly male) power play, some harassers still find indulging in abusive behavior to be worth the risk of criminal charges, public accusations, or civil lawsuits.

Television can teach us more about the shifting attitudes and laws around quid pro quo harassment, and help us understand why, even today, such power plays still happen in the workforce. A host of other progressive legal and social changes also bear study. The proliferation of streaming channels that need content to thrive gives us hope that more old series will become available. Television’s storytelling serves as a time capsule enabling us to further understand how life influences art and how art can change life and society for the better.

Ballakrishnen on "Blasé: deviant lawyers and the denial of discrimination"

Swethaa S. Ballakrishnen has published Blasé: deviant lawyers and the denial of discrimination in Volume 59 of the Law & Society Review (June 2025). The abstract is excerpted here: 

Using 60 interviews with a range of minority law students and early career legal professionals (primarily differentiated by race, gender identity, religion, and disability), this Article illuminates the cruciality of empirical Critical Race Theory to understand individual deviance within the legal profession and develops a framework – blasé – for considering interactional violence that is not legally or socially cognizable as discrimination but still causes harm. These data reveal that discrimination was minimized and denied to varying degrees for all minority respondents. However, for genderqueer respondents whose identities had not achieved a high degree of sociolegal legibility, these denials had low contestability and were often without contrition. Unlike microaggressions which might have resonance in common cultural parlance as operationalizations of structural violence, what distinguishes blasé discrimination, I argue, is the ordinariness of the act in interactional parlance alongside its relative unlikeliness to be seen as problematic when confronted. It is this possibility of defense and justification in the face of being challenged that makes blasé and its ambiguous parameters worthy of our attention in identity jurisprudence. This exploration of the blasé response to discrimination sheds light on the opportunities available for revealing structural inequalities when analysis begins from the perspectives of peripheral actors.

SCOTUS Rules that Title VII Standard for Reverse Discrimination Suits is the Same as Minority Discrimination Cases

I weigh in here on the recent unanimous SCOTUS ruling in Ames v. OH Dept of Youth Services on applying the same legal standard for majority as minority plaintiff discrimination cases. With insights also from law professor Joan Williams and other legal experts.

Supreme Court Ruling May Affect Akron-Area Reverse Discrimination Suits, SignalAkron

*** Thursday, the U.S. Supreme Court potentially made it easier for people like Tullis to claim discrimination. The justices unanimously struck down a requirement in Ohio and some other states that members of the majority meet a higher burden of proof to show discrimination. 

The case was brought by an Akron-area woman who said she was passed over for a job at the Ohio Department of Youth Services because she was straight. ***

The ruling could make so-called reverse discrimination cases easier to get through the courts. And although the Supreme Court’s decision was not related to national conversations about the value of diversity in workplaces, the case also highlights the fact that recently, members of the majority have increasingly maintained that they have been disadvantaged because of their race, gender, sexuality or other reasons related to their majority identity.

Not only are these cases becoming more common, said Tracy Thomas, the Seiberling Chair of Constitutional Law at the University of Akron School of Law, they are becoming more successful.

She said that courts have become more accommodating of discrimination claims by members of the majority. The shift comes on the heels of a national political movement against equity and inclusion programs that Thomas said has been building for some time.

“When historically excluded groups begin to share that power, then power pushes back,” Thomas said. “They don’t see their own privilege or how it’s operating at other people’s expense.”***

Thomas said Tullis’ framing of the case implied that only lucky or favored women were getting jobs like his. It’s part of a “historic backlash” to the removal of barriers that made it more difficult for minorities to enter — and succeed in — the workplace. Such changes are often presented as matters of fairness, she said.

She said she’s concerned that because of the Ames ruling, some employers will overcorrect, and only hire or promote minority candidates if they’re exponentially more qualified than majority candidates — a dynamic minority candidates have long had to contend with to prove their worth. That, Thomas said, means the results of the case could be more problematic than the ruling itself suggests. 

“Nobody likes the idea that decisions are not based on merit,” she said.

SCOTUS Unanimously Rules in Reverse Discrimination Case to Reject Heightened Standard for Majority Group Claims

Ames v. Ohio Department of Youth Services (6/5/2025)  Justice Jackson for the majority opinion for a unanimous Court.

Key takeaways:

• The Sixth Circuit’s “background circumstances” rule—which requires members of a majority group to satisfy a heightened evidentiary standard to prevail on a Title VII claim—cannot be squared with the text of Title VII or the Court’s precedents.
• Petitioner Marlean Ames, a heterosexual woman, has worked for the Ohio Department of Youth Services in various roles since 2004. In 2019, the agency interviewed Ames for a new management position but ultimately hired another candidate—a lesbian woman. The agency subsequently demoted Ames from her role as a program administrator
  and later hired a gay man to fill that role. Ames then filed this lawsuit against the agency under Title VII, alleging that she was denied the management promotion and demoted because of her sexual orientation.
• The District Court granted summary judgment to the agency, and the Sixth Circuit affirmed. The courts below analyzed Ames’s claims under McDonnell Douglas Corp. v. Green, 411 U. S. 792, which sets forth the traditional framework for evaluating disparate treatment claims that rest on circumstantial evidence. At the first step of that framework, the plaintiff must make a prima facie showing that the defendant acted with a discriminatory motive. Like the District Court, the Sixth Circuit held that Ames had failed to meet her prima facie burden because she had not shown “ ‘background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.’ ” 87 F. 4th 822, 825. The court reasoned that Ames, as a straight woman, was required to make this showing “in addition to the usual ones for establishing a prima facie case.”
• Justice Thomas (joined by Gorsuch) writes a concurrence rejecting judge made rules and doctrines broadly (!!). "I write separately to highlight the problems that arise when judges create atextual legal rules and frameworks. Judge-made doctrines have a tendency to distort the underlying statutory text, impose unnecessary burdens on litigants, and cause confusion for courts." He would reject the entirety of the classic McDonnell Douglas three part test for establishing discriminatory motive. "This rule is a product of improper judicial lawmaking."

SCOTUS Unanimously Rules in Reverse Discrimination Case to Reject Heightened Standard for Majority Group Claims

Ames v. Ohio Department of Youth Services (6/5/2025)  Justice Jackson for the majority opinion for a unanimous Court.

Key takeaways:

• The Sixth Circuit’s “background circumstances” rule—which requires members of a majority group to satisfy a heightened evidentiary standard to prevail on a Title VII claim—cannot be squared with the text of Title VII or the Court’s precedents.
• Petitioner Marlean Ames, a heterosexual woman, has worked for the Ohio Department of Youth Services in various roles since 2004. In 2019, the agency interviewed Ames for a new management position but ultimately hired another candidate—a lesbian woman. The agency subsequently demoted Ames from her role as a program administrator
  and later hired a gay man to fill that role. Ames then filed this lawsuit against the agency under Title VII, alleging that she was denied the management promotion and demoted because of her sexual orientation.
• The District Court granted summary judgment to the agency, and the Sixth Circuit affirmed. The courts below analyzed Ames’s claims under McDonnell Douglas Corp. v. Green, 411 U. S. 792, which sets forth the traditional framework for evaluating disparate treatment claims that rest on circumstantial evidence. At the first step of that framework, the plaintiff must make a prima facie showing that the defendant acted with a discriminatory motive. Like the District
  Court, the Sixth Circuit held that Ames had failed to meet her prima facie burden because she had not shown “ ‘background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.’ ” 87 F. 4th 822, 825. The court reasoned that Ames, as a straight woman, was required to make
  this showing “in addition to the usual ones for establishing a prima facie case.”
• Justice Thomas (joined by Gorsuch) writes a concurrence rejecting judge made rules and doctrines broadly (!!). "I write separately to highlight the problems that arise when judges create atextual legal rules and frameworks. Judge-made doctrines have a tendency to distort the underlying statutory text, impose unnecessary burdens on litigants, and cause confusion for courts."

Title IX and the Antitrust Settlement of Name-Image-and-Likeness Compensation for College Athletes

Tan Boston, Unstructured NIL Settlements 

California granted preliminary approval to the largest, most transformative antitrust settlement in intercollegiate athletics history. Popularly known as the House Settlement (the "Settlement"), its terms remove National Collegiate Athletic Association (NCAA) scholarship limits and provide $2.8 billion in retroactive name, image, and likeness (NIL) compensation to both current and former NCAA athletes. But more importantly, the Settlement allows schools to disburse up to $20 million annually to athletes as part of a historic, new revenue-sharing model-effectively abolishing NCAA amateurism. Analysts estimate that intercollegiate men's basketball and football athletes will receive roughly 90 percent of the Settlement funds, which raises far-reaching Title IX concerns. This Essay asks whether the court properly excluded Title IX concerns when preliminarily approving the multi-billion-dollar Settlement. In response, this Essay references Judge Guido Calabresi and Professor Sir Philip C. Bobbitt's framework from their seminal book Tragic Choices to explore the egalitarian conflict within the Settlement classes, whose legal interests initially converged for antitrust purposes but later diverged as Title IX issues arose. This Essay concludes that although the Settlement properly excluded Title IX concerns, it is imperative that more appropriate legal authorities expeditiously address these concerns.

Study Shows Judges Dismiss Substantially More Workplace Harassment Cases than Juries Would Have

Elizabeth Chika Tippett & Jamillah Bowman Williams, Misjudging a Reasonable Jury: Evidence that Courts Dismiss Meritorious Harassment Claims, Connecticut L. Rev. (forthcoming 2026)  

A common basis for granting summary judgment in workplace harassment claims is that the alleged harassment is insufficiently “severe or pervasive” to meet the legal standard.  This mixed-methods study empirically tests whether there is a gap between how judges and potential jurors assess the same set of facts on the “severe or pervasive” element of a Title VII harassment claim.  We presented study participants with facts from 80 federal harassment cases. In each case, the defendant employer moved to dismiss the case, arguing that no reasonable jury would find the alleged harassment sufficiently “severe or pervasive” to meet the legal threshold. We provided the participants with relevant jury instructions and asked them to: 1) rate the severity or pervasiveness of the alleged harassment; 2) assess whether the plaintiff met the legal standard; and 3) discuss their reasoning.

Our results suggest a substantial divergence between judicial assessments and simulated jury assessments of the sampled cases. Judges granted summary judgment in favor of the employer or dismissed 65% of the harassment cases in the sample.  By contrast, our simulated juries would have dismissed less than 20% of the very same cases. Both our quantitative and qualitative findings shed light on the source of this divergence. The difference in assessment is not due to demographic differences between judges and the mock jurors, nor is it caused by shifting judicial assessments over time. Our qualitative results indicate that laypeople tend to view the fact patterns in a much more holistic manner than judges, which is consistent with guidance established by the Supreme Court. In addition, our quantitative analysis suggests that courts may be selectively discounting the severity or pervasiveness of cases alleging intersectional harassment. Going forward, we recommend that courts exercise far greater caution in evaluating harassment claims on summary judgment. Courts should also allow intersectional claims to be pled as a single cause of action.

The New Gender Discrimination Claims that Must Confront the Abuse of Power in the Workplace

June Carbone, Nancy Levit & Naomi Cahn, Abuse of Power in the Workplace: The New Gender Discrimination Claims, 56 Univ. Pacific L. Rev. (forthcoming)

 This article draws on our book, Fair Shake: Women and the Fight to Build a Just Economy, to show how the fight for gender equality has changed. Anti-discrimination laws took hold during an era of relative economic equality; the fight for gender equality was a fight to gain access to the rights of white men. Today’s economy creates much greater inequality and reserves the greatest rewards for a much smaller group, again predominately white and male, who can defy the rules and get away with it. In such contexts, anti-discrimination law premised on a fight for equality can provide only limited remedies and cannot be the principal line of offense. These workplaces, while they increase gender disparities, do not act to promote men over women in the distinct identity-based group terms that Title VII was designed to combat. Instead, they select for certain types of managers who are both more likely to be male and to exploit all workers where it serves the purposes of those at the top. Accordingly, the fight for gender equity cannot be cast in terms of an equal right to ascend to the ranks of those oppressing others. Instead, it becomes a fight to confront the abuse of power that shortchanges women in order to enrich the few.

The most effective solutions to tame abuses of power incorporate new bases of liability and new litigation tactics to address the abuses. The most lawless workplaces both exacerbate gender disparities and exacerbate sexual harassment, retaliation, and unscrupulous business practices. The emerging strategies, which the best lawyers have already begun to employ, recognize that abuse of power, once made visible, is hard to justify and becomes a source of employer vulnerability rather than strength.

This article argues that the fight for gender equality today must take place alongside a fight to tame corrupt and abusive workplaces. This article first shows how the abuse of power in today’s workplaces is different from wholesale exclusion of protected groups. The next section examines the limits of conventional sex discrimination claims in promoting gender parity because they cannot challenge the underlying abuses of power that structure workplaces or affect the political environment that allows such abuses to continue. The third section points to new tactics that have had some success in creating accountability, and the final section provides larger structural suggestions on how to move forward.

Tristin K. Green on "Collective Complaint"

Tristin K. Green has published Collective Complaint in the American Journal of Law and Equality. The essay's conclusions are excerpted below: 

Interest in collective action is gathering steam in the United States, from engagement in social movements such as #MeToo and Black Lives Matter to a dramatic increase in public support for unions. And it’s not just that the public is getting interested; scholars and advocates are also calling for collective drives for broad scale change in everything from how we imagine public safety, health, and education to the fundamental precepts of our political economy. These calls for collective action come on the heels of a decades long shift toward neoliberalism and individualizing, a narrowing in view of our connections with others and the ways that we are affected by the institutional contexts in which we interact. These calls for collective action are calls for people to see themselves together and to act together for broad, systemic change.

* * * In the legal field, we use the term “complaint” to refer to the initial document filed in a court a document that lays out a person’s demand for relief under the law. But complaints asserting legal violations are not limited to legal filings, nor are they always first generated in court. Rather, complaints are often initiated within institutions (e.g., schools, workplaces, prisons) for the same reasons that they are initiated in courts: to seek redress—and to demand change. And through these complaints people can tell stories about what is going wrong within institutions in addition to (or instead of ) stories about individualized, relational moments of harm.

In this essay, I put the popular idea of collective action together with the law of complaint to tell a cautionary tale: There is a certain mythic, even poetic, resonance to calls for collective action in modern progressive circles. This often lies in a specific understanding of collective that is deeply embedded in a vision of group-based activity, of people physically and emotionally gathering, working together, reaching out for each other, linking arms, carrying each other’s voices, nurturing and sustaining each other, en masse. As captivating as this vision is, it misses that individuals can act for collective good even when they are not acting through group-based action.

The essay seeks to tilt collective complaint as group-based activity off its pedestal, ever so slightly. Using the realm of employment discrimination as example, I explore how our imaginations can be cabined by language and by past practice, as well as by our own preferences and experiences. I show that calls for collective complaint in progressive advocacy around antidiscrimination law currently tend to focus on just one piece of the problem of individualizing, the piece that isolates individuals who complain from others, leaving another key piece, the piece that atomizes or narrows peoples’ stories and solutions, to merely follow along. This overemphasis on collective as group-based activity is not merely rhetorical. Current efforts at policy change tend to target class action procedures and arbitration laws. that prevent people from suing as a group.

* * * To support individuals in their efforts toward collective change is not to buy into an individualistic view of the world; we can be “social” in our goals, in solidarity, without necessarily being social in the ways in which we generate and carry through with complaint. To support and encourage individuals to tell their broader stories embraces a view of individuals as relationally situated and necessarily acting within social context. And it expands the field of change agents, allows more people the space and support to “act out democracy,” as Lani Guinier and Gerald Torres might put it. We can and should envision new (collective) avenues for the structural change that we most need.

Defense Secretary Cancel's Women's Leadership Program for the Military

Hegseth Cancels Women's Leadership Program Despite Past Trump Support

Defense Secretary Pete Hegseth on Tuesday ended a seven-year-old program to boost leadership roles for women within the military, blasting the initiative as a divisive, liberal focus that does not add to service members’ readiness.

The Women, Peace & Security program was signed into law by President Donald Trump in 2017. But Hegseth criticized the effort as a priority for President Joe Biden and United Nations officials, despite numerous conservative supporters of the program.

“WPS is yet another woke divisive/social justice/Biden initiative that overburdens our commanders and troops — distracting from our core task: war fighting,” Hegseth wrote in a social media post. “WPS is a United Nations program pushed by feminists and left-wing activists. Politicians fawn over it; troops hate it."***

Last week, U.S. military officials met in Japan with defense leaders from six Pacific countries for the third annual Women, Peace and Security workshop, designed to discuss ways to promote peace and security as well as women’s issues.

In an official release, Defense Department representatives said the coordination helped emphasize the message that “when women are included in peace processes, the peace is longer lasting and it has a better chance of success.”

The legislation for the program was drafted and supported by Homeland Security Secretary Kristi Noem, previously the congresswoman from South Dakota. Secretary of State Marco Rubio has also been a strong supporter, including recently complimenting the program’s impact within his department.

Study Shows Gender Bias in Student Evaluations of Instructor Availability

Eric Chan, Krista Hill, Josh Stillwagon, Gender Bias and Instructor Availability in Student Evaluations of Teaching in Higher Education. 

We run an experiment to examine the role of instructor availability in the documented gender bias of student evaluations of teaching (SETs). We find that subjects rated female instructors more harshly when unavailable, particularly if due to work conflicts. We then analyze SETs from over 3,000 courses, and compare estimates with various controls when excluding and including availability scores. When excluding availability scores, we find white women are rated better compared to men with or without other controls. Conversely, we find lower scores for black women and adjunct instructors. However, including responses on instructor availability renders the estimates for adjuncts insignificant. It also removes the significant differences for women of color and instead we get a significant difference for all women. This suggests some faculty may offset gender bias by increasing
availability.

Executive Order to End Disparate Impact Liability for Discrimination

Exec. Order Restoring Equality of Opportunity and Meritocracy (April 23, 2025)

Section 1.  Purpose.  A bedrock principle of the United States is that all citizens are treated equally under the law.  This principle guarantees equality of opportunity, not equal outcomes.  It promises that people are treated as individuals, not components of a particular race or group.  It encourages meritocracy and a colorblind society, not race- or sex-based favoritism.  Adherence to this principle is essential to creating opportunity, encouraging achievement, and sustaining the American Dream.

But a pernicious movement endangers this foundational principle, seeking to transform America’s promise of equal opportunity into a divisive pursuit of results preordained by irrelevant immutable characteristics, regardless of individual strengths, effort, or achievement.  A key tool of this movement is disparate-impact liability, which holds that a near insurmountable presumption of unlawful discrimination exists where there are any differences in outcomes in certain circumstances among different races, sexes, or similar groups, even if there is no facially discriminatory policy or practice or discriminatory intent involved, and even if everyone has an equal opportunity to succeed.  Disparate-impact liability all but requires individuals and businesses to consider race and engage in racial balancing to avoid potentially crippling legal liability.  It not only undermines our national values, but also runs contrary to equal protection under the law and, therefore, violates our Constitution.  

On a practical level, disparate-impact liability has hindered businesses from making hiring and other employment decisions based on merit and skill, their needs, or the needs of their customers because of the specter that such a process might lead to disparate outcomes, and thus disparate-impact lawsuits.  This has made it difficult, and in some cases impossible, for employers to use bona fide job-oriented evaluations when recruiting, which prevents job seekers from being paired with jobs to which their skills are most suited — in other words, it deprives them of opportunities for success.  Because of disparate-impact liability, employers cannot act in the best interests of the job applicant, the employer, and the American public. 

Disparate-impact liability imperils the effectiveness of civil rights laws by mandating, rather than proscribing, discrimination.  As the Supreme Court put it, “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Disparate-impact liability is wholly inconsistent with the Constitution and threatens the commitment to merit and equality of opportunity that forms the foundation of the American Dream.  Under my Administration, citizens will be treated equally before the law and as individuals, not consigned to a certain fate based on their immutable characteristics.

The Order seeks to repeal and/or revise EEOC regulations to eliminate disparate impact liability in Title VI and VII cases. 

Army Announces Female Soldiers Will Have to Pass Sex Neutral Physical Fitness Tests

NYT, Female Soldiers Will Have to Pass ‘Sex-Neutral’ Physical Test, U.S. Army Says

Women in U.S. Army combat roles will be expected to pass the same “sex-neutral” physical test as male soldiers, that military branch announced on Monday, weeks after Defense Secretary Pete Hegseth ordered the elimination of lower physical fitness standards for women in combat. The change could hinder the Army’s ability to recruit and retain women in particularly dangerous military jobs.

The new test, the Army Fitness Test, will replace the Army Combat Fitness Test, and “is designed to enhance Soldier fitness, improve warfighting readiness, and increase the lethality of the force,” the Army wrote in its announcement. The new scoring standards will be phased in beginning on June 1, the Army said.

Like its forerunner, the new test will be administered to active duty soldiers twice a year, and once per year to National Guard and Reserve troops. If soldiers fail the test two times in a row, they may be removed from the Army.***

 The test for noncombat units, also called combat-enabling roles, will continue to be assessed based on sex and age, the Army said. If a currently enlisted close combat unit member cannot pass the new test, they would be required to change their military occupation, said Sgt. Maj. Christopher Mullinax.

The new test comes three weeks after Mr. Hegseth ordered the elimination of lower physical fitness standards for women in combat positions. In 2022, the Army had eased the standards for women and older members.

Mr. Hegseth, a former National Guard infantryman and Fox News host, has previously opposed the inclusion of women in some combat roles. In a recent book, he wrote that “women cannot physically meet the same standards as men.”

“Dads push us to take risks,” he wrote. “Moms put the training wheels on our bikes. We need moms. But not in the military, especially in combat units.”

He later backtracked, saying in December that “if we have the right standard and women meet that standard, Roger, let’s go.”

The Myth of Equal Protection (that it Protects Women and People of Color)

Laura Portuondo, The Myth of Equal Protection, 16 U.C. Irvine L. Rev. (forthcoming 2026)

It is a myth that equal protection doctrine protects women and people of color. It is a myth, first, in the sense that it is a fiction. Although the Supreme Court claims to enforce the equality rights of all, it is unwilling to combat the contemporary inequality of women and people of color. It is also a myth in a second sense: it is a political myth, or legitimating story. The Court relies on the fiction that it protects women and people of color to justify a broad new vision of equality for religious conservatives that, perversely, is not available to women and people of color. More perverse, the Court invokes this new vision of equality to invalidate federal, state, and local laws that do real work to promote race and gender equality.

Understanding the reality of equal protection doctrine provides reason to limit the Supreme Court’s power over constitutional equality law. The Court’s present power over constitutional equality enforcement depends, in large part, on the claim that the Justices have a superior capacity and willingness to protect minority rights. While the myth of equal protection bolsters this defense of judicial power, the reality of equal protection contradicts it. It shows that the Court does not protect minority rights evenhandedly, but instead subordinates the rights of minority groups it disfavors to the rights of minority groups it favors. This selective protection and subversion of minority rights cannot justify the Court’s continued displacement of democratic will. On the contrary, it reveals a democratic legitimacy problem with this power that invites reform.

Brenda Gibson on "Affirmative Reaction: The Blueprint for Diversity and Inclusion in the Legal Profession After SFFA"

Brenda Gibson has published Affirmative Reaction: The Blueprint for Diversity and Inclusion in the Legal Profession After SFFA in Volume 104 of the Boston Law Review. The abstract is excerpted here: 

This Article is both a descriptive and prescriptive authority on the efforts of the legal profession’s ongoing attempts to achieve diversity and inclusion. It lays bare the history of the legal profession’s unsuccessful diversity and inclusion efforts and explores the efficacy and success of some of the solutions that the legal profession has crafted to turn the tide on implicit bias and the resulting lack of diversity and inclusion in the profession. Most relevantly for this new post-affirmative action era, I set out a blueprint of sorts for the legal profession that will incentivize Big Law and others who have not figured out why diversity makes sense for the legal profession’s bottom line—monetarily and morally speaking. This is the Article that brings to light the possibilities when the legal profession recognizes its most important commodity—its human capital, both the lawyers and their clients.

 

Part I of the Article begins with a discussion about the difficulties surrounding the language of diversity, which has impacted attempts to address its absence in so many of our institutions and organizations, especially the legal profession. Part II details some of the solutions that have legal institutions have traditionally employed to address the lack of diversity in the profession and some of the impediments preventing those solutions from being successful. Also, Part II discusses the business and medical professions that seemingly have been more successful in incentivizing their educational institutions and professionals to engage in diversity and inclusion efforts. Turning to the more prescriptive part(s) of the Article, Part III discusses the LSAT and bar exam, and the roles they play as gateways to the profession, as well as some current trends that may make these exams less of an impediment to diversity and inclusion in the legal profession going forward. Finally, Part IV explains the role that human relationships can play in addressing the lack of diversity and inclusion in the legal profession—that being the covert racism—which is the most prevalent form of racism in society today. Included in this part of the Article is a discussion about the importance of incentivizing members of the legal profession to engage in cross-racial, -cultural, and -gender mentorships, sponsorships, as well as allyships to address this intractable problem, thereby leveraging the profession’s human capital in ways that have never been done effectively. 

Study Shows Gender Gap in Class Counsel in Multidistrict Litigation

Alissa Del Riego, The Class Counsel Draft Gender Gap: An Analysis of Class Counsel Applicants  

The vast multidistrict litigation (“MDL”) and class counsel gender gap has caused much alarm in the past decade. What had been previously only described anecdotally, became sobering statistics in recent studies—women served in only 13% of lead counsel in class actions and held less than 25% of leadership positions in MDLs. While this is a troubling fact on its own, it is even more troubling because class members do not hire class counsel. Instead, courts appoint counsel to represent class members. The gender gap has thus reeked of court-sponsored discrimination and bias. Understandably, reform proposals to narrow the gender gap have largely focused on the judiciary. But are courts responsible for the class counsel gender gap? More pointedly, are courts systematically demonstrating a preference for male over female attorneys when making appointment decisions or could the MDL class counsel gender gap be attributable to something else? To date, no empirical research has asked, much less answered, this question. This Article for the first time ever surveys applications filed by attorneys to serve as class counsel, including the applications of attorneys that were not ultimately appointed.

Upon reviewing over 1,500 class counsel applications from 835 attorneys in over 100 class action MDLs in the last decade, the Article finds that the MDL class counsel gender gap is strongly correlated with the MDL class counsel draft gender gap, i.e., the pool of attorneys applying to serve as class counsel. Female attorneys were responsible for 24.8% of class counsel applications and held 26.6% of class counsel positions. The correlation existed across all time periods and all class counsel positions. The data also reveals that female attorneys experienced extremely similar (and often higher) success rates than male attorneys, suggesting courts, if anything, demonstrated a preference for female attorneys. While the data shows the MDL class counsel gender gap has narrowed in recent years, the last complete year of data (2022) suggests the gap is once again widening. With courts’ diversity efforts in Constitutional jeopardy after the Supreme Court’s recent ruling in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the gap will likely only further widen. Efforts must now focus on the presently male-dominated class counsel bar to overcome biases that have plagued the profession and recruit, train, retain, and sponsor female class counsel candidates.

Assessing the Legislative Reform Sparked by the MeToo Movement

Deborah A. Widiss, The Sexual Harassment Silo, 174 U. Pa. L. Rev. __ (forthcoming)

The #MeToo movement exposed the pervasiveness of sexual harassment in employment and made clear that legal remedies were sorely lacking. Federal and state lawmakers responded by passing laws broadening access to court and enhancing remedies; requiring training, policies, and data collection; and modifying substantive harassment law, most commonly by rejecting the requirement that victims prove they were subject to “severe or pervasive” conduct. Although some of these reforms apply to harassment or discrimination on the basis of any protected trait, many create special rights for victims of sexual harassment. Collectively these laws establish what I term “the sexual harassment silo.”

This Article offers the first comprehensive assessment of legislative reform sparked by #MeToo, as well as the salience of the new laws in the current—much changed—political environment. In addition to providing an overview of the new laws, the Article uses the most prominent federal response to #MeToo, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA), as a case study to explore in depth the potential (and limits) of this siloed approach. This is the first detailed analysis of case law interpreting EFAA. It demonstrates that courts are properly applying key features of the statute—a flexible definition of sexual harassment, and a provision that specifies it applies to any “case” that includes such harassment—that broaden EFAA’s impact. By contrast, other #MeToo laws codify an outdated definition of harassment limited to unwelcome sexual advances or touching, while excluding other common forms of sexual harassment, such as insults, vulgar epithets, or sabotage of work.

Upon taking office, President Trump issued executive orders repudiating the application of sex discrimination law to discrimination based on gender identity and dismantling diversity, equity, and inclusion initiatives. Because legislation cannot be swept aside by presidential fiat, the #MeToo laws can help safeguard protections for victims of harassment. But the popular debate over President Trump’s actions has highlighted the resentment that policies perceived as providing “special” treatment can engender. The Article concludes by suggesting that in addition to enforcing policies addressing harassment, employers should take steps to actively promote civility and respect within workplaces. Research suggests that effectively addressing bullying or offensive behavior, regardless of whether it is based on protected traits, can help reduce unlawful harassment—and it can make workplaces more welcoming for all.

Rebecca Zahn and Miriam Kullmann on "Discovering the Contributions of Academic Wives to the Development of Labour Law"

Rebecca Zahn & Miriam Kullmann have published "Discovering the Contributions of Academic Wives to the Development of Labour Law: Liesel, Kahn-Freund" in Volume 54 of the Industrial Law Journal (March 2025). The abstract is excerpted here: 

This article’s starting point is a strand of historical and sociological studies literature on ‘academic wives’ which reveals the social and, above all, unpaid labour that facilitated an academic career up until the mid-twentieth century. The article then draws on primary and secondary sources in order to trace the life of Otto Kahn-Freund’s wife, Elisabeth (Liesel) Kahn-Freund. We suggest that Liesel was an indispensable facilitator of her husband’s career. She provided valuable scholarly and intellectual support; by taking on responsibility for domestic tasks and care responsibilities, she gave her husband uninterrupted time and space to build his network, travel internationally, and, perhaps most importantly, concentrate on and pursue his research. In doing so, she, and many like her, played a significant albeit largely unrecognised role in the creation of labour law as we now know it. A better understanding of the labour performed by an “academic wife” provides a more nuanced picture of where labour law has come from and the factors that went into its creation. It also encourages labour law scholars to re-evaluate what kind of labour is recognised as part of labour law and is the focus of future labour law scholarship.

New Book, Wages for Housework: The Feminist Fight Against Unpaid Labor

Emily Callaci, Wages for Housework: The Feminist Fight Against Unpaid Labor (Seal Press 2025)

Women do more than three-quarters of all the world’s unpaid care work, contributing over $9 trillion to the global economy each year. Dishes don’t clean themselves; dinner is not magically made; children must be cared for. But why is this work not compensated?
 
Wages for Housework is the fascinating international story of Selma James, Silvia Federici, Mariarosa Dalla Costa, Wilmette Brown, and Margaret Prescod, whose movement demanded wages as a starting point for remaking the world as we know it. Drawing on their campaign’s roots in 1970s America, Italy, and the UK, with original archival research and interviews, historian Emily Callaci explores the revolutionary potential of paying women for their work in the home, and how Wages for Housework reimagined potential futures under capitalism—and beyond—in ways that continue to be relevant today. 

Jones Day Settles Parental Leave Bias Suit by Former SCOTUS Clerks Challenging Less Leave for Men

Bloomberg, Jones Day Resolves Former Associates' Parental Leave Bias Suit

Jones Day lawyers and a married couple who once worked there as associates have agreed to end a closely watched lawsuit challenging the firm’s parental leave policy as discriminatory against men, according to a federal court filing.

The couple, Jones Day, and three of the firm’s partners filed their stipulation of dismissal, stating all claims in the case have been dismissed with prejudice, on Tuesday in the US District Court for the District of Columbia.

Jones Day and the couple, Marc Savignac and Julia Sheketoff, didn’t immediately respond to requests for details and comment on the apparent accord. Magistrate Judge G. Michael Harvey had held a settlement conference with the parties on Feb. 11.

The development comes after Judge Randolph D. Moss ruled on Sept. 25 that a trial was needed on Savignac’s and Sheketoff’s claims that Jones Day violated federal and D.C. law by allowing male associates to take eight weeks less of leave for the birth of a child than female employees may. Moss had also allowed the couple’s claims that Jones Day some of its partners retaliated against them for challenging the policy by firing Savignac to advance to trial.

Moss granted summary judgment for the firm and against Sheketoff on her claims that she was paid less because she’s a woman, which was partly based on a male partner’s discriminatory performance rating. The judge also rejected Savignac’s claim that Jones Day interfered with his rights under the District of Columbia Family and Medical Leave Act by firing him while he was on newborn leave.

Savignac and Sheketoff met while clerking for Justice Stephen G. Breyer and they worked together in Jones Day’s Supreme Court and appellate practice group. They sued in 2019 alleging Savignac was fired two weeks after their son was born and three business days after he and Sheketoff sent the firm an email complaining about gender inequity in its parental leave policy.

Sheketoff, who had left Jones Day prior to the child’s birth, and Savignac said they planned to share child-care duties equally, in contrast to the stereotypes underlying Jones Day’s parental leave policy. Sheketoff had to take more parental leave than she would have liked from her new job as an appellate public defender because of the policy, the suit said.

Savignac and Sheketoff represented themselves. Jones Day represented itself and the individual defendants.

The case is Savignac v. Jones Day , D.D.C., No. 1:19-cv-02443, 2/25/25 

See also NYT, Couples' Suit Over Parental Leave is New Challenge to Big Law Firm (2019)