Gender and the Law Blog

Book Review: Queer Career--Sexuality and Work in Modern America

Guardian, "Work is About Belonging": LGBTQ+ People's History in the Workplace

In a new book, historian Margot Canaday studies the neglected history of queer people in American workplaces

There has been scant attention paid to queer people in the workplace, argues historian Margot Canaday in her fascinating new book Queer Career: Sexuality and Work in Modern America. “Queer people are one of the largest, but least studied, minority groups in the workforce,” Canaday said while speaking to the Guardian about her book.

According to her book, straight historians have tended to ignore the experiences of LGBTQ+ people in the workplace and queer researchers have focused on other aspects of community life, assuming that workplaces were uninteresting, because they weren’t places where LGBTQ+ were able to reveal their true identities. “There has been an assumption that the workplace has been a straight place that was not so revelatory for historians,” Canaday told me.

Canaday’s belief is that the conventional wisdom is wrong – in fact, the history of queer identities in the workplace has been much more complex and fascinating than previously assumed. “I think for all of us – queer or straight – work is about belonging and identity,” Canaday said. “But there are also things that are unique about work for queer people. For instance, it was a way gay people found other gay people. Or for folks who are gender non-conforming, there’s a way that work affirms that isn’t available anywhere else.”

Working off her hunch, as well as a desire to write a queer history that did not marginalize women, Canaday got to work interviewing queer-identified people who had participated in the labor force as far back as the 1950s.

N.Y. Department of Labor Releases Report on the Gender Pay Gap in the Pandemic Era

The New York Department of Labor released a report titled The Gender Pay Gap in the Pandemic Era. The Executive Summary states: 

Women in New York earned 88.2 cents for every dollar earned by men in 2021, a significantly smaller gap than the national average of 81.5 cents. The gender pay gap continues to be substantially larger for women of color compared to non-Hispanic White men in New York and nationally. Black or African American women in New York were paid 67.8 cents on the dollar while Hispanic and Latina women were paid only 62.9 cents on the dollar.

The gender pay gap in New York narrowed between 2019 and 2021, despite the challenges presented by the COVID-19 pandemic. However, the pandemic-induced economic recession had a major impact on women in the labor force. From 2019 to 2021, the unemployment rate for women nearly doubled from 4.2% to 8.2%. In 2021, over 405,000 women were unemployed, a significant increase from 207,000 in 2019.

Women earn less than men at every wage level and across most industries and occupations. Moreover, low-wage, gender-segregated occupations, such as child care, are dominated by women, who comprise 90% of that industry’s workforce. Women also encounter a “motherhood penalty” since they are more likely to temporarily exit the workforce or work part-time to raise children. This reduction in earnings can have significant long-term financial implications.

Although there has been improvement in the gender wage gap over time, economic inequality persists. Women’s work is still undervalued, underpaid, and unpaid.

The report includes various policy recommendations. 

Sexual Harassment Reconceived as Misappropriation and Waste of Corporate Human and Financial Assets

Jennifer Ann Drobac, The Misappropriation, Embezzlement, Theft, and Waste of Corporate Human and Financial Assets: Sexual Harassment Reconceived, 36 ABA J. LAB. & EMP. L. 425-477 (2022).

This article suggests how sexual harassment should be treated by companies as a civil misappropriation, embezzlement, conversion, or theft—as well as a civil rights violation. Additionally, some payment associated with sex-based harassment should be considered corporate waste. The misappropriation approach considers not only how sex-based harassment constitutes a civil misappropriation, embezzlement, conversion, or theft, but it also responds to three anticipated objections to sexual harassment as a civil misappropriation: (1) sexual harassment is a minor corporate expense; (2) identification of sexual harassment as civil misappropriation of corporate human assets commodifies targets; and (3) this new concept will change neither corporate responses nor corporate cultures. First, in response, sexual harassment is not a minor expense but one that costs companies billions of dollars annually. It is, therefore, in a company’s financial interest to treat the problem as a theft of valuable assets. Second, only corporate failure to recognize the market value of female professional talent dehumanizes people. Almost all human beings engage in work, and men, in particular, are valued for their work. Thus, the misappropriation solution puts targets on the same plane as privileged men, valued for their market productivity (as opposed to sexual or reproductive utility). Third, the identification of sexual harassment as a theft, conversion, embezzlement, or misappropriation, as well as a civil rights violation, encourages companies to modify and improve their remedial responses, corporate culture, profitability, and transparency. By making corporations and harassment targets as potential allies, instead of adversaries, the reconception of sex-based harassment as a misappropriation of corporate human assets incentivizes new collaborations for social and economic justice.

Artificial Intelligence as a Tool for Reducing Gender Discrimination in Hiring

Elena Pisanelli, A New Turning Point for Women: Artificial Intelligence as a Tool for Reducing Gender Discrimination in Hiring 

This paper studies whether firms’ adoption of artificial intelligence (AI) has a causal effect on their probability of hiring female managers. Using panel data on the 500 largest firms, measured by revenues, in Europe and the US, and a two-stage difference- in-differences I find that firms’ use of AI causes, on average, an increase by 3.5% in the hiring of female managers. Exploiting heterogeneity across different types of AI I find that my result is driven by the use of assessment software, rather than that of predictive algorithms. The use of assessment software increases the share of female managers hired by companies and correlates with a reduction in firms being sued for gender discrimination in hiring. Conversely, my findings show that predictive algorithms do not affect gender inequality in managerial hires.

UN Chief Warns Gender Equality is 300 Years Away

Wash Post, "Gender Equality is 300 Years Away", UN Chief Warns

Decades of advances on women’s rights are being wound back and the world is now hundreds of years away from achieving gender equality, according to the United Nations.

Speaking to the U.N. Commission on the Status of Women on Monday, ahead of International Women’s Day on Wednesday, Secretary General António Guterres said gender equality is “vanishing before our eyes.”

He drew special attention to Afghanistan, where Guterres said women and girls “have been erased from public life” following the return to Taliban rule. The regime has barred women and girls from universities and some schools. The Taliban has also blocked many female aid workers, imperiling key aid programs, including those overseen by the U.N.

In many places, women’s sexual and reproductive rights “are being rolled back,” he said. *** Maternal mortality is on the rise, he said, and the coronavirus pandemic has forced millions of girls out of school, and mothers and caregivers out of the global workforce.***

 

The U.N. chief also said gender equality is at risk from a technology industry heavily skewed toward a male workforce. Men outnumber women by 2 to 1 in the tech industry, and in the growing field of artificial intelligence, that gender gap rises to 5 to 1, according to Guterres, putting the world-changing industry at risk of “shaping our future” in a gender-biased way.

Guterres also trained a spotlight on the “misogynistic disinformation and misinformation” he said was flourishing on social media, and what is known as gender trolling aimed at “silencing women and forcing them out of public life.”

New Article on "Law Clerk Selection and Diversity: Insights from Fifty Sitting Judges of the Federal Courts of Appeals"

Jeremy Fogel. Mary Hoopes, and Goodwin Liu have published a forthcoming article on SSRN titled Law Clerk Selection and Diversity: Insights from Fifty Sitting Judges of the Federal Courts of Appeals. The article is forthcoming in the Harvard Law Review. The abstract states: 

Judicial clerkships are key positions of responsibility and coveted opportunities for career advancement. Commentators have noted that the demographics of law clerks do not align with the student population by law school, socioeconomic background, gender, race, or ethnicity, and that ideological matching is prevalent between judges and their clerks. But extant studies draw on limited data and offer little visibility into how judges actually select clerks. For this study, we conducted in-depth individual interviews with fifty active judges of the federal courts of appeals to learn how they approach law clerk selection and diversity. Our sample, though not fully representative of the judiciary, includes judges from all circuits, appointed by Presidents of both parties, with average tenure of fourteen years. The confidential interviews, which drew in part upon the peer relationship that two of us have with fellow judges, yielded rich and candid insights not captured by prior surveys.

This Article reports our findings, among them: (1) With few exceptions, appellate judges hire clerks as an “ensemble” and assign positive value to diversity, although judges vary significantly in the dimensions of diversity they seek. (2) Most judges disclaim any interest in ideological alignment when hiring clerks; we situate this finding in the context of factors that contribute to ideological segmentation of the clerkship market. (3) Republican appointees, compared to Democratic appointees, more often identified socioeconomic diversity as the primary dimension of diversity they seek. (4) Judges who graduated from law schools outside the U.S. News & World Report top twenty are significantly more likely than other judges to hire clerks from schools outside the top twenty. (5) Almost all judges in our sample consider gender in clerkship hiring, and many have specific goals for gender balance. Republican appointees reported more difficulty drawing women into their applicant pool than Democratic appointees. (6) Most judges in our sample assign positive value to racial diversity and consider race to some degree in evaluating applicants, although it is important to note that some judges believe strongly that such consideration is inappropriate. (7) Many judges who view racial diversity positively nonetheless reported difficulty hiring Black and Hispanic clerks. The judges with the most robust records of minority hiring are those who make affirmative efforts to draw minority candidates into their applicant pool or place greater emphasis on indicators of talent besides grades and law school rank, or do both. (8) Black judges are particularly successful in hiring Black clerks; we estimate that Black judges, who comprised less than one-eighth of active circuit judges during our study, accounted for more than half of the Black clerks hired each year in the federal courts of appeals.

These findings have implications for judicial selection; in short, diversity among judges affects diversity among clerks. Further, one of our most consistent findings is that judges do not discuss clerk hiring or diversity with each other. This silence reflects norms of judicial culture that foster collegiality and mutual deference while tending to inhibit peer-to-peer discussion of how judges select their clerks. Yet many judges want to hire more diverse clerks and would like to learn from their colleagues’ practices. We propose measures to increase transparency, facilitate peer exchange, and increase judges’ capacity to achieve their hiring objectives, whatever they may be.

 

The Future of Equal Pay in Sports

Suman Dash Bhattamishra & Rangin Tripathy, The Future of Equal Pay in Sports, 7(1) COMP. CONST. L. & ADMIN. L. J. [1] (2022)

Over the last decade, there has been a steady and unmistakable rise in the popularity of women’s sports and female athletes in general. Most of the viewership records for major women’s sporting events have been set in the last decade. With increased attention to women’s sports, there has also been heightened scrutiny on the pay gap which exists between men and women playing the same sport. While in some selected sporting competitions, such as the All-England Tennis Championships (Wimbledon), women and men are now paid equal amounts of prize money, there still exists a significant difference in the financial incentives which are afforded to men and women. This paper looks at the feasibility of ensuring equal pay through the judicial process. We argue that a judicial route would involve greater hazards in the pursuit of equal pay, and instead, the pressure of public opinion and consequential changes in policy formulation by the administrators presents a better opportunity of mitigating the pay gap which exists between men and women. We further argue that even if judicial decisions favour the cause of equal pay, in the current climate, political mobilization offers a more enduring solution than judicial intervention.

Situating Dobbs in Constitutional Memory and Other Contexts Where Women's Rights Have Been Retracted

Paula Monopoli, Situating Dobbs, 14 ConLawNOW 45 (2023)

This Article applies the concept of constitutional memory to the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization to dispute the dominant view that the case was unique in erasing a constitutional right. It offers three examples—voting, Prohibition, and protective labor legislation—to illustrate how situating Dobbs within an expansive view of feminist legal history teaches us that it is not the only—just the most recent—example of the Court’s eroding or erasing previously recognized legal protections or rights that had a positive impact on women’s lives. It concludes that Congress, the Supreme Court, and the People themselves have been more likely to erase or erode a legal or constitutional right that has a disproportionately positive effect on women’s lives. By adopting a broader view of constitutional history, advocates can more effectively respond to Dobbs’ implications for reproductive self-determination.

A Look at the Comprehensive Legislation in the EU for Gender Pay Inequity and its Likely Impact in Ireland

Sara Benedi Lahuerta, EU Transparency Legislation to Address Gender Pay Inequity: What is on the Horizon and its Likely Impact in Ireland, Irish Journal of European Law (2022) Vol. 24, pp. 161-188.

After years of scarce legislative developments, EU equality law seems to be gaining momentum, at least in the field of gender equality. Following the adoption of the Work-Life Balance Directive in 2019, in March 2021 the European Commission adopted a proposal for a Directive to strengthen the application of the principle of equal pay through pay transparency. Additionally, after a decade of discussion, a political agreement was finally reached in June 2022 to adopt the “Women on Boards” Directive. Given the complex causes of gender inequality – including gender pay inequity – such a combination of measures may bring about a powerful toolbox to make progress in the right direction. This article only focuses on one of them: the Proposed Directive on pay transparency, which contains a reasonably comprehensive set of substantive and enforcement measures. In particular, it discusses the potential and limitations of the Proposed Directive’s key substantive measures, while also giving consideration to the impact that this instrument might have in Ireland.

Study Analyzes Why the Gender Pay Gap Has Stalled

Peter Blair and Benjamin Posmanick have published a working paper titled Why Did Gender Wage Convergence in the United States Stall with the Human Capital and Economic Opportunity Global Working Group. The abstract provides: 

During the 1980s, the wage gap between white women and white men in the US declined by approximately 1 percentage point per year. In the decades since, the rate of gender wage convergence has stalled to less than one-third of its previous value. An outstanding puzzle in economics is “why did gender wage convergence in the US stall?” Using an event study design that exploits the timing of state and federal family-leave policies, we show that the introduction of the policies can explain 94% of the reduction in the rate of gender wage convergence that is unaccounted for after controlling for changes in observable characteristics of workers. If gender wage convergence had continued at the pre-family leave rate, wage parity between white women and white men would have been achieved as early as 2017.

The article concludes: 

[U]sing the introduction of family-leave policies, we explain 94% of the stagnation in gender wage convergence that is unaccounted for after controlling for changes in observable characteristics between men and women. A key lesson from our work is that legally-mandated labor market flexibility can have the unintended effect of stymieing gender wage convergence, notwithstanding the increasing evidence that flexibility which arises endogenously in the labor market through technological innovation, or from firms changing their own policies, can lead to reduced gender wage gaps * * * .

 

The evidence that we provide on the impact of leave policies on gender wage convergence in the US contributes to a growing literature documenting negative impacts of leave policies on gender wage equality in Europe and other OECD countries * * *. Because the leave offered in the US is less generous that what is offered in peer countries, our results suggests an important role for economists to consider what features of family-leave policy design can soften the equity-efficiency trade-off arising from the introduction of family-leave policies. We leave this work to future studies by other scholars having answered the question: “why did gender wage convergence in the United States stall?”

Death by a Thousand Cuts: The Impact of Implicit Gender Bias on Women's Career Progression

Jasmijn C. Bol & Hila Fogel-Yaari,  Death by a Thousand Cuts: The Impact of Gender Bias on Career Progression,
in Diversity, Equity, and Inclusion: Theory, practice, and case histories (Chapter 3A) (forthcoming 2023)

Progress has been made in the last century toward reducing gender bias in society at large and in the workplace specifically. The negative impact gender differentiation has on women’s careers, however, is not gone. Differential treatment and biases have moved from explicit to more implicit. These biases are rooted in decades of modeling and stereotyping women as communal and men as agentic, thereby casting women as caregivers and men as leaders. The stereotyping influences women’s professional lives by tainting both supervisors’ and employees’ decisions. The differentiation starts already in hiring decisions, which include decisions on who to hire, at what rank, and how much to pay. Once women are hired, the bias continues in task allocation and performance evaluation, which determine immediate compensation and subsequent promotions. Thus, women’s career progressions are made more complicated throughout their entire participation in the workforce. The multifaceted nature of the problem suggests that only a holistic approach can significantly reduce gender bias.

Legal Study Measures Impact of Social Structures of Old Boys Networks in Corporate Law

Afra Afsharipour & Matthew Jennejohn, "Gender and the Social Structure of Exclusion in U.S. Corporate Law" 
University of Chicago Law Review, Forthcoming

Law develops through collective effort. A single judge may write a judicial opinion, but only after an (often large) group of lawyers choose litigation strategies, craft arguments, and present their positions. Despite their important role in the legal process, these networks of lawyers are almost uniformly overlooked in legal scholarship—a black box in a discipline otherwise obsessed with institutional detail.

This Article focuses upon a particularly crucial way that the structure of professional networks may shape the path of the law. Prior qualitative research suggests that networks are a crucial source of information, mentoring, and opportunity, and that those social resources are often withheld from lawyers who do not mirror the characteristics of the typically male, wealthy, straight, and white incumbents in the field. We have a common nickname for the networks that result, which are ostensibly open but often closed in practice: “Old boys’ networks.”

For the first time in legal scholarship, this Article quantitatively analyzes gender representation within a comprehensive network of judges and litigators over a significant period of time. The network studied is derived from cases before the Delaware Court of Chancery, a systemically important trial court that adjudicates the most—and the most important—corporate law disputes in the United States. Seventeen years of docket entries across more than 15,000 matters and 2,700 attorneys were collected as the basis for a massive network.

Analyzing the Chancery Litigation Network produces a number of important findings. First, we find a dramatic and persistent gender gap in the network. Women are not only outnumbered in the network but also more peripheral within it compared to men. Second, we find that law firm membership and geographical location interacts with gender—women’s positions within the network differs by membership in certain firms or residence in particular geographies. Finally, as we drill down into the personal networks of individual women, we find arresting evidence of the social barriers female Chancery litigators regularly confront: From working overwhelmingly—sometimes exclusively—with men in the early years of their careers to still being shut out of male-dominated cliques as their careers mature.

The Article’s findings set the stage for subsequent research to test the connection between gender representation in litigation networks and discrete outcomes, such as the incidence of bias in judicial opinions. It also demonstrates how subsequent research can incorporate network structure into quantitative and qualitative studies of not only gender bias but also other forms of inequality in law. With respect to policy, it provides the necessary first step to crafting normative interventions that improve equitable access to social resources by making networks more empirically concrete. With that added clarity, the network approach then allows us to calibrate remedial options available to bar associations, law firms, and individual attorneys, leaving no level of the institutional setting untouched.

Missouri House Republications Adopted Stricter Dress Code for Women, Arms Must be Concealed

Missouri House Republicans Adopted Stricter Dress Code -- Just for Women

The Republican-controlled Missouri House of Representatives used its session’s opening day Wednesday to tighten the dress code for female legislators, while leaving the men’s dress code alone.

The changes were spearheaded by state Rep. Ann Kelley (R), a co-sponsor who was among the Republicans seeking to require women to wear a blazer when in the chamber. She was met by swift opposition from Democrats who called it “ridiculous.”

The state House eventually approved a modified version of Kelley’s proposal, which allows for cardigans as well as jackets, but still requires women’s arms to be concealed. Missouri Democrats tore into Republicans for pushing the new restrictions on what women in the chamber could wear. ***

 

While previous rules said that “dresses or skirts or slacks worn with a blazer or sweater and appropriate dress shoes or boots” were allowed to be worn by female lawmakers, Kelley, one of the co-sponsors of H.R. 11, said Wednesday that women needed to wear jackets on the floor as “it is essential to always maintain a formal and professional atmosphere.”

Death by a Thousand Cuts: The Impact of Gender Bias on Career Progression

Jasmijn C. Bol & Hila Fogel-Yaari, Death by a Thousand Cuts: The Impact of Gender Bias on Career Progression

Despite focused efforts, the pay gap persists, and women are under-represented in upperlevel management and high-level government positions (Korn, Weber, and Fuller 2022; Horowitz, Igielnik, and Parker 2018). It is often suggested that the “glass ceiling,” which describes top positions being inaccessible to women, is the root cause of women not being equally represented at the highest levels. To “shatter the glass ceiling,” social and regulatory pressure is put on companies to hire women for top executive positions and the board of directors (Jamali 2020; Srinidhi, Sun, Zhang, and Chen 2020; Orbach 2017). We posit, however, that “shattering the glass ceiling” is not enough because the challenges for women start early on and are present throughout women’s career progressions. They begin at the initial application for a job and continue through the hiring decision, task allocation, and subsequent evaluation and promotion. These persistent disadvantages throughout women’s careers are referred to as “sticky floors” (Ciminelli, Schwellnus, and Stadler 2021). Moreover, not only are these challenges ongoing, but they also manifest in numerous ways. Some of these manifestations of gender differentiation would not make a big difference by themselves, but in accumulation, can have a significant impact on women’s careers (Hardy, Tey, Cyrus-Lai, Martell, Olstad, and Uhlmann 2022). We describe this impact of the ongoing and multifaceted gender differentiations as a professional “death by a thousand cuts.” In this chapter, we examine the theoretical underpinning of gender bias and discuss
the empirical evidence that shows these ongoing challenges for women.

Senate Passes Protections for Pregnant Workers and New Mothers

Senate Passes Protections for Pregnant Workers and New Mothers

The Pregnant Workers Fairness Act and the PUMP for Nursing Mothers Act passed the Senate with bipartisan support on Thursday as amendments to the omnibus spending package.

Why it matters: It's a major milestone for women's workplace civil rights. Advocates have pushed for protections for pregnant workers for over a decade, arguing that thousands of women lose their jobs each year — either fired or placed on unpaid leave — because employers are under no obligation to offer pregnant workers reasonable accommodations.

• Those would include things like extra bathroom breaks, the ability to sit while working a cash register or restrictions on how much weight they can lift.

Patrice Ruane Publishes Article on Women's Employment from the Great Depression to the Great Recesssion

Patrice Ruane has published From Pin Workers to Essential Workers: Lessons About Women's Employment and the Covid-19 Pandemic from the Great Depression and the Great Recession in volume 29 of the UCLA Journal of Gender and the Law. The abstract is here: 

This Article argues that inaccurate ideas about women and work during economic downturns, including misconceptions about which women work and how they work, lead to inadequate policy responses and ultimately hurt working women. New Deal-era federal women’s aid programs, designed around an artificial picture of the average working woman, did not provide the same robust level of jobs support that men’s programs provided. Similarly, the major federal stimulus package during the Great Recession invested in male-majority industries but failed to invest in industries dependent upon women’s labor, in part because of the misconception that working women were already “winning” the jobs race. Framing the average working woman during the pandemic recession as a remote worker in a two-income household has the potential to steer federal policy away from avenues that would help the majority of women workers who are not remote workers in two-income households. Recovery efforts during the Great Depression and the Great Recession were gender-informed and effective, but biased toward men. These recovery efforts were concentrated in male-majority industries and consequently led to men’s employment recovering long before women’s employment did. Because pandemic-related job losses have been so unevenly borne by women, gender-informed recovery policies are not only justifiable, but necessary to achieve equitable recovery.

 

This Article also questions the speculation, articulated in an influential paper by a group of economists, that the COVID-19 pandemic will accelerate changing social norms and lead to greater gender parity by increasing the number of people who are accustomed to working remotely and driving men to take on additional childcare responsibilities. The conditions following the Great Depression and the Great Recession were more conducive to changing gender norms and expectations because both events disrupted traditional male-breadwinner models of the family and resulted in large numbers of families in which the woman was employed and the man unemployed. But neither resulted in lasting improvements in gender equity in the home or at work. Both events were followed by a reactionary impulse to return to a traditionally gendered view of the organization of labor. The pandemic recession does not present the opportunity to disrupt gender norms by creating more households headed by women breadwinners, yet the risk of a conservative reversion to more traditionally gendered norms is still present.

 

Class Action Complaint Alleging Sex Discrimination in Twitter Layoffs

Plaintiffs Carolina Bernal Strifling and Willow Wren Turkal have filed a Class Action Complaint in the United States District Court for the Northern District of California alleging that Twitter, Inc. disproportionately discharged or constructively discharged women employees as part of recent layoffs. They sue under Title VII and California's Fair Employment and Housing Act. The complaint alleges: 

4. The mass termination of employees at Twitter has impacted female employees to a much greater extent than male employees – and to a highly statistically significant degree. Moreover, Elon Musk has made a number of publicly discriminatory remarks about women, further confirming that the mass termination’s greater impact on female employees resulted from discrimination. Musk also quickly implemented new policies at Twitter that would have a disparate impact on women, thus forcing more women to leave the company.  

* * *  

30. Prior to the layoffs [on November 4, 2022], Twitter employed approximately 2,234 female employees and 2,900 male employees in the United States. Of those employees, approximately 1,271 females and 1,350 males were notified that day they were being laid off.

 

31. Thus, 57% of female employees were laid off on November 4, 2022, while 47% of male employees were laid off.

* * *  

34. Further, the disparity between women and men being laid off cannot be explained based upon a justification that Musk intended to retain more employees in engineering-related roles.

35. According to the spreadsheet, prior to the layoffs of November 4, 2022, Twitter employed approximately 1,003 female and 2,150 male employees in engineering-related roles in the United States. Of those employees, approximately 630 females and 1,037 males were notified that day they were being laid off. Thus, 63% of females in engineering-related roles were laid off on November 4, 2022, while 48% of male employees in engineering-related were laid off.

Read the full class action complaint here.  

Susan Saab Fortney on "Taking Courthouse Discrimination Seriously: The Role of Judges as Ethical Leaders"

Susan Saab Fortney has published Taking Courthouse Discrimination Seriously: The Role of Judges as Ethical Leaders in volume 70 of the Kansas Law Review (2022). The abstract provides: 

Sexual misconduct allegations against Alex Kozinski, a once powerful judge in the U.S. Court of Appeals for the 9th Circuit, spotlighted concerns related to sexual harassment in the judiciary. Following news reports related to the alleged misconduct, Chief Justice John G. Roberts, Jr. charged a working group with examining safeguards to deal with inappropriate conduct in the judicial workplace. Based on recommendations made in the Report of the Federal Judiciary Workplace Conduct Working Group, the Judicial Conference approved a number of reforms and improvements related to workplace conduct in the federal judiciary. The reforms included revising the Code of Conduct for U.S. Judges. As amended, the Code of Judicial Conduct for U.S. Judges now clearly states that judges should neither engage in, nor tolerate, workplace conduct that is reasonably interpreted as harassment, abusive behavior, or retaliation for reporting such conduct. Under this provision, judges should not turn a blind eye to others’ misconduct, but should accept their responsibilities as ethical leaders committed to a diverse, inclusive, and respectful workplace where harassment is not tolerated. Drawing on the Report of the Federal Judiciary Workplace Conduct Working Group, related studies, and a survey of state codes, this article examines areas where state Codes of Judicial Conduct and related procedural rules should be revised to address more effectively the serious problems of harassment and other workplace misconduct at the courthouse.

Gendered and Racialized Emotional Labor in Public Organizations

Cynthia Barboza-Wilkes, REPRODUCING INEQUITY IN ORGANIZATIONS: GENDERED AND RACIALIZED EMOTIONAL LABOR IN PUBLIC ORGANIZATIONS, PhD Thesis (USC School of Public Policy) 

Emotional labor research in public administration lags behind other fields, is often omitted from discussions of representative bureaucracy, and rarely looks at its gendered and racialized dimensions. The existing scholarship fails to consider the dynamic nature of emotions and that different emotions (e.g., happiness versus anger) might warrant different emotional labor techniques for different groups. Meanwhile, scholars from sociology, applied psychology, and organizational behavior widely recognize the importance of emotional labor, but few have used an intersectional lens to study the well-recognized phenomenon.

This dissertation uses an intersectional approach to codify the difficult-to-measure and often unobserved emotional labor that can institutionalize inequity within public organizations. An intersectional approach is essential to make visible the experiences of those at the intersection of multiple marginalized identities, and this dissertation describes in detail how the antecedents, experiences, and consequences of emotional labor differ based on the employee’s combination of gender and racial identity. Using a mixed-methods research design that combines daily diary entries and semi-structured interviews, this work (1) describes and measures the emotional labor embedded in both service encounters with the public and internal interactions among colleagues, (2) looks at subgroup differences in the emotional effort at the intersection of race and gender, and (3) assesses the relationship between emotional labor and burnout to inform our understanding of the well-being of a diverse public sector workforce.

I find meaningful differences within and between individuals in the emotions needed to effectively engage the public and navigate public institutions. The results reveal that, compared to their peers, women of color engage in more taxing forms of emotional labor, feel more emotionally constrained by organizational rules, are more cognizant of managing gendered and racialized stereotypes, and are more sensitive to whether the climate allows for authentic expression. I also show that public employees experienced heightened burnout during the pandemic, and the suppression of emotion contributed to that burnout, but in different ways for different groups. In particular, women of color who suppressed negative emotions were more likely to experience a reduced sense of personal accomplishment, increased cynicism, disengagement from their work, and more emotional exhaustion.

This project reveals important distinctions in the type of emotional labor demanded of public employees and how those emotional demands differ across gender and racial identities. The results make visible the experiences of those at the margins of multiple lived experiences of oppression, allowing women of color to articulate their own emotional experiences in ways that center their voices. Importantly, this work highlights the importance of factoring emotional labor into the experience of burnout at work while emphasizing that the relationship between the two varies for individuals of different backgrounds. I provide concrete proof that there is an uneven distribution of emotional labor in public organizations, and it falls predominantly on women of color.

Measuring a construct as complex and dynamic as emotional labor lays the groundwork for important reform. By codifying, measuring, and describing the differential emotional burdens embedded in public organizations, I quantitatively demonstrate the need for equitable human resource management practices that address how organizations structurally reinforce inequity.

Congress Passes Bill to Ban NDAs in Workplace Sexual Harassment Cases

Congress Passes Bill to Ban NDAs in Workplace Sexual Harassment Cases

On Wednesday, Congress passed bipartisan legislation, the Speak Out Act, which bans the use of nondisclosure agreements in cases of workplace sexual assault and harassment, by a vote of 315 to 109. The bill passed in the Senate in September and is now headed to the Oval Office to be signed into law.***

The Speak Out Act prohibits the use of NDAs between employers and current, former and prospective employees in cases of sexual assault and harassment. It also invalidates existing NDAs in cases that have not yet been filed. The legislation comes on the heels of the passage of a bill that banned mandatory arbitration in sexual harassment and assault cases. 

“This is a one-two punch,” Frankel said. “When you think about how many people are subjected to these agreements and how rampant sexual assault and abuse is in this country, these are two incredibly significant new laws that are going to change the culture and force corporations to protect their workers instead of trying to hide the dirty little secrets.***

Imre Szalai, a social justice professor at Loyola University New Orleans, told The 19th this summer when the bill was introduced that arbitration agreements and NDAs were developed in the United States for commercial purposes to handle business-to-business disputes in a more speedy and cost-effective manner. The federal arbitration law was first enacted in 1925, but sometime between the 1970s and 1990s, Szalai said there was a “snowball effect” and these agreements began appearing more broadly in consumer and employment relationships. And now, the U.S. relies on its corporate sector to resolve internal disputes more than any other country in the world.