Gender and the Law Prof Blog

New IL Law Bars Employers from Asking Job Applicants about Pay History

New Law Will Bar Illinois Employers From Asking Job Applicants for Pay History (July 31, 2019)

Illinois companies will no longer be allowed to ask job applicants or their previous employers about salary history under a measure Democratic Gov. J.B. Pritzker signed into law Wednesday.

 

Advocates say asking applicants about their salaries at previous jobs helps perpetuate a wage gap between men and women doing the same jobs. Illinois lawmakers passed two previous versions of the legislation, but Pritzker’s predecessor, Republican Gov. Bruce Rauner, vetoed both. ***

 

The measure Pritzker signed, which takes effect in 60 days, passed with bipartisan support this spring in the House and Senate. Workers will be able to seek up to $10,000 in damages if employers violate the law, and it also protects the right of employees to discuss their salaries and benefits with co-workers.

Overhauling Employment Practices in the Wake of MeToo

Kerri Lynn Stone, Competing Interests and Best Practices in the Wake of #MeToo, JOTWELL

Reviewing Rachel Arnow-Richman, Of Power and Process: Handling Harassers in an At-Will World, 128 Yale L.J. Forum 85 (2018).

 

One of my favorite pieces published in labor and employment law this year is Rachel Arnow-Richman’s Of Power and Process: Handling Harassers in an At-Will World, which is a not-to-be-missed call for an overhaul of the contracting practices deployed by employers, one designed to shift the calculus that employers use to police sexual harassers of various corporate ranks. This piece examines a rarely thought-about angle of the #Metoo movement and the changes that it has precipitated and is yet to still effect. Professor Arnow-Richman, a scholar in employment law and in contract law, exposes this angle thoughtfully and sets forth a laudable proposal.

Professor Arnow-Richman’s starting point is, appropriately, as she puts it, the “extreme power imbalance in the workplace” that engenders “a world in which high-level decision-makers wield unrestricted control over employees,” while the entity can turn a blind eye to the way in which this unfettered discretion may be abused. (P. 90.) Lower-level employees are not accorded such latitude, and they are typically expeditiously disciplined or otherwise dealt with in the face of their inappropriate behavior. The #MeToo Movement, Professor Arnow-Richman correctly points out, was the force that kicked up a lot of the dust that enabled us to see just how uneven this landscape has been. Specifically, she argues that as society begins to grapple with balancing aggressive policing of workplace harassment with ensuring that accused harassers are accorded fair treatment (rather than summary and automatic dismissal), it needs to address inequities among workers at different ranks in the workplace. Moreover, she notes, misconceived corporate responses have companies punishing sexualized actions, rather than policing sex-based harassment that is not sexual in nature. Having astutely pointed out that “employers are inclined to tolerate sexual harassment and other misconduct by top-level employees but aggressively police ‘inappropriate’ behavior by the rank-and-file” (P. 85), Professor Arnow-Richman then sets out to address this problem.

This piece is both important and timely

 

How the First Forty Years of Circuit Precedent Got Title VII's Sex Discrimination Provision Wrong

Jessica Clarke, How the First Forty Years of Circuit Precedent Got Title VII's Sex Discrimination Provision Wrong, Texas Law Review Online, Forthcoming

The Supreme Court will soon decide whether, under Title VII of the Civil Rights Act of 1964, it is discrimination “because of sex” to fire an employee because of their sexual orientation or transgender identity. There’s a simple textual argument that it is: An employer cannot take action on the basis of an employee’s sexual orientation or transgender identity without considering the employee’s sex. But while this argument is simple, it was not one that federal courts adopted until recently. This has caused some judges to object that the simple argument must be inconsistent with the original meaning of Title VII. In the words of one Fifth Circuit judge, “If the first forty years of uniform circuit precedent nationwide somehow got the original understanding of Title VII wrong, no one has explained how.”

This Essay explains how the first forty years of circuit precedent got Title VII wrong. It demonstrates that, rather than relying on the statutory text, early appellate decisions relied on their era’s misunderstanding of LGBTQ identities as pathological, unnatural, and deviant. The errors of the early cases persisted as a result of stare decisis, until the old doctrine was rendered indefensible by changing social attitudes, the rise of textualism, and the Supreme Court’s recognition that Title

New Study Shows Men have Responded to MeToo by Avoiding Women in the Workplace

Workplace Study Finds Men Have Responded to MeToo by Being Even Shittier

Instead of using MeToo as a learning opportunity to become more aware of the harassment most women generally face in the world at large and in the workplace specifically, a new study has found that many men have decided to go the opposite route and simply avoid women in the workplace full-stop.

 

The study out of the University of Houston was conducted across a range of industries and surveyed both men and women in 2018 at the height of MeToo and then again in early 2019 after the conversation had died down a bit.

 

The 2019 survey found that 27 percent of men surveyed have gone the Mike Pence route and now avoid one-on-one meetings with woman co-workers, 21 percent said they would now be more reluctant to hire women for roles that require close interaction, and 19 percent are reluctant to hire an “attractive” woman. Those numbers are up from 2018 when only 15 percent of men admitted to discriminating against women they wanted to bone.

 

And while many men said they were more likely to be sexist following reports of sexism because they can no longer tell which behaviors are making co-workers uncomfortable, the study also found that men and women pretty much agree on what constitutes harassment.

How the Equal Rights Amendment would Affect Women's Rights

 I'm quoted in this article in Time on the history and future of the ERA.

Tara Law, Time, The U.S. Constitution Doesn't Guarantee Equal Rights for Women. Here's Why.

When American women won the right to vote — a milestone commemorated on Women’s Equality Day, which marks the anniversary of the Aug. 26, 1920 certification that the 19th Amendment had been ratified — it was just one part of an even larger fight for equality. From Mary Church Terrell’s endeavors to make sure African-American women were included in the fight for suffrage, to Margaret Sanger’s work to promote access to birth control, to Ruth Bader Ginsburg’s efforts to eliminate sex discrimination in the law, women before and after that day in 1920 have fought for wider rights.

 

And yet, the U.S. Constitution does not say that people are equal regardless of their sex.

 

This fact came close to changing in 1972, when the U.S. legislature passed the Equal Rights Amendment (ERA), which stated that rights cannot be denied “on account of sex.” But after conservatives mobilized opposition to the ratification of the proposal, the amendment fell short of the three-quarters majority needed to add the ERA to the Constitution. Now, as the Equal Rights Amendment has regained momentum — with two more states, Illinois and Nevada, recently ratifying it — advocates say that there’s a new opportunity for the ERA to move ahead. ***

How would an Equal Rights Amendment affect women’s rights?

Although American women have made significant gains in equality since the 1970s — and certainly since the 1920s — advocates say that an Equal Rights Amendment could still have a profound effect on the law and on American society.

 

Advocates say that the amendment is help back by the sense among some people that it’s not necessary, but proponents argue that it could strengthen the legal basis for combating violence against women, pay inequality and maternity leave.***

 

Professor Tracy Thomas of The University of Akron School of Law tells TIME that the law would prevent women’s rights from sliding back, and eliminate some “wiggle room” that leaves space in the law for stereotypes to affect civil rights. She also argues that protecting women’s rights in the Constitution would have a major cultural impact.

 

“There’s this overriding structure of the highest law in the land that has this absolute command, and so that has to trickle down,” says Thomas. She says that recent events such as the rise of the #MeToo movement reveal how quickly society can change. “Once you start changing the culture and the dialogue, things that were acceptable become unacceptable really quickly.”

Awareness Can Help Hiring Committees Ensure that Implicit Gender Biases Don't Impact Decisions

Hiring Committees that Don't Believe in Gender Bias Promote Fewer Women

Our evidence suggests that when people recognize women might face barriers, they are more able to put aside their own biases," said Toni Schmader, a UBC psychology professor and Canada Research Chair in social psychology. "We don't see any favourability for or against male or female candidates among those committees who believe they need to be vigilant to the possibility that biases could be creeping in to their decision-making."

 

The study was unique in that findings were based on actual decisions made by 40 hiring committees in France, charged with filling elite research positions with the National Committee for Scientific Research (CNRS) for two consecutive years. Past research in this area has relied mostly on hypothetical scenarios, such as presenting a large sample of participants with identical resumés bearing either male or female names and asking who they would hire. By contrast, the decisions made during this study had real impact on scientists' careers.

 

With cooperation from the CNRS, the researchers were able to first measure how strongly hiring committee members associated men with science. They did this using an "implicit association test" that flashes words on a computer screen and measures how quickly participants are able to assign those words to a particular category. People who make a strong association between men and science have to think a bit longer, and react more slowly, when challenged to pair female-related words with science concepts....

 

When the researchers compared these implicit and explicit beliefs with the actual hiring outcomes, they learned that committees attuned to the barriers women face were more likely to overcome their implicit science/male associations when selecting candidates for the job. Among committees that believed "science isn't sexist," those which implicitly associated science more with men promoted fewer women. The difference was especially pronounced in Year 2 of the study, when committee members would have been less conscious of the fact that their selections were being studied.

 

The findings show that awareness and acknowledgement of the barriers women face might be key to making sure implicit biases don't affect hiring decisions. They also point to the importance of educating hiring committees about gender bias and how to guard against it, Schmader said.

New Progressive Oregon Family Leave Law First in Nation to Cover Minimum-Wage Workers

Oregon Paid Leave Law is Nation's First to Fully Cover Lowest Wages

Oregon Gov. Kate Brown on Friday signed what advocates are calling the nation’s most progressive paid family and medical leave measure, making the state the first in the country to offer 100% wage replacement for minimum-wage workers.

 

The law, which will pay out benefits beginning in 2023, gives 12 weeks paid time off to new parents, victims of domestic violence and those who become ill or need to care for a sick family member. It also includes people who may be in the country illegally and those working part time. Residents need to work 1,000 hours a year to qualify.

 

The state joins eight others and the District of Columbia in offering paid family leave.

 

“This is one of the most inclusive and equitable paid leave laws in the country,” said Andrea Paluso, executive director of Family Forward, the advocacy group who helped craft the bill. “It’s accessible to nearly every worker and provides enough benefits so people can just focus on taking care of themselves or their families when they need to.”

 

The law allows workers to take time off not only to care for blood relatives, but also for significant others, friends and other close associates that are the “equivalent of a family relationship.”

 

Workers will also be able to take paid leave in non-consecutive increments, allowing those with chronic illnesses to take time off when needed.

The Increasing Use of Anonymous Pseudonyms in Sexual Harassment Cases

Erin Mulvaney & Hassan Kanu, Anonymous Workplace Harassment Suits Double in #MeToo Era

The workers wanted to hold their former employers accountable for alleged harassment and discrimination. What they feared was using their names to do so.

 

Since the start of 2019, courts have confronted: a woman who didn’t want the details of an alleged sexual assault made public; a man who said he was harassed for being gay but didn’t want his sexuality revealed to his family; and a group of women who feared “career suicide” as they challenged what they describe as a fraternity culture in their workplace.

 

They wanted to sue under pseudonyms. But in each case, workers wrestled with the difficult choice of whether to go forward publicly, risking retaliation and embarrassment. Attorneys who represent workers say forcing employees to proceed under those circumstances can create a chilling effect, provide leverage to companies, and may mean that alleged victims fear coming forward.

 

These cases are among the growing number of discrimination lawsuits filed in recent years that forced courts to balance potential harm to plaintiffs with the company and public’s right to an open judicial system.

 

A Bloomberg Law analysis showed that discrimination and harassment lawsuits filed anonymously doubled in the wake of the ongoing #MeToo movement. There were 52 of those suits filed in 2018, up from 24 the previous year and just 17 in 2016. They’re on pace to reach 2018 levels this year as well, with 24 filed through the first half of 2019—about as many as in all of 2015 through 2016.

See also Female FBI Trainees Can Pursue Class Suit Anonymously, For Now

Study Shows Women and Men are Treated Differently at Work

Harvard Business Review, A Study Used Sensors to Show that Men and Women are Treated Differently at Work

Gender equality remains frustratingly elusive. Women are underrepresented in the C-suite, receive lower salaries, and are less likely to receive a critical first promotion to manager than men. Numerous causes have been suggested, but one argument that persists points to differences in men and women’s behavior.

 

Which raises the question: Do women and men act all that differently? We realized that there’s little to no concrete data on women’s behavior in the office. Previous work has relied on surveys and self-reported assessments — methods of data collecting that are prone to bias. Fortunately, the proliferation of digital communication data and the advancement of sensor technology have enabled us to more precisely measure workplace behavior.

 

We decided to investigate whether gender differences in behavior drive gender differences in outcomes at one of our client organizations, a large multinational firm, where women were underrepresented in upper management. In this company, women made up roughly 35%–40% of the entry-level workforce but a smaller percentage at each subsequent level. Women made up only 20% of people at the two highest seniority levels at this organization.***

 

But as we analyzed our data, we found almost no perceptible differences in the behavior of men and women. Women had the same number of contacts as men, they spent as much time with senior leadership, and they allocated their time similarly to men in the same role. We couldn’t see the types of projects they were working on, but we found that men and women had indistinguishable work patterns in the amount of time they spent online, in concentrated work, and in face-to-face conversation. And in performance evaluations men and women received statistically identical scores. This held true for women at each level of seniority. Yet women weren’t advancing and men were.

 

The hypothesis that women lacked access to seniority, in particular, had little support. In email, meeting, and face-to-face data, we found that both men and women were roughly two steps, or social connections, away from senior management (so if John knows Kate and Kate knows a manager, John is two steps from a manager).

 

Some have argued that women lack access to important, informal networks because they don’t reach out to or spend time with “the boys club.” But this didn’t hold up in our data. We found that the amount of direct interaction with management was identical between genders and that women were just as central as men in the workplace’s social network.

 

Our analysis suggests that the difference in promotion rates between men and women in this company was due not to their behavior but to how they were treated. This indicates that arguments about changing women’s behavior — to “lean-in,” for example — might miss the bigger picture: Gender inequality is due to bias, not differences in behavior.

The Transnational Reach of MeToo in Phenomenon and Theory

Farnush Ghadery, "#MeToo – Has the ‘Sisterhood’ Finally Become Global or Just Another Product of Neoliberal Feminism?" , Transnational Legal Theory (vol. 02, 2019)

The article discusses the #MeToo movement by reflecting on its origins and recent developments to consider its position within feminist theory. On the one hand, the cross-border proliferation of this hashtag revived the question once posed by liberal feminist Robin Morgan: Has the ‘sisterhood’ finally become global? Others questioned the deeper meaning of the ‘me’ as part of #MeToo, wondering whether the need for individual responsibility to come forward indicates that the movement fits only too well with what has been coined neoliberal feminism. Disagreeing with both categorisations, the article positions #MeToo as a transnational feminist consciousness-raising endeavour which can be traced across different places worldwide. Referring to some of these contextualised uses of #MeToo, the article argues that #MeToo has been able to manifest itself as a transnational feminist phenomenon, as it has allowed groups in distinct spaces and localities to take ownership of the varying manifestations of #MeToo.

Video Recording Symposium on Applied Feminism and #MeToo

Center for Applied Feminism, Univ. of Baltimore, Video Recordings from Applied Feminism and #MeToo (April 2019)

 The center co-sponsored with the UB Law Review the 11th Feminist Legal Theory Conference: Applied Feminism and #MeToo. The conference mixed activism and scholarship focusing on sexual harassment and gender-based violence law. Sixteen scholars and practitioners presented papers concerning a wide array of legal topics, from sexual assaults during police searches to the credibility of survivors in courtrooms.

The keynote speaker was Debra Katz, the lawyer who represented Christine Blasey Ford during the confirmation hearings for now-Justice Brett Kavanaugh. In addition, hotel workers from a union presented about being sexually harassed and their campaign to end such treatment in hotels. Center members continued to work with UB law students and the Reproductive Justice Inside coalition to create model policies for reproductive health care and menstrual hygiene product access for Maryland correctional facilities.

What's Reasonable Now? Changing the Sexual Harassment Law after the MeToo Shift

Joan Williams, Jodi Short, Margot Brooks, Hilary Hardcastle, Tiffanie Ellis, Rayna Saron, "What's Reasonable Now? Sexual Harassment Law after the Norms Cascade" , Michigan State L. Rev. (2019) 

This Article asks whether Brooks v. San Mateo and four other appellate hostile-environment sexual harassment cases that have each been cited more than 500 times remain good precedent in the light of the norms cascade precipitated and represented by #MeToo. The analysis is designed to interrupt the “infinite regression of anachronism,” or the tendency of courts to rely on cases that reflect what was thought to be reasonable ten or twenty years ago, forgetting that what was reasonable then might be different from what a reasonable person or jury would likely think today. These anachronistic cases entrench outdated norms, foreclosing an assessment of what is reasonable now. To interrupt this infinite regression, this Article pays close attention to the facts of the cases-in-chief discussed below enabling the reader, and the courts, to reassess whether a reasonable person and a reasonable jury would be likely to find sexual harassment today.

The Details on the US Women's Soccer Team's Lawsuit for Pay Discrimination

The lawsuit is Morgan, et al. v. US Soccer Federation (C.D. Cal.) (filed 3/8/19)

National Review, US Women's Soccer: Equal Pay Lawsuit Not a Simple Case

The team’s lawsuit alleging pay discrimination against the U.S. Soccer Federation has done much to define its identity. A nearly perfect run through the World Cup has been widely interpreted as vindication of the merits of its case, so much so that fans chanted “equal pay” after the U.S. victory in the final over the Netherlands and booed the head of FIFA, the sponsor of the World Cup, during the trophy ceremony.

It is true that the American women, who sweat and practice as much as their male compatriots (perhaps more, given their superior results), don’t make as much. But the women’s game isn’t as popular or profitable, which fundamentally drives pay.

The total prize money for the women’s 2019 World Cup was $30 million, with the champion taking away about $4 million. The total prize money for the men’s 2018 World Cup was $400 million, with the champions winning $38 million.

Vox, US Women's Soccer Team: What's Next in the Their Fight for Equal Pay

The 28 players on the women’s national team sued the federation in March, alleging that they are paid less than their counterparts on the US men’s national team even though they win more games and bring in more money. According to the suit, a top-tier women’s player could earn as little as 38 percent of what a top-tier men’s player makes in a year, a gap of $164,320. That gap closed a bit with a new collective bargaining agreement in 2017, but the players still say they’re paid unfairly.

“These athletes generate more revenue and garner higher TV ratings but get paid less simply because they are women,” said Molly Levinson, a spokesperson for the team in their lawsuit, in a statement to Vox. “It is time for the Federation to correct this disparity once and for all.”

The soccer federation agrees that the men’s and women’s teams are not paid the same but has said it’s impossible to compare the teams because their pay structures are so different. The two groups have agreed to mediation in an effort to resolve the suit out of court.

Wash Post Are US Women's Soccer Players Really Earning Less than Men?

Gender Law Prof Blog, US Women's Soccer Team Sues US Soccer for Gender Discrimination (March 2019)

NY Times, US Women's Team and US Soccer Agree to Mediation Over Gender Discrimination Claim

Soccer America, Key Legal Issues in US Women's Discrimination Lawsuit Explained by Prof. Steven Bank

 

Connecticut Passes Most Generous Family Leave in the US

Connecticut Passes Most Generous Paid Family Leave in the U.S.

Connecticut is poised to become the seventh state in the U.S. to provide paid time off to new parents and caregivers, adding further fuel to paid family leave as an issue in the 2020 elections.

 

Democratic governor Ned Lamont plans to sign the bill “ASAP,” according to a spokeswoman. When he does, Connecticut will join New York and New Jersey in offering the benefit, effectively making the New York metropolitan area a paid family leave zone for new parents.

 

If signed, then starting in 2021, workers in Connecticut would get 12 weeks off to care for a new baby, a seriously ill family member or loved one or to deal with their own illness. The benefit will be funded by a payroll tax on workers of 0.5 percent. Benefits will cover 95 percent of low-wage workers’ pay up to $900 a week, the most generous level of wage replacement in the country. New York currently offers 55 percent wage replacement, increasing to 66 percent when its policy is fully phased in.***

 

The new law adds fuel to the growing momentum behind paid family leave. Since 2016, three other states and Washington, D.C., have passed paid leave. And another bill is moving forward in Oregon as well.

 

The Potential Negative Effect of Salary History Bans on High-Performing Women Employees

Jeffrey Meli & James Spindler, Salary History Bans and Gender Discrimination 

A number of important jurisdictions have recently enacted salary history bans to combat the gender pay gap. This paper examines the effect of such bans by developing a novel, tractable economic model of unconscious bias in the workplace: some firms consistently but unconsciously under-evaluate the productivity of their female workers. In a Bayesian setting, a worker and his or her employer learn about worker quality over time by observing worker productivity; a worker’s salary thus conveys information about the employer’s inference of worker quality. A lateral employee market exists, and female workers who find themselves underpaid may choose to switch firms. We find that, under assumptions of non-strategic firm behavior, bans can reduce the gender wage gap, but do so at the expense of high-performing women; switching from discriminatory employers requires high-performing women to give up their history of high performance, and they may be effectively trapped at discriminatory firms. When firms are strategic (meaning they infer the reasons for employees’ switching behavior), bans do not reduce the gender wage gap; adverse selection results, which has an even more pronounced effect of trapping high-performing women by imposing greater switching costs on them. We find that a well-functioning job-switching market ameliorates unconscious bias and the gender wage gap, and that the wage gap (and the welfare of working women, particularly high-performers) is better addressed through policies that promote efficient job switching.

Why the ABA's New Rule Addressing Harassment and Discrimination is So Important for Women Working in the Legal Profession Today

Kristy D'Angelo-Corker,  Don't Call me Sweetheart!:Why the ABA's New Rule Addressing Harassment and Discrimination is so Important for Women Working in the Legal Profession Today, 23 Hofstra L. Rev. 263 (2019)

Popular culture has recently shone a spotlight on the inequality and discrimination faced by women in many professions. With the “Me Too” and “Time’s Up” campaigns in full swing, it is clear that women are ready to fight to be respected and receive equal treatment. Although there are a plethora of news stories highlighting the issues that women are facing today, this Article will focus specifically on the effect of bias, prejudice, harassment, and discrimination against women in the legal profession. This discrimination and marginalization of women finds its way into law firms, courtrooms, and the corporate arena generally, and impacts not only the female attorneys and judges themselves, but also the clients and litigants that these women are serving. The American Bar Association (“ABA”), long committed to diversity and leading the professional legal community regarding “appropriate” conduct, has finally put an anti-discrimination, anti-harassment provision into effect to combat
discriminatory behavior on a national level.

This Article argues that although the ABA’s adoption of Resolution 109 to amend Rule 8.4 is a necessary first step to remedy the issues that women in the legal profession are currently facing, education and training initiatives must also be established. This training should take the form of Bias Training in law schools (as part of the Professional Responsibility requirements), in law firms, and as mandatory CLE requirements for practicing attorneys.

New Book -- Reckoning: The Epic Battle Against Sexual Abuse and Harassment

New book, Linda Hirshman, Reckoning: The Epic Battle Against Sexual Abuse and Harassment (2019)

Linda Hirshman, acclaimed historian of social movements, delivers the sweeping story of the struggle leading up to #MeToo and beyond: from the first tales of workplace harassment percolating to the surface in the 1970s, to the Clinton/Lewinsky scandal—when liberal women largely forgave Clinton, giving men a free pass for two decades. Many liberals even resisted the movement to end rape on campus. 

And yet, legal, political, and cultural efforts, often spearheaded by women of color, were quietly paving the way for the takedown of abusers and harassers. Reckoning delivers the stirring tale of a movement catching fire as pioneering women in the media exposed the Harvey Weinsteins of the world, women flooded the political landscape, and the walls of male privilege finally began to crack. This is revelatory, essential social history.

Hirshman also wrote the book, Sisters in Law: How Sandra Day O'Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World.  

Supreme Court Grants Cert to Resolve Circuit Split on Whether LGBTQ Bias is "Sex" Discrimination under Title VII

The US Supreme Court granted cert today in Altitude Express v. Zarda, RG & GR Harris Funeral Homes v. EEOC, and Bostock v. Clayton County on the question of "Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins, 490 U. S. 228 (1989)."

Wash Post, Supreme Court to Decide if Anti-Harassment Employment Laws Protect on Basis of Sexual Orientation and Gender Identity

The Supreme Court on Monday added what could be landmark issues to its docket for the next term: whether federal anti-discrimination laws protect on the basis of sexual orientation and gender identity.

 

The court accepted three cases for the term that begins in October. They include a transgender funeral home director who won her case after being fired; a gay skydiving instructor who successfully challenged his dismissal; and a social worker who was unable to convince a court that he was unlawfully terminated because of his sexual orientation.

 

The cases shared a common theme: whether Title VII of the Civil Rights Act of 1964, which forbids discrimination on the basis of sex, is broad enough to encompass discrimination based on gender identity or sexual orientation.

Bloomberg, Supreme Court Can Settle Split on LGBT Bias in the Workplace

At least nine federal circuit courts ruled in decisions prior to 2007 that sexual orientation wasn’t covered by Title VII of the 1964 Civil Rights Act, which prohibits bias against workers and job applicants based on their “sex.” The tide began to shift in 2015, when the Equal Employment Opportunity Commission decided in a federal sector case that Title VII does apply to sexual orientation.

 

In a groundbreaking decision in 2017, the U.S. Court of Appeals for the Seventh Circuit became the first federal appeals court to rule that Title VII covers sexual orientation when it said a lesbian job applicant could sue an Indiana community college for discrimination. While the Eleventh Circuit decided earlier that year that the law doesn’t apply to sexual orientation, the Second Circuit deepened the split in the courts with its 2018 ruling that it does.

The Supreme Court Just Took Up a Set of Very Big Cases on LGBTQ Rights

The Court agreed to hear three cases that have to do with whether existing federal bans on sex discrimination in the workplace also prohibit discrimination based on sexual orientation or gender identity. In the consolidated Altitude Express Inc. v. Zarda and Bostock v. Clayton County, Georgia, a skydiving instructor and a child welfare services coordinator, respectively, said they were fired for being gay. And in R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, a funeral home employee said she was fired because she came out as transgender.***

 

The cases cover a big gap in LGBTQ rights in the US: Under federal and most states’ laws, LGBTQ people aren’t explicitly protected from discrimination in the workplace, housing, or public accommodations (like restaurants, hotels, and other places that serve the public).

US Senators Propose Anti-Sexual Harassment Bill, the "Be Heard Act"

Dems Unveil Anti-Workplace Harassment Bill

A group of Democratic lawmakers on Tuesday unveiled a bill aimed at strengthening protections against harassment in the workplace, including sexual harassment.

 

Sen. Patty Murray (D-Wash.) and Democratic Reps. Katherine Clark (Mass.), Ayanna Pressley (Mass.), Elissa Slotkin (Mich.) and Debbie Mucarsel-Powell(Fla.) introduced the "Be HEARD Act," which stands for Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination in the Workplace.

 

Several 2020 Democratic presidential contenders have also signed onto the legislation, including Sens. Kamala Harris (D-Calif.), Elizabeth Warren(D-Mass.), Kirsten Gillibrand (D-N.Y.), Bernie Sanders (I-Vt.), Amy Klobuchar(D-Minn.) and Cory Booker (D-N.J.), among other senators.

 

The legislation aims to eliminate the tipped minimum wage, which largely leaves service worker pay up to customers, as well as end mandatory arbitration and pre-employment nondisclosure agreements and give workers more time to report harassment, among other provisions.

Democrats' Bill to Fight Sexual Harassment, Explained

On Tuesday, Democrats in Congress will introduce legislation aimed at helping those workers. Called the Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination (BE HEARD) in the Workplace Act, it would close loopholes in federal discrimination law that leave many domestic workers without legal protections from sexual harassment. It would authorize grants for low-income workers to help them seek legal recourse if they are harassed. And, crucially for food service workers like Tucker, it would eliminate the lower minimum wage for tipped workers, which many say makes servers vulnerable to harassment by customers.

 

“Some women did and do still think that in order to make the extra tip, they have to ignore unwanted touches and unwanted comments,” Tucker said, “and we shouldn’t have to.”

 

The legislation could face an uphill battle in a Republican-controlled Senate. But it’s an example of a larger move toward systemic changes that would go beyond deposing a few big-name men, and help the many workers in America whose harassment never makes the news.

Legal Rules of Professional Ethics as an Enforcement Mechanism Against Gender Violence and Harassment

Katherine Yon Ebright, Taking #MeToo Seriously in the Legal Profession, 32 Georgetown J. Legal Ethics (2019)

With the advent of the #MeToo movement, we have seen unprecedented interest in taking, and real initiatives to take, gender violence and harassment seriously. Actors and directors have been forced out of Hollywood. Conductors have been forced out of their concert halls, chefs out of their kitchens, professors out of the hallowed halls of academia. What of the legal profession? Attorneys are rarely professionally sanctioned for committing rape, sexual assault, sexual harassment, or domestic violence. Indeed, some jurisdictions have interpreted these gendered acts as falling outside the ambit of the rules of professional conduct.

This Article examines how the legal profession has thus far addressed gender violence and harassment, as well as how it might do so in the future. Part I reviews different states’ rules of professional conduct and their interpretations with respect to gender violence and harassment. It homes in on state-to-state discrepancies in interpreting certain shared provisions that could be used for disciplining rape, sexual assault, sexual harassment, and domestic violence. Part II then reviews enforcement patterns for states that either do or might professionally sanction gender violence and harassment. Noting that enforcement rates are staggeringly low, Part II identifies deficiencies in the rules of professional conduct that permit abusers to keep practicing without professional sanction. Part III concludes by proposing a series of reforms that would harmonize states’ understandings of gender violence and harassment and address, to some extent, the enforcement problem.