Gender and the Law Prof Blog

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

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

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

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

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

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

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

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

Normalizing Menopause and Finding the Appropriate Legal Frameworks

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

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

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

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

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

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

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

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

How Americans Talk About MeToo and Law

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

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

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

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

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

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

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

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

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

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

How Sexual Harassment Law Failed its Feminist Roots

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

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

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

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

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

 

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

 

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

 

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

 

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

 

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

 

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

‘Institutional misogyny’

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

 

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

 

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

 

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

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

 

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

 

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

Understanding the Gender-Based Power Imbalances of Corporate Governance

Amelia Miazad, Sex, Power, and Corporate Governance, 54 U.C. Davis L. Rev. (2020)

For decades, social scientists have warned us that sexual harassment training and compliance programs are ineffective. To mitigate the risk of sexual harassment, they insist that we must cure its root cause — power imbalances between men and women.

Gender-based power imbalances pervade our corporate governance and plague start-ups and billion-dollar companies across sectors and industries. These power imbalances start at the top, with the composition of the board and the identity of CEOs and executive management. Pay inequity and boilerplate contractual terms in employment contracts further cement these imbalances.

In response to the #MeToo movement, key stakeholders are shifting their focus from compliance to corporate culture for the first time. This influential group of stakeholders, which includes investors, employees, regulators, D&O insurance carriers, and board advisors, are asking companies to uproot gender-based power imbalances. As a result of mounting pressure, seismic corporate governance reforms are underway. Boards are becoming more gender diverse, companies are beginning to address pay inequity and abandon mandatory arbitration and non-disclosure agreements, and boards are holding CEOs to account for sexual harassment and misconduct.

While the “old boys’ club” is still thriving in corporate America, this Article is the first comprehensive account of how the power imbalances on which it depends are shifting. 

Study Documents Gender Pay Disparities Among Tenured Law Faculty, Particularly Acute for Women of Color

CJ Ryan & Meghan Dawe, Mind the Gap: Gender Pay Disparities in the Legal Academy, Georgetown J. Legal Ethics (forthcoming)

Differences in pay between women and men in the same jobs have captured the public’s attention in recent years. However, public interest in and press coverage of salary differences on the basis of gender—or any other ascriptive class—in the learned professions are wanting. Moreover, few studies have spoken directly on the gender pay disparities in the legal academy, despite emerging evidence of it at multiple law schools. In this Article, we use a unique dataset, drawn from the only nationally representative survey to date of tenured law professors in the United States, to track how gender and race are tied to salary outcomes. But we look beyond the raw differences in salary, probing the mechanisms that undergird gendered pay inequities.

Part I of this Article introduces the concepts of human capital and social capital as important factors underpinning inequalities in outcomes for the legal profession. We then provide an overview of how careers in law—and particularly in the legal academy—are stratified by access to social capital and returns to human capital. In Part II, we introduce the After Tenure survey, from which our data originate. Next, we describe our analytical approach, examining the demography of the legal academy and the legal profession more broadly to discuss the ways in which law professors experience their jobs differently along lines of gender and race. In Part III, we provide evidence of gendered earnings disparities among tenured law professors that is particularly acute for women of color. We conclude by demonstrating how these disparities stem from the differential valuation of human capital., 

Study Finds that Women in Leadership Reduces Workplace Sexual Harassment

Shiu-Yik Au, Andreanne Tremblay & Leyuan You, "Times Up: Does Female Leadership Reduce Workplace Sexual Harassment?" 

We examine the role of female leadership in reducing the incidence of workplace sexual harassment. We estimate the incidence rate of sexual harassment through textual analysis of employees’ job reviews, published online during the period 2011-2017. We find that firms with a higher proportion of women on the board of directors experience less sexual harassment. An increase of one female director is associated with an 18.2% decrease in the sexual harassment rate. The effect is both statistically and economically significant and is not limited to female directors as we find similar results with female CEO and executives. The mechanism for reduced sexual harassment is linked to overall improved social policies. Our results are robust to several adjustments for endogeneity concerns.

Gendered Complications of Covid-19: Towards a Feminist Recovery Plan

Naomi Cahn & Linda McClain, Gendered Complications of Covid-19: Towards a Feminist Recovery Plan, Georgetown Journal of Gender and the Law, 2020

Gendered inequalities are on the frontlines of Covid-19. The catalogue of Covid-19’s impact covers all aspects of women’s lives: work, family, education, health, reproduction, mental and physical well-being, and leisure. The pandemic has exposed the limitations in the current economic system on public and private support for gender equity and the intersecting impact of gender, race, and class in that lack of support. Women of color, particularly Black, Latina, and Native American, are at the intersection of the inequities in the emerging stay-at-home economy. This Article argues that Covid-19 is likely to have complex implications for gender equality and gender equity as state and local governments, the federal government, and private actors focus on recovery plans. The negative impact includes hundreds of thousands of deaths, lingering health complications for many among the several million people who have already contracted the virus, massive economic disruption and loss for individuals, families, and communities and the exacerbation of structural inequalities. The creative policy responses prompted by the devastating impact of Covid-19 provide promise for building a more transformative and equitable future. Indeed, any roadmap to resilience is incomplete without addressing the gender inequities in our social infrastructure. Proposing a feminist recovery plan, this Article focuses on a set of issues relating to gender inequities concerning work and family, including the gender pay gap, the child care crisis, and the disproportionate role of women—particularly, women of color— in providing essential but undervalued care work.

Using Federal Human Trafficking Law to Redress Gender-Based Violence Including MeToo Claims

Julie Dahlstrom, Trafficking to the Rescue?, 54 UC Davis L. Rev. (forthcoming)
 

Since before the dawn of the #MeToo Movement, civil litigators have been confronted with imperfect legal responses to gender-based harms. Some have sought to envision and develop innovative legal strategies. One new, increasingly successful tactic has been the deployment of federal anti-trafficking law in certain cases of domestic violence and sexual assault. In 2017, for example, victims of sexual assault filed federal civil suits under the Trafficking Victims Protection Reauthorization Act (“TVPRA”) against Hollywood producer Harvey Weinstein. Plaintiffs argued that the alleged sexual assault conduct amounted to “commercial sex acts” and sex trafficking. Other plaintiffs’ lawyers have similarly invoked trafficking law against a range of defendants, such as fundamentalist leader Warren Jeffs, Olympic Taekwondo coach Jean Lopez, and well-known photographer Bruce Weber. These efforts have largely succeeded, as federal district courts signal broader judicial acceptance of such federal trafficking claims.

This Article traces federal human trafficking law from its origins to these recent innovative cases. It then considers how civil litigators are turning to human trafficking statutes to overcome decades-old systemic problems with legal responses to gender-based violence. The Article explores how the TVPRA offers unique, pragmatic advantages for plaintiffs. Yet, this trend involves risks, as the expanding deployment of trafficking statutes may lead to constitutional challenges, disproportionate criminal penalties, and confusion about the meaning of trafficking as a legal concept. This Article examines what these efforts signal about the future of human trafficking law as well as the field of gender-based violence.

Case Behind SCOTUS Walmart Decision on Class Actions for Gender Discrimination to be Netflix Show

Walmart Legal Saga to Become Netflix Show Starring Amy Adams

A legal fight against Walmart Inc. that became the largest employment class-action lawsuit in history will become a series at Netflix Inc. from actress Amy Adams and “The Big Short” director Adam McKay.

 

“Kings of America” will follow three women involved in the lawsuit, which went to the Supreme Court in 2011: a Walmart heiress, an executive and a saleswoman at the retail chain. Adams stars as one of the women, and McKay will direct the first episode of the series.

 

The case involved female employees suing Walmart for alleged gender discrimination -- including pay disparities and favoring male workers -- on behalf of potentially more than a million employees. That made it the largest lawsuit of its kind. Walmart is the biggest private employer in the U.S. and the world’s largest company based on revenue.

 

With billions of dollars at stake for Walmart, the Supreme Court blocked the suit from proceeding as a class action in a 5-4 vote in June 2011. The late Justice Antonin Scalia argued there was no “convincing proof of a companywide discriminatory pay and promotion policy.”

The Invisible Older Victims of Sexual Violence

Ruthy Lowenstein Lazar, Me Too? The Invisible Older Victims of Sexual Violence, 26 Mich. J. L. & Gender 209 (2020)

A review of legal research on violence against women and elder abuse reveals a disturbing picture. There is hardly any American legal research examining sexual abuse of older women and its conceptualization in legal literature and treatment in the legal system.

This Article attempts to fill the abovementioned gap and to bring the hidden issue of sexual violence against older women to light. Scholars writing on rape, violence against women, and elder abuse tend to analyze age and gendered sexual violence separately from each other, without accounting for their interplay. This Article proposes a conceptual framework of sexual abuse of older women that integrates age and gender in the analysis.

To achieve this end, this Article examines 109 publicly available American cases involving sexual violence against women over the age of 60, between the years 2000 and 2018, which are based on a search of 1,308 American cases. Based on this new empirical database, this Article offers an opportunity for analyzing the social and legal “taboo” regarding sexual abuse of older women.

Despite findings indicating that sexual abuse of older women (and older people in general) is a significant issue creating serious consequences for victims, the Article shows that legal actors, social workers, health professionals, family members, and society miss its signs. Sexual abuse of older women is being noticed and treated by the criminal justice system only when it reflects a “real rape” scenario. The obstacles to effective prosecution and to full access to the criminal justice system are distinctive in the case of older victims because of the effect of age, the way age shapes the experience of older victims of sexual violence, the effects of sexual violence on the victims, and its interplay with gender.

Although sexual violence against older women is a form of elder abuse, it should be viewed separately from other forms of elder abuse and should be understood as part of a wider context of gender-based violence. There is a need for a holistic approach to sexual violence of older women, which perceives the sexual violence as a unique phenomenon and provides older women with legal and social mechanisms that fit their needs and experience both as women and elderly people.

Restorative Justice Approaches for MeToo

Julie Goldscheid, #MeToo, Sexual Harassment and Accountability: Considering the Role of Restorative Approaches, Ohio State J. Dispute Resolution, Forthcoming

Questions about the meaning of accountability for civil rights violations, and about what role the law can play in advancing accountability, are critically important to law reform. With respect to gender violence, the #MeToo movement has prompted widespread recognition of what feminists have long known, that sexual harassment is pervasive both in and out of the workplace. Yet its persistence, notwithstanding sexual harassment laws and policies that now have been on the books for decades, should spur reflection about what law and policy reforms actually would deter and prevent harassment, and what approaches would meaningfully advance equality at work.

Sexual harassment at work lies at the intersection of parallel critiques of anti-discrimination law and of criminal legal interventions in response to gender violence. Both critiques should be taken into account in developing workplace responses to sexual harassment. In both contexts, commentary as well as pilot programs have begun to explore the possibility of incorporating restorative programs to promote healing and redress harms.

This Article builds on those foundations and argues that workplaces should integrate restorative approaches into the options available to workers who raise sexual harassment complaints. It summarizes, and draws parallels between critiques of criminal legal regimes addressing gender violence, on the one hand, and workplace discrimination, on another. It describes principles common to restorative justice approaches and reviews the emerging research on the use of restorative justice with gender violence cases. It offers a beginning assessment of how restorative justice approaches might be incorporated into workplace sexual harassment responses, and identifies challenges that will have to be addressed for effective implementation.

Federal Judge Rejects Weinstein Settlement, Saying it Fails to Adequately Compensate Victims and Creates Inequality Among Victims

NPR, Federal Judge Rejects Harvey Weinstein's $19 Million Settlement with Alleged Victims 

A federal New York judge has thrown out a proposed $18.9 million settlement between convicted rapist and former movie producer Harvey Weinstein, and several women.

 

U.S. District Judge Alvin Hellerstein said the offer failed to adequately compensate many of the victims who allege they were sexually assaulted or raped by Weinstein.

 

He also faulted the money included in the settlement that would help pay Weinstein's legal bills.

 

In a telephone hearing, Hellerstein said it was unfair to include women who'd merely met Weinstein with those making more grievous charges, Reuters reported.

 

"Not every woman was captured in the same way," Hellerstein said. "Your settlement would create inequality among all of those people."

 

Under the proposal, which was drafted after years of negotiation, each woman would have been entitled to file a claim for up to $750,000. A sum attorneys representing alleged victims say doesn't come close to covering the pain, suffering and legal costs many of the women have faced.

 

Weinstein would not have admitted any wrongdoing under the settlement.

See also Wash Post, Judge Rejects Tentative $19M Weinstein Deal with Accusers

MeToo - What Next?

Deborah Rhode, #MeToo: Why Now? What Next?, Duke L. J. (2019)

This Essay explores the evolution, implications, and potential of #MeToo. It begins by reviewing the inadequacies of sexual harassment law and policies that have permitted continuing abuse and that prompted the outrage that erupted in 2017. Discussion then turns to the origins of the #MeToo movement and assesses the changes that it has propelled. Analysis centers on which changes are likely to last and the concerns of fairness and inclusion that they raise. A final section considers strategies for sustaining the positive momentum of the movement and directing its efforts toward fundamental reform.

Minnesota Supreme Court Reaffirms Severe and Pervasive Standard for Sexual Harassment

Minnesota's Top Court Declines to Toss Out "Severe or Pervasive" Test in Bias Cases

The Minnesota Supreme Court has reaffirmed the requirement that workers alleging they were subjected to a hostile work environment under state law prove that harassment was “severe or pervasive” in order to prevail.

The seven-member court in a unanimous decision on Wednesday rejected a bid by Assata Kenneh, who says nonprofit residential care facility operator Homeward Bound Inc fired her for complaining about sexual harassment, to lower the bar for plaintiffs to show that discrimination interfered with their ability to work.

To read the full story on Westlaw Practitioner Insights, click here: bit.ly/2Bz9E9o

Minnesota's "severe or pervasive" standard was borrowed from jurisprudence developed under Title VII of the Civil Rights Act of 1964, the federal law barring workplace discrimination. Kenneh argued that the standard was confusing, and was not necessary because unlike Title VII, Minnesota law contains a precise definition of sexual harassment.

 

But the court said the standard reflected a "common-sense understanding" that sexual harassment must be "more than minor" to create a hostile work environment.

 

Homeward Bound hired Kenneh to work at a residential facility for people with disabilities in 2014, and two years later she transferred to a different facility and transitioned into a role as a program resource coordinator. Kenneh claims that in the few months after her transfer, the company's maintenance supervisor routinely made sexually-charged comments and gestures, including licking his lips and telling Kenneh she was "beautiful" and "sexy."

 

Kenneh complained and while the maintenance supervisor denied her claims, he was told to cease the behavior and not to be alone with Kenneh. But the harassment did not stop, she says, and she was ultimately fired after asking for a more flexible schedule so she could avoid the supervisor.

 

Kenneh sued Homeward Bound in state court in Minneapolis, accusing the company of creating a hostile work environment and retaliation in violation of state anti-discrimination law. Homeward Bound denied the claims and said Kenneh was fired over performance and attendance issues.

 

A state judge in 2018 granted the company's motion to dismiss. He said the supervisor's conduct was "boorish and obnoxious," but that Kenneh had failed to meet the high bar of showing that it was either severe or pervasive.

 

A mid-level appeals court last year affirmed. Kenneh appealed, arguing that requiring plaintiffs to prove conduct was severe or pervasive places a higher bar on them than the text of the state law. The law defines sexual harassment as "unwelcome sexual advances or communication of a sexual nature (that) has the purpose or effect of substantially interfering with an individual's employment."

 

Kenneh's lawyers argued that the federal standard, which Minnesota courts began applying to state-law claims in 1986, has been applied inconsistently and created confusion, and was different from proving substantial interference.

 

The Minnesota Supreme Court on Wednesday disagreed. Anti-discrimination law is not a "general civility code," Justice Anne McKeig wrote for the court, and the severe or pervasive standard ensures that only conduct that a reasonable person would find abusive or hostile is actionable.

 

The case is Kenneh v. Homeward Bound Inc, Minnesota Supreme Court, No. A18-0174.