Friday, October 15, 2021

#MeToo: Unintended Consequences for Sponsorship of Women in the Workplace

Ann C. McGinley, #MeToo Backlash or Simply Common Sense?: It’s Complicated, 50 Seton Hall L. Rev. 1397 (2020).

The #MeToo movement brought much needed awareness and momentum to societal and workplace culture change.  Indeed, some perceive that the “movement has led to increased employer response, including updating of sexual harassment policies, providing guidance about appropriate work behavior, providing information about reporting harassment, and stopping or removing problematic employees.”  Unfortunately, the movement has also led to unintended effects of decreasing sponsor and mentor opportunities for women by men in leadership who fear sexual harassment allegations. Such fears, as discussed in this article, arise from stereotypes prohibited by law and include an unsupported presumption of frequent false allegations, not to mention are predicated on a heterosexual worldview. These fears can lead to men in positions of leadership refusing to engage in common work activities such as “mentoring, socializing, one-on-one meetings,” and travel with a female colleague or subordinate, although they will engage in these activities with similarly situated male colleagues. While this article acknowledges that something needs to be done to address these fears, Professor McGinley is adamant that “refusing to mentor and sponsor female lawyers is not the way to go.” 

In fact, it is detrimental to the advancement of women in the workplace. “Research demonstrates the importance of sponsorship, particularly for women and people of color” and “[i]n order for women to succeed [equivalent to their male counterparts], men must actively mentor and sponsor them.”  This is because, as Professor McGinley points out, that with the “vast majority of manager and senior leaders” being men, they have a central role in whether women’s advancement is promoted or hindered at work, simply by their choice of whether to be a sponsor.  The importance of sponsorship is summed up in this anecdote:

One tax attorney described how he supported his protégé all the way to partnership, having hired her in the first place.  He was confident of her ability to deliver and when long-term clients demurred at liaising primarily with a junior person, this attorney vouched for her expertise.  When she became the target of unfair criticism by another partner, he intervened, extorting from that partner an apology and a promise to look at the evidence and be less judgmental. In subtle and overt ways, he ensured that she was able to thrive which indeed she did, making partner in four years.

Professor McGinley takes the reader through the current status of sexual harassment law and its drawbacks in addressing this problem and others.  The article also sets forth solutions for how the law and employers can move forward in advancing women in the workplace by addressing more effectively sexual harassment and its direct and indirect effects.

October 15, 2021 in Equal Employment, Gender, Women lawyers, Workplace | Permalink | Comments (0)

Monday, October 4, 2021

Black Women Police Officers Allege an "Enterprise-Wide Culture of Race and Sex Discrimination"

A class of Black female police officers in Washington, D.C. has sued the Metropolitan Police Department (MPD) alleging an "enterprise-wide culture of race and sex discrimination and intense pervasive retaliation against those who dared to complaint about, report, or oppose unlawful discrimination." Every woman in the class has worked for MPD for years and has previously complained multiple times about race and sex discrimination.  The complaint alleges that: 

There are four fundamental characteristics of the MPD that this class action lawsuit seeks to change: 1) MPD has a male-dominated culture that accepts and perpetuates the most demeaning, degrading and disrespectful discourse and actions by and between officers; 2) MPD has a culture that nurtures and encourages supervisory and management officers to abuse their power to exact petty vengeance on subordinates and make their lives miserable; 3) MPD has a profoundly dysfunctional and corrupt EEO Office run by a man who has repeatedly expressed hostility to women officers, and who colludes with management to crush Black women who complain about race and gender discrimination and sexual harassment; and 4) MPD, with the full participation and/or approval of the Chiefs of Police, engages in repeated, coordinated and relentless retaliation campaigns against Black women officers who complain about or oppose discrimination, or other police misconduct. In combination, these four MPD characteristics create a profoundly toxic work environment for Black woman officers.

The 209-page complaint chronicles extensively the allegations against MPD and MPD's retaliatory responses. The plaintiffs seek compensatory damages, health care related to physical and emotional harms, reinstatement of terminated or retired officers, applicable back pay, revised performance records, reimbursement for leave associated with the discrimination, future damages, attorneys fees, and appropriate injunctive relief.  

October 4, 2021 in Equal Employment, Masculinities, Race, Workplace | Permalink | Comments (0)

Wednesday, September 29, 2021

New Book and Reviews: Anita Hill's "Believing" Sees Sexual Harassment and Gender-Based Violence as a Cultural and Structural Problem That Hurts Everyone

Anita Hill, Believing: Our Thirty-Year Journey to End Gender Violence

“An elegant, impassioned demand that America see gender-based violence as a cultural and structural problem that hurts everyone, not just victims and survivors… It’s at times downright virtuosic in the threads it weaves together.”—NPR

From the woman who gave the landmark testimony against Clarence Thomas as a sexual menace, a new manifesto about the origins and course of gender violence in our society; a combination of memoir, personal accounts, law, and social analysis, and a powerful call to arms from one of our most prominent and poised survivors.

In 1991, Anita Hill began something that’s still unfinished work. The issues of gender violence, touching on sex, race, age, and power, are as urgent today as they were when she first testified. Believing is a story of America’s three decades long reckoning with gender violence, one that offers insights into its roots, and paths to creating dialogue and substantive change. It is a call to action that offers guidance based on what this brave, committed fighter has learned from a lifetime of advocacy and her search for solutions to a problem that is still tearing America apart.

NYT Review, Anita Hill Has Some Perspective to Offer

Anita Hill still speaks in the measured tones she did while being questioned before an all-white, all-male panel before the Senate in 1991 — a young law professor in a blue linen suit who would give the nation an overnight education in workplace sexual harassment.

 

Thirty years later, she is more academic than activist, focusing on pathways to progress, and continuing to teach law as a professor of social policy, law and gender studies at Brandeis University.

 

But to be honest, Hill’s patience is waning. “I really am running out,” she said in a video interview from her home in Massachusetts earlier this month.

 

Her new book, “Believing: Our Thirty-Year Journey to End Gender Violence,” due out on Tuesday from Viking, aims to channel that impatience into something more substantive — a manifesto of sorts.

NPR Review, "Believing" Is a Book Only Anita Hill Could have Written

Believing: Our Thirty-Year Journey to End Gender Violence is not a book about Anita Hill. Yes, it has plenty of her personal stories and, yes, it references her role at the center of the Supreme Court hearing firestorm that first acquainted many Americans with the concept of "sexual harassment." ***

 

The book first attempts to show how massive problems like harassment and assault are affecting everyone from the smallest children to adults, from the lowest-wage workers to the highest-paid celebrities. Then, Hill shows both the effects of the problem — the ways it not only hurts individuals but hampers political change and economic growth — and the myriad barriers to solving it. To try to tackle something so complex, she says, feels like trying to "boil the ocean."

September 29, 2021 in Books, Equal Employment, Race, Violence Against Women, Workplace | Permalink | Comments (0)

Thursday, September 23, 2021

New Book Tarana Burke and The Surprising Origins of MeToo

Tarana Burke Talks About the Surprising Origins of #MeToo

Four years ago, Tarana Burke was a devoted but little-known activist with a vision for how victims of sexual violence could find empathy and healing.

 

Now she sits at the center of a social movement that never seems to stop surging — most recently, toppling New York’s governor and erupting in new corners of the globe.

 

Until now, Ms. Burke has never told her own story. In her memoir, “Unbound: My Story of Liberation and the Birth of the Me Too Movement,” which Flatiron Books is releasing on Tuesday, she reveals a close but complicated historical link between the civil rights movement and MeToo.

 

Last week, she spoke about what she owes to activists in Selma, Ala., why she turned away from them, and how her personal experiences, from Catholicism to an up-close view of the Central Park jogger case, influenced her founding of the MeToo movement.

“Unbound” is out on Sept. 14.

September 23, 2021 in Books, Equal Employment, Race | Permalink | Comments (0)

A Critique of Bostock and the Failure of its Formalism to Embrace an Anti-Stereotyping Principle

Anthony Kreis, Unlawful Genders, Law & Contemporary Problems (forthcoming)

Professor Kreis critiques Bostock v. Clayton County for its neglect to expressly embrace an anti-stereotyping principle, which would have more fully revealed the interconnected relationship between discrimination against women and LGBTQ people. He is concerned that the formalistic focus on sex as a textual matter obscured the historical regulation of gender roles meant to oppress both women and sexual minorities. Professor Kreis argues that courts should revisit this more closely in the constitutional law space and analyze LGBTQ-related constitutional claims as sex discrimination.

From the introduction:

There was a real cost to Bostock’s formalism. The majority opinion correctly understood that it is impossible to divorce discrimination on the basis of a person’s sexual orientation or gender identity from their sex assigned at birth. However, beyond noting that a person has to notice and take account of a person's sex before they can take account of their sexual orientation and/or gender identity, the Court did not explain why discrimination is often the result of the connection. Specifically, the Bostock decision failed to sufficiently explain why the link between the two kinds of discrimination is non-severable. This could have been done by applying an anti-stereotyping principle. This principle, which courts have recognized since the 1970s and 1980s in both the employment discrimination context and in constitutional law,  stands for the proposition that gender-based assumptions about what men or women can do and assumptions about how men or women should act are impermissible forms of sex discrimination. While the principle has been applied to a variety of stereotypes that manifest by employers’ and legislators’ expectations of how men and women can or should behave, it has not been broadly applied to claims of discrimination on the basis of sexual orientation, though it has been more regularly applied to gender identity discrimination claims.

 

Sex stereotype theory can both explain and address anti-LGBTQ discrimination because misogyny, homophobia, and transphobia are inextricable from one another.

September 23, 2021 in Constitutional, Equal Employment, LGBT | Permalink | Comments (0)

Friday, September 3, 2021

Pandemic Practice - The Disparate Impact on Female Attorneys

Liane Jackson, How Pandemic Practice Left Lawyer-moms Facing Burnout, ABA Journal, August/September Issue (2021).

This article explores the pandemic’s effect on the “participation gap in the labor market” between women and men, and posits that “hard-won gains are disappearing,” “the gap is widening,” and experts posit that the effects “will be felt in the legal industry for years to come.”

It will come as no surprise that “women are America’s default social safety net” and have therefore “taken on the lion’s share of pandemic parenting,” as numerous studies have already shown.  This is due to a number of social pressures and norms, which this article addresses.  Of particular note is the “idealized version of intensive motherhood” which sets a standard by which “women are expected to sacrifice their careers, their well-being, their sleep, [and] their mental health for the good of their children.”  Competing with this social construct, is another equally pervasive standard to which female lawyers are held “of total commitment . . . this ideal worker norm that says you’re supposed to sacrifice everything for your job.”  It is no wonder, in this zero sum game, that increased drinking, stress, desire to leave the profession, and mental health issues are being reported in higher percentages of women than men as a result of a pandemic which left parents with few childcare options and a lead role in their children’s education. “The pandemic has disproportionately affected women and minority attorneys, with female lawyers of color feeling increased isolation and stress.”

So what can we do to alleviate the disadvantage experienced by female attorneys as we begin to return from pandemic-induced remote work environments?  Liane Jackson argues that flexible work options need to be accompanied by a genuine commitment to not allowing those options to come with a conscious or unconscious institutional/advancement penalty.  This requires a “recognizing that family has a value, households have a value and people have a value outside the workplace.”  To do otherwise will “continue[] to threaten retention rates.” We must be intentional as we begin to emerge from this pandemic to not penalize female attorneys whose "productivity" (as traditionally measured) may have fallen below that of male counterparts due to the unequal sharing of pandemic pressures discussed above.  Employers should focus on retention and advancement standards that are equitable to female attorneys who continue to be marginalized by disparate and competing social pressures.  “Women are still being marginalized, and they don’t always have the power base to fight back.” We must do better.

September 3, 2021 in Equal Employment, Family, Gender, Women lawyers, Work/life, Workplace | Permalink | Comments (0)

Monday, August 30, 2021

Ninth Circuit Joins Circuit Consensus Holding that Favoritism for Romantic Partner is Not Sex Discrimination

The Ninth Circuit ruled that a supervisor exercising preferential treatment in favor of their sexual or romantic partner is not unlawful sex discrimination within the meaning of Title VII.  Maner v. Dignity Health, decided on August 20, 2021, aligns the Ninth Circuit with the reasoning of the Second, Fourth, Fifth, Seventh, Eighth, Tenth, and Eleventh Circuits on this issue.  The Ninth Circuit explains:

In this appeal, we must decide whether the district court erred in adopting the consensus view among the other circuits and the EEOC that Title VII’s prohibition on discrimination against any individual because of such individual’s sex does not prohibit an employer’s favoritism toward a supervisor’s sexual or romantic partner. Maner argues that the text of Title VII gives rise to “paramour preference” claims because the statutory term “sex” encompasses sexual activity between persons as well as sex characteristics. Maner also argues that the “paramour preference” theory finds support in the Supreme Court’s recent interpretation of Title VII in Bostock v. Clayton County, 140 S. Ct. 1731 (2020). Finally, Maner argues that Title VII’s implementing regulations endorse the “paramour preference” theory as a form of sexual harassment that impacts third parties. For the following reasons, we reject these arguments and join the consensus view that an employer does not violate Title VII’s prohibition on discrimination because of an individual’s sex by favoring a supervisor’s sexual or romantic partner over another employee; that is, Title VII is not violated by exercising a “paramour preference” for one employee over another because of a workplace romance.

This opinion further solidifies this area of law following Bostock’s reasoning. In these cases, the circuit consensus is that the employer is discriminating against other employees “because they are not the favored paramour, no matter the sex of the paramour or of the complaining employees.”

August 30, 2021 in Equal Employment, Workplace | Permalink | Comments (0)

Wednesday, August 25, 2021

Compelling Disclosure of Employer Information as Better Enforcement of Workplace Antidiscrimination Law

Stephanie Bornstein, Disclosing Discrimination, 101 Boston U. L. Rev. 287 (2021)

 In the United States, enforcement of laws prohibiting workplace discrimination rests almost entirely on the shoulders of employee victims, who must first file charges with a government agency and then pursue litigation themselves. While the law forbids retaliation against employees who complain, this does little to prevent it, in part because employees are also responsible for initiating any claims of retaliation they experience as a result of their original discrimination claims. The burden on employees to complain—and their justified fear of retaliation if they do so—results in underenforcement of the law and a failure to spot and redress underlying structural causes of race and sex discrimination at work. By statutory design, government enforcement agencies play a crucial but limited role in litigating discrimination lawsuits, which makes significant expansion of the agencies’ roles politically infeasible.

This Article considers compelled disclosure of employer information as a means of better enforcing antidiscrimination law. Information-forcing mechanisms have long been a part of securities law. The recent #MeToo and Time’s Up social movements have brought the power of public exposure to the issues of sexual harassment and pay discrimination at work. Drawing on lessons from both contexts, this Article argues for imposing affirmative public disclosure requirements on employers that track the pay, promotion, and harassment of employees by their sex and race. It documents emerging disclosure models in some state and international laws meant to target workplace discrimination and highlights where existing U.S. federal law opens the door to such an approach. It also considers counterarguments raised by compelled disclosure, including privacy and free speech concerns. Requiring public disclosures on equality measures is an incremental yet important untapped mechanism that can shift some of the enforcement burden for U.S. antidiscrimination law off of employees and onto employers and responsible government agencies.

August 25, 2021 in Business, Equal Employment, Workplace | Permalink | Comments (0)

Friday, August 13, 2021

Perceiving and Eliminating Discrimination in the Legal Workplace

Robert L. Nelson, Ioana Sendroiu, Ronit Dinovitzer, and Meghan Dawe, Perceiving Discrimination: Race, Gender, and Sexual Orientation in the Legal Workplace, Law and Social Inquiry, Volume 44, Issue 4 (2019).

In this article, the authors discuss workplace inequities based on race, gender, and sexual orientation.  To do so, they combine quantitative and qualitative data to go beyond “analyzing unequal outcomes” and delve further into “the mechanisms that produce and maintain workplace hierarchies of race, gender, and sexual orientation.”  The qualitative component uses perception as a measure, that is, the authors “examine[d] whether lawyers perceive that they have been the target of workplace discrimination.”  

Although some might be hesitant to consider perceptions as a reliable measure, consider that “[p]erceptions of discrimination by marginalized groups are significant in their own right as a matter of workplace equality, but will also likely affect their health and well-being, their job satisfaction, and their willingness to continue working for a given employer.” Additionally, these perceptions, with a few exceptions examined by the authors, tend to be supported by the quantitative data regarding measurable inequitable outcomes on the basis of race, gender, and sexual orientation. 

This qualitative data is also important in determining “how inequality is created and maintained, rather than merely its extent.” By analyzing this data, the authors necessarily highlight areas and circumstances of perceived discrimination from which employers in the legal profession can derive solutions for combatting such inequities, or perception of inequities.  Examples could include instituting efforts or programs that foster community and belonging; formalized personnel structures and policies that produce consistency and transparency in employment law processes like hiring, promotion, and complaint procedures; and generally having sound hiring practices that lead to increased diversity in the workplace, which will in turn lend itself to greater emotional and informational support to members of traditionally underincluded groups.

The inequities and perceived inequities that this article illustrates poses a challenge to us all as legal professionals to understand the scope of the problem and implement strategies to remove these barriers. Indeed, as the authors point out, “[t]o the extent that lawyers of different races, genders, and sexual orientations are exposed to discrimination that limits their career development, it will erode the capacity of the legal profession to provide equal representation to all groups in society. . . . The fate of equal justice may be tied to the fate of equal opportunity in lawyer careers.”

August 13, 2021 in Equal Employment, Gender, LGBT, Race, Women lawyers, Workplace | Permalink | Comments (0)

Thursday, August 12, 2021

The Ministerial Exception to Workplace Harassment

Rachel Casper, When Harassment at Work is Harassment at Church: Hostile Work Environments and the Ministerial Exception, University of Pennsylvania Journal of Law and Social Change

Sexual harassment and harassment on the basis of race, national origin, disability, and age are unlawful workplace practices; what does that mean when one’s workplace is a church? This article explores the ministerial exception’s application to hostile work environment claims. Can ministerial employees bring harassment claims against their religious employers? Put differently, can religious organizations harass their ministerial employees with impunity and without fear of legal recourse? Respecting both First Amendment interests and individual rights, this article appraises and takes seriously the constitutional purpose and necessity of the ministerial exception. Recognizing that importance, this article nevertheless rejects a categorical ban on ministerial employees’ hostile work environment claims. Instead, it proposes a case-by-case analysis of ministerial employees’ hostile work environment claims, granting all employees possible protection from harassment, regardless of who employs them. Religious freedom need not close the courthouse doors on hundreds of thousands of employees. Religious freedom and speculative First Amendment problems need not, and should not, undermine employees’ rights to dignified workplaces and protection from workplace harassment. 

August 12, 2021 in Constitutional, Equal Employment, Religion | Permalink | Comments (0)

Tuesday, August 10, 2021

Where White Men Rule: How the Secretive System of Forced Arbitration Hurts Women and Minorities

Where White Men Rule: How the Secretive System of Forced Arbitration Hurts Women and Minorities

By: American Association for Justice Research

Arbitrators in consumer and employment cases are mostly male and overwhelmingly white. At AAA and JAMS, the two largest consumer and employment arbitration providers in the country, 88% of arbitrators are white and 77% are male. And that’s as diverse as it gets. In 2019, members of the National Academy of Arbitrators determined that over the organization’s 72-year history only 35 Black, Indigenous, and people of color (BIPOC) had been admitted, just 2% of the overall membership. To put this into perspective, individuals who identify as BIPOC make up nearly 40%, and women make up 51%, of people living in the United States.

Few people realize that forced arbitration provisions eliminate their constitutional right to a trial before a jury of their peers. But for minorities and women, forced arbitration not only eliminates the jury but also all but ensures their case will be decided by a white male. A consumer is more likely to be struck by lightning than win a monetary award in forced arbitration as it is; being Black or female reduces their prospects even further.6Take for example a recent Tesla case, in which a Black employee detailed suffering at least a dozen instances of racial slurs and threats, including video of coworkers threatening him while using the n-word. Though Tesla CEO Elon Musk apologized to the employee, agreed changes needed to be made, and offered to settle the case, Tesla eventually took the case to arbitration, where a white arbitrator ruled that the slurs weren’t racist and were more “consistent with lyrics and images commonly found in rap songs.”

August 10, 2021 in Equal Employment, Gender, Race, Workplace | Permalink | Comments (0)

Monday, August 2, 2021

Using Accreditation to Address the "Pass-the-Harasser" Problem in Higher Education

Susan Saab Fortney & Theresa Morris, Using Accreditation Regulation to Address the ‘Pass-the-Harasser’ Problem in Higher Education, California Law Review (forthcoming). The abstract summarizes that the essay:

“examines how and why the pass-the-harasser phenomenon arises and persists in postsecondary institutions, as well as recent changes two university systems and one state have made to deal with the problem. Although these efforts are commendable, experts recognize that the “pass-the-harasser” problem requires concerted action by institutions across the country. To push universities and colleges to become part of the collective solution, the essay proposes that accrediting agencies, as regulators, adopt an accreditation standard requiring that schools implement policies and procedures related to screening faculty candidates to determine if they have been subject to misconduct findings. Such an accreditation standard helps institutions fulfill their mission of providing a safe and healthy environment where students, faculty, and staff can learn, work, and thrive."

This essay strikes me as particularly timely as the ABA considers reforms to support diversity, inclusion, and equity in law schools. Programming for students to develop cultural competencies is foundational, but successful reforms should holistically consider all of the stakeholders who build and sustain an institution's culture.

August 2, 2021 in Education, Equal Employment, Workplace | Permalink | Comments (0)

Friday, July 30, 2021

New Book: The Woman Behind the Supreme Court's Decision in West Coast Hotel v. Parrish

Helen Knowles, Making Minimum Wage: Elsie Parrish v. West Coast Hotel Company

The US Supreme Court’s 1937 decision in West Coast Hotel v. Parrish, upholding the constitutionality of Washington State’s minimum wage law for women, had monumental consequences for all American workers. It also marked a major shift in the Court’s response to President Franklin D. Roosevelt’s New Deal agenda. In Making Minimum Wage, Helen J. Knowles tells the human story behind this historic case.

West Coast Hotel v. Parrish pitted a Washington State hotel against a chambermaid, Elsie Parrish, who claimed that she was owed the state’s minimum wage. The hotel argued that under the concept of “freedom of contract,” the US Constitution allowed it to pay its female workers whatever low wages they were willing to accept. Knowles unpacks the legal complexities of the case while telling the litigants’ stories. Drawing on archival and private materials, including the unpublished memoir of Elsie’s lawyer, C. B. Conner, Knowles exposes the profound courage and resolve of the former chambermaid. Her book reveals why Elsie—who, in her mid-thirties was already a grandmother—was fired from her job at the Cascadian Hotel in Wenatchee, and why she undertook the outsized risk of suing the hotel for back wages.

Minimum wage laws are “not an academic question or even a legal one,” Elinore Morehouse Herrick, the New York director of the National Labor Relations Board, said in 1936. Rather, they are “a human problem.” A pioneering analysis that illuminates the life stories behind West Coast Hotel v. Parrish as well as the case’s impact on local, state, and national levels, Making Minimum Wage vividly demonstrates the fundamental truth of Morehouse Herrick’s statement.

July 30, 2021 in Books, Equal Employment, Legal History, SCOTUS, Workplace | Permalink | Comments (0)

Tuesday, July 27, 2021

Recognizing the Problem of Discrimination Against Women as Business Owners and Investors

Ann Lipton, Capital Discrimination, Houston L.Rev. (forthcoming)  

The law of business associations does not recognize gender. The rights and responsibilities imposed by states on business owners, directors, and officers do not vary based on whether the actors are male or female, and there is no explicit recognition of the influence of gender in the doctrine.

Sex and gender nonetheless may pervade business disputes. One co-owner may harass another co-owner; women equity holders may be forced out of the company; men may refuse to pay dividends to women shareholders.

In some contexts, courts do recognize and account for these dynamics, such as when married co-owners file for divorce. But business law itself has no vocabulary to engage the influence of sex and gender, or to correct for unfairness traceable to discrimination. Instead, these types of disputes are resolved using the generic language of fiduciary duty and business judgment, with the issue of discrimination left, at best, as subtext. The failure of business law doctrine to confront how gender influences decisionmaking has broad implications for everything from the allocation of capital throughout the financing ecosystem to the lessons that young lawyers are taught regarding how to counsel their clients.

This Article will explore how courts address – or fail to address – the problem of discrimination against women as owners and investors. Ultimately, the Article proposes new mechanisms, both via statute and through a reconceptualization of fiduciary duty, that would allow courts to recognize, and account for, gender-based oppression in business.

July 27, 2021 in Business, Courts, Equal Employment, Workplace | Permalink | Comments (0)

Tuesday, July 13, 2021

Menstruation Discrimination under the Pregnancy Discrimination Act and the Problem of Shadow Precedents

Deborah Widiss, Menstruation Discrimination and the Problem of Shadow Precedents" 
Columbia Journal of Gender and the Law, Forthcoming

The movement calls attention to menstruation-related discrimination in workplaces, schools, prisons, and many other aspects of life. In recent years, a few courts have suggested such discrimination could violate Title VII, the federal law that prohibits sex discrimination in employment. Their analysis focuses on the Pregnancy Discrimination Act (PDA), an amendment to Title VII passed to override a Supreme Court case that had held pregnancy discrimination was not sex discrimination.

This essay, written for a symposium at Columbia Law School, applies my earlier research on the statutory interpretation of Congressional overrides to highlight two potential challenges this nascent litigation campaign may face, and to suggest how to avoid them. The first risk is that courts will simply deny such claims, reasoning that menstruation is not directly addressed by the text of the PDA and therefore should not be recognized as sex discrimination. The second—which is more subtle, and also perhaps more likely—is that courts could find such discrimination to be actionable, but do so relying solely on the PDA’s explicit reference to “medical conditions” related to pregnancy. While that would be helpful for addressing discrimination in workplaces, it could open the door to arguments that menstruation is outside the ambit of sex discrimination laws that do not include comparable language.

Theorists and advocates should instead seek to establish that menstruation discrimination is discrimination the basis of “sex” itself, in that it is a condition linked to female reproductive organs (although transmen and boys and non-binary persons may also menstruate) and associated with stereotypical assumptions about women’s proper role in society. That reasoning, which suggests that the PDA is properly interpreted as signaling Congress’s disapproval with the Supreme Court’s unduly cramped understanding of what constitutes sex discrimination in the earlier pregnancy case, should apply not only to Title VII, but also to the interpretation of statutory and regulatory prohibitions on sex discrimination in non-employment contexts.

July 13, 2021 in Equal Employment, Gender, Reproductive Rights | Permalink | Comments (0)

Tuesday, June 15, 2021

SCOTUS Denies Cert in Challenge to Male Only Draft, but 3 Justices Write Separately

National Coalition for Men v. Selective Service System, Denial of Cert (June 7, 2021)

The petition for a writ of certiorari is denied.

 

Statement of JUSTICE SOTOMAYOR, with whom JUSTICE BREYER and JUSTICE KAVANAUGH join, respecting the denial of certiorari.

 

The Fifth Amendment to the United States Constitution prohibits the Federal Government from discriminating on the basis of sex absent an “‘exceedingly persuasive justification.’” Sessions v. Morales-Santana (quoting United States v. Virginia); see Califano v. Westcott; Califano v. Goldfarb; Weinberger v. Wiesenfeld; Frontiero v. Richardson. Cf. Bolling v. Sharpe. The Military Selective Service Act requires men, and only men, however, to register for the draft upon turning 18. See 85 Stat. 353, 50 U. S. C. §3802(a). In Rostker v. Goldberg, 453 U. S. 57 (1981), this Court upheld the Act’s gender-based registration requirement against an equal protection challenge, citing the fact that women were “excluded from combat” roles and hence “would not be needed in the event of a draft.” 

 

The role of women in the military has changed dramatically since then. Beginning in 1991, thousands of women have served with distinction in a wide range of combat roles, from operating military aircraft and naval vessels to participating in boots-on-the-ground infantry missions. Women have passed the military’s demanding tests to become U. S. Army Rangers, Navy SEALs, and Green Berets.  As of 2015, there are no longer any positions in the United States Armed Forces closed to women. Petitioners ask the Court to overrule Rostker in light of these developments.

 

Petitioners, however, are not the only ones asking whether a male-only registration requirement can be reconciled with the role women can, and already do, play in the modern military. In 2016, Congress created the National Commission on Military, National, and Public Service (NCMNPS) and tasked it with studying whether Selective Service registration should be conducted “regardless of sex.” 

 

On March 25, 2020, the Commission released its final report, in which it recommended “eliminat[ing] male-only
registration.” Inspired to Serve: The Final Report of the [NCMNPS] 111. Among other things, the Commission
found that “[m]ale-only registration sends a message to women not only that they are not vital to the defense of the country but also that they are not expected to participate in defending it.” Just a few months ago, the Senate Armed Services Committee held a hearing on the report, where Chairman Jack Reed expressed his “hope” that
a gender-neutral registration requirement will be “incorporated into the next national defense bill.”

 

It remains to be seen, of course, whether Congress will end gender-based registration under the Military SelectiveService Act. But at least for now, the Court’s longstanding deference to Congress on matters of national defense and military affairs cautions against granting review while Congress actively weighs the issue. I agree with the Court’s decision to deny the petition for a writ of certiorari.

Vox, Justice Kavanaugh Hands Down Some Surprisingly Good News for Women's Equality

Justice Brett Kavanaugh just handed down a subtle but potentially very significant signal that he will protect at least some of the feminist victories won by Ruth Bader Ginsburg two decades before she joined the Supreme Court. Kavanaugh’s move does not mean that he is likely to tack left on questions like abortion, but it does suggest there are some limits to this Court’s willingness to toss out earlier victories by liberals.***

 

On Monday, the Supreme Court announced that it will not hear National Coalition for Men v. Selective Service System, a lawsuit challenging a federal law that requires men — and not women — to register for the draft when they turn 18.

 

That might seem like bad news to anyone hoping the court would apply gender nondiscrimination precedents to a new area. But the good news comes in a brief opinion that Justice Sonia Sotomayor wrote.

 

In it, she suggests that she believes that gender discrimination in the selective service program is unconstitutional — the main reason she’s not interested in taking up the case, she seems to say, is that Congress is considering legislation that could expand selective service registration to women.

 

Kavanaugh joined the opinion in full. And that opinion begins with a quote summarizing many of the Court’s gender equality decisions — the Constitution “prohibits the Federal Government from discriminating on the basis of sex absent an ‘exceedingly persuasive justification,’” Justice Sotomayor wrote in her opinion — followed by a long list of citations to the Court’s gender equality decisions.

 

So, in joining this opinion, Kavanaugh signaled that he agrees with Sotomayor, and with the gender equality decisions that Sotomayor cites.

 

That does not mean that these decisions are completely safe — on a 6-3 Court, Kavanaugh could be outvoted by the other five Republican appointees — but it is a hopeful sign for feminism. Kavanaugh is the Court’s median vote in most contentious cases, so it is unlikely that the Court will overrule a major line of precedents without his approval.

June 15, 2021 in Constitutional, Equal Employment, Judges, Legislation, Masculinities, SCOTUS | Permalink | Comments (0)

Monday, June 14, 2021

"Unentitled," The Power of Titles and Designation in the Legal Academy

 Rachel Lopez, Unentitled: The Power of Designation in the Legal Academy, 73 Rutgers L. Rev. 101 (2021)  

Last December, the Wall Street Journal published an op-ed that questioned whether Dr. Jill Biden should more appropriately be addressed as Madame First Lady, Mrs. Biden, Jill, or even kiddo, characterizing her desire to be called doctor “fraudulent” and a “touch comic.” Many were understandably outraged by the lack of respect afforded to Dr. Biden, which had a distinctly gendered dimension. More recently, after a controversial decision by the University of North Carolina’s board of trustees to deny her tenure, Nikole Hannah-Jones, a Pulitzer Prize and MacArthur “genius grant” winner, was instead appointed as a “Professor of Practice” on a five year fixed term contract. These high-profile examples put in sharp focus what many women of color in the legal academy already know all too well: labels have an innate power to confer or diminish status. This Essay explores the role that titles play in the legal academy and, in particular, their often depreciative consequences for women of color. Drawing from my story, those relayed to me by others, and other empirical evidence, I will show how titles perpetuate stereotypes and entrench existing racial and gender hierarchies in the legal academy, although they appear race- and gender- neutral.

It is no secret that the legal academy is extraordinarily hierarchical, with women and people of color often populating the lower ranks of the totem pole. There is a stinging irony to this. As Ruth Gordon eloquently put it, “many of us spend our professional lives contesting hierarchy and exclusion—whether on the basis of race, gender, or class—but when it comes to academia—and I would suggest especially legal academia—we appear to have finally found a hierarchy we can believe in.” There is a problem of academic exceptionalism in the legal academy—hierarchy and exclusion are others’ problems, not our own.

Labels, in the form of titles, help cement these disparities, concretizing them into a caste system that justify unequal pay, less power in faculty governance, and, at times, abusive behavior. While doctrinal professors are “Professors of Law,” the academic archetype, the legal academy has developed a virtual cottage industry of other professional designations. These titles denote “the other teachers” in the legal academy: Clinical Professor, Professor of Practice, Teaching Professor, and Legal Writing Instructor, to name a few. The message is that “Professors of Law” are the ones who really teach the law, while those with the other titles teach something else less important.

If law schools truly aspire to be anti-racist institutions, as so many have pledged to be, we must acknowledge and hopefully someday soon address the racial and gendered (often intersectional) dynamics of titles in the legal academy.

June 14, 2021 in Education, Equal Employment, Law schools, Women lawyers, Workplace | Permalink | Comments (0)

Equalizing Parental Leave

Deborah Widiss, Equalizing Parental Leave, 105 Minnisota Law Review 1275 (2021)

The United States is the only developed country that fails to guarantee paid time off work to new parents. Just 21% of American workers— and just 9% of the lowest quartile of earners—receive paid parental or family leave from their employers. As a result, many new parents, particularly low-wage workers, are forced to go back to work extremely soon after a birth or adoption. Fortunately, a growing number of states have stepped into the breach, enacting their own laws to provide this paid time off to new parents. Additionally, in December 2019, Congress passed a law providing paid parental leave to most federal workers, and the coronavirus pandemic has heightened calls for a more comprehensive federal solution. The new laws are a significant step forward from the prior baseline of no paid leave, but their structure systematically disadvantages nonmarital families and thus exacerbates inequality on the basis of class, race, and sex.

The unequal treatment of nonmarital families under parental leave laws has been overlooked—in both academic scholarship and policy debate—because in America, leave is typically assessed from the perspective of parents, not families or children. Under the state and federal laws, each parent of a new child receives income replacement during time taken off work to provide care. Mothers and fathers receive the same benefits; this structure is intended to encourage fathers to play a hands-on role in infant care. This is an important objective. Among married different-sex couples, women often curtail paid work when children are born, which has long-term ramifications on married women’s economic and social status. The pandemic has intensified this concern, with women being far more likely than men to disrupt their own work to meet children’s needs—or to have dropped out of the workforce entirely for at least a period of time.

Early evidence from states with paid parental leave programs suggests the gender-neutral structure, which provides equal benefits to each parent, is helping achieve better gender parity. Men are claiming benefits at relatively high rates. However, every step forward in achieving the gender equality envisioned by these laws—that is, the aspiration that both mothers and fathers will fully utilize their benefits—will widen the gap between families with one parent and families with two.

This is a significant issue. Nearly 40% of new mothers in the United States are unmarried; nonmarital birth rates are much higher for women who lack a college degree, as well as for certain racial minorities. This is the result of a large and growing “marriage gap” in our country. When unmarried parents are living together, or otherwise both involved in childcare, it makes sense that each should be able to take parental leave. But many nonmarital children are cared for by a single parent, usually their mother. This is particularly true for Black women; almost one-third of Black women with children under the age of one are the sole adult in their household—unmarried, un-partnered, and not living with extended family. Most single mothers will ultimately bear primary responsibility for both breadwinning and caregiving. But because the state and federal leave laws provide benefits to individual parents, single-parent families are eligible for only half as much support as two-parent families. In other words, the new laws disadvantage the families that are likely to need them the most.

This Article exposes the structural inequality built into paid leave laws and then proposes potential solutions. In the process, the Article makes several contributions. The first are descriptive and doctrinal. The emergence of the state paid family and medical leave laws, and the policy for federal workers, address a major gap in American labor and social welfare policy. A few articles in the legal literature have touched upon these new laws, but this Article provides a far more detailed description of their structure. It then breaks new ground by analyzing how the parental leave laws interact with the state laws that establish legal parentage and custodial responsibility, and shows that this has the—likely unintended—consequence of disadvantaging nonmarital families.

Second, the Article uses this analysis to suggest that our current theoretical approach to assessing “equality” in the context of parental leave laws is incomplete. Parental leave policies implicate foundational questions of sex discrimination doctrine and theory because they respond to key biological and social differences between (cisgender) men and women. American law adopts a formal equality approach, requiring equal benefits for each parent. Most other countries, by contrast, provide maternity leaves that are much longer than paternity leaves, specifically permitting such “special” treatment of mothers under their sex discrimination doctrine. There are merits to both approaches. But the myopic focus on what constitutes “equal” treatment of parents obscures other important vectors of analysis, such as equal treatment of children or families. Further, by shortchanging single parents, disproportionately women of color, the American structure perpetuates other forms of inequality. In this respect, the Article builds on other scholarship that has exposed how labor policies privileging ideals of formal equality may disadvantage women and exacerbate class and race-based disparities.

Finally, the Article applies this expanded theoretical frame to suggest policy reforms that would address the inequitable treatment of single-parent families without abandoning the aspects of the current structure that are helping shift gender norms around caretaking in two-parent families. Drawing on models used in other countries, the Article proposes that sole parents (which could be defined according to legal parentage, legal custody, or the use of other factors to gauge the level of involvement by a second-parent) would be able to access an extended period of benefits, or that a broader range of family members be able to claim benefits to care for a newly-born, newly-adopted, or newly-fostered child. It also suggests that leave policies be structured to provide medical benefits separate from newborn bonding benefits, which helps ensure that a mother with medical needs during pregnancy still has access to paid time off after the birth; this is important for all birth mothers, but it is particularly essential for single parents. These solutions could be readily achieved without unduly burdening any individual employer because the costs of benefits are spread through an insurance-based approach.

June 14, 2021 in Equal Employment, Family, Workplace | Permalink | Comments (0)

Tuesday, June 8, 2021

Women Law Deans, Gender Sidelining, and Presumptions of Incompetence

Laura Padilla, Women Law Deans, Gender Sidelining, and Presumptions of Incompetence, 35 Berkeley J. Law & Gender 1 (2021)

In 2007, I wrote A Gendered Update on Women Law Deans: Who, Where, Why, and Why Not? which examined the number of women law deans, including women of color, their paths to deanships, and what the future might hold for decanal leadership from a gendered and racialized lens. A Gendered Update reported that in the 2005 2006 period, thirty one law deans at the 166 Association of American Law Schools (“AALS”) member schools were women (18.7%).  Only three of the thirty-one women law deans were women of color (1.8%).***

 

This Article starts with updated data on the number of women law deans, including women of color, and demonstrates increased numbers of both women and women of color in deanships. It then shifts to plausible explanations for this growth: some optimistic and some more skeptical. On the positive side, it is logical that new appointments reflect women’s increased representation in the broader legal population, which serves as the source of most new dean hires. In addition, there seems to be some recognition that women bring something new and different to leadership: a greater willingness to change, be flexible, and approach old problems in new ways. On the other hand, running a law school has become more challenging because of a decline in applications and credentials since 2011, which has translated into smaller classes and budgets, voluntary and involuntary layoffs, more work, and less pay.  It may be no coincidence that as the job became less desirable, women were appointed in greater numbers.

 

Next, this Article provides narrative descriptions of women’s experiences in leadership, including experiences unique to women of color, such as common stories of presumptions of incompetence, and gender sidelining. The stories are culled from surveys sent to all women law deans.  The survey responses reveal challenges in leadership roles, risks taken, and battles won and lost, and display increased obstacles for women of color.

 

The next Part of this Article develops ideas on how to continue increasing the number of women law deans and provide them support for success

June 8, 2021 in Education, Equal Employment, Law schools, Women lawyers, Workplace | Permalink | Comments (0)

Friday, June 4, 2021

Judicial Ethics in the MeToo World

Renee Knake Jefferson, Judicial Ethics in the #MeToo World, 89 Fordham L. Rev. 1197 (2021)

This Article examines the judicial role in professional ethics regulation through the lens of the judiciary’s own self-governance on sexual misconduct. The #MeToo movement exposed the long-enduring silence of the courts. Headlines featured judges like Alex Kozinski, who retired from the Ninth Circuit in 2018 after numerous former clerks went to the media with credible allegations of sexual misconduct. In 2019, at the instruction of Chief Justice Roberts, the federal judiciary amended the Code of Conduct for United States Judges to make clear that misconduct includes unwanted, offensive, or abusive sexual conduct and to include protections for those who report such behavior. But many argue the reforms do not go far enough. Congress, in the wake of media outcries, held hearings in early 2020. The judiciary’s tepid response holds consequences not only for the judges and the survivors of sexual misconduct but also for the legal profession as a whole. Leaving meaningful #MeToo remedies to journalists and lawmakers threatens judicial independence; it sets a precedent that could influence further intervention into other areas of professional conduct governance that is traditionally reserved for the courts. After offering additional reforms for addressing sexual misconduct in the judiciary, this Article concludes by reflecting on lessons that can be drawn about the judicial role in professional ethics regulation more broadly.

June 4, 2021 in Courts, Equal Employment, Judges | Permalink | Comments (0)