Gender and the Law Blog

Study Analyzes Why the Gender Pay Gap Has Stalled

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

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

The article concludes: 

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

Senate Passes Protections for Pregnant Workers and New Mothers

Senate Passes Protections for Pregnant Workers and New Mothers

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

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

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

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

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

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

 

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

 

Class Action Complaint Alleging Sex Discrimination in Twitter Layoffs

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

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

* * *  

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

 

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

* * *  

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

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

Read the full class action complaint here.  

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

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

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

Gendered and Racialized Emotional Labor in Public Organizations

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

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

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

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

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

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

Congress Passes Bill to Ban NDAs in Workplace Sexual Harassment Cases

Congress Passes Bill to Ban NDAs in Workplace Sexual Harassment Cases

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

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

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

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

Congress Passes Bill to Ban NDAs in Workplace Sexual Harassment Cases

Congress Passes Bill to Ban NDAs in Workplace Sexual Harassment Cases

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

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

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

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

Congress Passes Bill to Ban NDAs in Workplace Sexual Harassment Cases

Congress Passes Bill to Ban NDAs in Workplace Sexual Harassment Cases

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

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

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

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

EEOC Files Charges Against Companies Providing Employee Travel Benefits for Abortion

Bloomberg, EECO Quietly Targets Companies Over Abortion Travel

Republican EEOC Commissioner Andrea Lucas is deploying a rarely used agency procedure to silently initiate targeted discrimination probes against at least three companies providing their employees with abortion travel benefits, five attorneys who have seen the charges told Bloomberg Law.

The “commissioner charges” allege that the employers are favoring workers seeking abortions while discriminating against pregnant workers and disabled workers because they are not offering equivalent benefits for their medical needs, according to the attorneys.***

Lucas’s arguments mirror those made by the agency’s former general counsel, Sharon Fast Gustafson, in a letter sent to employers with such policies last month. The discrimination-based arguments espoused in the charges and the letter are unusual, though abortion travel policies have been criticized on other legal grounds.***

It would be extremely unusual for an employer to have a plan that covers travel for abortion but not for other medical necessities, according to Sharona Hoffman, a professor at the Case Western Reserve University School of Law.

The argument that providing abortion travel benefits is discriminatory to workers who chose to keep their pregnancies or to disabled workers is “creative and novel,” Hoffman said.

See also Ohio Workers' Law Blog, EEOC Commissioner Targets Companies Offering Employees Abortion Travel Benefits 

Two reasons stick out as to why these Commissioner charges are doomed to fail, the first practical and the second legal:

1.)  Are there any women who actually need to travel out of state for childbirth? If there was ever a problem searching for a solution, this is it.

2.) Title VII actually makes it clear on its face that an employer is free to provide abortion benefits to employees.

Title VII's definition of "pregnancy" expressly provides that while the law does "not require an employer to pay for health insurance benefits for abortion," it also does not "preclude an employer from providing abortion benefits." That looks pretty dispositive to me. 

See also EEOC Commission Open Probes Into Companies that Fund Abortion Travel

Nino Monea on Gender Neutrality in the Uniform Code of Military Justice

 

Nine Monea has published "An Officer and a Gentlewoman: Why Congress Should Modernize Article 133 of the UCMJ" in volume 61 of the Washburn Law Review. The abstract previews: 

Article 133 of the Uniform Code of Military Justice—the penal code for the armed forces—makes it a crime for an officer to do anything that is “unbecoming an officer and a gentleman.” This Article argues that Congress should modernize the statute to acknowledge the contributions of servicewomen to the officers’ corps and the unequal treatment they had to endure in order to serve their country by making the offense gender neutral. Given that Congress is poised to overhaul the military justice system, there is no reason why this relic should not be addressed.

Where the MeToo Movement Stands 5 Years Later

Where the #MeToo Movement Stands, 5 Years After Harvey Weinstein

It was five years ago this month that the very first article by journalists Jodi Kantor and Megan Twohey broke the story of Hollywood producer Harvey Weinstein's decades of sexual misconduct.

Later that month, actress Alyssa Milano tweeted, "If you've been sexually harassed or assaulted write 'me too' as a reply to this tweet."

This post, referencing the #MeToo Movement created by Tarana Burke years earlier, went viral. So, too, did the allegations against Weinstein. Dozens of women stepped forward to publicly share the extent of the powerful producer's bad acts. Actresses Ashley Judd and Rose McGowan's initial allegations were later followed by Cate Blanchett, Lupita Nyong'o and many others speaking publicly about Weinstein's harassment or assault.

As with Weinstein, many formerly powerful men have similarly been accused of sexual assault and harassment in the years since #MeToo went global. But more broadly, the movement also helped launch a wider examination of society's treatment of women in everyday life, at the workplace and in Hollywood.***

The #MeToo Movement was created by Burke in 2006 as a way to empower people who had been sexually assaulted and harassed.

Kimberly Hamlin, a feminist history scholar at Miami University, said women and other assault survivors are continuing to speak out, five years after the Weinstein story broke the long-standing seal on silence.

"The generations-long culture of silence is over," Hamlin said. "The tide has turned from giving abusers a free pass, to listening to and believing survivors and silence breakers. I really feel that we cannot overestimate how big of a shift this is culturally, psychologically, legally. For generations, women have been told, 'Suck it up. Keep it to yourself. That's just how things are. It's your fault.'"

"We are no longer raising our children to just be nice," she said. "[Or to think] 'just don't say anything.' And this is a watershed change."

Tracing the Racial and Gendered Origins of Exemptions to Labor Standards

Daiquiri Steele, Enduring Exclusion, 120 Michigan L. Rev. (2022)

Economic justice has long been a part of the civil rights agenda, and minimum labor standards statutes play a crucial role in eradicating the exploitation and subordination of historically marginalized workers. While statutes establishing labor standards are characterized as “universal,” their effect has been anything but universal. Racial and ethnic minorities, women, and those at the intersection experience disproportionate violations of labor standards laws concerning minimum wage, overtime, and occupational safety and health.

Through legislative maneuvering dating back to the New Deal era, Congress carved out many female workers and workers of color from core protections of minimum labor standards legislation. Due to the vigorous advocacy of civil rights groups, amendments to these statutes expanded coverage, making these statutes more inclusive of marginalized workers. Nevertheless, the exclusionary legacy of these New Deal era-laws lingers today. Black, Latinx, and female workers are more likely to be retaliated against for asserting rights or reporting employer misconduct pursuant to these statutes.

Tracing the racial and gendered origins of exemptions to labor standards statutes from the early twentieth century to the present, this Article argues that, despite expanded coverage, female workers and workers of color remain largely excluded from “universal” workplace protections. Although anti-worker forces previously sought to thwart creation of legal rights for marginalized workers, contemporary anti-worker campaigns seek to gut marginalized workers’ protections through actual and threatened retaliation. Examination of the traditional rationales for employer retaliation reveals that the retaliation disparity is incongruent with these conventional motivations. This Article argues that securing compliance with both minimum labor standards and anti-retaliation reform should be integral parts of the civil rights agenda.

 

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MeToo's Landmark Yet Flawed Impact on Dispute Resolution in the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021

Imre Szalai, #MeToo’s Landmark, Yet Flawed, Impact on Dispute Resolution: The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, Northwestern Journal of Law and Social Policy, Forthcoming

On March 3, 2022, President Joe Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the “Amendment”) into law. This Amendment is the most significant change in the last several decades to the Federal Arbitration Act (the “FAA”), the main federal law governing arbitration since 1925. This landmark Amendment is also the most important federal legislation to arise thus far from the #MeToo movement. In a nutshell, the Amendment generally invalidates predispute arbitration agreements in cases involving sexual harassment or sexual assault, and the Amendment thereby allows victims to proceed with their claims in public court with more robust procedural protections. With hundreds of millions of arbitration agreements in place covering consumers and workers, the Amendment can have an impact on access to justice and shape how certain disputes are resolved.

While the goals of the Amendment are certainly laudable, the Amendment unfortunately suffers from several problems. Among other issues, the Amendment is poorly drafted, with at least three different interpretations concerning the scope of the Amendment, and it is uncertain whether the Amendment applies in the labor setting with collective bargaining agreements. The Amendment may also be unconstitutional as applied in certain settings involving state courts and state tort claims. The Amendment also raises several deeper questions about the regulation of arbitration and proper role of arbitration in society. This Article clarifies some of the confusion regarding the Amendment and suggests future reforms for arbitration law.

 

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The Empirical Evidence for a New Approach to Sexual Harassment for Businesses

Jennifer Drobac & Mark Russell, Unmasking Sexual Harassment: The Empirical Evidence for a New Approach  
17 N.Y.U. J.L. & BUS. 315-390 (2021)

If moral outrage were enough, 50 years of antidiscrimination law and two full years of #MeToo should have led to the rapid remediation and elimination of sexual harassment by corporate decisionmakers. However, moral condemnation apparently is not enough, so this Article urges a multifaceted approach that combines (to start) research, financial analysis, disclosure, preventative cultural change, and remediation (if still needed). Through disclosure, it suggests a tactic that combines the goals of social entrepreneurship and profit maximization. Estimates suggest that sexual harassment costs U.S. business millions, if not billions, annually. However, most stock exchange-listed companies avoid financial disclosure or other reporting of sexual harassment claims. The onus for the invocation of Title VII and other antidiscrimination protections falls upon the victims and targets of abuse. Our research and empirical evidence demonstrate that corporations need to make changes to improve the proverbial bottom line. The disclosures that companies do make lack useful information for users of financial reports. Further, a high number of perpetrators of corporate sexual harassment are those with power—key executives and Chief Executive Officers (CEOs). Further, a number of non-disclosures of sexual harassment indicate poor management and culture at companies. Our results are consistent with companies that use arbitration and non-disclosure agreements (NDAs) to conceal sexual harassment. Our research supports a new SEC reporting requirement for all publicly traded companies (and a best practices approach for all organizations). Arguably, corporations would save much more by getting ahead of sexual harassment cases, disclosing problems, and avoiding expensive Title VII and shareholder derivative lawsuits. The evidence and common sense call for additional prophylactic action.

Encouraging Bystander Reporting of Sexual Harassment Through a Financial Reward System

Jessica Fink, Using a 'Bystander Bounty' to Encourage the Reporting of Workplace Sexual Harassment" 

Sexual harassment has become a fact of the modern workplace – something that society laments and regrets, but that rarely shocks the conscience when it comes to light. In fact, both the least and most surprising aspect about workplace sexual harassment is the number of individuals who are aware of it occurring: For every Harvey Weinstein, Matt Lauer, and Louis CK, there have been countless observers who knew about their depravity and who did nothing to stop their behavior. In this way, one obvious approach for reducing harassment at work seems clearly to involve mobilizing these bystanders – encouraging those who witness this misconduct to come forward and report the wrongdoing. Yet for a variety of reasons, bystanders often (quite rationally) choose to remain silent.

This article suggests a novel approach for overcoming the forces inhibit bystanders from speaking out. In the context of financial crimes, the law has successfully encouraged bystander reporting by applying a bounty system that provides significant financial rewards to those who report the wrongdoing that they observe. Indeed, those who have observed financial wrongdoing have reaped millions of dollars in rewards, presumably overcoming whatever reluctance they once may have felt about disclosing the misdeeds of colleagues and associates. This article suggests applying a similar bounty system to workplace sexual harassment: It proposes awarding bystanders a piece of the recovery when their reports of observed workplace sexual harassment culminate into successful lawsuits against the perpetrators of this misconduct.

Blowing the whistle on wrongdoing – harassment or otherwise – comes rife with countless concerns for those who consider speaking out. Giving such bystanders a financial incentive to come forward has worked in other contexts to override this reluctance. Perhaps the same can be true for those who observe sexual harassment at work, providing a much-needed step towards reducing this scourge on the workplace.