Friday, February 7, 2025

Eleventh Circuit En Banc Considers Scope of Bostock in Trans Surgery Case

Trans Surgery Case Will Test Scope of Workplace Anti-Bias Law, Bloomberg

The scope of workplace rights that the US Supreme Court extended to transgender people in a watershed 2020 decision will get a new gloss at oral arguments at the Eleventh Circuit Tuesday, according to attorneys following the case.

All the court’s active judges will consider the issue, which is part of a litigation trend over the rights of transgender people in various aspects of life.

But this is an easy Title VII sex discrimination case, said Shayna Medley, senior litigation counsel at Advocates for Trans Equality Education Fund, one of the groups representing plaintiff Anna Lange. The US Court of Appeals for the Eleventh Circuit would have to “go out on a limb” to rule for the defendants, they said.

At issue is whether a public employer’s health plan lawfully excluded coverage for gender-affirming surgeries and related care.

In a case brought by a deputy sheriff, a split three-judge panel upheld a trial court’s ruling that Houston County, Ga.'s exclusion of that coverage violated Title VII of the Civil Rights Act of 1964, following the top court’s decision in Bostock v. Clayton County .

The Eleventh Circuit granted full-court review and vacated that decision.

February 7, 2025 in Equal Employment, LGBT | Permalink | Comments (0)

Friday, January 31, 2025

Transgender Disenfranchisement in Political and Public Spaces

Scott Skinner-Thompson (Colorado),  Transgender Disenfranchisement, 102 Washington U. L. Rev. (forthcoming 2025)

Transgender and gender variant people are excluded from formal democratic participation at the polls through a variety of legal mechanisms.  Such barriers include purportedly neutral voter identification laws, which may prevent transgender people from voting given the obstacles to achieving accurate identification documents in many states, and felon disenfranchisement laws, which exclude the disproportionate number of trans people ensnared in the carceral system.

But, as this Article explains, transgender people are also deterred from public space and participation more broadly through laws and customs specifically policing gender identity. Such laws include so-called bathroom bills that prevent people from accessing facilities in government buildings, drag bans that prohibit the expression of any sort of public gender nonconformity, laws that erase queer people from public school curriculum, and laws that sanction employment discrimination against trans people, ensuring that transgender lives remain in the shadows.

As these examples suggest, voter disenfranchisement of transgender people is part of a broader political and economic disenfranchisement that literally seeks to erase trans people from public life and ensure that they are economically subordinate. Only by appreciating voter disenfranchisement as part of the systemic erasure of gender variance can the voter disenfranchisement laws be understood—and challenged—in their most comprehensive light. Put differently, in much the same way that racist voting regulations were just a part of the economic and political subjugation of Jim Crow, formal voting exclusion of transgender people is part of a calculated effort to segregate and erase queerness from the public square.

The extent of this political and economic disenfranchisement is brought into even sharper relief given that trans lives are literally on the ballot. In capitals around the country and in recent ballot initiatives, voters and their representatives are debating trans existence in contexts ranging from medical care to athletic participation to bathroom access, with trans lives used a political cudgel. To comprehensively capture the harms of transgender estrangement, scholars and activists must also underscore that trans people are being foreclosed from discussion of their own lives.

January 31, 2025 in Constitutional, Equal Employment, LGBT | Permalink | Comments (0)

Monday, January 27, 2025

Nantiya Ruan on "Fighting Institutional Betrayal: Gender Pay Equity Litigation Against University Employers"

Nantiya Ruan has published Fighting Institutional Betrayal: Gender Pay Equity Litigation Against University Employers in volume 57 of the Connecticut Law Review. The abstract is here. 

Universities are workplaces replete with observed gender pay gaps despite the legal protections in place to mitigate against such a reality. This Article analyzes recent university gender pay equity lawsuits to examine their efficacy in four types of litigation: (1) Class and Collection Action; (2) Government Action; (3) Union Action; and (4) Individual Action. From these case studies of different types of litigation, we learn several important lessons about prosecuting equal pay laws and how to best protect against unequal pay.

 

First, the Article sets forth the gender pay equity landscape, including the national pay gap picture, the legal framework of federal, state, and local laws enacted to close the gap, and the enforcement efforts by federal and state agencies.

 

The Article then examines the gender pay gap in university workplaces and identifies indicators of pay inequity for female faculty: overrepresentation in part-time work; overrepresentation in contingent positions; and underrepresentation in the highest-paid ranks. It then discusses the keys to uncovering pay disparity.

 

Next, the Article identifies representative gender pay equity litigations against universities and provides a taxonomy of gender pay equity litigation against universities by type and analyzes lessons learned, successes gained, and concessions made, in the fight for pay equity in university workplaces. Analyzing the litigations from a client-centered lens allows for a deeper understanding of what is at stake in pay equity litigations.

 

The Article is replete with personal observations by the author, who had the honor of representing female faculty in gender pay equity litigations, as well as serving as a faculty member at a school sued for gender pay equity. From that unique perspective, the Article ends with a catalog of strategic considerations for women facing pay inequity in their university positions.

January 27, 2025 in Equal Employment, Workplace | Permalink | Comments (0)

Monday, January 20, 2025

Sixth Annual ABA Profile of the Legal Profession

The ABA has published its sixth annual profile on the legal profession. as covered by the National Jurist. Relating to women in the profession, the report reveals: 

41% of all U.S. lawyers are women, and that number is growing slowly every year.

Stats also show that 56.2% of law school students are women, outnumbering men in law school attendance, and the gap is growing every year.

Since 2020, a majority of the 44,000 general lawyers in the executive branch of the federal government have been women.

In 2024 or 2025, women probably will be a majority of full-time faculty members in ABA-accredited law schools.

Despite the gains for women, men still dominate the upper echelons of the legal profession through federal judgeships, state supreme courts, law firm partnerships and corporate counsel positions.

For example, in 2023, just 28% of law firms partners were women.

 

* * * 

There were 1,457 sitting Article III federal judges as of Aug. 1, 2024, and they were overwhelmingly male (67%) and white (74%). But their diversity is changing, especially in recent years.

 

January 20, 2025 in Equal Employment, Women lawyers, Workplace | Permalink | Comments (0)

Friday, January 17, 2025

Biden Says the Equal Rights Amendment is the Law.

A day late and a dollar short.

NPR, Biden Says the Equal Rights Amendment is the Law

President Biden on Friday declared that he considers the Equal Rights Amendment to the Constitution is "the law of the land," a surprising declaration that does not have any formal force of effect, but that is being celebrated by its backers, who plan to rally today in front of the National Archives.

The amendment would need to be formally published or certified to come into effect by the National Archivist, Colleen Shogan — and when or if that will happen is unclear.

The executive branch doesn't have a direct role in the amendment process, and Biden is not going to order the archivist to certify and publish the ERA, the White House told reporters on a conference call. A senior administration official said that the archivist's role is "purely ministerial" in nature, meaning that the archivist is required to publish the amendment once it is ratified.

Politico, Biden Declares the ERA the Law of the Land--But it Likely Will Not Matter

President Joe Biden on Friday declared that the Equal Rights Amendment is the law of the land, attempting to ratify a 28th Amendment to the U.S. Constitution in a last-ditch effort to protect women’s reproductive rights.

But Biden’s assertion may amount to little more than an expression of his opinion, with the White House acknowledging that it has no immediate force of law — and the National Archives telling POLITICO it has no plans to formally add it to the Constitution. ***

But the National Archives, which is responsible for publishing amendments to the Constitution, immediately indicated it had no plans to follow Biden’s lead.

U.S. Archivist Colleen Shogan has previously said that the ERA’s eligibility has expired, and could not be added now unless Congress acts. Congress, under control of Republicans, is unlikely to do so.

For past posts from Gender Law Blog on the history and legal battle for the ERA, see Exploring Legal Commentary on the History and Legal Battle of the Equal Rights Amendment.

 

January 17, 2025 in Constitutional, Equal Employment, Legislation | Permalink | Comments (0)

Tuesday, January 14, 2025

New Study Challenges Misperception that Gender Equality in the Legal Profession Has Been Achieved

Andrea K. Schneider, Abigail R. Bogli & Hannah L. Chin, The New Glass Ceiling, 2024 Wis. L. Rev. 1687 (2024)

Until the last decade, gender inequality in the legal profession was self evident. Law school classrooms and law firm offices were overwhelmingly filled with men. In recent years, women have outnumbered men in law school classes and reached parity with men among first-year associates. These developments have created the misperception that gender equality has been achieved. In this Article, we challenge this complacency. We present new evidence from a detailed case study of law firms in a midsize city, showing that women remain underrepresented in leadership roles and underpaid relative to their colleagues. We then show how the limited opportunities and lower pay women receive at law firms explain why so many have left. We argue that the movement for gender equality in the law should shift its focus from hiring to attrition. We provide crucial, incisive questions that law school students and career service offices can use to better investigate the problem, especially as students contemplate career decisions. By asking these questions, we believe candidates can more accurately sense what the law firm experience might entail. Through this process, we believe that students can act as a force for change.

January 14, 2025 in Business, Equal Employment, Women lawyers | Permalink | Comments (0)

Tuesday, November 26, 2024

Millennial Women Lawyers Demand Work-Life Balance

 
Giugi Carminati, 41, had the first of her four children when she was 24 and attending the University of Houston Law Center. As Carminati began practicing law in Houston, she and her husband thought they could have it all. Carminati figured she would put her children in day care and continue working her way up to partner.
 
But child care costs for four children were “crippling,” Carminati says. She estimates that the cost of an au pair, who had a limited work schedule, along with things like after-school care, summer-care costs and overnight-sitter fees when Carminati traveled, worked out to $45,000 annually. Her husband, a physician, had little flexibility in his schedule.
 
“It was unlivable to be expected to operate as an attorney with long and unpredictable hours and travel,” says Carminati, who is part of the millennial generation born between *38 1981 and 1996. She eventually left private practice and started working in-house in 2022. Her schedule allows her to work remotely--including on a sailboat in the summer.
 
Millennials tend to emphasize a healthy work-life balance when choosing employers, according to the Deloitte Global 2024 Gen Z and Millennial Survey. That includes members of the generation like Carminati, who are lawyers with young children. Also, various reports say the profession, known for long work hours and high-pressure environments, is still difficult for many women with parenting responsibilities: Like generations before them, they often cobble together child care with a mix of nannies, babysitters, day care settings and assistance from relatives.
 
According to the 2023 ABA study Legal Careers of Parents and Child Caregivers: Results and Best Practices from a National Study of the Profession, 61% of the mothers surveyed said they experienced demeaning comments about being a working parent, compared with 26% of fathers. The study, sponsored by the ABA Commission on Women in the Profession, also found that 65% of the mothers interviewed were responsible for arranging child care, versus 7% of the fathers.
 
But a growing number of young lawyers are pushing back, according to attorneys and legal recruiters interviewed by the ABA Journal.
 
Money matters
 
“The millennial generation is less tolerant of the kind of sexism that many women for many generations just put up with as they tried to assimilate into the workforce,” says Tracy A. Thomas, the Seiberling Chair of Constitutional Law at the University of Akron School of Law.
 
And law firms have responded accordingly. Law firms of all sizes increasingly are offering hybrid work schedules, for example. In addition, there is less need for extensive travel due to online depositions and hearings, says Thomas, 59.
 
Millennials, she adds, are also more willing than prior generations to switch jobs to achieve a work environment that fits their needs. However, they can “run up against a wall” with billable hours.
 
Many law firms ask associates to bill 2,000 hours or more annually, but lowering that requirement to 1,800 could help attorneys have more work-life balance, Law.com reported in 2023. But the lower number could also reduce law firm profits up to 20%, according to the article.
 
“There's still a generational disconnect and friction between younger lawyers and leaders in law firms and the industry,” says Thomas, who studies gender and the law. “So long as the ideal worker is the person who works the most billable hours and firms still reward those lawyers with promotions, the choices set up for the younger generation, and particularly working mothers, are limited.”
 
In some ways, millennials also have options that weren't available to older generations, thanks to a changing work environment and the shift to remote work during the coronavirus pandemic. Sabrina Sacks Mann, 55, a Philadelphia legal recruiter, has noticed that the millennial generation will push for legal careers that fit their needs, with an emphasis on time with family.
 
“They are more likely to question the status quo,” says Mann, who has helped arrange the lateral placement of attorneys in law firms and corporations since 2002.
 
But Joanna Grossman, 56, a professor at Southern Methodist University Dedman School of Law in Dallas, says the legal profession is still resistant to real structural change.
 
“Millennials have a healthier view of work-life balance, and it would be better for the legal industry if people in law firms worked fewer hours, but in the end, profit is king,” says Grossman, the inaugural Ellen K. Solender Endowed Chair in Women and the Law. “The typical law firm model is not compatible for people who have substantial child care or nonwork responsibilities.”

November 26, 2024 in Equal Employment, Women lawyers, Work/life, Workplace | Permalink | Comments (0)

Wednesday, October 16, 2024

The Reasonable Pregnant Worker under the Pregnant Workers Fairness Act

Madeleine Gyory, The Reasonable Pregnant Worker, 113 Calif. L. Rev. ___ (forthcoming 2025)

Pregnant workers often need changes to their work responsibilities to stay healthy during pregnancy while earning a needed paycheck. Congress passed the Pregnant Workers Fairness Act (PWFA) in December 2022, entitling many workers for the first time to "reasonable accommodations" for their pregnancy, childbirth, and related medical conditions, so long as they do not impose an "undue hardship" on their employer. The PWFA dictates that the law's key terms, "reasonable accommodation" and "undue hardship," should be construed as they are under the Americans with Disabilities Act (ADA), ADA caselaw, and new PWFA regulations issued by the Equal Employment Opportunity Commission (EEOC) in April 2024. But what if these sources conflict? ADA caselaw frequently departs from the ADA's statutory and regulatory text, and is in tension with the EEOC's new PWFA regulations, producing a muddied reasonable accommodation doctrine that poses challenges for future PWFA claimants. 

This Article is the first to address how the chaotic ADA doctrine will impact implementation of the PWFA and to consider how ADA caselaw should be read in conjunction with the EEOC's new PWFA rule. Anticipating future litigation, this Article proposes a framework for litigants and courts assessing reasonable accommodation claims under the PWFA that adapts ADA precedent to account for the PWFA regulations. It argues that the PWFA rule is entitled to some deference under Loper Bright Enterprises v. Raimondo because Congress delegated specific authority to the EEOC to interpret the phrase "reasonable accommodation." Finally, this Article demonstrates why, under its proposed framework, the PWFA will often require employers to accommodate temporary transfers, remote work, and leave, notwithstanding conflicting ADA caselaw

 

October 16, 2024 in Equal Employment, Family, Legislation, Pregnancy | Permalink | Comments (0)

Thursday, October 10, 2024

Rethinking Law and Literature to Define Narrative Justice for MeToo and Other Fields

Geeta Tewari, MeToo: Rethinking Law and Literature to Define Narrative Justice, 102 Oregon L. Rev. 489 (2024) 

The law and literature movement is transforming into something new. This Article will discuss what that newness is, how it came about, and the different shapes it takes to provide the legal community with a platform to contribute to a working definition for narrative justice. Creatively, technologically, and economically, public institutions and legal culture are rethinking the value of voice and story. With concrete examples of innovations and social movements, this Article will demonstrate how both action and inaction have propelled us as a society toward urgency in defining and claiming narrative justice. The Introduction canvasses U.S. case law to discuss patterns of narrative incorporation—or the concerning lack thereof. Recently, we have seen a new growth in this field: an emphasis by activists, artists, and academics, among others internationally, on applying voice, story, and journey to present conflicts and problems. The next Part discusses the critical points where public and private institutions, as well as individual citizens, have catalyzed to birth a new field of narrative justice. Specifically, I discuss the #MeToo movement, as well as cities’ work, community, individual empowerment, recent interdisciplinary legal scholarship, and teaching models, which are all analyzed for their inclusion of narrative. City government “storytellers” and the action of the #MeToo movement are two rich examples of law and literature’s expansion to activism through narrative justice. Finally, in Part IV, I dissect the lack of narrative presently in corporate law and the growing legal field of environmental, social, and governance advising, which should include the concept of narrative justice. This Article concludes with a proposal for a working definition and function of narrative justice, based on the examples reviewed herein as they relate to each other, the precipitating field of law and literature, and the need for updated terminology and pedagogy to further advance the practice of law as a moral, ethical, and just profession.

October 10, 2024 in Business, Equal Employment, Theory, Workplace | Permalink | Comments (0)

Thursday, September 26, 2024

The Impact of Dobbs on Employment Law and Women Workers

Laura T. Kessler, Reproductive Justice at Work: Employment Law After Dobbs v. Jackson Women’s Health Organization, 109 Cornell L. Rev. (2024)  

In June 2022, in Dobbs v. Jackson Women's Health Organization, the Supreme Court overturned Roe v. Wade and Planned Parenthood v. Casey, landmark decisions which held that the U.S. Constitution protected a right to abortion prior to fetal viability. Overnight, about 64 million American women of childbearing age potentially lost the right to decide what happens in their own bodies. In the two years since the decision, seventeen states have made most or all abortions illegal, with the fight over abortion still taking place in state and federal courts.  Experts across fields have explored the decision's effects on health, economic security, medical privacy, the patient-physician relationship, access to assisted reproduction, marriage equality and other LGBT+ rights, constitutional sex equality, disability rights, and medical research. Less attention has been given to the impact of Dobbs on employment law and women workers. To fill this gap, this Article examines the post-Dobbs landscape in which workers' reproductive experiences and capacities may be used to justify employment discrimination.

Part I provides the sociomedical and legal landscape upon which this Article’s arguments rest.  Specifically, Part I.A. demonstrates that common reproductive health experiences such as abortion, infertility, and miscarriage are often indistinguishable, as the symptoms and treatments for these conditions significantly overlap.  Given this overlap, after Dobbs, all of these reproductive health events are becoming more complicated (and potentially dangerous) medically and uncertain legally. Part I.B. provides a brief overview of four major federal employment statutes relevant to workers’ reproductive freedom and reproductive lives—the Pregnancy Discrimination Act of 1978 (PDA),  the Americans with Disabilities Act of 1990 (ADA),  the Pregnant Workers Fairness Act of 2022 (PWFA),  and Family and Medical Leave Act of 1993 (FMLA).  My emphasis is on how (with the exception of the PWFA, which is new), federal courts have significantly undermined federal protections for workers affected by common reproductive health conditions despite Congress’s broad remedial purposes in passing federal employment statutes and the EEOC’s loyal interpretations of them.

Part II goes on to examine more closely some of the judicially imposed gaps that render federal employment statutes particularly ineffective in addressing workers’ reproductive lives.  In particular, Part II examines the weak or nonexistent medical privacy and antiretaliation protections provided by federal antidiscrimination and family leave laws, largely due to constraining lower court interpretations.  It also examines the mismatch between the culture of secrecy surrounding workers’ common reproductive health experiences such as abortion, infertility, pregnancy, and miscarriage and federal employment statutes and legal doctrines that require workers to share private health information as a precondition to receiving legal protections.  As Part II argues, the criminalization of abortion in the wake of Dobbs is likely to exacerbate these legal and cultural conditions that render federal employment law particularly ineffective in this realm.

Part III turns to solutions, inviting introspection and regulatory shifts to include the full spectrum of a person's reproductive life in mainstream employment law. Among other reforms, Part III examines the recently-passed Pregnant Workers Fairness Act (PWFA), a new federal law providing a basic right to reasonable workplace accommodations for pregnancy and related medical conditions. The PWFA is a significant victory for pregnant workers and women's rights.  But, as Part III argues, in some significant respects, the PWFA does not go far enough, because it does not sufficiently shore up privacy and antiretaliation protections that workers need to meaningfully access reasonable accommodations in a legal landscape where abortion is a crime and even a miscarriage or failed IVF cycle may be prosecuted as an abortion. Therefore, as Part III argues, enhanced medical privacy and antiretaliation protections in all of our federal employment statutes are required.  Without such protections, the entire legal regime of substantive protections from sex and disability discrimination at work will be severely weakened for women workers post-Dobbs.  Finally, Part III argues that it is time for a national paid sick leave law in the United States.  Such a law is also necessary to address the unique vulnerabilities of women workers in a post-Dobbs world.

September 26, 2024 in Constitutional, Equal Employment, Workplace | Permalink | Comments (0)

ND Federal District Court Holds Catholic Employers Do Not Have to Follow EEOC Rule to Accommodate Workers for IVF or Abortion

Judge Rules Catholic Employers Can Now Deny Workers Time Off For Abortion or IVF 

More than 8,000 Catholic employers across the country will not be required to provide accommodations for workers needing abortion or fertility care following a ruling in North Dakota. 

The Pregnant Workers Fairness Act took effect in June 2023, granting workers — many of them low-wage women — protections if they needed time off from work for pregnancy-related conditions. Earlier this year, the Equal Employment Opportunity Commission, which enforces the law, released rules that broadly defined pregnancy-related conditions to include anything from morning sickness to an abortion or fertility care. Under the rules, workers could request time off to get an abortion or for an IVF procedure, for example, and employers must work in good faith to provide the accommodation. 

But the Catholic Benefits Association and the Diocese of Bismarck sued the EEOC this summer, arguing that a broad interpretation of the law that included abortion and fertility protections would be violating Catholic employers’ religious freedom. 

The EEOC, the complaint said, “hijacked this statute and demanded that Catholic and other employers affirmatively accommodate abortion and immoral fertility treatments.”  

The EEOC rules don’t require employers to pay for the care, just to provide time off to allow workers to seek it. 

The Eighth Circuit, where North Dakota is located, is also hearing a case challenging the entirety of the EEOC Accommodation Rule issued pursuant to the Pregnancy Fairness Act. See Gender Law Blog, Eighth Circuit First to Consider EEOC Rule Including Abortion-Related Worker Accommodations.

Lots going on in North Dakota these days. See also North Dakota Abortion Ban Overturned as Vague and Violating Women's Fundamental Rights To Choice and Medical Freedom

September 26, 2024 in Abortion, Equal Employment, Family, Healthcare, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Wednesday, September 25, 2024

Eighth Circuit First to Consider EEOC Rule Including Abortion-Related Worker Accommodations

Bloomberg, First Appeals Court to Mull EEOC Abortion Accommodation Rule

The EEOC’s inclusion of abortion-related worker accommodations in a pregnancy anti-bias rule will encounter a significant test at the US Court of Appeals for the Eighth Circuit as it reviews a challenge from red state attorneys general.

The 17 state AGs will urge the circuit judges on Tuesday to reverse a district court’s decision that they lacked standing to bring their suit. They seek to block and vacate the US Equal Employment Opportunity Commission’s April final rule under the Pregnant Workers Fairness Act.

The Eighth Circuit will be the first appellate court to hear oral arguments on the regulation as the EEOC’s enforcement of the PWFA has faced conflicting fates in challenges filed by Republican states, as well as some anti-abortion Catholic groups, across the country. An Eighth Circuit decision to allow a pause on the regulation’s enforcement would be a blow to the agency’s rulemaking authority, and could impede on abortion-related workplace accommodations like employee leave.

September 25, 2024 in Abortion, Equal Employment, Reproductive Rights, Workplace | Permalink | Comments (0)

Monday, September 23, 2024

Arnow-Richman on "Beyond the Glass Ceiling: Panes of Equity Partnership"

Rachel Arnow-Richman has published Beyond the Glass Ceiling: Panes of Equity Partnership in Volume 17 of the Florida International University Law Reivew. The abstract is below: 

This Article, prepared for a “micro-symposium” on Professor Kerri Stone’s monograph Panes of the Glass Ceiling (2022), explores the partnership pay gap in large law firms and the role of high-profile litigation in facilitating pay equity. There is a rich literature and extensive data on the gender attainment gap in elite law practice, particularly with regard to women’s attrition from practice and poor representation within the partnership ranks. Less attention has been paid to the way in which the exceptional women who achieve equity partner status continue to lag behind their male peers. This Article explores “Women v. BigLaw,” a cluster of equal pay cases brought by women partners in the late 2010s against elite firms. Using Stone’s work as a lens, it reveals how the same unspoken beliefs that underlie the law firm glass ceiling operate above it, placing women partners at the bottom of a new compensation hierarchy centered on origination credit. Due to historical allocations, a culture of deference toward male rainmakers, and implicitly biased attorney development and evaluation practices, origination operates as a form of “legacy credit” that locks in preexisting entitlements favoring male partners. Despite this, gender equity in law practice has been framed principally as a professional value, not a legal imperative. Women v. BigLaw and the unprecedented use of the court system by women lawyers reveals, however, that partnership pay practices pose a liability risk to firms. This new reality may incent structural change in ways that attention to gender equity as a managerial and professional goal could not.

September 23, 2024 in Equal Employment, Women lawyers, Work/life, Workplace | Permalink | Comments (0)

Thursday, September 12, 2024

Addressing Gender Biases and Barriers to Women's Leadership in Mass Tort Multidistrict Litigation

Stephanie Iken, Addressing Biases and Barriers: Advancing Women in Mass Tort MDL Leadership 

The legal profession grapples with profound gender disparities, particularly evident in leadership roles within mass tort litigation. This article delves into the myriad biases and systemic barriers that hinder women's advancement in legal leadership, shedding light on the challenges they face and proposing strategies for fostering gender equity.

The analysis begins by examining the lack of representation of women in mass tort leadership, despite their significant presence in law school cohorts. Data reveals stark disparities in the appointment rates of women to leadership positions, underscoring systemic biases entrenched within the legal industry. Biases such as the Prove-It-Again Bias, Tightrope Bias, and Maternal Wall contribute to the underrepresentation of women in leadership roles, perpetuating a cycle of discrimination and marginalization.

The Prove-It-Again Bias dictates that women must continually prove their competence and dedication, facing greater scrutiny and exhaustion than their male counterparts. Women experience challenges in asserting their ideas and contributions, often facing dismissal or attribution of their work to others. Moreover, the Tightrope Bias imposes restrictive standards on women's behavior, forcing them to navigate contradictory expectations and behaviors. The Maternal Wall presents additional barriers, as women encounter biases against mothers and birthing persons, leading to challenges in balancing family and career aspirations.

The article further explores biases against women in leadership roles, including interruptions, the "Boys Club" mentality, dismissal of accomplishments, and delegation of stereotypical tasks. These biases perpetuate gender inequalities and hinder women's career advancement, creating environments where women's voices are silenced, and their contributions undervalued.

The gender pay gap exacerbates disparities, with women overwhelmingly paid less for equal work, stifling their economic empowerment and career progression. Sexual harassment and networking challenges further compound these inequalities, creating hostile environments that deter women from pursuing leadership roles.

However, amidst these challenges, the article highlights initiatives and strategies for advancing women in legal leadership. Mentorship programs, diversity, equity, and inclusion (DEI) initiatives, and policy reforms emerge as critical tools for fostering gender equity and dismantling systemic biases. By creating inclusive environments, challenging traditional norms, and prioritizing the well-being of female professionals, the legal profession can work towards creating a more diverse and equitable future for women in leadership roles.

In conclusion, the article calls for transformative action to address biases and barriers hindering women's advancement in legal leadership. By acknowledging and confronting systemic inequalities, implementing inclusive practices, and advocating for policy reforms, the legal profession can strive towards a future where women are equally represented and empowered in leadership roles within mass tort litigation and beyond.

September 12, 2024 in Business, Equal Employment, Theory, Women lawyers | Permalink | Comments (0)

Wednesday, September 4, 2024

The Differences in Formal and Informal Faculty Mentoring by Gender and Race

Gina Scutelnicu Todoran, "The Contribution of Formal and Informal Mentorship to Faculty Productivity: Views of Faculty in Public Affairs Programs," Journal of Public Affairs Education 29(4), 404-420

This study examines how mentorship opportunities contribute to the productivity and career growth of public affairs faculty, stratified by gender and race. The study uses primary data coming from an original survey administered at two different points in time (2017 and 2021) to faculty who are part of NASPAA member schools. Results indicate that women and faculty from racially under-represented groups are more likely to receive formal mentoring whereas men and white faculty are more likely to benefit from informal mentoring. Additionally, results show that the relationship between mentoring approaches and research effort differed by the faculty’s member gender and race with formal mentoring contributing to the research effort of men and white faculty across all academic ranks and university types, and informal mentoring contributing to the research effort of mid-career faculty of all genders and races. This study aims to inform individuals and universities about mentoring trends and contributions.

September 4, 2024 in Education, Equal Employment, Scholarship | Permalink | Comments (0)

Monday, September 2, 2024

Wilkins v. Austin Eliminates Discriminatory HIV Barrier to Military Service

Lambda Legal challenged the United States Military's prohibition on the enlistment of people living with HIV in Wilkins v. AustinHere are excerpts from Lambda's press release describing the case: 

The lawsuit, Wilkins v. Austin, was filed on behalf of three individual plaintiffs who could not enlist or re-enlist based on their HIV status. Minority Veterans of America (“MVA”) is also an organizational plaintiff. MVA advances the interests of its civilian members who are living with HIV and wish to serve in the military.  

The filing followed the Biden administration’s announcement in July 2022 that it would no longer defend discriminatory restrictions that prevented servicemembers living with HIV from deploying and commissioning as officers. Instead of appealing the decision of the district court declaring these restrictions unlawful and unconstitutional, Defense Secretary Lloyd J. Austin III issued a memorandum outlining changes to the relevant regulations, which stated that individuals who have been identified as HIV-positive, are asymptomatic, and who have a clinically confirmed undetectable viral load will have no medical restrictions applied to their deployability or to their ability to commission while a servicemember based on their HIV-positive status.    

Before the July 2022 announcement, a federal district court handed down one of the most substantial judicial rulings in over two decades for people living with HIV in two cases—Harrison v. Austin and Roe & Voe v. Austin.  The rulings ordered the Department of Defense (DOD)—the world’s largest employer—to stop discriminating against servicemembers living with HIV and to allow them to deploy and commission as officers in the U.S. military. That groundbreaking ruling represented a landmark moment in the fight to advance the rights of people living with HIV. It reflected the reality that HIV is a chronic, treatable condition, not a reason to discriminate.   

Here are Lambda's selected excerpts from the successful opinion in Wilkins v. Austin striking down the policy: 

“Defendants’ policies prohibiting the accession of asymptomatic HIV-positive individuals with undetectable viral loads into the military are irrational, arbitrary, and capricious. Even worse, they contribute to the ongoing stigma surrounding HIV-positive individuals while actively hampering the military’s own recruitment goals." 

“Modern science has transformed the treatment of HIV, and this Court has already ruled that asymptomatic HIV-positive service members with undetectable viral loads who maintain treatment are capable of performing all of their military duties, including worldwide deployment. Now, defendants must allow similarly situated civilians seeking accession into the United States military to demonstrate the same and permit their enlistment, appointment, and induction.”  

September 2, 2024 in Constitutional, Equal Employment, Healthcare, Science, Workplace | Permalink | Comments (0)

Wednesday, August 28, 2024

Women and Corporate Governance: Time Horizons and Stakeholder Analysis

June Carbone, Women and Corporate Governance: Time Horizons and Stakeholder Analysis, Chicago-Kent Law Review, Forthcoming

The study of gender intrinsically involves consideration of time. The assumption of childcare responsibilities, whether done by men or women, requires a different orientation toward the life course that marshals parental time and resources for investment in the early childhood years with the expectation of a payoff later in time. For primary breadwinners, this may involve a willingness to seize immediate gains in income or status during the critical childrearing years in exchange for greater risk or less security in the future. For primary caretakers, the same considerations may involve a greater preference for secure, flexible, or collaborative employment during the peak childrearing years even if it involves lower immediate income and fewer opportunities for personal advancement. These different temporal dimensions overlap with traditional gender stereotypes: supposedly masculine preferences for competition, particularly zero-sum competition tied to short-term metrics, versus feminine collaboration tied to longer-term institutional interests; masculine-coded risk-taking tied to individual status gains versus the security that comes from group membership and mutual support; and investment in individual advancement versus communal well-being. 

Consideration of the temporal dimension underlying gendered orientations toward the life cycle—and evaluation of the fate of women as a product of these different time horizons—also sheds a different light on the relationship between shareholder interests and those of other stakeholders such as workers and customers. Much of what is done in the name of shareholder primacy advances the interests of short-term shareholders at the expense, not only of other stakeholders, but of medium- to longer-term shareholders. Moreover, many of the divisions among employees—both within management and within line positions—involve distinctions between those with long-term interests in firm stability and those with a more contingent or transactional relationship to a given firm. What unites the short-term interest of activist shareholders and the fate of employees, however, is not simply corporate theory—finance scholars debate whether markets will ultimately correct for potentially counterproductive short-term actions—but rather the executive compensation systems and firm cultures that implement such perspectives. These systems have consequences that extend well beyond individual management decisions, changing the nature of the executives and the executive mindsets that thrive in such environments. Focusing on the ways that distinctions between short-term and long-term perspectives overlap with gendered employment values has a series of consequences for the debate about the relationship between corporate theory and labor and employment law.

August 28, 2024 in Business, Equal Employment, Work/life | Permalink | Comments (0)

Tuesday, August 20, 2024

Legislating Flexibility in the Post-Pandemic Workplace

Madeleine Gyory, "Legislating Flexibility in the Post-pandemic Workplace, Villanova L. Rev. (forthcoming)  

Working parents and caregivers in the United States struggle to balance the dual demands of work and care. Many working caregivers need flexible work arrangements (“FWAs”)—changes to their hours, schedule, or location—to allow them to balance work and care. But access to flexibility remains out of reach for many workers and is least accessible to the most marginalized. The COVID-19 pandemic underscored this problem, as huge numbers of women dropped out of the workforce to care for family. While no federal or state law requires employers to grant FWAs to caregivers, several states and localities have passed “right to request” laws, which establish steps employers must follow when workers ask for flexibility. Several cities go further to provide caregivers with limited rights to FWAs. One city, San Francisco, responded to the pandemic by granting caregivers robust legal rights to flexible work arrangements.

This Article offers the first analysis of FWA laws since the start of the pandemic and since passage of the nation’s strongest FWA law in San Francisco. The Article uses three case studies to interrogate how FWA statutes across the country protect or fail working caregivers and exposes gaps in protection. Using San Francisco’s law as a model, the Article argues that other states and cities should respond to the crisis of care exposed by the pandemic by passing comprehensive flexible workplace laws. The Article offers a roadmap for legislative action, recommending that future FWA laws should go beyond the right to request and grant broad substantive protections that cover a diverse array of workers. Building on prior scholarship advocating for accommodation of caregivers in the workplace, the Article argues that legislative intervention is needed to ensure access to flexibility irrespective of income, education, race, or gender.

August 20, 2024 in Equal Employment, Family, Legislation, Work/life | Permalink | Comments (0)

Monday, August 12, 2024

Signaling Sexual Harassment

Emily Suski published Signaling Sexual Harassment in the Emory Law Journal. The abstract is excerpted here: 

Following the Supreme Court’s decision to eliminate the right to abortion in Dobbs v. Jackson Women’s Health Organization, Title IX stands as a potentially powerful statutory bulwark against further erosions of sex and gender equality rights. Title IX’s purpose is to protect against and eradicate sex discrimination of all forms, including sexual harassment, in education. Yet, it rarely fulfills this purpose. Although the Supreme Court has said that sexual harassment is a form of sex discrimination proscribed by Title IX, it has failed to define sexual harassment or provide more than the barest of guidance on how severe it must be to qualify for Title IX’s protection. The lower courts have consequently filled those gaps, and they have done so reductively. Their evaluations regularly exclude all but the most extreme forms of sexual harassment from Title IX’s protection. They thus leave much of the sexual harassment that students suffer in school unchecked by the law designed to expunge it.

 

Further, these reductive evaluations of students’ Title IX sexual harassment claims have three significant signaling effects. First, with these decisions, courts signal that much of the sexual harassment that occurs in school is acceptable, or the norm. Second, courts signal that schools can teach this sexual harassment norm through what sociologists call the hidden curriculum. Third, courts signal that this sexual harassment norm can pervade democratic and social structures. With these decisions, then, the lower courts do not just allow sexual harassment to occur unabated in school, but they also effectively reinforce it in schools and more broadly.

 

To reinvigorate Title IX’s purpose, this Article proposes a comprehensive definition of sexual harassment for courts to use in assessing Title IX sexual harassment claims. It also recommends a test for determining the severity of sexual harassment as well as a framework for applying that test that centers students’ experiences of sexual harassment. Together, these reforms would require courts to recognize more sexual harassment under Title IX and therefore restore its power to eliminate sexual harassment in schools.

August 12, 2024 in Equal Employment, Family, Healthcare | Permalink | Comments (0)

Friday, August 9, 2024

Debunking the Motherhood Myth of Why Women are Underrepresented in Traditional Law Firm Partnership

Paula Schaefer, The Motherhood Myth, Traditional Firms, and the Underrepresentation of Women 

This Article makes the case that the motherhood narrative-that women are underrepresented in partnership and leadership ranks of law firms because they are their children's primary caregivers-is a myth. After detailing how the motherhood myth has been used as an excuse for a lack of meaningful change, the Article provides evidence of an alternative narrative: "traditional firms" are structurally and culturally antagonistic to women. These firms are characterized by extreme work expectations and heavy reliance on the unpaid labor of stay-at-home spouses (SAHSs). Traditional firms' dependence upon SAHSs is central to maintaining the firm status quo and driving out women. Next, the Article describes how firm modernization would allow women to gain parity in firm partnership and leadership ranks. The Article argues that modernization should be measured in terms of firm reliance on SAHSs and then responds to counter-arguments that modernization is not possible in the service of clients and is unlikely to improve the retention of women. Finally, the Article explains how three different groups-bar associations and other organizations, firms, and attorneys-should collect and analyze data about firm reliance on SAHSs as a first step towards change.

August 9, 2024 in Equal Employment, Family, Masculinities, Women lawyers, Workplace | Permalink | Comments (0)