Gender and the Law Prof Blog

The Maternal Dilemma and Continued Discrimination Against Women at Work

Noya Rimalt, The Maternal Dilemma, 103 Cornell Law Rev. (2018)  

This article questions the sufficiency of contemporary parental policies in undermining the gendered division of care-work at home. It reveals that despite the optimistic expectations that accompanied the enactment of gender-neutral leave legislation such as the FMLA, and the provision of equal care opportunities for men, a marked gap separates the law's target of equal parenting from the persistence of a maternal reality in most families. Moreover, because women remain responsible for family caregiving much more than men, the stereotype that women are less competent workers continues to thrive, and gender bias and discrimination still shape women's experiences in the workplace. This discriminatory reality is often masked by legal narratives presenting the rise of egalitarian and choice-based patterns of parenting as actual products of contemporary parental policies. Gendered patterns of care and work are thus legitimized as reflecting the individual lifestyle preferences of both women and men in a world in which equality and choice shape these preferences.

The article suggests naming this problem “the maternal dilemma” and calls for re-evaluation of current male-centered policy solutions designed to address it by encouraging men to assume more care-taking responsibilities at home. It adds a comparative analysis to illustrate that the maternal dilemma is not a unique American problem, with its very “thin” model of parental supports, restricted to narrow and primarily negative protections. The maternal dilemma prevails also under more progressive regimes of parental supports that provide additional incentives for men to assume greater care-taking responsibilities at home.

Building on comparative lessons as well as on the scope and significance of the maternal dilemma in the American context, the article argues that in their efforts to recruit men to the task of care-taking at home, feminists, legislators and policy makers have neglected an additional and equally important set of issues relating to the structures and forces that shape women's decision to remain the primary caretakers at home.In deliberating these issues the article suggests acknowledging that gendered patterns of care-work at home are not simply the product of women’s subordination. They also reflect the complex relationship between women’s disempowering experience in the labor market and the historical and contemporary significance of motherhood in their lives. Restoring the focus to women and addressing their specific needs and concerns are thus crucial for moving forward. Naming this problem the maternal dilemma serves as a reminder of where the core of the problem is; it also signals that the path to gender equality might require more than gender-neutrality and similar treatment.

Implicit Bias in the Law School Dean Search Process

Michelle Benedetto Neitz, Pulling Back the Curtain: Implicit Bias in the Law School Dean Search Process, Seton Hall L. Rev. (forthcoming) 

The dean search process can be viewed as a bellwether for the health of a law school. Within the microcosm of a civilized “dean search committee” can lie the tensions of rival factions attempting to impose their visions for the next chapter of the law school enterprise. If law school revenue is down, the factions may be fighting for their own survival.

Not surprisingly, therefore, the dean search process is a lightning rod for the stresses facing law school faculty and staff and university administrators. As a result, the implicit biases of individuals and institutions can play a major (if unseen) role in the selection of a dean. Despite the regularity of dean searches in American law schools, no scholar to date has fully examined the ramifications of implicit bias in the dean search process.

This article stems from my experience chairing multiple dean searches and my research interest in the causes and effects of implicit bias. Part II reviews the role of a law school dean, with special consideration of the ways the Great Recession and its effects transformed the role of the dean. Part III describes the typical dean search process and evaluates dean diversity statistics to determine which candidates are selected for these powerful roles in today’s law schools. Part IV introduces the concept of implicit bias, specifically focusing on in-group favoritism. Part IV also analyzes the ways implicit biases can manifest in the dean search process, focusing on racial, gender, socioeconomic, and sexual orientation biases. Finally, Part V suggests recommendations to minimize implicit bias on the part of dean search committees, and offers new and creative ways to change the traditional dean search process.

Judiciary Plan to Deal with Sexual Harassment is Not Enough, Say Attorneys and Law Professors

The Judiciary Has a Plan to Deal with Sexual Harassment. Law Students, Former Clerks, and Professors Say It's Not Enough.

The federal judiciary last month proposed a series of changes to its internal rules on sexual harassment and how the courts respond to complaints against judges. Former law clerks, ethics experts, and law students say they don’t go far enough.

 

The courts have been grappling with how best to police themselves in the wake of sexual misconduct allegations against former prominent federal appeals judge Alex Kozinski, who resigned in December after a number of his former clerks accused him of inappropriate behavior. The proposed rules changes include requiring judges to report misconduct by their colleagues — and making it a disciplinable offense not to — adding stronger language defining and condemning harassment, and making clear that rules about court confidentiality don’t prohibit employees from reporting misconduct.

 

In the federal courts, judges run the discipline process, including handling sexual misconduct complaints against their colleagues. The #MeToo movement presents the latest test of whether these systems are strong enough to hold federal judges with lifetime tenure accountable and protect those working alongside them. (There is no binding code of conduct or disciplinary process for the US Supreme Court.)

 

At a public hearing Tuesday, witnesses testified that the draft changes were a good first attempt, but needed to be stronger and more specific. Kendall Turner and Jaime Santos, lawyers who have led a group of former federal law clerks pushing for reforms, testified that the judiciary should be more transparent about complaints against judges and how they’re resolved, bring in outside investigators to handle certain complaints, and do more to involve victims in the process.

 

Renee Knake, a legal ethics expert at the University of Houston Law Center, proposed adding a prohibition on consensual romantic relationships between judges and clerks and other employees, saying it would remove the risk of unwanted overtures and situations where a clerk or court employee felt pressured to agree to a date. She noted many law schools have similar policies. Knake also pitched an annual anonymous survey that includes past and current law clerks. ***

 

“No one should have to endure sexual harassment as a rite of passage into the legal profession,” said Knake, who told the judges that when she was in law school she was warned to avoid clerking for a judge known for mistreating clerks.

 

Carol Needham, a legal ethics expert at the Saint Louis University School of Law, pointed to proposed new language stating that judges “should” perform their “duties with respect for others, and should not engage in behavior that is harassing, abusive, prejudiced, or biased.” Needham suggested changing “should” to “shall” or “must,” saying that sentiment shouldn’t be “aspirational.”

Extending the Sex Plus Discrimination Doctrine to Age Discrimination Claims

Marc Chase McAllister, Extending the Sex Plus Discrimination Doctrine to Age Discrimination Claims Involving Multiple Discriminatory Motives, 60 Boston College L. Rev. (forthcoming)

This article examines a double judicial split in age discrimination cases, one pertaining to Title VII and the other to the ADEA. First, this article considers whether the Title VII sex-plus discrimination doctrine should apply to discrimination claims specifically combining sex and age, and contends that such claims should be more routinely permitted to combat discrimination against older female employees. Second, this article considers whether the sex-plus discrimination doctrine should extend to age-plus discrimination claims under the ADEA. In a thorough analysis, this article shows that the ADEA’s “but for” standard of causation permits discrimination claims based on the combination of age and another immutable characteristic, like race or gender. Nevertheless, because Congress has not amended the ADEA to clarify how it applies in cases involving multiple discriminatory motives, courts will likely remain hesitant to recognize ADEA plus discrimination claims. Accordingly, this article proposes that Congress amend the ADEA to state that an ADEA plaintiff may prevail upon proof that his or her age was “a motivating factor for an adverse employment action, even though other discriminatory or illegitimate factors may have also motivated the employer.”

After MeToo, Using the Law of Agency for Strict Liability for Employers for Sexual Harassment

David Oppenheimer, Twenty Years After Faragher and Ellerth, Is It Time to Revisit Strict Liability for On-the-Job Sexual Harassment?

In 1995, I published the attached article in the Cornell Law Review, arguing that a proper application of agency law would impose strict vicarious liability on employers for nearly all on-the-job sexual harassment. (See Exacerbating the Exasperating: Title VII Liability of Employers for Sexual Harassment Committed by Their Supervisors, 81 Cornell L. Rev. 66 (1995).) Three years later, the U.S. Supreme Court decided the cases Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Ellerth v. Burlington Industries, 524 U.S. 742 (1998), taking a different approach. The Court held that in the absence of a tangible employment decision (such as termination of employment), an employer sued for sexual harassment could assert an affirmative defense that it had an anti-harassment policy that the employee unreasonably failed to invoke, and that it vacted properly once on notice of the harassment.

 

As the #MeToo movement dramatically illustrates, in the ensuing twenty years, the law of harassment has woefully failed to protect women workers. All too often women harassed on the job find their cases dismissed or decided against them on summary judgment because they failed to properly follow their employer’s anti-discrimination policy, even when the employer knew of the harassment. As Lauren Edelman argues in Working Law (2016), courts have accepted the existence of anti-discrimination policies as persuasive proof of a lack of discrimination/harassment, even in the face of evidence that the policies are ineffective, or serve only a symbolic purpose.

 

This may be a good time, then, to return to the common law of agency, and the duties it imposes on employers to protect the safety of employees. For good reasons of public policy, worked out over many years, those rules usually impose strict liability on employers for harm caused by or to employees, and treat these as duties an employer may not delegate to others. Re-visiting Exacerbating the Exasperating seems like a good place to start.

Watching the Bandwagon Effect of New Laws on Sexual Harassment Training

Erin Mulvaney, Watching the Bandwagon Effect for Mandatory Sexual Harassment Training

The #MeToo movement inspired progressive legislatures this year to revisit mandatory sexual harassment training programs statewide for nearly all workers and supervisors, part of the sweeping effort confronting power imbalances between men and women in the workplace.

 

The most comprehensive sexual harassment policies were passed in California and New York, two states that are often leaders on new initiatives in the employment law space. New York’s state rules went into effect this month, and employers have until October 2019 to implement training programs. California bolstered its existing training requirement.

 

Very few states have mandatory sexual harassment training requirements. Delaware’s new sexual harassment training law, signed in August, takes effect in January 2019. That law imposes training requirements on employers with at least 50 employees in the state, according to a Jackson Lewis P.C. analysis.

 

A handful of states this year, including Maryland and Louisiana, also bolstered or added sexual harassment training requirements for government employees, according to the National Conference of State Legislatures, which tracked the dozens of measures proposed and enacted this year aimed at tackling the issue.

 

Few states and local governments followed suit since California’s first training law was passed more than a decade ago, but employment attorneys say the newly passed measures could push momentum.

 

“Other states and jurisdictions will see the lead that California and New York have taken,” said Jason Habinsky, an employment partner at Haynes and Boone in New York. “There is sometimes a bandwagon effect.”

Women Owned Law Firms Surge Amid Gender Disparity in the Profession

Women Owned Law Firms Surge Amid Gender Disparity in the Profession

Work-life balance is often pegged as the reason women leave traditional law firms. But for the growing number of women establishing their own firms, their departure is often rooted more deeply in gender inequality in the profession than in raising children or having more free time.

 

“If women were feeling valued, were getting properly rewarded for their efforts, were getting their fair share and it wasn’t a constant struggle to get your origination credit, and feel you are part of the team—then you would stay,” said Nicole Galli, who in 2017 co-founded a trade association, Women Owned Law, which has already grown to 200 members.***

 

By founding their own firms, women are crafting new game rules that provide for fair compensation, equal promotions, full inclusion and better career development opportunities.

 

“There are women further along in their careers—partners in firms—who’ve done everything ‘right.’ They leaned in. They figured out the work-life balance, as it is. They made it to a measure of objective success. They have books of business. They have clients. It’s still death by a thousand paper cuts. It’s still a struggle,” said Galli, managing partner in the Law Offices of N.D. Galli in Philadelphia.

 

Data shows a mass exodus of female attorneys who leave traditional firms before they reach the upper echelon. The National Association of Women Lawyers found in a 2017 survey that women make up 46 percent of associates but just 30 percent of non-equity partners. Only 19 percent of equity partners are women, the American Bar Association’s Commission on Women in the Profession reported in January.

MeToo One Year Later: More Awareness, More EEOC Success, New Laws in CAL and NY

A Year After it Began has #MeToo Become a Global Movement

In the year since, the global conversation about sexual harassment — and worse — has shifted, but the lasting impact of the moment remains unclear.

From Stockholm to Seoul, from Toronto to Tokyo, a torrent of accusations has poured forth. Survivors spoke out, and many were taken seriously. Powerful men lost their jobs. A few went to prison. How diverse societies — some liberal, others conservative — saw sexual harassment seemed to be changing.

On Friday, a year after the New York Times and the New Yorker published their stories about Weinstein, two activists who have sought to end sexual violence in conflict zones — Congolese gynecologist Denis Mukwege and Yazidi assault survivor Nadia Murad — were awarded the 2018 Nobel Peace Prize.

But for all the early anticipation that things had changed forever, in many countries the #MeToo movement either fizzled or never took flight.

1 Year Later, How MeToo is Changing America

Joanna Grossman, Beneath the Fray: Federal Courts Continue the Work of Enforcing Sexual Harassment Laws

This week marks the one-year anniversary of Harvey Weinstein’s fall from grace, after the New York Times published a bombshell investigative article about a lifetime of egregious sexual misdeeds. One year later, the #MeToo movement came into sharp contrast with the GOP-controlled Senate, which voted to elevate Judge Brett Kavanaugh to the US Supreme Court despite credible allegations of sexual misconduct. But while we ponder questions big and small about the problem of sexual misconduct and how to deal with it, courts continue the everyday work of hearing sexual harassment cases. In a recent case, EEOC v. Favorite Farms, Inc., a federal district court in Florida did exactly that, refusing to grant an employer’s motion for summary judgment in a workplace rape case that deserves a full trial on the merits.

Eric Bachman, In Response to #MeToo Movement, EEOC is Filing More Sexual Harassment Lawsuits, and Winning

The Equal Employment Opportunity Commission (EEOC) recently announced how the #MeToo movement has impacted its enforcement efforts, which has implications across the country and particularly in corporate America.

Not surprisingly, the heightened awareness about sexual harassment-including what constitutes harassment and the harm it inflicts-generated by the #MeToo campaign has resulted in the EEOC filing "a 50% increase in suits challenging sexual harassment over FY 2017."  More broadly, the total number of EEOC Charges of Discrimination alleging sexual harassment increased by about 12% from last year, and the EEOC found reasonable cause to believe discrimination had occurred in nearly 20% more charges in 2018 than in 2017.

Allyson Hobbs, One Year of #MeToo: The Legacy of Black Women's Testimonies, New Yorker

We can create a more inclusive narrative. As the legal scholar Kimberlé Crenshaw recently argued, “black feminist frameworks have been doing the hard work of building the social justice movements that race-only or gender-only frames cannot.” To do better by all women, we must listen and recognize the historical and contemporary circumstances that shape their experiences and have real consequences on their lives. The historian Elsa Barkley Brown has written, “We have still to recognize that being a woman is, in fact, not extractable from the context in which one is a woman—that is, race, class, time, and place.”

Congress Still Can't Pass its Own Sexual Harassment Bill

The House and the Senate passed two different bills earlier this year—but months after those votes, lawmakers are doubtful that they can reconcile the two pieces of legislation before the midterm elections.

“Here on Thursday, there is this very high-profile hearing and questions of sexual harassment, and yet Congress is allowing this bill to deal with sexual harassment in Congress [to languish],” said Meredith McGehee, the executive director at Issue One, a government watchdog group that advocates for stronger ethics laws.

Sen. Roy Blunt (R-MO), who along with Sen. Amy Klobuchar (D-MN) is overseeing the process of reconciling the House and Senate versions, predicted that the effort would not be completed before the midterm elections.

“[The] discussion continues to be active,” he told The Daily Beast. “I think we’ll get this done, but I do not think we’ll get it done before the election.”

See also 2018 Legislation on Sexual Harassment in the Legislature

 California Law Prohibits Nondisclosure Agreements as Part of Sexual Harassment Settlements

NY Enacts Sweeping Sexual Harassment Legislation

Amid #MeToo NY Employers Face Strict New Sexual Harassment Laws

New California Law Prohibits Nondisclosure Agreements as Part of Sexual Harassment Settlements

SF Chronicle, California Bans Secrecy Requirement Requirement in Workplace Sex-Harassment Suits

California employers can no longer require workers to sign nondisclosure agreements as part of sexual harassment, discrimination or assault cases under a bill signed by Gov. Jerry Brown on Sunday.

 

SB820 by Sen. Connie Leyva, D-Chino (San Bernardino County), was one of several bills to come out of the Legislature in response to the #MeToo movement. Leyva said banning mandatory secret settlements will ensure victims are not forced to keep quiet while serial offenders remain employed.

 

The bill applies to both private and public employers, including the Legislature, which previously required its own workers to sign nondisclosure agreements as part of settlements. The new law goes into effect Jan. 1.

EEOC Files Pregnancy Discrimination Lawsuit against Walmart

US Agency Accuses Walmart of Pregnancy Discrimination in Lawsuit

The U.S. Equal Employment Opportunity Commission on Friday filed a lawsuit accusing Walmart Inc of forcing pregnant workers at a Wisconsin warehouse to go on unpaid leave and denying their requests to take on easier duties.

 

The EEOC, which enforces federal laws banning discrimination in the workplace, said Walmart’s distribution center in Menomonie, Wisconsin, has discriminated against pregnant employees since 2014. Federal law requires employers to accommodate workers’ pregnancies in the same way as physical disabilities.

 

Friday’s lawsuit, filed in federal court in Wisconsin, stems from a complaint filed by Alyssa Gilliam, an employee at the Walmart warehouse in Menomonie.

 

The EEOC in the lawsuit said Gilliam became pregnant in 2015, and Walmart denied her requests for restrictions on heavy lifting, additional breaks, and a chair to use while working.

 

The commission said Walmart refused similar requests by other pregnant workers at the warehouse, but granted them for workers with disabilities or injuries.

 

The federal Pregnancy Discrimination Act prohibits workplace discrimination against pregnant women. In a 2015 decision involving United Parcel Service Inc, the U.S. Supreme Court said the law requires employers to provide the same accommodations to pregnant women as it does disabled workers.

 

Women Lawyers, Particularly Women of Color, Report Persistent Bias at Work in New ABA Study

NYT, Lawyers Say They Face Persistent Racial and Gender Bias at Work

Women and people of color in the legal profession continue to face barriers in hiring, promotions, assignments and compensation, according to a study released Thursday by the American Bar Association.

 

The survey, which proposes strategies for employers to eliminate the barriers, was conducted by the Center for WorkLifeLaw at the University of California, Hastings College of the Law, for the bar association’s Commission on Women in the Profession and the Minority Corporate Counsel Association. *** 

 

The researchers had 2,827 lawyers fill out online surveys in spring 2016 about their experiences at work. The surveys were distributed by the bar association’s email list and other professional networks. The association has 400,000 members.

 

They found that many women and people of color felt they were held to a higher standard than white men. That feeling was most prevalent among women of color, who reported the highest levels of bias in almost every category.

 

About half of the women of color said they felt they had equal access to the kind of “high-quality” assignments that lead to exposure and advancement in an organization. Among white men, that number was 81 percent.

 

Women of all races said they had to walk a “tightrope” in their behavior. They reported pressure to behave “in feminine ways” and a backlash for exhibiting stereotypically male behaviors. They were more often saddled with “office housework,” like taking notes, ordering lunch or comforting a co-worker in distress.

 

In a law firm, that kind of work reduces billable hours, which can hurt compensation. And while it takes up time and energy and helps the organization, it often does not lead to career advancement. The report states that a lack of opportunities to take on challenging work also contributes to high attrition rates among women in law firms.

 

Many women said they felt they were paid less than their colleagues with similar experience. (Almost 70 percent of women of color said so, compared with 60 percent of white women and 36 percent of white men.)

 

And a quarter of female lawyers reported that they had experienced sexual harassment at work, including unwanted sexual comments, physical contact and romantic advances. Those episodes sometimes had career costs. About one in eight white women, and one in 10 women of color, said they had lost opportunities because they rejected sexual advances.

 

Among all respondents, about 70 percent said they had heard sexist comments, stories or jokes at work. And while the numbers were higher among women, lawyers of both genders felt that taking parental leave would have a negative impact on their career.

 

“You’ve got systemic barriers in place,” said Ms. Mayes, who is the chief legal counsel for the New York Public Library. “If you don’t think a woman with children should be promoted, if the woman has children of a certain age or expects to, that’s a huge impediment.”

 

According to the latest report from the bar association’s Commission on Women in the Profession, only 35 percent of active American lawyers in 2016 were women, and they earned less than their male colleagues. Of the top lawyers for Fortune 500 companies, just 26 percent were women. And while women graduate from law schools in large numbers, they made up only 32 percent of law school deans.

 

The report lays out methods and practices for organizations to counter bias, with an emphasis on using metrics to track and encourage fairness. They include abolishing questions about prior salary in job interviews, having boilerplate questions and policies for interviews and performance evaluations, and monitoring supervisors to ensure there are no consistent disparities by demographic group.

Is MeToo Only a Social Movement or a Legal Movement Too?

L. Camille Hebert, Is "MeToo" Only a Social Movement or a Legal Movement Too?, 22 Employee Rights & Employment Policy J. (2018)

This essay discusses some of the effects of the “MeToo” movement as a social movement, bringing issues of sexual assault and sexual harassment to the forefront. The essay then raises the question of whether that movement might also have implications for the law of sexual harassment. The essay discusses three elements of the law of sexual harassment—the “because of sex” requirement, the requirement that the harassment be subjectively hostile and objectively severe or pervasive, and the standard for employer liability for harassment—and explores the way that the “MeToo” movement might affect the way in which courts apply those elements. The essay then discusses other ways in which the law relevant to sexual harassment claims has been and may be changed by the movement, including with respect to mandatory pre-dispute arbitration agreements and nondisclosure agreements.

Study Documents Persistent Employment Discrimination Against Older Women and Ineffective Legal Redress

Joanna Song McLaughlin, Falling Between the Cracks: Discrimination Laws and Older Women

Theories and evidence suggest that older women may experience unique discrimination for being both old and female in the workplace. To provide remedy for this type of discrimination – known as intersectional discrimination – legal scholars argue that age and sex discrimination laws must be used jointly and acknowledge intersectional discrimination (age-plus-sex or sex-plus-age discrimination) as a separate cause of action. Nonetheless, in general, courts have declined to do so even though older women are protected under both age and sex discrimination laws. This raises a concern that age discrimination laws may be ineffective, or less effective in protecting older women. I test this implication by estimating the differential effect of age discrimination laws on labor market outcomes between older women and older men. My findings show that age discrimination laws did far less to improve labor market outcomes for older women than for older men. This may explain one reason for persistent discrimination against older women found in existing literature and supports the legal scholars’ argument that older women’s intersectional discrimination must be recognized as a separate cause of action.

Before MeToo: Was Media Representation of Sexual Harassment Accurate?

Joni Hersch & Beverly Moran, He Said, She Said, Let's Hear What the Data Say: Sexual Harassment in the Media, Courts, EEOC, and Social Science, 101 Kentucky L.J. 753 (2013)

In this article, we examine whether two national newspapers (the New York Times and the Wall Street Journal) provide a realistic representation of sexual harassment in the workplace. Whether intentional or inadvertent, the national media influences attitudes and subsequent behavior. Victims of sexual harassment who encounter such accounts may find comfort and validation in learning that others have had similar experiences, and that may lead to greater willingness to report their own harassment. It is only through exposing illegal behavior that such workplace practices can be eradicated.

 

We expected the news articles to provide more information about age, marital status, and race of the parties. These facts are almost never given in the newspaper accounts. Nevertheless, the demographics of the victims
covered in the newspaper articles we surveyed are largely reflective of the victims of sexual harassment reported in the three data sources we analyze. We also find that there is fairly limited information provided about the
specific nature of the harassment.

 

We expected a more even distribution of attention between the accuser and the accused in all accounts. In fact, the accused is almost always the focus where the incident only generates one news story. On the other hand,
where the incident generates several reports, the articles tend to become more even-handed in their coverage of the accused and the accuser. We also expected that the parties would speak for themselves. In fact, a large
part of the communication with the press is through attorneys. We found that there is virtually no coverage of events taking place before litigation.... [T]he articles on sexual harassment tend to wait for litigation, despite studies showing that the majority of incidents are not reported, much less litigated. Although understandable from the press' point of view, the focus on litigation gives the impression that most sexual harassment is handled in the courts....

 

Our main focus is on identifying whether the media's portrayal of sexual harassment accurately reflects the reality of sexual harassment as indicated in surveys, charge filings with the EEOC, and in complaints filed in district court. We provide and compare empirical evidence from these four different sources, and conclude with
an assessment of whether the media does accurately characterize sexual harassment.

Podcast: Catharine MacKinnon on Sexual Harassment in the Age of MeToo

Podcast: Signs, Ask a Feminist: Catharine MacKinnon and Durba Mitra Discuss Sexual Harassment in the Age of #MeToo

Durba Mitra (DM): Today as part of Signs’ Ask a Feminist series, I have the opportunity to speak about sexual harassment and the #MeToo movement with feminist legal scholar Catharine MacKinnon, a lawyer, writer, teacher, and activist who is Elizabeth A. Long Professor of Law at the University of Michigan Law School and the James Barr Ames Visiting Scholar of Law at Harvard Law School since 2009, and one of the most cited legal scholars in the English language. MacKinnon is the author of numerous books, including the groundbreaking work Sexual Harassment of Working Women: A Case of Sex Discrimination, published in 1979 by Yale University Press, when Professor MacKinnon was completing her PhD at Yale. MacKinnon went on to write the brief and win, as cocounsel, the landmark Supreme Court case Meritor Savings Bank v. Vinson, which established sexual harassment as discrimination. MacKinnon has authored numerous books on critical issues, including Feminism Unmodified, Toward a Feminist Theory of the State, and Are Women Human? I had the opportunity before this interview to read some of Professor MacKinnon’s research related to her landmark first book in an extraordinary resource, her own papers, acquired by the Arthur and Elizabeth Schlesinger Library on the History of Women in America at the Radcliffe Institute at Harvard. Her study, published almost forty years ago, became the basis of transformations not only in sexual harassment law but in wider discourses that shaped the public perception of the very idea of sexual harassment. Supreme Court Justice Ruth Bader Ginsburg cites MacKinnon’s Sexual Harassment as the landmark study, the foundation for legal debates and social understanding on discrimination on the basis of sex.

Senate Judiciary Committee Skeptical of Judiciary's Response to Sexual Harassment in Courthouses

Joan Biskupic, Senators Unhappy With Judiciary's Response to Sexual Harassment in Courthouses

Senators from both parties expressed frustration and concern on Wednesday about the US judiciary's response to sexual harassment in federal courthouses.

 

Judiciary Chairman Chuck Grassley complained that judicial officials, who studied the problem for six months after claims of misbehavior against US Appeals Court Judge Alex Kozinski became public, produced only a "vague" report with no assessment of how widespread abuse might be.

 

Grassley, an Iowa Republican, warned that it might be time for an independent inspector general to oversee misconduct -- a proposal judicial officials have long fought as being unnecessary and a potential violation of the Constitution's separation of powers.

  

James Duff, director of the Administrative Office of the US Courts, insisted that judges are sufficiently addressing sexual misconduct.

 

"It's not as prevalent as it is in other workplaces," Duff said. 

 

When Sen. John Kennedy, R-Louisiana, pressed him to be more specific and use a scale of 1 to 10, with 10 being "off the charts" sexual offenses, Duff further hesitated but answered, "By comparison to the other workplaces, it's probably ... maybe ... whatever I say ... it's just a guess, maybe a 3 or 4."

 

The Judiciary Committee hearing offered the first forum for examining the third branch's response to sexual harassment claims and broader misconduct issues since complaints against the California-based Kozinski emerged in December. The Washington Post, which first reported on Kozinski, highlighted an account from a law clerk who said the judge had asked her to look at pornographic images on his office computer.

 

A CNN special report in January, examining about 5,000 judicial orders arising from misconduct complaints over the past decade, found that courthouse employees and others with potentially valid complaints against judges rarely use the complaint system, or get no relief when they do. Judges overseeing the system seldom find that a claim warrants an investigation or that a judge should be disciplined.

Open Statement on Sexual Harassment from Employment Discrimination Law Scholars

This open statement on sexual  harassment law by leading law scholars includes 10 principles important to understanding sexual harassment as well as concrete proposed reforms tailored to each principle.

Open Statement on Sexual Harassment from Employment Discrimination Law Scholars

 Law Professors Rachel Arnow-Richman, Ian Ayres, Susan Bisom-Rapp, Tristin Green, Rebecca Lee, Ann McGinley, Angela Onwuachi-Willig, Nicole Porter, Vicki Schultz, and Brian Soucek

Introduction

We, the undersigned legal scholars and educators with expertise in employment discrimination law, seek to offer a new vision and agenda for eliminating sexual harassment and advancing workplace equality. We are inspired by the #MeToo movement: The courage and sheer number of people who have come forward to report harassment and abuse, the cross-race, cross-class solidarity among activists, the media’s in-depth and sustained coverage, and the public’s willingness to hear and believe so many victims all suggest this is a watershed moment for change.

Inspired by recent events and renewed activism, we wish to contribute to the current momentum by broadening the conversation about the law. We know that law alone cannot create change. Yet we know also that change rarely occurs without the law. For over forty years, employees, activists, educators, and policymakers have looked to the legal system to address sexual harassment in the workplace. These efforts have produced important theories and information, steps forward and setbacks, that yield important lessons for the future. Title VII and other existing laws against discrimination provide an important tool in the fight against sexual harassment, one that will require continued leadership from enforcement agencies. But broader reforms are needed to address the conditions in which harassment flourishes and to make the legal system more responsive to employees. To reduce sexual harassment and move toward a fairer, more inclusive workplace and society for people of all sexes and genders, we offer the following principles and proposals for reform gained from years of working for change within the law.

 

Ten Principles for Addressing Sexual Harassment

Principle #1: The problem with workplace harassment is sexism, not sexual desire.

Principle #2: Harassment includes many forms of sexism and abuse, not just sexual misconduct.

Principle #3: Sexual harassment is directly linked to sex segregation and inequality.

Principle #4: Same-sex harassment and LGBTQ harassment are prohibited sex discrimination, too.

Principle #5: Race-based harassment and intersectional race/sex harassment and discrimination against women and men of color must be specifically addressed.

Principle #6: Broader occupational and other structural vulnerabilities must be reduced.

Principle #7: Banning all sexual behavior is not a solution and can even be harmful to the cause of eliminating harassment.

Principle #8: Protection against retaliation for victims of harassment and people who stand up for them must be strengthened.

Principle #9: Victims of harassment should have the same recourse to the legal system as other victims of discrimination.

Principle #10: Prevention and remedies must move beyond punishing individual wrongdoers to encourage systemic institutional change.

Ninth Circuit En Banc Rules that Women's Salary Histories Cannot be Used to Justify Unequal Pay

ABA J, Salary History Doesn't Justify Paying Women Less, 9th Circuit Rules in Opinion Written by Late Judge

An en banc federal appeals court ruled Monday that salary history cannot be used to justify paying less to women in comparable jobs.

 

The San Francisco-based 9th U.S. Circuit Court of Appeals ruled that salary history is not relevant in a suit under the Equal Pay Act, report the Recorder, the Los Angeles Times and Courthouse News Service. How Appealing links to additional coverage and to the opinion.

 

The Equal Pay Act bars wage differences between male and female employees for comparable work—except in cases of seniority, merit, quantity or quality of production, or “any other factor other than sex.” The defendants had argued salary history was a factor “other than sex.”

 

The appeals court ruled that “a factor other than sex” is limited to legitimate, job-related factors such as experience, educational background, ability or prior job performance.

 

Prior salary, whether considered alone or with other factors, is not job-related, and relying on it perpetuates discrimination, the appeals court said.

 

Federal appeals courts are split on the issue, according to the National Law Journal. The U.S. Courts of Appeals for the Denver-based 10th Circuit and for the Atlanta-based 11th Circuit have held that prior pay can’t be considered alone as an exemption to equal pay laws. The Chicago-based 7th U.S. Circuit Court of Appeals has ruled salary history can be considered.

The decision is here at Rizo v. Yovino (9th Cir. en banc April 9, 2018). 

There were three concurrences (5 judges of 11), with two of the concurrences reserving the option for businesses to use salary histories as a relevant, but not determinative, factor in pay decisions.  Three of the four women on the en banc panel joined a concurrence (only one of whom is a Republican appointee). 

For prior coverage of the earlier panel decision on this blog, see 

9th Circuit Grants En Banc Review for Decision Permitting Women to be Paid Less Than Men Due to Salary History (Sept. 2017)

EEOC Seeks Rehearing En Banc in 9th Cir Decision Finding Unequal Pay Based on Salary History Alone is not Gender Discrimination (May 2017)

Court Holds Salary Histories are Non-discriminatory Basis to Pay Women Less (May 1, 2017)

Neoliberalism and the Lost Promise of Title VII

Henry L. Chambers, Jr., Neoliberalism and the Lost Promise of Title VII, JOTWELL, reviewing Deborah Dinner, Beyond “Best Practices”: Employment-Discrimination Law in the Neoliberal Era, 92 Ind. L.J.  1059 (2017).

In Beyond “Best Practices”: Employment-Discrimination Law in the Neoliberal Era, Professor Deborah Dinner explores how neoliberalism of the late twentieth century has influenced Title VII’s interpretation and destroyed Title VII’s ability to transform the American workplace into one where employees are properly treated, fairly valued, and fully compensated. She suggests that neoliberalism’s focus on a minimal role for state intervention and on the individual worker as a completely realized market actor capable of protecting her interests through negotiation with an employer is problematic. It has led to an interpretation of Title VII that functionally expands employer prerogatives regarding terms of employment, limits employee power, and legitimates the economic inequality and class subordination that Title VII should attempt to eliminate. Consequently, even “best practices” that fully enforce Title VII “are insufficient to realize a labor market responsive to the needs of low-income workers for adequate wages, safe work conditions, and work hours and schedules that allow for fulfilling family and civic lives.”

 

The article is a Thing I Like Lots because it takes two seemingly unrelated topics – Title VII and neoliberalism – and explores how they are connected. Dinner notes neoliberalism is not a tight theory, but a general outlook that focuses on a free-market ideal that favors deregulation and individual autonomy. Accordingly, the article situates employment discrimination law inside of our American culture, recognizing that a law or its interpretation does not exist separate from the society in which it operates. Simply, Title VII – the statute considered most likely to bring substantive and procedural equality to the workplace – can be blunted by interpretations provided by courts and commentators operating in a neoliberal society. The article notes the roads not taken and laments the unmet possibilities of employment discrimination law. That is worthwhile to consider even for a reader who may tend to focus on employment discrimination doctrine rather than theory.

Lilly Ledbetter on Equal Pay Day

Lilly Ledbetter: My #MeToo Moment

Equal Pay Day — the day up to which the typical woman must work in a particular year to catch up with what the average man earned the previous year — always brings back a rush of memories. Not surprisingly, many of them I’d rather forget: the pit in my stomach, for example, that developed when I read the anonymous note left in my mailbox that told me I was being paid a fraction of what other, male supervisors at Goodyear were making. And when the Supreme Court denied me justice in my pay discrimination case.

(Some of them are happier memories, like when President Barack Obama signed into law the Lilly Ledbetter Fair Pay Act to ensure other women would not receive the same treatment.)

Sexual harassment isn’t about sex, just like pay discrimination isn’t just about pay. Both are about power. They are clear evidence that too many workplaces value women less. That was true for me in the 1980s and 1990s when I worked at Goodyear, and it is still true today.