Gender and the Law Blog

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.

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.

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

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

Bloomberg, First Appeals Court to Mull EEOC Abortion Accommodation Rule

• 17 states to argue on appeal for injunction on pregnancy rule
• US Supreme Court’s Loper Bright decision likely to be raised

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.

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.

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.

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.

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. Austin. Here 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.”  

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.

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.

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.

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.

Eighth Circuit in Case of First Impression Rules Employee Does not Have to Arbitrate Claims She was Sexually Harassed and Raped by Chipotle Co-Worker

Chipotle Can't Force Arbitration of Workplace Rape Claim, US Court Rules

A U.S. appeals court on Monday said a former Chipotle Mexican Grill employee does not have to arbitrate claims that she was sexually harassed and raped by a coworker, because she sued the restaurant chain after a federal law took effect banning agreements to keep such claims out of court.

 

A unanimous three-judge panel, opens new tab of the St. Louis-based 8th U.S. Circuit Court of Appeals said the law that passed Congress with bipartisan support in 2022 applies to any lawsuit filed after it was enacted, rejecting Chipotle's claim that it only covers conduct that occurred after that date.

 

The ruling is the first of its kind by a federal appeals court and could salvage some pending cases and invite new ones involving conduct that occurred prior to the adoption of the law. A California state appeals court in January also said the federal ban applies based on the date a lawsuit is filed and not when the underlying conduct occurs.

 

The plaintiff says a coworker raped her in the bathroom at a Rochester, Minnesota, restaurant in 2021 after verbally harassing her for months, and that Chipotle failed to investigate or respond after she told a manager about the assault. She had signed an agreement to arbitrate employment-related disputes when she was hired, and initially sued Chipotle a few months after the federal law took effect. ***

 

Chipotle denied wrongdoing and moved to send the case to arbitration, citing the agreement the plaintiff had signed. But U.S. District Judge Donovan Frank in St. Paul last year said the agreement could not be enforced because of the federal ban on mandatory arbitration of harassment and assault claims.

 

The 8th Circuit on Monday affirmed. The law applies to "disputes" that arise on or after its effective date, and that term applies to an actual "conflict or controversy," such as a lawsuit, the court said.

 

The Return of Boy Scouts v. Dale and the Resurgence of Expressive Association Claims

Elizabeth Sepper, The Return of Boy Scouts of America v. Dale, 68 St Louis U L.J. (2024)  

In 2000, the Supreme Court’s decision in Boy Scouts of America v. Dale seemed to upend the law of freedom of association. Fears surfaced that the right of expressive association would be “an easy trump of any antidiscrimination law” —and perhaps other regulations of conduct. Organizations from schools to employers, social service providers to unions, could mount constitutional claims against the inclusion of individuals unwanted because of their sex, sexuality, race, disability, or beyond.

Instead, lower courts read Dale narrowly. Expressive associational rights would, it seemed, be bounded by the facts of the case. Freedom of association would not override equality under the law.

The ground, however, is now shifting. This essay identifies a rapid and dramatic resurgence of expressive association claims. In a series of decisions, courts have begun to read Dale as broadly as commentators once feared. Indeed, they have gone further still, taking the right to expressive association far beyond its foundations in the membership of non-profit, non-commercial groups. Employers, commercial entities, and social services providers have notched recent wins on expressive association claims. Several decisions conclude that an employer becomes expressive simply by articulating a desire to discriminate. Others deny a state interest in requiring nondiscrimination in employment on the ground that dissenting employees can work elsewhere—a proposition that would dismantle all of labor and employment law.

The essay offers some tentative explanations of the recent successes of expressive association claims. It predicts that the Supreme Court’s compelled speech opinion in 303 Creative v. Elenis will further fuel expansion. The essay concludes with a call to scholars to pay attention to developments in the lower courts where doctrinal siloes no longer hold and the antiregulatory agenda of the conservative legal movement is fast developing.

Black Women Reporters Sue Chicago Tribune for Pay Discrimination

Wash Post, Journalists Sue Chicago Tribune Owner Alleging Pay Discrimination

Chicago Tribune journalists filed suit Thursday against the newspaper’s owner, claiming it has knowingly paid them less than their White or male counterparts.

The federal lawsuit, filed as a class-action claim, seeks back pay for most Black and female reporters at the newspaper over the past five years, and to remedy salary discrepancies for those currently working at the paper.

“My beat has been about Black and Brown communities and inequities — the disparities, the wealth gap, homeownership, all of that,” said reporter Darcel Rockett, one of the seven named plaintiffs. “And to report on this routinely and then, in your own house, for it to fall on deaf ears … it’s debilitating.”

In 13 years, she told The Post, she has received one raise.

The suit is the latest escalation in the tensions between Alden Global Capital — which purchased the Tribune in 2021 on its rapid path to becoming one of the largest newspaper owners in the country — and the journalists who work for it. But it also represents years of frustration with past corporate owners.

Robin R. Runge on "Safe Leave from Work Post-Dobbs"

Robin R. Runge published Safe Leave from Work Post-Dobbs in Volume 28 of the Employee Rights and Employment Policy Journal.  The abstract is excerpted here: 

Given the increasing restrictions on how and where a person who becomes pregnant may seek abortion care, and the large number of workers who experience reproductive coercion including birth control interference, and/or pregnancy related abuse, who may need to seek abortion related services, it is important to examine their rights as workers to take leave from work to seek these services without fear of job loss.

 

Domestic violence impacts a high percentage of working women and people who become pregnant every year. Pregnancy-related abuse, reproductive coercion, birth control sabotage, and interference with abortion-related decisionmaking are common forms of gender-based violence and harassment that may lead a survivor to seek abortion-related medical care. Without access to leave from work for this purpose, many victims of domestic and sexual violence may not seek the services necessary to ensure their health and their safety. Survivors should be able to take job guaranteed time off from work, ideally paid, to seek medical care for a dangerous pregnancy and/or seek other pregnancy related health care including abortion care, which may require travel to another state if their state prohibits abortions, without fear of job loss.

 

This essay examines how state laws providing leave from work to victims of gender-based violence and harassment may be utilized to obtain necessary medical services, including abortion care, to address pregnancy-related abuse and reproductive coercion, birth control sabotage, and interference with abortion-related decision-making that is increasingly necessary post-Dobbs.

New Book, Fair Shake: Women and the Fight to Build a Fair Economy

Naomi Cahn, June Carbone & Nancy Levit, Fair Shake: Women and the Fight to Build a Fair Economy (Simon & Schuster 2024)

In an era of supposed great equality, women are still falling behind in the workplace. Even with more women in the workforce than in decades past, wage gaps continue to increase. It is the most educated women who have fallen the furthest behind. Blue-collar women hold the most insecure and badly paid jobs in our economy. And even as we celebrate high-profile representation—women on the board of Fortune 500 companies and our first female vice president—women have limited recourse when they experience harassment and discrimination.

Fair Shake: Women and the Fight to Build a Just Economy explains that the system that governs our economy—a winner-take-all economy—is the root cause of these myriad problems. The WTA economy self-selects for aggressive, cutthroat business tactics, which creates a feedback loop that sidelines women. The authors, three legal scholars, call this feedback loop “the triple bind”: if women don’t compete on the same terms as men, they lose; if women do compete on the same terms as men, they’re punished more harshly for their sharp elbows or actual misdeeds; and when women see that they can’t win on the same terms as men, they take themselves out of the game (if they haven’t been pushed out already). With odds like these stacked against them, it’s no wonder women feel like, no matter how hard they work, they can’t get ahead.

Fair Shake is not a “fix the woman” book; it’s a “fix the system” book. It not only diagnoses the problem of what's wrong with the modern economy, but shows how, with awareness and collective action, we can build a truly just economy for all.

Final Rule Published Implementing the Pregnant Workers Fairness Act

The EEOC published its Final Rule implementing the Pregnant Workers Fairness Act. The Final Rule and its interpretive guidance are available here. The EEOC's announcement highlighted the following key points of the Final Rule: 

• Numerous examples of reasonable accommodations such as additional breaks to drink water, eat, or use the restroom; a stool to sit on while working; time off for health care appointments; temporary reassignment; temporary suspension of certain job duties; telework; or time off to recover from childbirth or a miscarriage, among others.

• Guidance regarding limitations and medical conditions for which employees or applicants may seek reasonable accommodation, including miscarriage or still birth; migraines; lactation; and pregnancy-related conditions that are episodic, such as morning sickness. This guidance is based on Congress’s PWFA statutory language, the EEOC’s longstanding definition of “pregnancy, childbirth, and related medical conditions” from Title VII of the Civil Rights Act of 1964, and court decisions interpreting the term “pregnancy, childbirth, or related medical conditions from Title VII.

• Guidance encouraging early and frequent communication between employers and workers to raise and resolve requests for reasonable accommodation in a timely manner.

• Clarification that an employer is not required to seek supporting documentation when an employee asks for a reasonable accommodation and should only do so when it is reasonable under the circumstances.

• Explanation of when an accommodation would impose an undue hardship on an employer and its business.

• Information on how employers may assert defenses or exemptions, including those based on religion, as early as possible in charge processing.

The EEOC also provides the following guidance: What You Should Know about the Pregnant Workers Fairness Act.

 

Book Review, Kerri Stone's, Panes of the Glass Ceiling

Rona Kaufman Kitchen, Feminist Legal Theory and Stone's Panes of the Glass Ceiling, 17 FIU L. Rev. 771 (2023).

In her book, Panes of the Glass Ceiling: The Unspoken Beliefs Behind the Law’s Failure to Help Women Achieve Professional Parity, Professor Kerri Lynn Stone explores and deconstructs the many practical reasons why women have been unable to achieve equality in employment. Professor Stone painstakingly deconstructs the belief systems that underlie the American workplace and the path to professional success to reveal many of the nuanced reasons why women, despite their education, skill, and commitment to the workforce, continue to struggle to achieve professional success comparative to men. Stone insightfully explains why women continue to experience irremediable discrimination in employment almost sixty years after Congress outlawed sex discrimination in employment. Stone’s book is a long overdue deconstruction and indictment of the toxic masculinity and seemingly benign social norms that pervade workplace culture and its negative impact on women and equality. Her book is geared toward an audience that wants to understand the problems women face in employment today and solve those problems. While she provides historical context for many of the beliefs that ground the panes of the glass ceiling, her focus is not on theory or history. It is a book about the reality of 2022 and a map for how to shift that reality in 2023 and beyond.

This book review seeks to provide deeper grounding for Stone’s panes of the glass ceiling by placing her work in the broader historical and theoretical context of feminism, the women’s movement, and the history of women in the American labor force. This discussion proceeds in three parts. Part I provides the historical context for discrimination against women in the American workplace and anti-discrimination law by tracing the evolution of the modern women’s movement and the history of women’s participation in the labor force. Part II discusses Professor Kerri Stone’s panes of the glass ceiling and places each pane in theoretical context. Part III concludes with a brief discussion of how Stone’s articulation of the panes or the glass ceiling and her suggestions for reform contribute to the ongoing feminist legal theory discourse.

Study Finds that Effects of California's Paid Family Leave Act Did Not Help Women's Careers and Gender Pay Gap

Martha Bailey, Tanya Byker, Elena Patel, Shanthi Ramnath, The Long-Run Effects of California's Paid Family Leave Act on Women's Careers and Childbearing: New Evidence from a Regression Discontinuity Design and U.S. Tax Data" 

We use administrative tax data to analyze the cumulative, long-run effects of California's 2004 Paid Family Leave Act (CPFL) on women's employment, earnings, and childbearing.***

A growing body of evidence suggests that the gender gap in pay emerges abruptly at motherhood, as new mothers work less for pay in order to increase their caregiving at home. These differences are also evident in U.S. tax data, which show that the “child penalty” for women in annual wage earnings grows sharply after their first child is born.

Academics and policymakers have mobilized around this issue, citing the absence of paid family leave in the United States as a major obstacle to gender equity in the labor market. Paid family leave policies, they argue, could enable workers to take longer leaves to care for newborns instead of dropping out of the labor force. Remaining attached to employers could help workers retain job- and firm-specific human capital and decrease skill depreciation, minimizing wage losses due to caregiving. Because more women leave the labor force than men for caregiving reasons, formalizing paid leave policies could narrow the gender gap in pay.***

Our findings challenge the conventional wisdom that paid leave benefits improve women’s short- or long-term career outcomes. In fact, CPFL significantly decreased employment and earnings of first-time mothers in the short run. First-time mothers taking up paid leave under CPFL were 6 percent less likely to be employed and earned 13 percent less during the first three years after giving birth. Moreover, we find evidence that these earnings effects persisted, with wage earnings remaining 13 percent lower nine to 12 years later.