Gender and the Law Prof Blog

Encouraging Bystander Reporting of Sexual Harassment Through a Financial Reward System

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

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

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

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

The Growing Gender Pay Gap from COVID Resignations and Suggestions for Reform

Amy Soled, Gender Pay Disparity, the COVID-19 Pandemic, and the Need for Reform, 87 Brooklyn L. Rev. 953 (2022) 

 The COVID-19 pandemic has exposed and deepened systemic inequities in the United States. One such inequity is gender discrimination in the labor market, evidenced by pay disparity—the difference between women’s and men’s wages. During the pandemic, women left the workforce at double the rate of men. This employment disruption will negatively affect women’s wages upon their return, as well as their lifetime earnings, further widening the pay gap. Pay disparity exploits more than half of the population, decreases gross national product, and stymies economic growth. This article addresses the reasons why existing legislation has failed to close the pay gap. Relying on the framework of successful Icelandic legislation, which has helped narrow gender pay disparities in Iceland, this article proposes federal legislative reform measures designed to shift the burden of proving wage discrimination from the employee to the employer. Instituting these changes would diminish the effect of implicit gender biases and, correspondingly, reduce pay disparity.

Black Women Firefighters Sue DC, Alleging Racial and Gender Bias

Black Women Firefighters Sue DC, Alleging Racial and Gender Bias

Four Black female firefighters in the District sued the city Monday, saying they have been “systematically and continuously discriminated against on the basis of their race and gender,” including being denied salary increases and overtime pay and being subjected to unfair disciplinary action.

The lawsuit, filed in U.S. District Court in Washington, comes almost a year after a similar case was filed by 10 current and former Black female police officers in the District who complained of “repeated, coordinated and relentless retaliation” against Black women on the police force who complained about discrimination and other misconduct. That case is pending in U.S. district court.

The fire department case “is about systemic characteristics of [the Department of Fire and Emergency Medical Services] that turn it into a ‘boys club,’ in which Black women are tolerated, but not embraced or treated as equals, and in which Black women always have to beg, scrape and fight just to be treated fairly,” one of the plaintiffs’ lawyers, Pamela Keith, said in a statement.

Women's police and firefighter discrimination cases were among the first venues for women's rights equality cases when the earliest public interest litigation began in the 1970s with the Women's Law Fund in Cleveland, Ohio, running parallel to Ruth Bader Ginsburg's ACLU Women's Rights Project.  See Tracy Thomas, The Struggle for Gender Equality in the Northern District of Ohio, 171 n.27, in Justice and Legal Change on the Shores of Lake Erie (Paul Finkelman & Roberta Anderson eds.,2012). 

Study Shows Unintended Consequences of MeToo in Fewer Research Projects and Collaborations for Junior Women Academics

Marina Gertsberg, The Unintended Consequences of #MeToo - Evidence from Research Collaborations 

In this study, I use research collaborations between junior female and male academics at U.S. Economics departments as a laboratory in which to analyze how #MeToo affected workplace interactions between men and women. I find that junior female academics start fewer new research projects after the #MeToo movement. This decrease is driven by a decline in the number of collaborations with new male co-authors at the same institution. The negative effect is more pronounced in locations with more liberal gender attitudes. Moreover, I show that the drop in collaborations is concentrated in universities with both a high number of sexual harassment cases and more ambiguous sexual harassment policies. These results suggest that the social movement had unintended consequences that disadvantaged the career opportunities of the protected group. The study has also important implications for the design of organizational sexual harassment policies.

Misattribution of Authorship in Legal Work Masks Women's Efforts and Contributes to Gender Gap in Legal Profession

Jordana Goodman, Ms. Attribution: How Authorship Credit Contributes to the Gender Gap, Yale J. Law & Tech. (forthcoming)

 Misattribution plagues the practice of law in the United States. Seasoned practitioners and legislators alike will often claim full credit for joint work and, in some cases, for the entirety of a junior associate’s writing. The powerful over-credit themselves on legislation, opinions, and other legal works to the detriment of junior staff and associates. The ingrained and expected practice of leveraging junior attorneys as ghost-writers is, to many, unethical. But it presents a distinct concern that others have yet to interrogate: misattribution disparately impacts underrepresented members of the legal profession.

This Article fills that space by offering a quantitative analysis of gendered disparate impact of normative authorship omissions in law. Using patent practitioner signatures from patent applications and office action responses, which include a national identification number correlated to the time of patent bar admission, this work demonstrates how women’s names are disproportionately concealed from the record when the senior-most legal team member signs on behalf of the team. This work illustrates that, when women reach equivalent levels of seniority, they do not overexert their power to claim credit to the same extent as their male peers. This parallels sociological findings that competence-based perception, accent bias, and perceived status differentiation between male and female colleagues can manifest in adverse and disparate attribution for women. The gender gap in the legal profession is exacerbated through this practice by falsely implying that women do less work, are more junior, and do not deserve as much credit as their male colleagues.

Addressing the failure of current practices requires cultural changes and regulatory action to ensure proper and equitable attribution in scholarship, doctrine, and industry. Legal obligations to maintain the integrity of the legal profession must include these affirmative steps to remedy de facto and de jure discrimination.

New Bipartisan "Speak Out" Bill in Congress Removes Legal Barriers to Reporting Sexual Harassment from Nondisclosure Agreements

The Speak Out Act Removes Legal Barriers to Reporting Sexual Assault

A new bipartisan bill would enable workers to report workplace sexual assault and harassment even if they signed a confidentiality agreement, nearly five years after the viral #MeToo movement exposed how the common legal tools can muzzle survivors.

 

Reps. Lois Frankel (D-Fla.) and Ken Buck (R-Colo.) told The Washington Post they introduced legislation Friday that would empower survivors to report instances of abuse in the workplace. The bill, called the “Speak Out Act,” would prevent employers from enforcing nondisclosure or nondisparagement agreements (NDAs) in instances when employees and workers report sexual misconduct.

 

“This is a preventive piece,” Frankel said. “When companies that are going to have offenders are aware that they cannot hide illegal sexual harassment, that they cannot put it under the rug, they’re going to take more steps from the get-go to keep it from happening.”

 

NDAs are standard features of employment contracts that protect sensitive company information. They’re common across industries: Over one-third of the U.S. workforce is bound by an NDA, according to a 2018 Harvard Business Review report.

The Effectiveness of Dispute Resolution for Gender Discrimination Claims

Catherine Ross Dunham, Social Truths in the Workplace: How Adversarialism Undermines Discrimination Litigation 

This article explores the effectiveness of dispute resolution for gender discrimination claims in the American system of civil litigation. Adversarialism is a defining feature of the American system of civil justice, beginning with reduced trust in the quasi-inquisitorial system of Chancery in the nineteenth century and escalating with the increased importance of lawyers and public trials in the twentieth and twenty-first centuries. Although adversarialism remains of great importance in some aspects of the American system, this article questions whether the adversarial system is the best dispute resolution system to address workplace-based discrimination claims, as those claims are intimately connected to changes in social and cultural understandings within the workplace and within American society.

The tenets of our system over-rely on the assumption of a shared social context to define social truth. But that assumption is flawed in workplace discrimination litigation as workplace context varies by profession, and the worker experience varies based on the individual’s position in the hierarchy. For example, in a gender bias-driven workplace, a male supervisor may see the workplace culture as fair and merit-based, whereas his female contemporary may view the workplace culture as competitive and closed, seeing her position as that of an outsider who had to navigate her career path carefully. These varying perspectives create different social truths in the workplace, which are challenged by litigation. When the female employee claims that she was discriminated against in an unfair workplace, her social truth is thrust against the social truth of other supervisors and managers who view the workplace as fair. Litigation places those two conflicting understandings of workplace culture into direct controversy and positions the relevant parties as adversaries not only on the legal issues, but also on the issue of what is true about the workplace culture, reducing the opportunity for meaningful cultural change within and without the workplace.

This article asks what type of dispute resolution system can create a more reliable assessment of workplace social truth. By exploring options such as the quasi-inquisitorial systems of American Chancery and European conciliation, as well as the role of arbitration in American civil litigation, the article suggests that a non-adversarial approach allows for a more holistic resolution of workplace controversies. If a conflict is overseen by a judicial officer who can approach the conflict from a place of conciliation, cognizant of the relevant community and social context, resolution options can not only offer relief to the plaintiff within the subject workplace, but can also protect the relevant economic and cultural interests of the defendant. Conflict resolution which attempts to understand the competing social truths of the workplace, can offer an opportunity for voluntary change in the workplace without placing parties fully at risk, as they are in the “winner-take-all” litigation scenario. Furthermore, as our social truths evolve and change, our dispute resolution system, which de facto manages those truths through adversarial litigation, should be reconsidered for its role in creating new truths about whether the workplace is fair to all.

California Corporate Gender Diversity Law Struck Down, But Other States and Countries Continue Trend of New Laws

Ms., Gender Diversity on on California's Corporate Boards was Too Good to Law

In 2018, California broke new ground for women when Governor Jerry Brown signed the first-in-the-nation requirement that publicly traded companies in the state have at least one woman on their board of directors by the end of 2019, and two or three (depending on company size) by the end of 2021. The bill’s co-sponsor state Senator Hannah-Beth Jackson put it bluntly: “We are not going to ask any more.  We are tired of being nice. We’re tired of being polite. We are going to require this because it’s going to benefit the economy. It’s going to benefit each of these companies.”

 

Alas, it was too good to last. Last month, the law was deemed unconstitutional in a bench trial by Los Angeles County Superior Court Judge Maureen Duffy-Lewis because it wasn’t designed to remedy a “specific, purposeful, intentional and unlawful” instance of discrimination. She added that the state’s claims that diverse boards would directly boost California’s economy could not be proven.

 

It’s no surprise that Judicial Watch, the conservative group that prevailed in the litigation, trotted out the dreaded “Q Word” in opposing the measure: quotas. Legal precedent holds that quotas violate the Civil Rights Act of 1964, which prohibits discrimination against people based on race, gender, religion, age and other protected identities, because they could lead companies or schools to discriminate against people outside the targeted groups.

 

Never mind that in this case the poor, underrepresented targeted group happened to be wealthy white men, who have dominated corporate boards since Queen Elizabeth I the granted the first corporate charter to the East India company in 1600.

 

The ruling is without question a legal and moral setback, but fortunately for the future of women on boards in corporate America, that particular train may have already left the station. In the short time the law was in force, the percentage of board seats held by women virtually doubled—from 15.5 percent to 31.9 percent. In raw numbers, that translates to 766 female board members when the law was passed to 2046 by the end of 2021. ***

 

It’s clear from the pitiful progress since California led the way that stronger action is needed. Cases in point: Washington state’s law requires boards to have at least 25 percent of their makeup be members who self-identify as women. But violators face no penalties. Three other states—Maryland, New York and Illinois—merely require boards to disclose their demographic makeup. Ohio “encourages,” but does not require, disclosure.

 

We should take a page from the European Union playbook, where 40 percent female board seats for publicly traded companies were required as of March of this year. Under the new rules by the Council of the E.U., listed companies must meet the mandate by 2027

A Feminist Approach to Interpretation of World Trade Organization Agreements to Reveal the Lack of Neutrality

Anna Ventouratou, A Feminist Approach to the Interpretation of the WTO Agreements: Systemic Integration as a Gender Issue 

The normative content of international trade law is often depoliticised. The emphasis of trade lawyers and theorists on economics and the ‘technical’ nature of trade mechanics attempts to present the multilateral trade regime as ostensibly neutral. However, it is undeniable that the processes of trade liberalisation have a strong impact on the living conditions of people around the globe. This impact is asymmetrical: whilst trade liberalisation has created jobs for millions of workers, including millions of women, and has brought, at cases, on an individual level, greater economic independence, equality in the household, and personal empowerment, it seems that women are often negatively affected by the implementation of international trade law and policies. Moreover, despite their crucial role in increasing competitiveness and productivity, women rarely enjoy the benefits of trade liberalisation.

Although the need to re-evaluate established practices through a gender perspective is increasingly recognised in the international community, recent efforts by governments in the context of the WTO and other international institutions to engage in relevant discourse have been characterized by women’s rights groups as ‘pink herrings’: they seemingly address women’s rights but are essentially designed to mask the failures of the WTO and its role in deepening inequality and exploitation.

This paper asserts, firstly, that this is a fair criticism to the response of the WTO. It discusses how trade liberalisation has disproportionately affected women, especially women from lower incomes, rural areas and marginalised communities. It demonstrates that mere political declarations that call for inclusive economic growth and encourage the participation of women to economic activities ignore the realities of intersectional discrimination and the living conditions of millions of women that are employed precariously, under dangerous or unhealthy conditions and are denied access to public goods and basic social services. In other words, it demonstrates that trade liberalisation has a clear gendered impact.

Secondly, the paper suggests that a corrective step towards addressing the adverse impact of current trade regulations on women would be the adoption of an interpretative approach that is more deferential to international human rights law. This deference would require a paradigm shift in the approach of the WTO adjudicative bodies to the interaction of human rights law and trade law. The paper argues that the interpretation of the WTO Agreements in light of applicable human rights rules is not only analytically appropriate but also desirable from a feminist perspective.

The Limits of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act

David Horton, The Limits of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act  
132 Yale Law Journal Forum (2022 Forthcoming)

In March 2022, President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (the Ending Forced Arbitration Act). The bill voids pre-dispute arbitration clauses in cases with allegations related to sexual misconduct. The legislation—which earned bipartisan support—was a stunning victory for the #MeToo movement and critics of forced arbitration.

However, this Essay explores a design choice that limits the impact of the new law. Previously, Congress has restricted forced arbitration through standalone statutes that apply with the full force of its legislative power. Conversely, federal lawmakers inserted the Ending Forced Arbitration Act within the FAA. Thus, the Ending Forced Arbitration Act only governs if the FAA governs. But the FAA is subject to several exceptions. In turn, when a case falls through the cracks of federal arbitration law, state law applies. Counterintuitively, the Essay demonstrates that many states require arbitration where federal law now does not. Thus, to truly achieve the goal of preventing allegations of sexual misconduct from being sent to private dispute resolution, either Congress must separate the Ending Forced Arbitration Act from the FAA or states should revise their arbitration statutes.

Using Private Law of Contract as a Vehicle for Social Change for Gender Equality

Susan Chesler, Using Private Law as a Vehicle for Social Change: A Feminist Approach.

 Even though contracts are so embedded in individuals’ personal and professional lives, rarely (if ever) do we think of contracts as being a vehicle for social change. To effect legal change that addresses societal injustices, we generally rely on our legislative bodies and common law system. In this essay, I argue that private law – by way of contract drafting – should be considered an additional vehicle for seeking and obtaining social change. While it’s easy to envision how contract drafting can be effectively used to create immediate, positive impacts on the transacting parties themselves, contract drafting can also be used as a vehicle for broader societal change. Since performance of the legal obligations of a private contract often affects other individuals who are not parties to the agreement, it follows that the way those private contracts are drafted may improve their circumstances as well. Additionally, while a single individual may lack bargaining power to negotiate the most favorable of contract terms for themselves, groups of individuals – such as labor unions -- may yield great power. And some individuals by virtue of their resources or position can yield substantial power in contracting favorable contract terms, even with more powerful entities. Contract drafting choices also have a direct impact on the way the common law is created in the judicial arena and thus its reach extends beyond the transacting parties. In this essay, I argue that the use of the same or similar contract drafting language in numerous unrelated contracts can have a significant impact and can effectively be used to address societal injustices.

As an illustration of the powers of contract drafting, this essay provides concrete examples of how a feminist approach to contract drafting can be used to eliminate, or at least limit, gender inequality. By applying a feminist perspective to the drafting of employment and premarital agreements, I demonstrate how contract drafting choices can not only lead to positive changes for the contracting parties, but can also lead to broader social change. While advocating for change through legislative and judicial pathways will likely remain the primary avenues for challenging societal injustices, this essay aims to show why contract drafting can also be used as a vehicle for change.

The Effect of Alimony Reform on Married Women

Daniel Fernandez-Kranz & Jennifer Roff, The Effect of Alimony Reform on Married Women's Labor Supply: Evidence from the American Time Use Survey

Reforms that reduce alimony can affect married couples in two different ways. First, reduced alimony lowers the bargaining power of the payee, usually the wife. Second, reduced alimony lowers the incentives of wives to engage in the traditional male breadwinner model of household specialization. Using the American Time Use Survey and exploiting a series of recent reforms in several US states that reduced the entitlements of eligible spouses, we find that wives surprised by the reforms reacted by moving away from the traditional male breadwinner model of household specialization. We also find that highly educated women substituted work for time devoted to housework and childcare, while less educated wives substituted work for leisure and personal time. We find no effects for men. The fact that the reforms reduced fertility only among women with higher education suggests that the difference between them and less educated wives in the response to reduced alimony is due, at least in part, to differences in their preferences and costs for children. The estimated effects are larger among couples with a large difference in the earnings potential of spouses and are robust to several sensitivity tests.

How Comedy TV Downplays Sexual Harassment and Desensitizes Jurors

Molly Pratt, "'He Took It Out.' How Comedic Television Shows Shape Jurors' Perceptions of Workplace Sexual Harassment," 90 U.M.K.C. L. Rev. (2022)

This Comment analyzes the ways in which depictions of sexual harassment in media, specifically situational comedic ("sit-com") television series, affect potential jurors' understanding and evaluation of workplace sexual harassment claims. Part I begins by explaining the "cultivation theory," which hypothesizes that television shapes viewers' beliefs about the world around them. This section also considers social science evidence that exemplifies how people are influenced by different forms of media, especially media depictions that sexually objectify women. Next, Part II describes the elements of the two different types of harassment claims to provide a backdrop of what real humans, not characters on television, endure every day at work. Part III compares two major sensationalized claims of sexual harassment that have occurred over the past thirty years. Part IV summarizes various episodes of Seinfeld, Veep, and Curb Your Enthusiasm that include scenes of sexual harassment in order to analyze how prospective jurors might consider the illegal harassment shown on television almost every night. Finally, Part V proposes actions that can be taken by the legal and entertainment industries to ameliorate the harmful effects that comedic depictions of sexual harassment can have on juries.

Comedic television episodes which downplay workplace sexual harassment situations that would otherwise make for valid claims under Title VII may cause jurors to become desensitized to the severity of real-world harassment experienced by real-world victims. While this Comment aims to illustrate how media consumption affects the breadth of the legal industry, its underlying goal is to shed light on how inaccurate depictions of legal issues can be harmful to a viewer who is untrained in the law.

US Soccer Reaches Labor Deal for Equal Pay for US National Women's Soccer Team

Wash Post, US Women's and Men's National Soccer Teams Close Pay Gap with "Game-Changing" Deal

The U.S. men’s and women’s national soccer teams struck a labor deal that closes the contentious pay gap between the squads, an unprecedented step that will equalize both salaries and bonuses, providing a substantial boost to the decorated women’s team.

 

The deal was part of new collective bargaining agreements with the U.S. Soccer Federation that were announced Wednesday. It was the culmination of a long battle between the women’s team and the sport’s national governing body, which included a high-profile lawsuit that was settled this year.

 

The USSF said the agreement makes the United States the first country to achieve equal pay for its men’s and women’s teams.

 

“To finally get to the point where on every economic term it’s equal pay, I am just really proud,” USSF President Cindy Parlow Cone said

 

The new CBAs, which still need to be ratified, will equalize World Cup bonuses, something Parlow Cone said no other nation had done. The U.S. teams will pool the World Cup bonuses received from FIFA, the sport’s global governing body, and split them equally, evening out a substantially unequal playing field.

Exploring State Laws of Pregnant Workers Fairness Acts and Reasonable Accommodations

Deborah Widiss, Pregnant Workers Fairness Acts: Advancing a Progressive Policy in Both Red and Blue America, Nevada L.J. (forthcoming)

 Pregnant workers often need small changes—such as permission to sit on a stool or to avoid heavy lifting—to work safely through a pregnancy. Federal law does not explicitly address this need. However, in the past decade, twenty-five states have passed laws that guarantee pregnant employees a right to reasonable accommodations at work. Despite the stark partisan divides in contemporary America, the laws have passed in both Republican- and Democratic-controlled states. This Essay, written for a symposium on using state legislation to advance civil rights, offers the first relatively-detailed case study of this remarkably effective campaign.

Advocates have generated bipartisan support by highlighting that the laws, generally known as Pregnant Workers Fairness Acts, simultaneously advance numerous distinct policy objectives. Lack of accommodations for pregnancy is a major barrier to women’s equality that disproportionately disadvantages poor and working-class women of color. Addressing this need is also a pro-family policy that promotes maternal and infant health and reduces liability risk to employers. These various frames help sell the policy to lawmakers across the political spectrum.

The state-level success has also been the result of effective partnerships between national organizations and state and local groups. Additionally, the Essay shows how the state legislative campaign has been reinforced by litigation in federal courts, advocacy to federal agencies and Congress, and worker organizing. Finally, the Essay explores how state-level organizing—even unsuccessful state campaigns—has bolstered support for analogous federal legislation.

4th Circuit Rules Constitution's Fifth Amendment Equal Protection Clause Protects Against Sexual Harassment

Court Revives Sexual Harassment Lawsuit Targeting Federal Judiciary

A federal appeals court on Tuesday revived a former public defender’s lawsuit challenging the federal judiciary’s handling of her sexual harassment and discrimination claims about a supervisor’s unwelcome attention at work.

 

The three-judge panel sided in part with Caryn D. Strickland, a former public defender in Charlotte, and said U.S. court leaders are not entirely shielded from being sued by judiciary employees. In its unanimous ruling, the panel recognized Strickland’s constitutional right — and that of all federal judiciary employees — to be free from sexual discrimination in the workplace.

 

The ruling comes as leaders of the federal judiciary have overhauled the court’s process for reporting misconduct, and as Congress is considering legislation to extend protections to the judiciary’s more than 30,000 employees who lack the same legal rights as other government and private-sector workers.

 

In a 118-page decision, the appeals court said Tuesdaythat judiciary employees in management roles can be held liable for “their deliberate indifference to sexual harassment committed by a federal judiciary employee or supervisor against another federal judiciary employee,” according to the opinion, written by Judge Mary Beck Briscoe of the U.S. Court of Appeals for the 10th Circuit.

 

The panel said the Fifth Amendment’s equal protection clause “secures a federal judiciary employee’s right to be free from sexual harassment in the workplace. It thus both guards against sexual harassment perpetrated by other federal judiciary employees and protects federal judiciary employees from deliberate indifference on the part of federal judicial employees charged with preventing sexual harassment and investigating complaints of sexual harassment.

 

The decision is: Strickland v. United States (4th Circ. Apr. 26, 2022) (procedural due process and equal protection claims)

   C. Strickland’s equal protection claim

We next turn to the second claim for relief asserted in Strickland’s complaint, which alleges that defendants “violated the equal protection component of the Fifth Amendment’s Due Process Clause, which confers a right to be free from sex discrimination in federal employment.” ***

The Fifth Amendment to the United States Constitution provides, in pertinent part, that “[n]o person shall . . . be deprived of life, liberty, or property, without due process of 77 law.” U.S. Const. Amend. V. “In numerous decisions,” the Supreme “Court has held that the Due Process Clause of the Fifth Amendment forbids the Federal Government to deny equal protection of the laws.” Davis, 442 U.S. at 234 (internal quotation marks omitted). “To withstand scrutiny under the equal protection component of the Fifth Amendment’s Due Process Clause, classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” Id. at 234₋35 (internal quotation marks omitted). “The equal protection component of the Due Process Clause thus confers . . . a federal right to be free from gender discrimination which cannot meet these requirements.” Id. at 235.

In analyzing Strickland’s Fifth Amendment equal protection claim, the district court began by concluding that Strickland was “attempt[ing] to graft precedent interpreting Title VII onto the Fifth Amendment.” JA, Vol. IV at 1520. The district court in turn concluded that the Fourth Circuit would not recognize such a claim. Id. at 1521. In support, the district court stated that “the Fourth Circuit has not held that courts must apply Title VII standards to free-standing Fifth Amendment claims” and, “[t]o the contrary,” has “rejected a similar attempt to graft Title VII standards onto a free-standing Fourteenth Amendment equal protection claim.” Id. at 1522 (emphasis in original) (citing Wilcox v. Lyons, 970 F.3d 452, 460 (4th Cir. 2020)). The district court concluded that “Strickland’s complaint is devoid of any allegation that women are treated differently than men under the EDR Plan,” and that “Strickland does not allege that the actions taken against her were on the basis of her sex.” Id. at 1523. “Instead,” the district court concluded, Strickland “theorizes that the [defendants] discriminated against her on the basis of sex when they mishandled 78 her sexual harassment complaints, ultimately leading to retaliation and constructive discharge.” Id.

We conclude that the district court misconstrued both the Fourth Circuit’s decision in Wilcox and, more importantly, Strickland’s equal protection claim. In Wilcox, the Fourth Circuit “conclude[d] that a pure retaliation claim is not cognizable under the Equal Protection Clause” of the Fourteenth Amendment. In doing so, the Fourth Circuit noted that neither it nor the Supreme Court “has recognized an equal protection right to be free from retaliation.” 970 F.3d at 458. Instead, the court noted that it “has consistently considered retaliation claims brought under Section 1983 to be more properly characterized as claims asserting a violation of the First Amendment.” Id.

The court explained that “[r]etaliation for reporting alleged sex discrimination imposes negative consequences on an employee because of the employee’s report, not because of the employee’s sex.” Id. at 460. “The very premise of a retaliation claim,” the court noted, “is that the employer has subjected an employee to adverse consequences in response to her complaint of discrimination.” Id. Thus, the court noted, “[t]he necessary causal link is between the employee’s complaint and the adverse action, not between her sex and the adverse action.” Id. The court emphasized that “continued sexual harassment and adverse treatment of a female employee unlike the treatment accorded male employees remains actionable as a violation of the Equal Protection Clause even when the sex discrimination and harassment continue after, and partially in response to, the female employee’s report of prior discrimination and harassment.” Id. at 461 (emphasis added). But, the court noted, “[t]he employee’s claim in such a case is not a claim of pure 79 retaliation, but instead implicates the basic equal protection right to be free from sex discrimination that is not substantially related to important governmental objectives.” Id. (internal quotation marks omitted; emphasis added). Although the court’s holdings were limited to the Equal Protection Clause of the Fourteenth Amendment, we have no doubt, given the Supreme Court’s equivalent treatment of equal protection claims under the Fifth and Fourteenth Amendments, that they should be extended to retaliation claims brought under the equal protection component of the Fifth Amendment’s Due Process Clause. See Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975) (noting that the Supreme Court’s “approach to Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment.”).

***Thus, Strickland has not alleged a pure retaliation claim, but rather has alleged a violation of her right under the Equal Protection Clause of the Fifth Amendment to be free from sex discrimination.

We also agree with Strickland that, under Fourth Circuit law, her complaint adequately alleged that defendants were deliberately indifferent to her complaints of sexual harassment. The Fourth Circuit has held in the context of a § 1983 action that a school official can be liable under the Equal Protection Clause of the Fourteenth Amendment for his or her deliberate indifference to student-on-student sexual harassment. Feminist Majority Found. v. Hurley, 911 F.3d 674, 701–02 (4th Cir. 2018).***

Because the Supreme Court’s “approach to Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment,” Weinberger, 420 U.S. at 638 n.2, we conclude that the principles outlined by the Fourth Circuit in Feminist Majority Foundation apply equally to the circumstances alleged by Strickland in this case. More specifically, federal judiciary employees who occupy supervisory roles and/or who are charged with enforcing an EDR plan can, under Feminist Majority Foundation, be held liable under the Fifth Amendment 82 for their deliberate indifference to sexual harassment committed by a federal judiciary employee or supervisor against another federal judiciary employee. This conclusion is based on the principle that the Fifth Amendment’s Equal Protection Clause secures a federal judiciary employee’s right to be free from sexual harassment in the workplace. It thus both guards against sexual harassment perpetrated by other federal judiciary employees and protects federal judiciary employees from deliberate indifference on the part of federal judicial employees charged with preventing sexual harassment and investigating complaints of sexual harassment.

The elements of such a claim, we conclude, are essentially identical to those outlined by the Fourth Circuit in Feminist Majority Foundation: (1) the plaintiff was subjected to sexual harassment by another employee or supervisor; (2) the plaintiff alerted supervisory officials and/or officials responsible for overseeing the court’s EDR plan about the sexual harassment; (3) the supervisory officials and/or officials responsible for overseeing the court’s EDR plan responded to the allegations with deliberate indifference; and (4) the deliberate indifference was motivated by a discriminatory intent.***

Thus, in sum, we conclude that Strickland’s complaint adequately alleged that defendants violated her equal protection rights under the Fifth Amendment and that the district court erred in concluding otherwise.

The Gender Pay Gap of High-Achieving Women in the Legal Profession

Milan Markovic & Gabriele Plickert, "The Gender Pay Gap and High-Achieving Women in the Legal Profession" 
Law and Social Inquiry, Forthcoming

Although women have made significant strides in the legal profession, female attorneys continue to earn far less than male attorneys. Relying on survey data from a large sample of full-time attorneys in Texas, we find a gender pay gap of $35,000 at the median that cannot be explained by differences in human capital or occupational segregation. We also provide evidence that the legal market especially disadvantages women who excel in law school. Whereas high academic achievement boosts male lawyers’ incomes substantially, it does not have the same effect on female lawyers’ incomes. High-achieving female lawyers earn less than high-achieving male lawyers across practice settings and earn less than their lower-achieving male counterparts in private practice. We conclude that discrimination in the legal profession operates partly by devaluing female attorneys’ human capital, such that sterling academic credentials and other traits that are valued in men are far less valued in women.

Making the Instrumental Case for Corporate Diversity

Naomi Cahn, June Carbone & Nancy Levit, The Instrumental Case for Corporate Diversity, J. of Law & Inequality

 
The moral case for diversity in businesses is compelling. The business case for diversity (that “diverse companies do better”) is mixed: studies in the business literature do not prove that simply adding diversity causes the improvement; instead, they posit that the improvement is likely to be “endogenous,” that is, the factors that encourage and sustain diversity, such as greater transparency, also improve financial performance. In this article, we make what we call “the instrumental case for diversity.” If the same factors that correlate with greater diversity also correlate with improved performance, then greater diversity can be a benchmark for better corporate management. It can make diversity metrics a tool (though not necessarily an exclusive or necessary tool) in measuring the reform of dysfunctional corporate cultures. Diversity might then become part of an iterative process; maintaining diversity will require management reforms such as greater transparency that will in turn fuel transformations in management cultures that further both greater diversity and better overall performance.

Moving Beyond a Simplistic Application of Intersectionality Theory in Analyzing Employment Discrimination Against Black Women

Jamillah Bowman Williams, Beyond Sex-Plus: Acknowledging Black Women in Employment Law and Policy, Employee Rgts & Employment Policy J (forthcoming)

  It has been more than 30 years since Kimberlé Crenshaw published her pathbreaking article critiquing the inadequacy of antidiscrimination law in addressing claims at the intersection of race and sex discrimination. This Article focuses on the challenges Black women continue to face when bringing intersectional claims, despite experiencing high rates of discrimination and harassment. The new status quo has not resolved the problems that she documented, and has introduced a set of second generation intersectionality issues. Most significantly, many courts now recognize that Black women experience discrimination differently than do white women or Black men. Yet, despite the professionally and psychologically disabling consequences of such discrimination, judges have failed to develop a new analytic paradigm for addressing intersectional claims under Title VII. Likewise, Congress has failed to offer a legislative solution, and the Equal Employment Opportunity Commission provides scant guidance for employees, employers, and attorneys attempting to navigate these claims. Even the recent flurry of #MeToo-inspired state legislative reforms miss the opportunity to address this persistent problem. Despite vocal resistance to Critical Race Theory, the ongoing metoo movement and increased receptiveness to address systemic racism following the mass protests in 2020, make this an opportune time to renew our discussion of intersectionality and reshape the meager analytical framework of antidiscrimination law. This Article lays the foundation for future research and second generation law and policy proposals that will take crucial steps towards finally acknowledging and addressing the real discrimination Black women face.

An Argument for Equitable Tolling in Sexual Harassment Cases

Joseph Seiner, Time, Equity, and Sexual Harassment, 12 U.C. Irvine L. Rev.573 (2022)

Sexual harassment remains a pervasive problem in the workplace. Recent studies and empirical research reveal that this unlawful conduct continues to pervade all industries and sectors of the economy. The #MeToo movement has made great progress in raising awareness of this problem and in demonstrating the lengths that some employers will go to conceal a hostile work environment. The movement has further identified the lasting emotional toll workplace harassment can have on its victims.

The research in this area demonstrates that the short timeframe harassment victims have to bring a federal discrimination charge—180 or 300 days depending on the state—is wholly inadequate. The deception, misrepresentation, and sexual abuse encountered by many workplace harassment victims can make it impossible to file a timely charge. The pandemic has further highlighted the difficulties harassment victims can face in meeting this deadline through no fault of their own. This Article argues that the only practicable solution to this problem is a more robust application of the centuries-old doctrine of equitable tolling to pause the harassment time filing deadline where appropriate.

This Article identifies five equitable tolling guideposts that the courts should consider before dismissing a sexual harassment claim on the basis of an untimely charge—psychological harm, employer threats, fear, workplace deception, and public health. This Article discusses how each of these markers may impact the timeliness of a harassment claim and explains when the use of equitable tolling may be appropriate. Given the extensive research in this area, as well as our expanded understanding of the pervasiveness of sexual harassment in the workplace, employers should no longer be permitted to run out the clock on these claims through their own improper conduct.