Friday, December 3, 2021

Sexual Harassment in the Workplace - Intersectionality's Role

Jamillah Bowman Williams, Maximizing #MeToo: Intersectionality & the Movement, 62 B.C. L. Rev. 1797 (2021).

This article addresses the intersectionality of identities in the context of sexual harassment, and how the failure to recognize the impact of this intersection results in responses to sexual harassment in the workplace that do not adequately protect women of color.  “Given the high rate at which women of color experience harassment and assault, the unique types of racialized sex harassment they experience, and the compounded forms of structural disadvantage they face in a range of domains, it is particularly important for anti-discrimination law to address their concerns.”  This is because, “the intersectional experience is greater than the sum of racism and sexism” and thus legal and social frameworks to address sexual harassment must “acknowledge the complex and overlapping web of racism and sexism.”  For example, current Title VII forces plaintiffs to choose whether to bring their discrimination case “because of race” or “because of sex” but not both, and “[e]mpirical research has found that plaintiffs bringing intersectional claims are less than half as likely as plaintiffs bringing single claims to win their cases.” Social reform movements have similarly fallen short.

Given broad access to social media, lower barriers to participation, and increased demands for an intersectional approach to feminism, #MeToo had the potential to have very inclusive participation across demographics, strong alliances, and coalitions, but the movement has fallen short of this opportunity.  The experiences of white affluent, and educated women have dominated the narrative with a focus on bringing down high-profile assailants [ ].

In response, Professor Williams proposes legal reform, organizational reform, and cultural reform to address the failure to account for intersectionality in the current response to sexual harassment.  “This strategy will benefit all victims of harassment and is particularly critical for women of color.”  Professor Williams warns that absent these “significant organizational and cultural changes, proposed legal remedies will continue to fail.”

December 3, 2021 in Equal Employment, Gender, Race, Women lawyers, Workplace | Permalink | Comments (0)

Thursday, December 2, 2021

First Federal Legislation on Workplace Harassment and Discrimination Reintroduced into Congress

First Federal Legislation on Workplace Harassment and Discrimination Reintroduced into Congress

On Wednesday, the first comprehensive federal legislation on workplace harassment and discrimination was reintroduced in Congress. The Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination—or BE HEARD in the Workplace—Act aims to create a safe and harassment-free workplace, expand protections, and help facilitate justice for workers nationwide. The bill is sponsored in the Senate by Sens. Patty Murray (D-Wash.) and Marie Hirono (D-Hawaii), and in the House by Reps. Katherine Clark (D-Mass.), Ayanna Pressley (D-Mass.), Sylvia Garcia (D-Texas), Elissa Slotkin (D-Mich.) and Marilyn Strickland (D-Wash.). 

 

“It doesn’t matter who you are, or where you work—everyone deserves to be treated fairly, respectfully and with dignity,” said Murray.

 

The BE HEARD in the Workplace Act would:

  • extend the scope of current laws, including civil rights protections and anti-harassment laws, to include all workers, no matter the workplace’s
  • size, as well as extend these laws to apply to interns, fellows, volunteers, trainees and independent contractors;
  • widen the definition of “sex discrimination” at work to include harassment and any form of discrimination based upon sexual orientation or gender identity;
  • require nondiscrimination training;
  • extend the statute of limitations for complaints from 180 days to four years; and
  • mandate that the Census Bureau do further research on harassment in the workplace.

 “Even with the laws we have on the books and the #MeToo movement shedding light on this problem, it’s still way too easy for employers to get away with committing these offenses,” said Hirono.To promote transparency and accountability, the BE HEARD in the Workplace Act would also stop pre-employment non-disclosure agreements and mandatory arbitration, which requires employees and customers to file complaints and resolve conflicts within the company, instead of in a court. Mandatory arbitration is used in 54 percent of the cases involving non-union employers in the private sector, and the system is disadvantageous to workers, who win only 1.6 percent of these cases on average. Rates of mandatory arbitration have increased since the onset of the pandemic.

December 2, 2021 in Equal Employment, Workplace | Permalink | Comments (0)

Monday, November 29, 2021

Women of Color in Immigration Enforcement

Kit Johnson has posted her recent article on SSRN, Women of Color in Immigration EnforcementThis article was just published in volume 21 of the Nevada Law Journal 997 (2021). The article makes several important findings about gender diversity in immigration enforcement: 

Immigration enforcement agencies do not employ large numbers of female agents. The majority of female agents, however, are women of color. This is consistent with the remarkable diversity of immigration enforcement agencies. Women of color have the potential to benefit immigration enforcement agencies. Such agents have unique skills and abilities that can enhance their work, their engagement with the migrants they police, and the growth of agencies they operate within. Yet women of color also face barriers to their recruitment and retention that tie to their training, work, and workplace culture. DHS has been taking steps to diversify its law enforcement ranks. But it can do more. Just looking at the issues outlined in this Essay, the agency could: establish a daycare at the Artesia training center; eliminate training requirements that rest on upper-body strength if not a necessary component of immigration enforcement work; actively oversee training to expose and eliminate any sexist behavior by trainers; and aggressively work to end misogynist culture within the agency. All would make immigration enforcement agencies more welcoming to women of color, and that, in turn, could benefit the agencies. Finally, this Essay has led me to conclude that there is a real need for empirical focused on women of color in immigration enforcement, particularly within the OFO and ICE. It is my hope that this Essay may spark further investigation.

 

November 29, 2021 in Equal Employment, Race, Workplace | Permalink | Comments (0)

Wednesday, November 24, 2021

Congress Proposes Giving Plaintiffs the Option to Reject Mandatory Arbitration for Sexual Harassment and Assault Cases

Lily, Wash Post, Forced Arbitration Can Shield Workplace Harassers, Legal Experts Say

On Tuesday, they testified before the House Judiciary Committee. All four women said they reported the behavior to someone at their company. All four women said they were retaliated against for speaking up. And all four women went through mandatory arbitration — an often confidential process that has, for many companies, become the primary way of handling employee disputes.***

 

Mandatory arbitration, a process that requires employees and consumers to mediate their grievances with the company in a closed-door forum rather than go to court, is now the norm for many businesses, especially nonunion workplaces.

 

But more than four years after the #MeToo movement propelled a nationwide reckoning of sexual abuse in the workplace, critics of mandatory arbitration say it has protected toxic, abusive workplaces and the people who run them. Changing this particular process is crucial to making substantive strides on workplace harassment, they say.

 

Supporters of arbitration, meanwhile, claim that the process is a faster, less expensive alternative for workers than filing a lawsuit in court, and could be less intimidating. But workers rights groups and trial lawyers have long argued that the process isolates workers and leaves them at a major disadvantage in winning remedy or compensation from their employers.

 

In Congress, there is a bipartisan push to amend arbitration rules. On Wednesday, the House Judiciary Committee passed the Forced Arbitration Injustice Repeal (FAIR) Act, which would offer workers the option to resolve their complaints through arbitration or the courts. The Senate Judiciary Committee recently passed an identical version of the bill.

 

The bill would give workers with sexual abuse claims against their employers the choice to either go through arbitration or pursue their claims in court.

November 24, 2021 in Courts, Equal Employment, Legislation | Permalink | Comments (0)

Monday, November 22, 2021

Internal Report on Culture and Processes at TIME'S UP

TIME'S UP just published Phase 1 of its report prepared by an independent consultant making "recommendations, tools, and plans that examine its structure, processes and culture.” The publication provides critical insights into the trajectory of the organization, a few of which are excerpted here:

  • "In its urgency to pursue a very noble vision, TIME’S UP’s mission and operational model was  largely undefined for some time. It grew rapidly, often chasing the short-term, important  issues of the day versus tracking activities back to the larger or longer-term strategic vision.  In so doing, the organization would be experienced by some of its employees and many  stakeholders as distracted or unfocused."
  • "While the fallout of the pandemic can in no way be blamed for TIME’S UP’s current state of crisis, it is still important  to acknowledge that it did have some effect on the overall functioning of the organization during the past two years and may have exacerbated existing structural/internal issues." 
  • "[I]nterviewees identified “conflicts of interest,” to use their words, that now seem readily apparent in certain professional and personal relationships (previous and/or  existing) maintained by the board chair, the CEO, and other board members."
  • "TIME’S UP has been negatively impacted by a perception of Democratic partisanship. Some questioned the  organization’s capacity to hold all accused of wrongdoing to the same standards of  accountability as well its ability to provide a consistent space for all accusers to come forward."  

The full report is available here. TIME'S UP's mission is to "create a society free of gender-based discrimination in the workplace and beyond. We want every person — across race, ethnicity, religion, sexuality, gender identity, and income level — to be safe on the job and have equal opportunity for economic success and security."

November 22, 2021 in Equal Employment, Violence Against Women, Work/life, Workplace | Permalink | Comments (0)

Friday, November 19, 2021

Feedback Bias in the Legal Profession

Latonia Haney Keith, Visible Invisibility: Feedback Bias in the Legal Profession, 23 J. Gender Race & Just. 315 (2020).

In this article, Vice President Latonia Haney Keith, highlights “feedback bias” as a contributing factor to “the legal profession [ ] ‘losing the war on retention [with] women and minorities leav[ing] the profession because they feel unprotected and undervalued.’”  Feedback bias refers to the phenomenon of “employers and educators reinforc[ing] and perpetuat[ing] bias, albeit unintentionally” when providing assessment and evaluations to employees and students.  The article highlights three cognitive biases that affect feedback and evaluating performance.  The three are “confirmation bias, in-group bias and availability heuristic.”  For example, in the confirmation bias context:

“[G]etting noticed as a leader in the workplace is more difficult for women than for men.”  This is the confirmation bias cycle at work.  When people are consistently exposed to leaders that fit a particular mold, they will continue to seek out or notice only those leaders who fit that same mold.  So, when evaluating the performance of a lawyer or law student, a supervisor’s or faculty’s preconceived notions will impact their evaluation.  If, for example, a preconception exists that males are assertive, it will be easier for a supervisor or faculty to recall instances in which a male employee or student asserted themselves in a meeting. Conversely, a supervisor or faculty may easily forget instances in which a female employer or student similarly asserted herself by, for example, suggesting an effective strategy or navigating a tough client interaction.

The article then goes into how these types of bias can manifest in feedback provided to employees and students.  “Women are for more likely to receive critical, subjective or vague feedback, and their performance is less likely to be attributed to their abilities and skills. . . . When women [do] receive[] more specific feedback, it [is] either tied to their caregiving abilities, attribute[] their accomplishments to teamwork rather than leadership or ‘overly focus[] on their communication style.’”  How do we move forward then?  Vice President Keith suggests a number of solutions, particularly in the context of law school feedback, including leveraging anonymous evaluation processes, incorporating objective measures and articulable rubrics, avoiding ambiguity, incorporating a broader group of reviewers, and increasing the frequency of evaluation among other best practices. 

November 19, 2021 in Equal Employment, Gender, Law schools, Women lawyers, Workplace | Permalink | Comments (0)

Wednesday, November 17, 2021

Kellogg's (UK) to Give Staff Menopause, Fertility, and Miscarriage Leave

BBC, Kellogg's (UK) To Give Staff Fertility, Menopause and Miscarriage Leave

Cereals manufacturer Kellogg's has announced it will provide more support to staff experiencing the menopause, pregnancy loss or fertility treatment.

 

The firm said about 1,500 workers at its factories in Trafford and Wrexham and its Salford headquarters would benefit from a number of new measures.

 

They include extra paid leave for those undergoing fertility treatment or staff who suffer the loss of a pregnancy.

 

It said it was aiming to help staff feel "psychologically safe" at work.

 

The announcement was made as MPs are due to vote on a private members' bill later that, if passed, would make hormone replacement therapy free for those going through the menopause in England.***

 

Under the plans, managers will be trained on how to talk about the menopause and pregnancy loss and paid leave for pregnancy loss will be given without the need for a doctor's note.

 

It also intends to give staff going through fertility treatment three blocks of leave each year as well as access to a private space to administer treatment if necessary.

 

The firm's Europe vice-president in human resources Sam Thomas-Berry said it was "launching several new workplace policies for even better equity and inclusion".

November 17, 2021 in Business, Equal Employment, Family, Healthcare, Reproductive Rights, Work/life, Workplace | Permalink | Comments (0)

Thursday, November 11, 2021

Veterans Day from a Gender & Law Perspective: Equality, Discrimination, Preferences, Family, Health, Assault, and the Draft

Here is an overview of some of the scholarship and current legal movements regarding gender, veterans, and the miltiary:

The Supreme Court's classic case upholding veterans' preferences despite their disparate impact against women. Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979).

United States v. Virginia (VMI), 518 U.S. 515 (1996) (Ginsburg, J.) (requiring state male-only military college to admit women equally to VMI)

US v. Briggs,  592 U.S. ___ (Dec. 10, 2020) (holding that military rape cases have no statute of limitations)

Gender & the Law Prof BlogSCOTUS Refuses to Hear Challenge to Male-Only Draft but 3 Justices Dissent (June 15, 2021)

Gender & the Law Prof Blog, Federal Judge Holds Male-Only Military Draft Violates Equal Protection (Feb. 26, 2019)

Gender & the Law Prof Blog, 9th Circuit Hears Challenge to Men Only Draft

Gender & the Law Prof Blog, Senate Overwhelming Votes to Require Women to Register for Draft (2016)

Gender & the Law Prof Blog, Justice Ginsburg's Legacy and the Draft Case

EEOC, Policy Guidance on Veterans' Preferences Under Title VII

Jamie Abrams, editor at the Gender & Law Prof blog, Examining Entrenched Masculinities Within the Republican Government Tradition,  114 West Va. L. Rev. (2011). 

Jamie Abrams & Nickole Durbin, Citizen Soldiers and the Foundational Fusion of Masculinity, Citizenship, and Military Service, 11 ConLawNOW 93 (2021). 

Jill Hasday, Fighting Women: The Military, Sex, and Extrajudicial Constitutional Change, 93 Minnesota L.Rev. 1 (2008).

Melissa Murray, Made With Men in Mind: The GI Bill and the Reinforcement of Gendered Work After World War II, in Feminist Legal History (Tracy Thomas & Tracey Jean Boisseau eds. 2012).

Congress' Deborah Sampson Act Signed Into Law (2021):  to improve the benefits and services provided by the Department of Veterans Affairs to women veterans, and for other purposes.

H.R. 2982, Women Veterans Health Care Accountability Act: To direct the Secretary of Veterans Affairs to conduct a study of the barriers for women veterans to health care from the Department of Veterans Affairs.

Gender & the Law Prof Blog, How to Reduce Discrimination in Veterans' Preferences Laws, featuring Craig Westergard, Questioning the Sacrosanct: How to Reduce Discrimination and Inefficiency in Veterans' Preference Law, 19 Seattle Journal for Social Justice 39 (2020)

Gender & the Law Prof Blog, Bills Introduced in Congress to Allow Professional Licenses of One State to be Valid in State to Which Military Spouse is Relocated  

Gender & the Law Prof Blog, Parental Right Issues in Military Academies Disproportionately Harms Women 

Gender & the Law Prof Blog, Study on Military Sexual Assaults Concludes that Rate of Assaults is Lower, Rate of Prosecution Higher, and Victims Report More Often than in Civilian Society (May 2021)

November 11, 2021 in Courts, Education, Equal Employment, Family, Healthcare, Masculinities, Work/life | Permalink | Comments (0)

Friday, November 5, 2021

LGBTQ+ Protections: Bostock's Implication for Public Schools

John Dayton and Micah Barry, LGBTQ+ Employment Protections: the U.S. Supreme Court’s Decision in Bostock v. Clayton County, Georgia and the Implications for Public Schools, 35 Wis. J. L. Gender & Soc’y 115 (2020).

In this article Professors Dayton and Barry provide a history of LGBTQ+ discrimination and its impact in U.S. communities and schools, examine in depth the U.S. Supreme Court’s decision in Bostock v. Clayton County, and discuss the opinion’s implications for public educational institutions.  The article begins by recognizing “the central role employment plays in people’s lives . . . and the history of using employment discrimination to marginalize and harm vulnerable groups.”  It points out that “LGBTQ+ persons have been an especially vulnerable group, with laws in many states treating their LGBTQ+ status as a lawful basis for dismissal from employment” and that “the impacts of dismissal on their lives could be devastating.”

As is well known, the Bostock decision made clear that such discrimination in employment is illegal pursuant to Title VII.  Further, Professors Dayton and Barry argue, the decision “is likely to reach further than employment law and likely impact interpretations of Title IX.”  Thus, it has significant legal implications for public educational institutions.  As the article states:

Legal rights mean little, however, unless they are effectively translated from theory into practice.  Assuring non-discrimination for all LGBTQ+ persons in schools will require educational and cultural changes in schools, changes that are long overdue.  Public school officials would be wise to implement appropriate training and education programs for employees and students concerning LGBTQ+ rights and inclusion to assure legal compliance and that public schools are safe and welcoming places for everyone.

. . . [E]vidence suggests that awareness of protective workplace legislation decreases interpersonal discrimination against LGBTQ+ persons.  School officials must assure legal compliance, but school officials may also improve school culture by promoting equal rights and equal respect for all people.

In short public educational institutions, “must ensure that legally compliant polices are established, administered, and respected in their schools.”

November 5, 2021 in Education, Equal Employment, Gender, Law schools, LGBT, Workplace | Permalink | Comments (0)

Thursday, November 4, 2021

Sexual Harassment: The Origins, Promise, and Limit of a Feminist Cause of Action

Theresa Beiner, Sexual Harassment: The Promise & Limits of a Feminist Cause of Action, in  
The Oxford Handbook of Feminism and Law in the United States, Oxford University Press, 2021.

This chapter explores the origins, development, and current status of workplace sexual harassment law. Sexual harassment law owes its genesis to a combination of grass roots feminist organizing and legal feminist theorizing. After initial losses in the courts, feminist lawyers and their clients scored significant victories in the court system. Employers and those accused of discrimination soon fought back, including by participating in the development of an extensive system of training and anti-sexual harassment policies that have not proven helpful to targets of sexual harassment. Feminist legal scholars have offered critiques of the courts’ decisions, taking a variety of approaches to increasing the law’s efficacy and extending its reach beyond women in the workplace to encompass the experiences of men, women of color, and sexual minorities. Yet, plaintiff’s using Title VII of the Civil Rights Act of 1964, the main federal anti-discrimination statute applicable to sex discrimination in employment, continue to find themselves thrust out of court due to formalistic rules developed in the court system. This has led other scholars to suggest different legal approaches to address this persistent and disturbing form of workplace discrimination. Whether current grass roots campaigns like the #MeToo movement will prove more effective than prior legal efforts remains to be seen.

November 4, 2021 in Equal Employment, Theory | Permalink | Comments (0)

Podcast: When Most of Law School Faculty Were Straight White Men, How Did Those Who Were Not Bring Change

ABA J Podcast, When Most of Law School Faculty Were Straight White Men, How Did Those Who Were Not Bring Change?, with Sean Scott and Joan Howarth.

In the late 1980s, law school groups for gay and lesbian students met off campus in case members didn’t want the school community to know their sexual orientation. And there were so few female faculty at law schools, if two or more were seen together talking, male faculty would ask what they were up to. So if they were actually up to something, such as persuading their dean to adopt a faculty parental leave policy that was longer than a few weeks, they would meet off campus, too.

November 4, 2021 in Equal Employment, Law schools, Workplace | Permalink | Comments (0)

Monday, November 1, 2021

November 10th Program on Gender Equality in the Military

The 19th is hosting an interesting program on November 10th at 1 p.m. EST on Gender Equality in the Military. The 19th is an "independent nonprofit newsroom reporting at the intersection of gender, politics and policy." Here is the event summary: 

Women and LGBTQ+ people have served in the military since before the nation’s founding. But until very recent history, they’ve been barred from leadership roles and from serving openly as their whole selves.

Since 2011 though, LGBTQ+ people have been able to serve, openly, in the military. And since 2014, women have been eligible to apply for combat jobs. In the last five years, transgender service members have been able to access gender-affirming health care and assured that they cannot be involuntarily discharged or denied reenlistment solely on the basis of gender identity. A modern military force requires the best and the bravest among us to enlist — and by adopting more inclusive policies, the military can attract and retain the most capable members. 

Join The 19th for conversations with those who serve and lead in the military about the impact changing policies on their ability to serve. How is the Biden administration thinking about gender inclusivity? What are the chilling effects of sexual assault on those who serve? And how are veterans finding the support they need after they return home? 

Registration is free. Interested readers can register here.  

November 1, 2021 in Equal Employment, LGBT | Permalink | Comments (0)

Wednesday, October 27, 2021

Experts Weigh In on Biden's National Gender Equity Strategy

Biden's National Gender Equity Strategy: Here's What Experts Say About It

On Friday, the White House released the country’s first-ever National Strategy on Gender Equity and Equality, which aims “to advance the full participation of all people — including women and girls — in the United States and around the world,” according to a fact sheet the White House released summarizing the 42-page report. The strategy seeks “to combat discrimination and harmful gender norms that affect people of all genders: women and girls — including transgender women and girls — gender nonbinary and gender nonconforming people, as well as men and boys,” the report notes.

 

It outlines 10 priorities for reaching gender equity and equality, in the realms of economic security; gender-based violence; health; education; justice and immigration; human rights and equality under the law; security and humanitarian relief; climate change; science and technology; and democracy, participation and leadership.

 

It also suggests an intersectional approach to achieving those priorities, aiming to address the “impact of intersectional discrimination” on the basis of gender, race and other factors, such as sexual orientation, disability and socioeconomic status. And the report promises a whole-of-government implementation plan, requiring federal agencies to submit within nine months at least three internal goals supported by the strategy, including at least one that each agency can immediately implement.***

 

On Friday, the White House released the country’s first-ever National Strategy on Gender Equity and Equality, which aims “to advance the full participation of all people — including women and girls — in the United States and around the world,” according to a fact sheet the White House released summarizing the 42-page report. The strategy seeks “to combat discrimination and harmful gender norms that affect people of all genders: women and girls — including transgender women and girls — gender nonbinary and gender nonconforming people, as well as men and boys,” the report notes.

 

It outlines 10 priorities for reaching gender equity and equality, in the realms of economic security; gender-based violence; health; education; justice and immigration; human rights and equality under the law; security and humanitarian relief; climate change; science and technology; and democracy, participation and leadership.

 

It also suggests an intersectional approach to achieving those priorities, aiming to address the “impact of intersectional discrimination” on the basis of gender, race and other factors, such as sexual orientation, disability and socioeconomic status. And the report promises a whole-of-government implementation plan, requiring federal agencies to submit within nine months at least three internal goals supported by the strategy, including at least one that each agency can immediately implement.***

 

The strategy was shaped by the input of more than 250 nonprofit, community-, faith- and union- based organizations and academics, plus more than 270 girls, young women and gender nonconforming youth leaders from more than a dozen countries, the report said.

 

The effort comes as the first major initiative of the Gender Policy Council — established by the Biden administration earlier this year, and formerly known as the White House Council on Women and Girls in the Obama administration — which will partner with the Office of Management and Budget to facilitate implementation of the strategy across federal agencies. The GPC will also prepare an annual, publicly available report for submission to the president on implementation progress, the report notes.

 

Many gender equity advocates will be eagerly awaiting those implementation reports, including four experts who spoke to The Lily about the strategy, characterizing it as a crucial — and hopeful — step toward closing gender gaps and rectifying historic inequities. But, experts say, the strategy lacks clear implementation plans and measurable goals.

October 27, 2021 in Education, Equal Employment, Theory | Permalink | Comments (0)

Tuesday, October 26, 2021

The Gay Perjury Trap: Title VII before and after Bostock v. Clayton County

The Gay Perjury Trap

By: Christopher R. Leslie

Published in: Duke Law Journal, Vol. 71, No. 1, 2021

In Bostock v. Clayton County (2020), the Supreme Court held that Title VII’s prohibition on sex-based employment discrimination applies to discrimination based on sexual orientation and gender identity. Although the opinion is an important victory, if history is any guide, Bostock was only one battle in a larger war against invidious workplace discrimination based on sexual orientation and gender identity. The Bostock opinion will do little to quench the urge of prejudiced employers and managers to discriminate. These employers will seek alternative, less obvious ways to discriminate. Judges and civil rights lawyers must prepare themselves to recognize and reject pretextual rationales for adverse actions taken against LGBT employees. A better understanding of history can inform those efforts.

This Article is the first scholarship to examine an unexplored chapter in America’s history of anti-gay discrimination in the workplace: punishing gay workers for concealing their sexual orientation. Beginning in the 1960s, as federal and state law implemented procedural protections for public-sector workers, employers developed a new mechanism to evade those protections: the gay perjury trap. At its core, the strategy is simple. An employer asks job applicants about their sexual orientation. If they reveal that they are gay, decline to hire them. If gay workers conceal their sexual orientation and it is later discovered, terminate them for their dishonesty. Either way, gay workers are purged from the workforce.

The Article begins by describing the gay perjury trap, providing historical examples of the federal government and local school districts using this strategy to terminate high-performing workers who were later discovered to be gay. After discussing the inherent unfairness of the gay perjury trap, the Article then explains how prejudiced employers may attempt to deploy this strategy as a means of circumventing Title VII liability in the post-Bostock era.

Finally, the Article discusses how courts should prevent employers from using the gay perjury trap in the post-Bostock work environment. Dismantling the gay perjury trap should entail three components. First, courts should interpret Title VII as prohibiting employers from inquiring about an applicant’s or employee’s sexual orientation. Second, courts should not afford employers a general right to penalize gay workers for concealing or misrepresenting their sexual orientation. Third, courts should construe Title VII to protect employees who refuse to answer questions about their sexual orientation.

Whether Title VII can effectively deter and remedy anti-gay discrimination will in significant part depend on our courts’ ability to recognize and prohibit employers from using the gay perjury trap. The post-Bostock Title VII cannot succeed if employers can use alleged dishonesty about sexual orientation as a means of punishing gay workers and of avoiding Title VII liability.

October 26, 2021 in Constitutional, Equal Employment, Legal History, LGBT, Work/life | Permalink | Comments (0)

Thursday, October 21, 2021

It's Not About Leaning In. Negotiation Will Not Fix Sexism

Andrea Schneider, Indisputably, Negotiation Will Not Fix Sexism

Let’s start with the obvious–it pains me to realize that negotiation can’t fix everything.  As someone who loves to teach negotiation–and has long believed in the power of positive asking–I also need to recognize when individual action will not–and cannot–fix the ingrained biases and structural sexism that exists in the workplace.  A slew of recent studies back up this point in variety of ways that also point to a more nuanced understanding of what does need to be fixed.

To give a little history–many read Lean In and/or Women Don’t Ask and took these books as a call to focus on women’s deficiencies in negotiation.   This was despite that the fact that I and others had found no differences in perceived assertiveness among lawyers or other leaders.  (More from me in TEDx talk version here and research article here.)

Caveat– this is not to deny that differences in levels of assertiveness are found among young women in competitive, one shot negotiations with limited knowledge nor to discount the fact that failure to negotiate a higher starting salary leads to less money down the road.  It IS to say that these younger, less confident women should not be the template for advice to mature women in the workplace.  Numerous workplace studies have since confirmed that women and men ask for raises and promotions at the same rate–the problem is who receives them.

So–it is not that women don’t ask and it is not that women can’t lead–it is that the men (and women) who evaluate them do not promote them and underestimate their potential.  A study from Yale shows the disconnect between performance (in which women were rated highly) and potential (where moderately performing men were still given higher potential ratings than highly performing women )   This video interview with Prof. Kelly Shue talks through the study beautifully and the impact, over time, of this underassessment of women.  She and her researchers found that women were 14% less likely to be promoted each year–which resulted in a drop off from 56% women at the entry level to 14% women district managers.

Similarly, in an op-ed last week in the Wall Street Journal, renowned gender researcher Laura Kray and postdoc scholar Margaret Lee take on the “women don’t negotiate myth” and demonstrate that the pay gap results from women being given less responsibility over time–women lead smaller teams (despite the HBR results showing that women lead better) and this smaller leadership responsibility leads to less salary.

Moreover, study after study in Harvard Business Review have now shown that women are perceived as better leaders by their peers in 360 degree reviews–scoring higher than men on 17 of 19 measures before the pandemic and–in the face of a crisis–outperforming men even more.

October 21, 2021 in Business, Equal Employment, Gender, Women lawyers, Workplace | Permalink | Comments (0)

Tuesday, October 19, 2021

CA SB 826 and its affects on the Labor Market regarding Female Directors

How Deep is the Labor Market for Female Directors? Evidence from Mandated Director Appointments

By: Daniel Greene, Vincent Intintoli, Kathleen M. Kahle

We examine the depth of the labor market for female directors following an exogenous shock to demand caused by California Senate Bill 826. Despite a surge in female appointments, new female director qualifications remain stable when benchmarked to control groups, indicating a deep labor market. Relative to the same control groups, we likewise find little evidence that investors view female director appointments more negatively following the law. However, stock returns to new female director appointments do not offset negative returns to the 2018 enactment of the law, suggesting that overall, investors still anticipate negative effects.

October 19, 2021 in Equal Employment, Gender, Legislation, Workplace | Permalink | Comments (0)

Friday, October 15, 2021

#MeToo: Unintended Consequences for Sponsorship of Women in the Workplace

Ann C. McGinley, #MeToo Backlash or Simply Common Sense?: It’s Complicated, 50 Seton Hall L. Rev. 1397 (2020).

The #MeToo movement brought much needed awareness and momentum to societal and workplace culture change.  Indeed, some perceive that the “movement has led to increased employer response, including updating of sexual harassment policies, providing guidance about appropriate work behavior, providing information about reporting harassment, and stopping or removing problematic employees.”  Unfortunately, the movement has also led to unintended effects of decreasing sponsor and mentor opportunities for women by men in leadership who fear sexual harassment allegations. Such fears, as discussed in this article, arise from stereotypes prohibited by law and include an unsupported presumption of frequent false allegations, not to mention are predicated on a heterosexual worldview. These fears can lead to men in positions of leadership refusing to engage in common work activities such as “mentoring, socializing, one-on-one meetings,” and travel with a female colleague or subordinate, although they will engage in these activities with similarly situated male colleagues. While this article acknowledges that something needs to be done to address these fears, Professor McGinley is adamant that “refusing to mentor and sponsor female lawyers is not the way to go.” 

In fact, it is detrimental to the advancement of women in the workplace. “Research demonstrates the importance of sponsorship, particularly for women and people of color” and “[i]n order for women to succeed [equivalent to their male counterparts], men must actively mentor and sponsor them.”  This is because, as Professor McGinley points out, that with the “vast majority of manager and senior leaders” being men, they have a central role in whether women’s advancement is promoted or hindered at work, simply by their choice of whether to be a sponsor.  The importance of sponsorship is summed up in this anecdote:

One tax attorney described how he supported his protégé all the way to partnership, having hired her in the first place.  He was confident of her ability to deliver and when long-term clients demurred at liaising primarily with a junior person, this attorney vouched for her expertise.  When she became the target of unfair criticism by another partner, he intervened, extorting from that partner an apology and a promise to look at the evidence and be less judgmental. In subtle and overt ways, he ensured that she was able to thrive which indeed she did, making partner in four years.

Professor McGinley takes the reader through the current status of sexual harassment law and its drawbacks in addressing this problem and others.  The article also sets forth solutions for how the law and employers can move forward in advancing women in the workplace by addressing more effectively sexual harassment and its direct and indirect effects.

October 15, 2021 in Equal Employment, Gender, Women lawyers, Workplace | Permalink | Comments (0)

Monday, October 4, 2021

Black Women Police Officers Allege an "Enterprise-Wide Culture of Race and Sex Discrimination"

A class of Black female police officers in Washington, D.C. has sued the Metropolitan Police Department (MPD) alleging an "enterprise-wide culture of race and sex discrimination and intense pervasive retaliation against those who dared to complaint about, report, or oppose unlawful discrimination." Every woman in the class has worked for MPD for years and has previously complained multiple times about race and sex discrimination.  The complaint alleges that: 

There are four fundamental characteristics of the MPD that this class action lawsuit seeks to change: 1) MPD has a male-dominated culture that accepts and perpetuates the most demeaning, degrading and disrespectful discourse and actions by and between officers; 2) MPD has a culture that nurtures and encourages supervisory and management officers to abuse their power to exact petty vengeance on subordinates and make their lives miserable; 3) MPD has a profoundly dysfunctional and corrupt EEO Office run by a man who has repeatedly expressed hostility to women officers, and who colludes with management to crush Black women who complain about race and gender discrimination and sexual harassment; and 4) MPD, with the full participation and/or approval of the Chiefs of Police, engages in repeated, coordinated and relentless retaliation campaigns against Black women officers who complain about or oppose discrimination, or other police misconduct. In combination, these four MPD characteristics create a profoundly toxic work environment for Black woman officers.

The 209-page complaint chronicles extensively the allegations against MPD and MPD's retaliatory responses. The plaintiffs seek compensatory damages, health care related to physical and emotional harms, reinstatement of terminated or retired officers, applicable back pay, revised performance records, reimbursement for leave associated with the discrimination, future damages, attorneys fees, and appropriate injunctive relief.  

October 4, 2021 in Equal Employment, Masculinities, Race, Workplace | Permalink | Comments (0)

Wednesday, September 29, 2021

New Book and Reviews: Anita Hill's "Believing" Sees Sexual Harassment and Gender-Based Violence as a Cultural and Structural Problem That Hurts Everyone

Anita Hill, Believing: Our Thirty-Year Journey to End Gender Violence

“An elegant, impassioned demand that America see gender-based violence as a cultural and structural problem that hurts everyone, not just victims and survivors… It’s at times downright virtuosic in the threads it weaves together.”—NPR

From the woman who gave the landmark testimony against Clarence Thomas as a sexual menace, a new manifesto about the origins and course of gender violence in our society; a combination of memoir, personal accounts, law, and social analysis, and a powerful call to arms from one of our most prominent and poised survivors.

In 1991, Anita Hill began something that’s still unfinished work. The issues of gender violence, touching on sex, race, age, and power, are as urgent today as they were when she first testified. Believing is a story of America’s three decades long reckoning with gender violence, one that offers insights into its roots, and paths to creating dialogue and substantive change. It is a call to action that offers guidance based on what this brave, committed fighter has learned from a lifetime of advocacy and her search for solutions to a problem that is still tearing America apart.

NYT Review, Anita Hill Has Some Perspective to Offer

Anita Hill still speaks in the measured tones she did while being questioned before an all-white, all-male panel before the Senate in 1991 — a young law professor in a blue linen suit who would give the nation an overnight education in workplace sexual harassment.

 

Thirty years later, she is more academic than activist, focusing on pathways to progress, and continuing to teach law as a professor of social policy, law and gender studies at Brandeis University.

 

But to be honest, Hill’s patience is waning. “I really am running out,” she said in a video interview from her home in Massachusetts earlier this month.

 

Her new book, “Believing: Our Thirty-Year Journey to End Gender Violence,” due out on Tuesday from Viking, aims to channel that impatience into something more substantive — a manifesto of sorts.

NPR Review, "Believing" Is a Book Only Anita Hill Could have Written

Believing: Our Thirty-Year Journey to End Gender Violence is not a book about Anita Hill. Yes, it has plenty of her personal stories and, yes, it references her role at the center of the Supreme Court hearing firestorm that first acquainted many Americans with the concept of "sexual harassment." ***

 

The book first attempts to show how massive problems like harassment and assault are affecting everyone from the smallest children to adults, from the lowest-wage workers to the highest-paid celebrities. Then, Hill shows both the effects of the problem — the ways it not only hurts individuals but hampers political change and economic growth — and the myriad barriers to solving it. To try to tackle something so complex, she says, feels like trying to "boil the ocean."

September 29, 2021 in Books, Equal Employment, Race, Violence Against Women, Workplace | Permalink | Comments (0)

Thursday, September 23, 2021

New Book Tarana Burke and The Surprising Origins of MeToo

Tarana Burke Talks About the Surprising Origins of #MeToo

Four years ago, Tarana Burke was a devoted but little-known activist with a vision for how victims of sexual violence could find empathy and healing.

 

Now she sits at the center of a social movement that never seems to stop surging — most recently, toppling New York’s governor and erupting in new corners of the globe.

 

Until now, Ms. Burke has never told her own story. In her memoir, “Unbound: My Story of Liberation and the Birth of the Me Too Movement,” which Flatiron Books is releasing on Tuesday, she reveals a close but complicated historical link between the civil rights movement and MeToo.

 

Last week, she spoke about what she owes to activists in Selma, Ala., why she turned away from them, and how her personal experiences, from Catholicism to an up-close view of the Central Park jogger case, influenced her founding of the MeToo movement.

“Unbound” is out on Sept. 14.

September 23, 2021 in Books, Equal Employment, Race | Permalink | Comments (0)