Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Friday, June 14, 2019

Kamala Harris Proposes Preclearance for State Abortion Laws Akin to Voting Rights Preclearance

Kamala Harris Has a Brilliant Idea on Abortion

We need more ideas like the one Senator Kamala Harris of California proposed last week to stop abortion laws from going into effect unless the federal government agrees they comply with Roe v. Wade.

 

This idea, known as preclearance, is widely considered the single most effective civil rights tool in American history, because it blocks bad policies before they can take root and spread harm across generations.

 

Ms. Harris’s proposal focuses on laws that harm women. But the concept ought to be extended to racial disadvantage. Every presidential candidate should offer similar proposals in areas like policing, housing, education and transportation. It’s the best way to stop discrimination.

 

Ms. Harris modeled her idea on a section of the Voting Rights Act of 1965, which for decades allowed the Justice Department or a federal court in Washington to prevent harmful voting laws in places with chronic discrimination. Preclearance was created to combat the pernicious methods Southern states used to stop black people from voting after the 15th Amendment prohibited the states from doing so outright.

June 14, 2019 in Abortion, Legislation | Permalink | Comments (0)

Thursday, June 13, 2019

The Potential Negative Effect of Salary History Bans on High-Performing Women Employees

Jeffrey Meli & James Spindler, Salary History Bans and Gender Discrimination 

A number of important jurisdictions have recently enacted salary history bans to combat the gender pay gap. This paper examines the effect of such bans by developing a novel, tractable economic model of unconscious bias in the workplace: some firms consistently but unconsciously under-evaluate the productivity of their female workers. In a Bayesian setting, a worker and his or her employer learn about worker quality over time by observing worker productivity; a worker’s salary thus conveys information about the employer’s inference of worker quality. A lateral employee market exists, and female workers who find themselves underpaid may choose to switch firms. We find that, under assumptions of non-strategic firm behavior, bans can reduce the gender wage gap, but do so at the expense of high-performing women; switching from discriminatory employers requires high-performing women to give up their history of high performance, and they may be effectively trapped at discriminatory firms. When firms are strategic (meaning they infer the reasons for employees’ switching behavior), bans do not reduce the gender wage gap; adverse selection results, which has an even more pronounced effect of trapping high-performing women by imposing greater switching costs on them. We find that a well-functioning job-switching market ameliorates unconscious bias and the gender wage gap, and that the wage gap (and the welfare of working women, particularly high-performers) is better addressed through policies that promote efficient job switching.

June 13, 2019 in Equal Employment, Legislation | Permalink | Comments (0)

States Legislate to Expand Abortion Access

While Some States Try to Ban Abortion, These States are Expanding Access

When an abortion law makes headlines in 2019, it’s usually as a ban.

 

Aggressive abortion restrictions have passed in numerous states in recent months, with some banning the procedure at six weeks or even earlier.

 

But this week, Maine Democratic Gov. Janet Mills signed into law a bill that will actually expand abortion access in the state by allowing nurse practitioners and physician assistants, not just doctors, to perform the procedure. As clinics in other states are at risk of closing, the Maine law will increase the number of clinics able to perform abortions.

 

Maine’s law is part of a bigger trend, as legislators and advocates in blue states back legislation to lift abortion restrictions. These laws are still outnumbered by anti-abortion bills, but they’re becoming more and more common — about a quarter of the provisions to expand abortion access since 2011 have passed in the past two weeks alone, according to an analysis by FiveThirtyEight.

 

The states include ME, NY, IL, VT, and NV.

June 13, 2019 in Abortion, Legislation | Permalink | Comments (0)

Wednesday, June 12, 2019

Vermont Passes Law Preserving Right to Abortion

GOP Vermont Governor Signs Sweeping Abortion Rights Bill into Law

Vermont Gov. Phil Scott (R) on Monday signed into law an expansive abortion rights bill that seeks to preserve a woman’s right to the procedure.

 

"Like many Vermonters, I have consistently supported a woman’s right to choose," Scott said in a statement about his decision to sign the measure.

 

"This legislation affirms what is already allowable in Vermont – protecting reproductive rights and ensuring those decisions remain between a woman and her health care provider," he added.

 

Under the measure, Vermont is required to recognize the “fundamental right of every individual to choose or refuse contraception or sterilization” as well as the “fundamental right of every individual who becomes pregnant to choose to carry a pregnancy to term, to give birth to a child, or to have an abortion.”

 

The bill states that, upon its passage, Vermont’s government would not be able to "deny or interfere with an individual’s fundamental rights to choose or refuse contraception or sterilization or to choose to carry a pregnancy to term, to give birth to a child, or to obtain an abortion."

June 12, 2019 in Abortion, Legislation | Permalink | Comments (0)

Tuesday, June 4, 2019

Illinois Passes Pro-Choice Abortion Legislation

Illinois Passes Sweeping Abortion Rights Legislation

Illinois passed an expansive reproductive rights bill on Friday further protecting the right to an abortion as GOP-controlled state legislatures pass abortion bans throughout the country.

 

The state Senate passed the bill 34-20 down party lines after the House passed it 64-50 on May 28. The progressive bill is meant to strengthen abortion rights in Illinois and codify the state’s current practices in case the conservative-leaning Supreme Court overturns the landmark 1973 ruling Roe v. Wade, which guarantees a person’s right to a safe and legal abortion.

 

“The Act sets forth the fundamental rights of individuals to make autonomous decisions about one’s own reproductive health, including the fundamental right to use or refuse reproductive health care,” the bill reads. It also restricts “the ability of the State to deny, interfere with, or discriminate against these fundamental rights.”

 

The bill’s passage repeals the 1975 Illinois Abortion Law and replaces it with the Reproductive Health Act, removing decades-old measures requiring spousal consent, waiting periods and criminal penalties for doctors who perform abortions, among other restrictions. Courts had already blocked the criminal penalties measure before the new legislation repealed it.

 

The legislation also has clarifying language that treats abortion as health care.

Illinois Senate Approves Sweeping Abortion Rights Bill

 A bill that establishes a “fundamental right” for women to get an abortion in Illinois cleared the state Senate late Friday night, sending the sweeping measure to Gov. J.B. Pritzker, who already has signaled his support.

 

As the clock approached midnight Friday, the Senate voted 34-20 in favor of the abortion legislation, which comes amid an increased sense of urgency among advocates looking to protect abortion access as a series of states have passed laws essentially banning the practice.

Wash Post, "Not on My Watch": As Abortion Bans Multiply, Some States Move to Affirm a Woman's Right to Choose

***Illinois isn’t alone in its approach, as lawmakers in red and blue states alike begin to envision a world without Roe v. Wade, the 1973 Supreme Court decision that a woman has a constitutional right to choose whether to bear a child.

 

In Vermont, both houses of the state’s General Assembly endorsed a measure earlier this month that recognizes reproductive choice as a “fundamental right.” The state’s Republican governor, Phil Scott, has pledged not to veto the measure. Last week, lawmakers in Maine advanced legislation expanding abortion providers. Meanwhile, the majority-female Nevada Assembly approved a bill doing away with the requirement that doctors inform women of the “emotional implications” of an abortion.

 

Legislation is pending in additional Democratic-controlled states, such as Massachusetts, where the ROE Act would authorize abortion after 24 weeks in certain situations. Elsewhere, Democratic governors are promising to use their veto power to block Republican-led efforts to limit access to the procedure.

June 4, 2019 in Abortion, Healthcare, Legislation | Permalink | Comments (0)

Wednesday, May 22, 2019

Nevada Legislature Passes Pro-Choice Abortion Bill

Nevada State Legislature Passes Pro-Choice Abortion Bill

Bucking the antiabortion political trends in several other states, the Nevada state Assembly approved a pro-choice bill on Tuesday to remove criminal penalties for people who terminate a pregnancy without consulting a physician.

 

The Trust Nevada Women Act, which passed on a 27-13 vote, would also decriminalize other abortion-related actions, such as selling miscarriage-inducing medications. It would remove requirements that doctors tell pregnant people about the “emotional implications” of an abortion.***

 

Mississippi, Ohio, Georgia, Kentucky, Arkansas, Utah, Louisiana and Missouri are among the other states that have approved new laws or are considering ones that significantly limit legal abortions. 

 

On the flip side, lawmakers in Illinois and Maine seek to pass legislation that would further protect access to abortion.  

May 22, 2019 in Abortion, Constitutional, Legislation | Permalink | Comments (0)

RI House Passes Bill to Guarantee Abortion Rights

RI House Passes Bill to Guarantee Abortion Rights

State lawmakers on Thursday [March 7, 2019] approved legislation to protect the legality of abortion in Rhode Island, no matter what an increasingly conservative U.S. Supreme Court might do to the landmark 1973 Roe v. Wade ruling.

 

In a major victory for abortion-rights activists, the Rhode Island House of Representatives approved the legislation by a 44-to-30 vote, over the strenuous objections of a host of antiabortion lawmakers and the Roman Catholic Church in the most Catholic state in the nation.

 

The legislation now goes to the state Senate, where its fate is uncertain and where a similar measure died in 1993 after clearing the House. That was a very different era, when Bill Clinton was president and there was nowhere near the current level of concern among advocates about the erosion of abortion rights

May 22, 2019 in Abortion, Constitutional, Legislation | Permalink | Comments (0)

Thursday, May 16, 2019

Policy Changes as a Result of Women in Positions of Political Power

Valeriya Mechkova & Ruth Carlitz, Gendered Accountability: When and Why Do Women's Policy Priorities Get Implemented?  
V-Dem Working Paper 2019:88

The past two decades have seen dramatic increases in women occupying positions of political power. Such developments have been welcomed as a means of achieving better outcomes for women in their everyday lives. We interrogate this proposition, developing a "gendered accountability" framework to the delineate conditions under which female representation should have its desired effects. Our empirical analysis applies this framework to sub-Saharan Africa, home to the largest increase in women's political representation in recent years. We find that having more women in the legislature is robustly associated with reduced infant and child mortality as well as greater spending on health. The effect on infant mortality is magnified when women are more active in civil society, and constrained to countries that have gender quotas and a proportional electoral system. We do not, however, find consistent evidence that maternal mortality and access to clean water respond to female representation.

May 16, 2019 in Family, Gender, Healthcare, Legislation | Permalink | Comments (0)

States Quickly Passing Restrictive Abortion Bans to Challenge Supreme Court Precedent Recognizing Women's Right of Bodily Autonomy

Alabama Signs Abortion Ban Into Law

Alabama Gov. Kay Ivey signed a controversial bill that bans nearly all abortions into law Wednesday evening.

 

It's considered the most restrictive abortion law in the United States. The law makes it a crime for doctors to perform abortions at any stage of a pregnancy, unless a woman's life is threatened or there is a lethal fetal anomaly.

 

Under the new law, doctors in the state face felony jail time up to 99 years if convicted. But a woman would not be held criminally liable for having an abortion.

 

The law does not take effect for several months.

Alabama, Georgia Pass Abortion Bans Aimed at Roe v. Wade

Late Tuesday night, Alabama legislators passed a bill that would outlaw abortion at any stage in a woman’s pregnancy. They’re in good company: Earlier in May, Georgia Governor Brian Kemp signed a law making abortion illegal after a fetal heartbeat can be detected, or roughly six weeks after conception. Ohio, Mississippi, and Kentucky have all passed similar bills this year.

 

The state legislators who are passing these bills know they will be challenged in court. They also know they will probably lose. But their sights appear to be set higher than their state jurisdictions: With a solidly conservative majority on the Supreme Court, anti-abortion advocates are eager to seed the challenge that could one day take down Roe v. Wade, the 1973 opinion that legalized abortion up to the point of fetal viability. At the very least, they hope the Supreme Court will undercut Roe and subsequent decisions that reaffirmed abortion rights, the idea being that each legal challenge makes it a little harder to obtain an abortion in the United States.

NYT, Abortion Bans: How State Laws Have Limited the Procedure This Year

Georgia, Kentucky, Mississippi and Ohio stopped short of outright bans, instead passing so-called heartbeat bills that effectively prohibit abortions after six weeks of pregnancy, when doctors can usually start detecting a fetal heartbeat. Utah and Arkansas voted to limit the procedure to the middle of the second trimester.

 

Most other states follow the standard set by the Supreme Court’s Roe decision in 1973, which says abortion is legal until the fetus reaches viability, usually at 24 to 28 weeks.

 

The latest bans are not yet in effect (Kentucky’s was blocked by a judge), and all are expected to face lengthy court battles — indeed, their proponents are hoping they will reach the Supreme Court.

 

New State Bans Push Abortion to the Forefront of 2020 Campaign

A new law in Alabama bans abortion from conception, except when necessary to prevent a serious health risk to the mother. and even then, access to the procedure would be hard to come by.

 

The legislation joins a string of measures in pro-life states that are clearly unconstitutional under Roe v. Wade. But the bills' backers are betting the U.S. Supreme Court's new five-justice conservative majority is ready to reverse the 46-year-old precedent.

 

Under Supreme Court precedent, states can't unduly burden—let alone ban—abortion before fetal viability (generally at 23 or 24 weeks of pregnancy.)

 

In Ohio, the ACLU and Planned Parenthood have filed suit to block that state's six-week abortion ban, which is set to go into effect in July.

 

But with Georgia's governor signing into law another six-week ban last week, abortion opponents are confident they have the high court on their side.

 

The court last affirmed abortion rights in 2016. But Justice Brett Kavanaugh, a conservative, replaced swing Justice Anthony Kennedy, which changed the calculus, according to Professor Caroline Mala Corbin of the University of Miami School of Law.

 

"The newly configured Supreme Court has given hope to many abortion opponents that they will finally have their way and the right to abortion will be eliminated as a constitutional right," Corbin told FOX 5 NY.

May 16, 2019 in Abortion, Constitutional, Legislation, SCOTUS | Permalink | Comments (0)

Thursday, May 2, 2019

House Judiciary Committee Holds First ERA Hearing in 36 Years

Congress Holds First Equal Rights Amendment Hearing in 36 Years Amid Ratification Push

A House Judiciary subcommittee on Tuesday held the first congressional hearing on the Equal Rights Amendment (ERA) in 36 years as supporters push for ratification.

 

ERA advocates want a time requirement to be stripped from the amendment’s language. Congress passed the ERA in 1972, but it failed to earn the backing of enough state legislatures to be ratified by a 1982 deadline.

 

The majority of those testifying Tuesday before the Subcommittee on the Constitution, Civil Rights and Civil Liberties argued the deadline was arbitrary and should be removed.

 

The panel heard testimony from a pair of female Democratic lawmakers backing legislation that would add language to the Constitution stating everyone is equal under the law.

 

Other witnesses included actress and advocate Patricia Arquette, as well as legal experts and a state senator involved in getting the ERA ratified in Nevada.

 

Both Nevada and Illinois have ratified the amendment in recent years. Ratification failed by one vote in Virginia earlier this year.***

 

Rep. Carolyn Maloney (D-N.Y.) also introduced a measure for a new ERA, but she and Speier have said it's a “fall back” in the case Speier’s measure falls short.

Video, ERA Hearing on CSPAN

Republicans Want to Make a Debate over Discrimination an Abortion Battle

When women’s rights activists gathered in Washington on Tuesday for the first congressional hearing on the Equal Rights Amendment (ERA) in 36 years, they seemed to encounter many of the same decades-old strategies that have been used to derail it. Chief among them was the idea that the proposed constitutional amendment, which would enshrine equal protections for women in law, would trigger an unfettered expansion of abortion rights on the state and federal level—an argument some ERA supporters say is intended to sow division.

 

May 2, 2019 in Abortion, Constitutional, Gender, Legislation | Permalink | Comments (0)

Monday, April 15, 2019

US Senators Propose Anti-Sexual Harassment Bill, the "Be Heard Act"

Dems Unveil Anti-Workplace Harassment Bill

A group of Democratic lawmakers on Tuesday unveiled a bill aimed at strengthening protections against harassment in the workplace, including sexual harassment.

 

Sen. Patty Murray (D-Wash.) and Democratic Reps. Katherine Clark (Mass.), Ayanna Pressley (Mass.), Elissa Slotkin (Mich.) and Debbie Mucarsel-Powell(Fla.) introduced the "Be HEARD Act," which stands for Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination in the Workplace.

 

Several 2020 Democratic presidential contenders have also signed onto the legislation, including Sens. Kamala Harris (D-Calif.), Elizabeth Warren(D-Mass.), Kirsten Gillibrand (D-N.Y.), Bernie Sanders (I-Vt.), Amy Klobuchar(D-Minn.) and Cory Booker (D-N.J.), among other senators.

 

The legislation aims to eliminate the tipped minimum wage, which largely leaves service worker pay up to customers, as well as end mandatory arbitration and pre-employment nondisclosure agreements and give workers more time to report harassment, among other provisions.

Democrats' Bill to Fight Sexual Harassment, Explained

On Tuesday, Democrats in Congress will introduce legislation aimed at helping those workers. Called the Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination (BE HEARD) in the Workplace Act, it would close loopholes in federal discrimination law that leave many domestic workers without legal protections from sexual harassment. It would authorize grants for low-income workers to help them seek legal recourse if they are harassed. And, crucially for food service workers like Tucker, it would eliminate the lower minimum wage for tipped workers, which many say makes servers vulnerable to harassment by customers.

 

“Some women did and do still think that in order to make the extra tip, they have to ignore unwanted touches and unwanted comments,” Tucker said, “and we shouldn’t have to.”

 

The legislation could face an uphill battle in a Republican-controlled Senate. But it’s an example of a larger move toward systemic changes that would go beyond deposing a few big-name men, and help the many workers in America whose harassment never makes the news.

April 15, 2019 in Equal Employment, Legislation, Workplace | Permalink | Comments (0)

Thursday, February 7, 2019

Testimony Against Severe and Pervasive Standard in Proposed MN Law on Sexual Harassment

Gender Justice Executive Director Megan Peterson's Testimony for Minnesota HF 100

Thank you for this opportunity to speak to you today in support of House File 10 to clarify the definition of “sexual harassment” to lower barriers to justice for more Minnesotans and empower employers to fully extinguish sexual harassment from their workplaces.

 

As a legal organization, we have represented several victims of sexual harassment over the past nine years. We have represented both women and men. Our clients have turned to us after they failed to secure relief through their employer and found no other recourse than to seek justice through the courts. Our clients’ experiences as well as the stories of the brave women and men who have come forward as part of the #MeToo movement demonstrate that sexual harassment remains a widespread problem. It is a problem that disproportionately affects women and is even more pronounced at the intersection of gender, race, disability, and class. Sexual harassment damages its victims’ career development and future earnings. It contributes to unequal pay and status, effectively denying them an equal opportunity to succeed and provide for their families. 

 

Two out of three women in Minnesota report they have personally experienced sexual harassment, and more than a quarter of all charges filed with the EEOC include sexual harassment or discrimination claims. But this is only the tip of the iceberg. The vast majority of people who experience sexual harassment at work never take legal action. Most don’t even discuss the problem with a manager.

 

They’re right to be reluctant. Far too often, employees who speak out against workplace mistreatment report facing some kind of retaliation. Employers may dismiss or minimize the problem, or respond with outward hostility toward the victim.

 

Adding insult to injury, when survivors of sexual harassment have turned to state courts for help, their claims have too frequently been dismissed based on the federal “severe or pervasive” threshold. This legal test has never been a part of Minnesota law, and it flies in the face of common sense - reasonable people know harassment when they see it. But in just three words, the “severe or pervasive” test compromises the dignity of working people and violates our values as Minnesotans.

Click the link above for the full testimony.

February 7, 2019 in Equal Employment, Legislation | Permalink | Comments (0)

Tuesday, February 5, 2019

Elected Women are Majority in Nevada Legislature and Colorado House

First: Women Take the Majority in Nevada Legislature and Colorado House

On Monday, Nevada's statehouse begins its legislative session by marking a major milestone. It's the first time in our nation's history that any state legislature holds a majority of female lawmakers. Just like the country, the body is slightly more than half women.***

 

With its overall majority, Nevada is the exception. This year, 50.8 percent of state representatives and senators, combined, are women. And it's one of only two states that have a female majority in any one chamber. The other is Colorado's lower house, where there are three more women than men. A single chamber majority has happened only once before, in New Hampshire about a decade ago.

 

"Women hold fewer than 30 percent of state legislative seats across the country, fewer than 25 percent of congressional seats, so getting to 50 percent in any one place is something significant," says Kelly Dittmar, a scholar at the Center for American Women and Politics at Rutgers University. "So we still have a lot of progress left to make across the country to have women equally represented in our legislative institutions," she says.

 

In fact, in Mississippi, West Virginia, Alabama and Louisiana, women make up about 15 percent of state lawmakers.

 

Even in the "year of the woman" — as 2018 was regularly called — it's obvious that progress has been slow. In 1992, also a breakthrough year, women made up 20 percent of representation across the country. This year, as 2018 winners take office, it's 28 percent.

 

The reasons it has taken so long to reach gender parity, Dittmar says, are many. Of course, there was the formal exclusion of women from public service. For a long time, women couldn't vote or run. But then there is the informal exclusion based on gender stereotypes, including long-held beliefs that women can't lead or balance their personal and professional lives. Dittmar says those old platitudes can also create obstacles to fundraising.

 

"You have typically had men in party leadership and political leadership. Those are the people who are tapping candidates, who are recruiting candidates to run and deciding who gets on the ballot. Those recruitment networks have been, for a long time, very male-dominated."

February 5, 2019 in Legislation | Permalink | Comments (0)

Wednesday, January 23, 2019

NY Passes Law to Protect Access to Abortion Even if Roe is Overturned

New York Abortion Measure: State Moves to Protect Access to Abortion Even if Roe v. Wade is Overturned

On the 46th anniversary of Roe V. Wade, New York state passed a law to protect women's access to abortion if the historic case is overturned.

 
"Today we are taking a giant step forward in the hard-fought battle to ensure a woman's right to make her own decisions about her own personal health, including the ability to access an abortion. With the signing of this bill, we are sending a clear message that whatever happens in Washington, women in New York will always have the fundamental right to control their own body," said Gov. Andrew Cuomo after signing New York's Reproductive Health Act on Tuesday night.
 
 
Not only will the law preserve access to abortions, it also removes abortion from the state's criminal code. This would protect doctors or medical professionals who perform abortions from criminal prosecution. The law also now allows medical professionals who are not doctors to perform abortions in New York.
 
 
"The old law had criminal penalties. It was written that the doctor or professional could be held criminally liable," Cuomo said during an interview on WNYC Wednesday.
 
The bill allows women to get abortions after 24 weeks if their life or health is threatened by the pregnancy in addition to permitting women to have an abortion at any time if the fetus is not viable, according to syracuse.com.

The law also regulates abortion under public health law, rather than criminal law, and allows licensed nurse practitioners, physician assistants and licensed midwives to conduct abortions, syracuse.com reported

 

Tuesday marked the 46th anniversary of Roe v. Wade and a new milestone for New York women. Governor Andrew Cuomo, a Democrat, signed the Reproductive Health Act into law after it passed both chambers of the state legislature earlier in the day. The bill updates New York’s abortion law, which predates Roe and regulates abortion in the state’s criminal code. “It’s bittersweet. There is a bitterness because we shouldn’t be here in the first place,” Cuomo said, according to the Albany Times-Union. “We should not have a federal government that is trying to roll back women’s rights … This administration (of President Donald Trump) defies American evolution.”

 

The RHA takes abortion out of the criminal code; the state will now regulate it as a matter of public health. It also expands the pool of medical professionals who are authorized to perform abortions and permits abortions after 24 weeks when the fetus is not viable or a woman’s health is at risk. Previously, women who needed later-term abortions to end nonviable pregnancies were forced to travel far outside the state — a financial and psychological burden. Separate from the RHA, Cuomo has pledged to amend the state constitution to include an affirmative recognition of the right to abortion, though that process will be a lengthy one. As Syracuse.com reported earlier this month, the state legislature has to approve the amendment, which would then go to voters for a referendum.

This is interesting put in historical context, as New York's criminalization of abortion passed in the mid-19th century was one of the leading restrictive laws in the country and one of the most studied.  See Tracy A. Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. J. 1 (2012) (including sources cited therein).

January 23, 2019 in Abortion, Constitutional, Healthcare, Legislation | Permalink | Comments (0)

Tuesday, January 22, 2019

Renewed Efforts to Pass Equal Rights Amendment in Minnesota

Long Dormant, The Equal Rights Amendment has Awakened with Vigor

After decades of dormancy, the ERA soon is being considered in the Minnesota House with a majority of members in support. Senate companion bills will feature DFL and GOP co-authors, signaling a majority of the votes....

Two bills are before the state House: the Minnesota State ERA Bill, a constitutional amendment bill to embed an ERA into our state Constitution (HF13), and the Federal ERA Resolution to Congress to remove the deadline on the federal ERA (HF71).

 

The Minnesota State ERA Bill (HF13), authored by Rep. Mary Kunesh-Podein, DFL-New Brighton (with a companion bill authored by Sen. Richard Cohen, DFL-St. Paul), will add a section providing for gender equality in our state Constitution.

 

The impact would be to provide a constitutional basis for claims of gender-based violence, help create more realistic legal standards for sex discrimination in the workplace, ensure that women can work safely, have reasonable accommodation and earn much-needed income for themselves and their families during pregnancy, and address unjust laws that impact men. If passed, a question would be added to the general election ballot in 2020, the 100th anniversary of women’s gaining the right to vote.

Currently, 24 states have some kind of equal rights amendment language in their state constitutions. ERAs have existed in state constitutions for over 140 years and no federal law has been overturned because of them. Other states are poised to add an ERA. In Delaware, a state ERA may finally pass this month, and, in New York, Gov. Andrew Cuomo has made an equal rights amendment a priority in his first 100 days.

 

The Federal ERA Resolution to Congress (HF71), authored by Rep. Rena Moran, DFL-St. Paul (with a companion bill authored by Sen. Sandy Pappas, DFL-St. Paul), memorializes Congress to remove the arbitrary deadline of “June 30, 1982,” from the ERA. For a federal constitutional amendment to be made part of the U.S. Constitution, three quarters (or 38) of the states must ratify it. This country is now sitting at 37 states ratified. With the tremendous success ratifying the ERA in Nevada in 2017 and Illinois in 2018, huge strides have brought the ERA to a tipping point.

January 22, 2019 in Constitutional, Legislation | Permalink | Comments (0)

Tuesday, December 4, 2018

At Least For Now, Women Have Reproductive Rights

Joanna Grossman, At Least for Now, Women Have Reproductive Rights, Justia

It’s hard to read a single day’s news without encountering a new threat to reproductive rights. To take just one egregious example, Republican legislators in Ohio recently introduced a bill that would abolish abortion in all circumstances, including cases of rape, incest, and a threat to the woman’s life. The fetus would be treated as a person, and women and providers could potentially be punished with life in prison or even the death penalty. This bill might not make it out of the Ohio House of Representatives; it might not be passed by the Senate; and it might not be signed by the current governor or the one who will replace him in January. But it might leap over all of those hurdles and become the strictest abortion law in the nation. Similar bills, maybe one notch less extreme, have become law in several states in recent years. * *  *

 

Extreme anti-abortion measures proposed or passed in recent years have a number of things in common. First, they do not reflect the will of Americans, seven in ten of whom support abortion in all or almost all circumstances. Second, they are unconstitutional. Third, the legislators who support or vote for these bills know both of these things. * * *

 

In a recent case, a federal judge in Mississippi permanently enjoined one of these ultra-restrictive laws. In that case, Jackson Women’s Health Organization v. Currier, the court concluded that a ban on abortions after 15 weeks imposed an unconstitutional burden that could not be squared with the applicable caselaw. In response to the question whether this law violates the Fourteenth Amendment, the court concluded that “[i]t does, unequivocally.”

December 4, 2018 in Abortion, Constitutional, Legislation, Reproductive Rights | Permalink | Comments (0)

Wednesday, October 17, 2018

Watching the Bandwagon Effect of New Laws on Sexual Harassment Training

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

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

 

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

 

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

 

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

 

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

 

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

October 17, 2018 in Equal Employment, Legislation, Workplace | Permalink | Comments (0)

Wednesday, October 10, 2018

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

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

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

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

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

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

1 Year Later, How MeToo is Changing America

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

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

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

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

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

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

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

Congress Still Can't Pass its Own Sexual Harassment Bill

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

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

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

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

See also 2018 Legislation on Sexual Harassment in the Legislature

 California Law Prohibits Nondisclosure Agreements as Part of Sexual Harassment Settlements

NY Enacts Sweeping Sexual Harassment Legislation

Amid #MeToo NY Employers Face Strict New Sexual Harassment Laws

October 10, 2018 in Equal Employment, Legislation, Media, Pop Culture, Workplace | Permalink | Comments (0)

Monday, October 1, 2018

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

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

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

 

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

 

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

October 1, 2018 in Business, Equal Employment, Legislation | Permalink | Comments (0)

CAL Becomes First State to Require Gender Quotas for Publicly Held Corporate Boards

NYT, California's Publicly Held Corporations will Have to Include Women on Their Boards

California became the first state to require its publicly held corporations to include women on their boards after Gov. Jerry Brown signed a bill into law on Sunday.

 

The bill, which applies to companies “whose principal executive offices” are in California, requires them to have at least one woman on their boards by the end of 2019.

 

In 2021, the companies must have a minimum of two or three women, depending on the size of their boards.

 

Hundreds of companies will be affected by the law, according to The Los Angeles Times, and those that fail to comply can be fined $100,000 for a first violation and $300,000 for a second.

 

In signing the legislation, Mr. Brown acknowledged that critics have raised “serious legal concerns” about it, which he conceded “may prove fatal to its ultimate implementation.” ***

 

Hannah-Beth Jackson, a Democratic state senator who represents Santa Barbara and helped write the legislation, applauded its signing on Twitter.

 

She has said that a quarter of California’s publicly traded companies do not have a woman on their boards, despite studies showing that companies that do are more profitable and productive. (Some research, however, has suggested that the findings are less conclusive.) For instance, Stamps.com — which has its headquarters in El Segundo, Calif., but is incorporated in Delaware — has an all-male, five-member board, and told The Los Angeles Times on Sunday that it “is reviewing the law.”

For thoughts on the potential legal problems with the quota law, see: 

Kimberly Krawic, Board Diversity in the News Again

I have detailed at some length, both herein a series of papers (co-authored with Lissa Broome and John Conley), in a piece for the NY Times, and in a recent public radio debate, why these studies that simply confirm the well-known correlation between board gender diversity and firm performance cannot be taken as evidence that gender diversity causes superior performance. This is more than just a recitation of the old “correlation doesn’t equal causation” argument. In this case there are strong empirical and theoretical reasons to believe that such a conclusion is premature.

Stephen Bainbridge, Can California Require Delaware Corporations to Comply with California's New Board of Director Gender Diversity Mandate

Opponents of the legislation are mainly focusing on equal protection arguments, claiming that neither the U.S. nor the California constitutions prohibit the sort of quotas contemplated by the bill. I think there’s another issue raised by the statute, however.

Virtually all U.S. corporations are formed (“incorporated”) under the laws of a single state by filing articles of incorporation with the appropriate state official.[1]The state in which the articles of incorporation are filed is known as the “state of incorporation.” Selecting a state of incorporation has important consequences, because of the so-called “internal affairs doctrine”—a conflicts of law rule holding that corporate governance matters are controlled by the law of the state of incorporation. 

For thinking about gender quotas more broadly, including corporate board quotas in Europe and the remedial need for quotas, see my article Reconsidering the Remedy of Gender Quotas, Harvard J. Law &Gender (online)

October 1, 2018 in Business, Gender, Legislation | Permalink | Comments (0)