Gender and the Law Prof Blog

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

Tuesday, February 4, 2020

States That Recently Ratified Equal Rights Amendment Sue to Enforce Amendment

There are now 3 lawsuits seeking a judicial decision on the 38 ratifications of the Equal Rights Amendment and whether the 1982 (or 1979) deadline prohibits those ratifications.

I've written a short explanation of the arguments made in support of the ERA's enactment now.  See Tracy Thomas, The Arguments as to Why the ERA Can Still be Ratified Now--After the Deadline

Despite the court action, there is an argument that Congress's amendment deadline is a political question that cannot be decided by the courts. In Coleman v. Miller, 307 U.S. 433 (1939),  SCOTUS held, in fractured opinions, that the question of a reasonable time for ratification is a non-justiciable political question, left to Congress and not the courts.  (Coleman concerned the timeliness of a 13 year delay in ratification of the proposed Child Labor Amendment.)

Attorney General Lawsuit to Enforce ERA (DC)

Wash. Post, Herring, Other State AGs, File Lawsuit Demanding Addition of ERA to Constitution

The attorneys general for the last three states to ratify the Equal Rights Amendment filed a lawsuit in federal court on Thursday arguing that the Trump administration must add the amendment to the U.S. Constitution.

 

Virginia’s General Assembly, newly controlled by Democrats in both chambers, on Monday became the 38th state to ratify the amendment, meeting the requirement of approval by three-quarters of the states. Opponents say the vote was meaningless, because the congressionally imposed deadline for ratification expired decades ago.

 

The lawsuit will likely become the vehicle for deciding that question, said Virginia Attorney General Mark R. Herring, who brought the suit along with Illinois Attorney General Kwame Raoul and Nevada Attorney General Aaron Ford. Two other federal lawsuits on the matter are also pending.***

 

The latest suit, assigned to U.S. District Judge Rudolph Contreras, contradicts a Justice Department memo earlier this month that said the national archivist, who certifies the ratification of amendments, should not do so for the ERA, citing the 1982 deadline. The archivist has said he will follow the DOJ advice unless a final federal court decision overrides it.

See also WSJ, States Seek Ruling on Equal Rights Amendment Ratification Deadline [pay wall]

 

Proponents' Lawsuit to Enforce ERA (Mass.)

Another lawsuit has been filed in Massachusetts from ERA Proponents seeking to challenge Congress' authority to make amendment deadlines mandatory. Equal Means Equal v. Ferriero (D. Mass. filed 1/7/2020).

 

AG Lawsuit to Block ERA (Alabama)

Three states that did not ratify ERA  have sued to block certification of the amendment.  In December 2019, three Attorney Generals, two from states that never ratified the ERA (Alabama and Louisiana), and one that attempt to rescind (South Dakota) sued in federal court in the Northern District of Alabama to prevent the National Archivist from recording the ERA, arguing that the deadline had expired and that the rescinded votes could not be counted.  Alabama v. Ferriero (N.D. Ala., filed Dec. 16, 2019).  They also argued that the ERA would hurt women, undermine state sovereignty, and threaten anti-abortion laws, expand to LGBT rights, and invalidate gender segregation in schools, prisons, sports, and domestic violence shelters.

All lawsuits seek an injunction to direct the actions of the National Archivist to either record, or not record, the 38 state ratifications.  Once recorded, the ERA automatically becomes an amendment in two years.

February 4, 2020 in Constitutional, Gender, Legislation | Permalink | Comments (0)

Wednesday, January 29, 2020

VA Passes Bill to Provide Menstrual Products in Schools

Virginia Senate Passes Bill for Schools to Provide Menstrual Products

The Virginia Senate unanimously passed a bill Tuesday requiring public schools to include free menstrual products in their bathrooms. 

 

Senate Bill 232 applies to schools that educate fifth-to-12th graders. According to the Virginia Department of Education, this encompasses 132 school districts and almost over 630,000 female students. 

 

"I would like to see that the supplies are available, just like other supplies that we keep in the bathroom," said Sen. Jennifer Boysko, D-Fairfax, the legislation's chief patron.

 

An earlier version of the bill applied the stipulation to the aforementioned schools where at least 40% of students qualified for free or reduced lunch. 

 

Boysko introduced the bill to make it more convenient for students to access menstrual products and help them avoid accidents.

 

"This is a necessity and girls can't carry out their school day without it," Boysko said. "Some girls are missing school time and end up going home and missing classes because of these kinds of challenges."

 

According to Boysko, school budgets currently cover menstrual product expenses, but they are often kept in the nurse's office, making it inconvenient for students. 

 

January 29, 2020 in Education, Healthcare, Legislation | Permalink | Comments (0)

Wednesday, January 22, 2020

The Historical and Legal Significance of Virginia's Recent Ratification of the Equal Rights Amendment

In this interview, I offer my thoughts on the history and future of the ERA.

Wisconsin NPR, Central Time, Virginia Just Ratified The Equal Rights Amendment: What Does That Mean?nt-what-does-mean

Virginia’s General Assembly passed the Equal Rights Amendment recently, becoming the 38th state to do so, nearly four decades after a controversial deadline passed. A legal scholar shares the history of the ERA, what the Virginia vote means and where the effort goes from here.

Download

January 22, 2020 in Constitutional, Gender, Legal History, Legislation | Permalink | Comments (0)

The Arguments as to Why the ERA Can Still be Ratified Now–After the Deadline

History of ERA Passage

The Equal Rights Amendment (ERA) was passed by Congress in 1972. The original Amendment contained a 7-year deadline in the preamble to the resolution reaching to 1979.  Congress extended the deadline to 1982.  President Carter signed the extension as a symbolic gesture, as the Constitution gives the President no formal role in amending the Constitution. The Office of Legal Counsel at the time opined that Congress had the power to grant the extension as a procedural move by majority vote.  See Memorandum for Robert J. Lipshutz, Counsel to the President, from John M. Harmon, Assistant Attorney General, Office of Legal Counsel, Re: Constitutionality of Extending the Time Period for Ratification of the Proposed Equal Rights Amendment (Oct. 31, 1977). 

Only 32 states ratified the ERA by 1982—3 states shy of the 38 required by the Constitution of ¾ of the states.  Momentum from the Women’s Marches, #MeToo movement, and the 2016 Presidential election triggered renewed interest in an equal rights amendment.  Nevada then ratified the ERA in 2017, Illinois in 2018, and Virginia in 2020, thus now reaching the 38 states.  Five states (Idaho, Kentucky, Nebraska, Tennessee, and South Dakota) attempted to rescind their ratification in the late 1970s.

Current Challenges to ERA Ratification

In December 2019, three Attorney Generals, two from states that never ratified the ERA (Alabama and Louisiana), and one that attempt to rescind (South Dakota) sued in federal court in the Northern District of Alabama to prevent the National Archivist from recording the ERA, arguing that the deadline had expired and that the rescinded votes could not be counted.  Alabama v. Ferriero (N.D. Ala., filed Dec. 16, 2019).  They also argued that the ERA would hurt women, undermine state sovereignty, and threaten anti-abortion laws, expand to LGBT rights, and invalidate gender segregation in schools, prisons, sports, and domestic violence shelters.

The National Archivist sought an opinion from the Office of Legal Counsel as to the status of the ERA.  Office of Legal Counsel, Memorandum, Ratification of the Equal Rights Amendment (Jan. 2020)  The OLC opinion issued in January 2020 advised that Congress did not have the authority to modify the original deadline, disagreed with the prior 1977 OLC opinion supporting extension, and declined to issue an opinion on rescission.

Arguments in Support of Ratification Today

So what do proponents of ERA say?  There are good arguments that the ERA remains open for ratification now, despite the past deadlines, and does not require a complete restart of the amendment and ratification process.  

1.  The original deadline is not mandatory.

        a.      Deadlines are not required for constitutional amendments.  The first 17 amendments did not have a deadline.

        b.      The deadline is contained in the preamble to the resolution, and not the text of the amendment itself, and therefore   is not binding as part of the ratification.

        c.    The Supreme Court’s decision in Dillon v. Gloss, 256 U.S. 368 (1921) upholding Congress’s power to attach deadlines to constitutional amendments, is incorrect.  In Dillon, the Court addressed a challenge to the deadline added for the first time for the Eighteenth Amendment for prohibition.

                i.  The textual basis for the Court’s holding stemming from Article V of the Constitution is incorrect.  Congress’s power to determine the “mode of resolution” means only that Congress can decide whether to amend the Constitution by Congressional proposal or state legislative convention. 

                ii.  Dillon’s conclusion that amendments implicitly require “contemporaneity” was disproven by the 27th Amendment which passed in 1992 after pending for over 200 years.  The 27th Amendment prohibits Congress from voting itself pay raises, requiring an intervening election before such raises take effect.  It was originally proposed in 1789 as the Second Amendment.  While the 27th Amendment did not include an express deadline, its long open ratification period contradicts the Supreme Court’s holding that all amendments must be passed in relatively short time period.

2.  Congress has the power to modify the deadline

        a.     The deadline is merely a procedural adjunct to the amendment, which Congress can modify, extend, or nullify.  As a procedural matter, only a majority of the congressional houses is required.

        b.      The 1977 OLC decision concluded that Congress has the power to extend and thus alter initial deadlines.

        c.      The Supreme Court held in Coleman v. Miller, 307 U.S. 433 (1939), that in the absence of a deadline, Congress may determine after receiving 38 ratifications whether too much time has passed.  In Coleman, the Child Labor Amendment was pending for thirteen years.  It did not include a deadline. The Supreme Court held that Congress had the authority to determine matters of time and expiration, after ratification by 38 states. 

        d.     Coleman also held, in fractured opinions, that the question of a reasonable time for ratification is a non-justiciable political question, left to Congress and not the courts.

Rescinded Ratifications

If the deadline does not apply, then the question is whether states can rescind their past ratification.  The precedent of the Fourteenth Amendment suggests no.  Several states which had ratified the 14th Amendment attempted to rescind their vote. The National Archivist and Congress refused to accept the rescissions, essentially finding them to be irrevocable. 

In the context of the ERA, a federal district court in Idaho concluded that states could rescind their votes.  Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho 1981); but see John Carol Constitutional Amendment: Idaho v. Freeman, 16 Akron Law Rev. 151 (1983) (arguing Freeman was wrongly decided).  The decision was appealed, and granted cert by the Supreme Court, but was dismissed as moot after expiration of the 1982 deadline.

January 22, 2020 in Constitutional, Gender, Legal History, Legislation, SCOTUS | Permalink | Comments (0)

Friday, January 17, 2020

Virginia Passes Equal Rights Amendment in Historic Vote Making it the Pivotal 38th State to Ratify

Virginia Passes Equal Rights Amendment in Historic Vote

Both chambers of Virginia’s General Assembly passed the Equal Rights Amendment Wednesday, fulfilling a promise that helped Democrats seize control of the legislature and marking a watershed moment in the nearly century-long effort to add protections for women to the U.S. Constitution.

 

The lopsided votes capped an emotional week in which Democrats — particularly female lawmakers, who now hold unprecedented positions of power in Richmond — celebrated history in the making.

 

The House gallery was packed beyond its 102-seat capacity, with Virginia first lady Pam Northam and her daughter, Aubrey Northam, making a rare appearance to bear witness. ERA supporters attended from around the country, many wearing sashes from long-ago marches for women’s equality.

 
“What happens in Virginia impacts the entire country and will reverberate across the globe,” said Betty Folliard, the founder of ERA Minnesota, who traveled to Richmond to watch the votes.

 

Numerous legal hurdles still have to be cleared before the ERA, which prohibits discrimination based on sex, would become part of the Constitution. Critics say various deadlines for ratification have long since passed.

 

But supporters were jubilant that Virginia, after years of failure, is poised to become the 38th state to approve the amendment. They pledged to mount a massive national campaign to enact it.

January 17, 2020 in Constitutional, Gender, Legislation | Permalink | Comments (0)

Tuesday, January 14, 2020

Proposing an Intersectional Equality Amendment

Catharine MacKinnon & Kimberle Crenshaw, Reconstituting the Future: An Equality Amendment , Yale Law Forum (Dec. 26, 2019)

A new constitutional amendment embodying a substantive intersectional equality analysis aims to rectify the founding U.S. treatment of race and sex and additional hierarchical social inequalities. Historical and doctrinal context and critique show why this step is urgently needed. A draft of the amendment is offered.

 

A new constitutional amendment offers a new beginning. The equality paradigm proposed here recognizes the failures of what is, turns away from language and interpretive canons rooted in an unjust past, and imagines a fully functioning democracy as the inheritance of future generations. This proposal reenvisions constitutional equality from the ground up: it centers on rectifying the founding acts and omissions of race and sex, separately and together, and incorporates similar but distinct inequalities.2 It is informed by prior efforts to integrate equality into the constitutional landscape that have been decimated by political reversals and doctrinal backlash. It aggregates the insights, aspirations, and critiques of many thinkers and actors who have seized this moment to breathe new life into the nation’s reckoning with inequality. It neither looks back to celebrate amendments whose transformative possibilities have been defeated nor participates in contemporary hand-wringing over equality’s jurisprudential limitations. It seeks to make equality real and to matter now. We argue that a new equality paradigm is necessary and present one form it could take.

January 14, 2020 in Constitutional, Legislation, Race | Permalink | Comments (0)

Justice Department OLC Issues Opinion Declaring Equal Rights Amendment Dead Due to Expired Ratification Deadline

Justice Department Says Equal Rights Amendment is Dead; Virginia Ratification Can't Revive It

The Equal Rights Amendment has been dead for more than four decades, the Justice Department ruled Wednesday, and neither ratification by Virginia nor an effort to revive it by Congress can bring it back to life.

 

The Office of Legal Counsel, which serves as the in-house lawyers for the Executive Branch, said the deadline Congress set in 1972 for ratification is still valid, and has long since expired. Attempts to circumvent the deadline are futile, the lawyers said.

 

“We conclude that Congress had the constitutional authority to impose a deadline on the ratification of the ERA and, because that deadline has expired, the ERA Resolution is no longer pending before the states,” wrote Assistant Attorney General Steven A. Engel.

 

The opinion is binding on the National Archives, which is the federal agency tasked with certifying new amendments.

 

But activists are still expected to press their case in court, asking judges to rule the deadline illegal and the ERA still viable.

The opinion is Office of Legal Counsel, Ratification of the Equal Rights Amendment (Jan. 6, 2020).  From the summary abstract:

Congress has constitutional authority to impose a deadline for ratifying a proposed constitutional amendment. It exercised this authority when proposing the Equal Rights Amendment and, because three-fourths of the state legislatures did not ratify before the deadline that Congress imposed, the Equal Rights Amendment has failed of adoption and is no longer pending before the States. Accordingly, even if one or more state legislatures were to ratify the proposed amendment, it would not become part of the Constitution, and the Archivist could not certify its adoption under 1 U.S.C. § 106b.


Congress may not revive a proposed amendment after a deadline for its ratification has expired. Should Congress wish to propose the amendment anew, it may do so through the same procedures required to propose an amendment in the first instance, consistent with Article V of the Constitution.

January 14, 2020 in Constitutional, Gender, Legislation | Permalink | Comments (0)

Monday, January 13, 2020

Gender and Racial Bias in the US Tax Laws

Ariel Jurow Kleiman, Amy Matsui & Estelle Mitchell, The Faulty Foundations of the Tax Code: Gender and Racial Bias in Our Tax Laws,  San Diego Legal Studies Paper No. 19-423

This report examines the outdated assumptions and gender and racial biases embedded in the U.S. tax code. It highlights tax code provisions that reflect and exacerbate gender disparities, with particular attention to those that disadvantage low-income women, women of color, members of the LGBTQ community, people with disabilities, and immigrants.

January 13, 2020 in Gender, Legislation, Race | Permalink | Comments (0)

Wednesday, November 20, 2019

SCOTUS Grants Cert in Military Rape Case Regarding the Statute of Limitations

CNN, Supreme Court to Take Up Military Rape Case

The US Supreme Court on Friday accepted a Justice Department appeal to review the cases of three men in the Air Force whose rape convictions were overturned last year -- including one whose confession the Air Force recorded -- when the top military appeals court found a five-year statute of limitations existed for military sexual assault before 2006.

The Supreme Court arguments will be scheduled for next spring and a ruling is likely by the end of June.
This will be the first time the justices consider a sexual assault issue in the #MeToo era, wading into a years-long controversy over how the military addresses sexual misconduct in its ranks as service branches continue to face scrutiny over their lack of progress countering the problem.***
 
At the heart of the dispute is a ruling made last year by the Court of Appeals for the Armed Forces, the military's top appeals court, in a separate alleged rape case called US v. Mangahas.
 
The Mangahas decision prohibited prosecutors from bringing charges for rape that happened before 2006 unless the offense had been reported and charged within five years.
 
The Supreme Court will now interpret whether a five-year statute of limitations or no time limit should exist for the prosecution of military sexual assault for cases between 1986 and 2006.
 

The U.S. Supreme Court has agreed to hear the federal government’s case against a military court ruling that reversed several military rape convictions for crimes committed more than a decade or two ago.

The controversial decision by the U.S. Court of Appeals for the Armed Forces, based on previous court decisions, placed a 5-year time limit on prosecuting crimes of rape that occurred between 1986 and 2006.

The case, United States v. Briggs, is a consolidation of filings named for Air Force Lt. Col. Michael Briggs who, in 2014, was convicted of raping a staff sergeant in 2005. The case came to light after Briggs called the victim in 2013 to confess — a conversation the victim recorded.

“I will always be sorry for raping you,” he told her, according to court documents.

The recording was key to bringing Briggs to trial and he was prosecuted under the assumption that there was no statute of limitations for pursuing rape cases in the military. He was found guilty, sentenced to five months confinement and dismissed from the service.

Years before the Briggs case, the Uniformed Code of Military Justice held that rape was a crime punishable by death and therefore had no time limit for prosecuting the crime. But in 1998, the U.S. Court of Appeals for the Armed Forces, or CAAF, ruled that some rape charges were not punishable by death, and the standard five-year limit for prosecuting most crimes was instated.

In 2006, however, Congress amended Uniformed Code of Military Justice to ensure that the time limit for rape cases was abolished. Briggs’s conviction, as well as others, came after the law was changed.

But in February 2018, the military appeals court affirmed the statute of limitations for cases that occurred in a gray area under the law, from 1986 to 2006.

 
 

November 20, 2019 in Legislation, SCOTUS, Violence Against Women | Permalink | Comments (0)

Virginia Makes the ERA a Real Possibility after 50 Years

LA Times, After Nearly 50 Years, the Equal Rights Amendment Finally has a Chance. Thanks Virginia

The blue wave that flipped the Virginia Legislature last week was a victory for Democrats in the commonwealth, who will now be in control for the first time in more than 20 years.

But this milestone could affect more than just Virginia. It’s a potentially historic turning point for women and their equal rights. Because now that Democrats are in charge of both houses of the Virginia General Assembly, the Equal Rights Amendment might finally be approved there, which would mean it has been approved by three-fourths of the states — the threshold set for changing the U.S. Constitution.

The decades-long effort to amend the Constitution to explicitly outlaw sex discrimination seemed hopelessly stalled until 2017, when the Nevada Legislature unexpectedly voted to ratify — 45 years after Congress sent the amendment to the states for approval. Then, in 2018, the Illinois Legislature did the same, and suddenly it seemed that the ERA might actually reach the constitutional threshold. But efforts to get a 38th state to approve the amendment this year failed. A ratification bill in Virginia’s House of Delegates by Democrat Jennifer Carroll Foy was squashed by her Republican colleagues, who wouldn’t even let the proposal get out of a subcommittee.

Crazy as it seems, Republicans continue to oppose an amendment guaranteeing equal rights for women even in the 21st century. But their argument has shifted from decrying its threat to traditional gender roles to claiming that the ERA is unnecessary because of past Supreme Court rulings on discrimination. Even if passing the ERA were only a symbolic act, and we think it would be much more than that, then what’s the harm in enshrining it in the country’s most enduring statement of values?

November 20, 2019 in Constitutional, Legislation | Permalink | Comments (0)

On the Constitutionality of the Deadline for Constitutional Amendments like the ERA

Danaya Wright, "Great Variety of Relevant Conditions, Political, Social and Economic": The Constitutionality of Deadlines on Amendment Proposals Under Article V, 28 Wm. & Mary Bill Rts. J. 1 (2019)

Within a year or two, the thirty-eighth state is likely to ratify the Equal Rights Amendment (ERA), setting up an unprecedented constitutional challenge. The ERA was proposed with a seven-year deadline in the resolving clause, establishing the mode of ratification. That was a shift from earlier precedents in which a deadline had been placed in the text of the amendment proposal itself. Article V is annoyingly silent on the issue of congressional deadlines in amendment proposals, and the Supreme Court has never addressed the issue of a deadline that could void an otherwise properly ratified amendment. The practice of placing deadlines on amendment proposals began in 1917 with the Eighteenth Amendment, but has not been consistent since. Deadlines appear to have originated as an effort to torpedo amendments by opponents, but have since become almost pro forma. Some argue deadlines ensure finality and closure;8 others argue they infringe on the power of states to control the ratification process free of unconstitutional limitations imposed by the national legislature.

With the 1992 ratification of the Twenty-Seventh Amendment after 203 years, and state ratifications of the ERA after 35 years,11 the issue of congressional deadlines is both front and center and of potentially enormous consequence. This Article examines the history, theory, and policy of amendment deadlines and argues that they are unconstitutional limitations on state power, inconsistent with the federalism guarantees of the founding. This issue will almost certainly require resolution by the Supreme Court, which needs to give the issue of congressional deadlines its most thoughtful attention.

November 20, 2019 in Constitutional, Legal History, Legislation | Permalink | Comments (0)

Wednesday, November 6, 2019

New Laws Aim at Closing the Gender Gap by Prohibiting Questions About Salary History

NYT, Don't Ask Me About My Salary History

Massachusetts became the first state to ban employers from posing this question to job candidates back in 2016. Since then, 17 other states and as many local jurisdictions have passed versions of the ban, including New Jersey, whose law will go into effect in January; Illinois, which took effect last month; and Kansas City, Mo., where a ban will go into effect next week.

Why does this matter?

The new laws are designed to protect job seekers — like former me — from receiving starting salaries that are tied to low past salaries. This is mostly aimed at women, and many of the bills directly address equal pay and the gender wage gap. The idea is that if a woman is paid less from the get-go, and then limited by her past salary at each subsequent job, it may be impossible for her to catch up.

“This bill provides a means of narrowing the wage gap by making it less likely for employers to unintentionally perpetuate the gap by basing salary offers for new hires on their previous salary,” New Jersey Assemblywoman Joann Downey said of her state’s bill, which she sponsored. She added that the practice had a disproportionate effect on women.

Is the ban active in my state?

HR Dive, a human resources news and analysis site, keeps a list of state and local governments that have salary history bans on the docket. (You can check the status of your state or locality here.) Salary.com also has a list of state and local bans.

Some states have passed bans that won’t go into effect until 2020 or later. For example, Colorado signed the Equal Pay for Equal Work Act into law earlier this year, but it won’t take effect until Jan. 1, 2021.

Each bill is also a little different. While Alabama’s law doesn’t ban the question outright, it does prohibit employers from refusing to “interview, hire, promote, or employ” any job applicant who declines to answer. In California, not only is the question banned, but employers are also required to answer if an applicant asks about a pay range. Other versions may ban not only employers’ questions about compensation history but also those about benefits like a 401(k).

November 6, 2019 in Equal Employment, Legislation | Permalink | Comments (1)

Friday, October 4, 2019

New CA Law Allows Campaign Funds to be Used for Childcare to Promote Gender Parity Among Elected Officials

Bill Promoting Gender Parity Among Elected Officials Signed into Law by Governor Newsom

A bill introduced by Assemblymember Rob Bonta (D-Oakland) that would allow campaign funds to be used for child care by those who choose to run for elected office in California was signed into law Monday by Governor Gavin Newsom.

 

“AB 220 will help create greater gender parity among elected officials in California and more broadly help all parents with young children seek and serve in public office by allowing the use of campaign funds for child care expenses,” said Bonta. “I’m excited and extremely grateful to Governor Newsom for signing AB 220 into law.” 

 

AB 220 amends the Political Reform Act of 1974 to expressly allow campaign funds to be used for child care by those who choose to run for elected offices in California. 

 

Currently, there is no statute in California or official ruling by the California Fair Political Practices Commission (FPPC) allowing candidates to use campaign funds for child care purposes. That meant any person who attempted to use campaign funds for child care expenses had no statutory protection and would have been relying on a 20-year-old, non-binding advice letter by the FPPC which does not carry the weight of law. AB 220 provides certainty for parents of young children seeking office by placing this allowance in statute. 

October 4, 2019 in Family, Gender, Legislation, Work/life | Permalink | Comments (0)

Tuesday, September 17, 2019

In First, California Passes Bill Requiring Public Universities to Provide Medication Abortion on Campus

In First, California Would be First to Require Public Universities to Provide Abortion Pills

At a time when conservative states are sharply limiting abortion access, California signaled a new frontier in abortion-rights on Friday with the passage of legislation that would require all public universities in the state to provide medication abortion on campus.

The bill, which would use money raised from private donors to equip and train campus health centers, grew out of a student-led movement at the University of California, Berkeley, and it has sparked the introduction of a similar bill in Massachusetts.

Anti-abortion groups say they are likely to challenge the legislation if Gov. Gavin Newsom signs it into law. He has a month to decide. A spokesman declined to say what he will do, but last year during his campaign for governor, Mr. Newsom said he supported a similar effort.

September 17, 2019 in Abortion, Healthcare, Legislation | Permalink | Comments (0)

Thursday, August 29, 2019

New York Legislation Allows Domestic Violence Victims to Terminate Telephone and Cable Contracts

Governor Cuomo Signs Legislation Requiring Companies to Allow Victims of Domestic Violence to Terminate Contracts Without Penalty

Legislation Allows Victims of Domestic Violence, Who Are Under a Multi-year or Bundled Contract with a Telephone, Cable, or Satellite Company, to Terminate Their Contract Without Penalty

Builds on New York State's Nation-Leading Protections for Victims of Domestic Violence and Sexual Assault

Governor Andrew M. Cuomo today signed legislation (A.5318/S.2356) requiring companies to allow victims of domestic violence, who are fleeing their batterers and have received an order of protection, to terminate their multi-year or bundled contract with a telephone or cable or satellite company at a location they have fled without penalty.

"Survivors of domestic violence should not have to handle the added stress and red tape that comes with contract termination penalties," Governor Cuomo said. "When leaving an abusive environment, a clean break is critical and in New York we will give survivors the resources they need to move onto the next chapter of their lives."

While multi-year contracts with telephone or cable companies offer consumers better price-saving options, the fees to cancel such contracts vary across providers and can be charged to victims of domestic violence who are fleeing their abusers. In many cases of domestic violence, it is necessary for victims to leave behind items of intrinsic and financial value and sever all ties with their offender. By allowing victims, who submit a written claim, to terminate their contracts at a location they have fled without penalty, we are strengthening protections for victims and providing tools to potentially ease the stress and trauma often associated with domestic violence.

August 29, 2019 in Legislation, Violence Against Women | Permalink | Comments (0)

Thursday, August 15, 2019

New NY Domestic Violence Law Includes Economic Abuse and the Right to Vote by Mail

Governor Cuomo Signs Legislation Expanding Protections for Victims of Domestic Violence

Governor Andrew M. Cuomo today signed three pieces of legislation expanding protections for victims of domestic violence. These measures broaden the definition of the crime of domestic violence to include forms of economic abuse such as identity theft, grand larceny and coercion (S.2625/ A.5608); give victims the choice to vote by mail-in ballot, even if they remain within the county where they are registered to vote (S.3232-A/A.219); and allow victims to report abuse to any law enforcement agency in New York State, regardless of where the violence originally took place (S.1243/A.4467A).

 

"Domestic violence is a quiet scourge that has the potential to leave lasting trauma on victims," Governor Cuomo said. "By signing these measures into law, we will broaden the legal definition of domestic violence so more abusers are held accountable as well as empower victims to get help faster and provide them a measure of protection from their abuser when they vote."  

August 15, 2019 in Legislation, Violence Against Women | Permalink | Comments (0)

Tuesday, August 13, 2019

ABA Postpones Contentious Debate Over Affirmative Consent Law

Contentious Resolution Seeking to Redefine Consent in Sexual Assault Cases is Postponed

The ABA House of Delegates has postponed indefinitely a resolution that would call on legislatures and courts to redefine the consent standard in sexual assault cases, after contentious debate Monday at the ABA Annual Meeting in San Francisco.

 

Resolution 114 was sponsored by the Commission on Domestic and Sexual Violence and Civil Rights and Social Justice Section and asked legislatures and courts “to define consent in sexual assault cases as the consent of a person who is competent to give consent to engage in a specific act of sexual penetration, oral sex, or sexual contact, to provide that consent is expressed by words or action in the context of all the circumstances, provided that nothing herein changes the Constitutionally-guaranteed presumption of innocence, or the burden of proof, which at all times remains on the prosecution to prove every element of an offense, including without limitation lack of consent, beyond a reasonable doubt.”

 

The resolution built on an earlier Resolution 115, which was adopted at the ABA Midyear Meeting in January to oppose placing upon victims of sexual assault the legal burden of demonstrating resistance to the assault.

 

The Criminal Justice Section was originally a sponsor of the resolution, but withdrew its co-sponsorship and filed the motion to postpone the resolution indefinitely.

 

Mark Schickman, chair of the Commission on Domestic and Sexual Violence, spoke in support of the resolution. He said his commission first proposed the resolution at the Midyear Meeting in Las Vegas in January, but agreed to spend more time working on its language with the Criminal Justice Section. The two groups worked together on the resolution and the accompanying report over the past few months.

 

However, Schickman said, in recent weeks, criminal defense lawyers criticized the resolution, saying it attempted to eliminate defendants’ presumption of innocence in sexual assault cases and move the burden of proof to the defense.

 

The resolution was amended to address these concerns the day before the House of Delegates meeting, Schickman said.

 

“I am asking of you today that you not focus simply on the human experience that you see today, which doesn’t stop to ask for consent, which doesn’t wait to see if there is consent,” he said. “I ask you to do what is right.”

 

Neal Sonnett, a past chair of the Criminal Justice Section, told the House of Delegates that his section agreed to work with the Commission on Domestic and Sexual Violence on the resolution. Even though there was some dissent, its council voted to approve and co-sponsor the resolution.

 

It wasn’t until later that Criminal Justice Section leadership realized they hadn’t paid enough attention to the “far-reaching implications of this resolution,” Sonnett said.

 

“This is a new paradigm,” he said. “This changes the law entirely with respect to sexual behavior.”

August 13, 2019 in Legislation, Violence Against Women | Permalink | Comments (0)

New Progressive Oregon Family Leave Law First in Nation to Cover Minimum-Wage Workers

Oregon Paid Leave Law is Nation's First to Fully Cover Lowest Wages

Oregon Gov. Kate Brown on Friday signed what advocates are calling the nation’s most progressive paid family and medical leave measure, making the state the first in the country to offer 100% wage replacement for minimum-wage workers.

 

The law, which will pay out benefits beginning in 2023, gives 12 weeks paid time off to new parents, victims of domestic violence and those who become ill or need to care for a sick family member. It also includes people who may be in the country illegally and those working part time. Residents need to work 1,000 hours a year to qualify.

 

The state joins eight others and the District of Columbia in offering paid family leave.

 

“This is one of the most inclusive and equitable paid leave laws in the country,” said Andrea Paluso, executive director of Family Forward, the advocacy group who helped craft the bill. “It’s accessible to nearly every worker and provides enough benefits so people can just focus on taking care of themselves or their families when they need to.”

 

The law allows workers to take time off not only to care for blood relatives, but also for significant others, friends and other close associates that are the “equivalent of a family relationship.”

 

Workers will also be able to take paid leave in non-consecutive increments, allowing those with chronic illnesses to take time off when needed.

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

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)