A federal appeals court on Tuesday revived a former public defender’s lawsuit challenging the federal judiciary’s handling of her sexual harassment and discrimination claims about a supervisor’s unwelcome attention at work.
Thursday, April 28, 2022
Jennifer S. Hendricks, Abortion Rights in the Supreme Court: A Tale of Three Wedges
4th Circuit Rules Constitution's Fifth Amendment Equal Protection Clause Protects Against Sexual Harassment
The ruling comes as leaders of the federal judiciary have overhauled the court’s process for reporting misconduct, and as Congress is considering legislation to extend protections to the judiciary’s more than 30,000 employees who lack the same legal rights as other government and private-sector workers.
In a 118-page decision, the appeals court said Tuesdaythat judiciary employees in management roles can be held liable for “their deliberate indifference to sexual harassment committed by a federal judiciary employee or supervisor against another federal judiciary employee,” according to the opinion, written by Judge Mary Beck Briscoe of the U.S. Court of Appeals for the 10th Circuit.
The panel said the Fifth Amendment’s equal protection clause “secures a federal judiciary employee’s right to be free from sexual harassment in the workplace. It thus both guards against sexual harassment perpetrated by other federal judiciary employees and protects federal judiciary employees from deliberate indifference on the part of federal judicial employees charged with preventing sexual harassment and investigating complaints of sexual harassment.
The decision is: Strickland v. United States (4th Circ. Apr. 26, 2022) (procedural due process and equal protection claims)
C. Strickland’s equal protection claim
We next turn to the second claim for relief asserted in Strickland’s complaint, which alleges that defendants “violated the equal protection component of the Fifth Amendment’s Due Process Clause, which confers a right to be free from sex discrimination in federal employment.” ***
The Fifth Amendment to the United States Constitution provides, in pertinent part, that “[n]o person shall . . . be deprived of life, liberty, or property, without due process of 77 law.” U.S. Const. Amend. V. “In numerous decisions,” the Supreme “Court has held that the Due Process Clause of the Fifth Amendment forbids the Federal Government to deny equal protection of the laws.” Davis, 442 U.S. at 234 (internal quotation marks omitted). “To withstand scrutiny under the equal protection component of the Fifth Amendment’s Due Process Clause, classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” Id. at 234₋35 (internal quotation marks omitted). “The equal protection component of the Due Process Clause thus confers . . . a federal right to be free from gender discrimination which cannot meet these requirements.” Id. at 235.
In analyzing Strickland’s Fifth Amendment equal protection claim, the district court began by concluding that Strickland was “attempt[ing] to graft precedent interpreting Title VII onto the Fifth Amendment.” JA, Vol. IV at 1520. The district court in turn concluded that the Fourth Circuit would not recognize such a claim. Id. at 1521. In support, the district court stated that “the Fourth Circuit has not held that courts must apply Title VII standards to free-standing Fifth Amendment claims” and, “[t]o the contrary,” has “rejected a similar attempt to graft Title VII standards onto a free-standing Fourteenth Amendment equal protection claim.” Id. at 1522 (emphasis in original) (citing Wilcox v. Lyons, 970 F.3d 452, 460 (4th Cir. 2020)). The district court concluded that “Strickland’s complaint is devoid of any allegation that women are treated differently than men under the EDR Plan,” and that “Strickland does not allege that the actions taken against her were on the basis of her sex.” Id. at 1523. “Instead,” the district court concluded, Strickland “theorizes that the [defendants] discriminated against her on the basis of sex when they mishandled 78 her sexual harassment complaints, ultimately leading to retaliation and constructive discharge.” Id.
We conclude that the district court misconstrued both the Fourth Circuit’s decision in Wilcox and, more importantly, Strickland’s equal protection claim. In Wilcox, the Fourth Circuit “conclude[d] that a pure retaliation claim is not cognizable under the Equal Protection Clause” of the Fourteenth Amendment. In doing so, the Fourth Circuit noted that neither it nor the Supreme Court “has recognized an equal protection right to be free from retaliation.” 970 F.3d at 458. Instead, the court noted that it “has consistently considered retaliation claims brought under Section 1983 to be more properly characterized as claims asserting a violation of the First Amendment.” Id.
The court explained that “[r]etaliation for reporting alleged sex discrimination imposes negative consequences on an employee because of the employee’s report, not because of the employee’s sex.” Id. at 460. “The very premise of a retaliation claim,” the court noted, “is that the employer has subjected an employee to adverse consequences in response to her complaint of discrimination.” Id. Thus, the court noted, “[t]he necessary causal link is between the employee’s complaint and the adverse action, not between her sex and the adverse action.” Id. The court emphasized that “continued sexual harassment and adverse treatment of a female employee unlike the treatment accorded male employees remains actionable as a violation of the Equal Protection Clause even when the sex discrimination and harassment continue after, and partially in response to, the female employee’s report of prior discrimination and harassment.” Id. at 461 (emphasis added). But, the court noted, “[t]he employee’s claim in such a case is not a claim of pure 79 retaliation, but instead implicates the basic equal protection right to be free from sex discrimination that is not substantially related to important governmental objectives.” Id. (internal quotation marks omitted; emphasis added). Although the court’s holdings were limited to the Equal Protection Clause of the Fourteenth Amendment, we have no doubt, given the Supreme Court’s equivalent treatment of equal protection claims under the Fifth and Fourteenth Amendments, that they should be extended to retaliation claims brought under the equal protection component of the Fifth Amendment’s Due Process Clause. See Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975) (noting that the Supreme Court’s “approach to Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment.”).
***Thus, Strickland has not alleged a pure retaliation claim, but rather has alleged a violation of her right under the Equal Protection Clause of the Fifth Amendment to be free from sex discrimination.
We also agree with Strickland that, under Fourth Circuit law, her complaint adequately alleged that defendants were deliberately indifferent to her complaints of sexual harassment. The Fourth Circuit has held in the context of a § 1983 action that a school official can be liable under the Equal Protection Clause of the Fourteenth Amendment for his or her deliberate indifference to student-on-student sexual harassment. Feminist Majority Found. v. Hurley, 911 F.3d 674, 701–02 (4th Cir. 2018).***
Because the Supreme Court’s “approach to Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment,” Weinberger, 420 U.S. at 638 n.2, we conclude that the principles outlined by the Fourth Circuit in Feminist Majority Foundation apply equally to the circumstances alleged by Strickland in this case. More specifically, federal judiciary employees who occupy supervisory roles and/or who are charged with enforcing an EDR plan can, under Feminist Majority Foundation, be held liable under the Fifth Amendment 82 for their deliberate indifference to sexual harassment committed by a federal judiciary employee or supervisor against another federal judiciary employee. This conclusion is based on the principle that the Fifth Amendment’s Equal Protection Clause secures a federal judiciary employee’s right to be free from sexual harassment in the workplace. It thus both guards against sexual harassment perpetrated by other federal judiciary employees and protects federal judiciary employees from deliberate indifference on the part of federal judicial employees charged with preventing sexual harassment and investigating complaints of sexual harassment.
The elements of such a claim, we conclude, are essentially identical to those outlined by the Fourth Circuit in Feminist Majority Foundation: (1) the plaintiff was subjected to sexual harassment by another employee or supervisor; (2) the plaintiff alerted supervisory officials and/or officials responsible for overseeing the court’s EDR plan about the sexual harassment; (3) the supervisory officials and/or officials responsible for overseeing the court’s EDR plan responded to the allegations with deliberate indifference; and (4) the deliberate indifference was motivated by a discriminatory intent.***
Thus, in sum, we conclude that Strickland’s complaint adequately alleged that defendants violated her equal protection rights under the Fifth Amendment and that the district court erred in concluding otherwise.
Wednesday, April 27, 2022
Equal Protection and Abortion: Brief of Equal Protection Constitutional Law Scholars Serena Mayeri, Melissa Murray, and Reva Siegel as Amici Curiae in Support of Respondents in Dobbs v. Jackson Women's Health Organization
Equal Protection changes the questions we ask about abortion restrictions. In Dobbs v. Jackson Women’s Health Organization, an amicus brief filed on our behalf demonstrated that Mississippi’s ban on abortions after 15 weeks violates the Fourteenth Amendment’s Equal Protection Clause. The brief continues a tradition of equality arguments that preceded Roe v. Wade and will continue, in new forms, after Dobbs. Our brief shows how the canonical equal protection cases United States v. Virginia and Department of Human Resources v. Hibbs extend to the regulation of pregnancy, hence provide an independent constitutional basis for abortion rights.
Under equal protection, government must give reasons why it is better served regulating by group-based rather than facially neutral means, especially when group-based laws perpetuate historic forms of group-based harm. As we show, Mississippi decided to ban abortion, choosing sex-based and coercive means to protect health and life at the same time that the state was refusing to enact safety-net policies that offered inclusive, noncoercive means to achieve the same health- and life-protective ends. Why? Asking equal protection questions may move decision makers in federal and state venues, as well as in politics where, over time, equality claims have the potential to enable new intersectional forms of coalition and to transform the conversation about the meaning of our values and our practices, inside and outside the abortion context.
Part I of our brief shows how, in the decades after Roe, equal protection doctrine has evolved to include laws regulating pregnancy. Most recognize that Justice Ginsburg’s landmark opinion in United States v. Virginia restates the equal protection framework with attention to securing equality for the sexes across differences. Virginia is the Court’s first equal protection decision to consider laws regulating pregnancy as sex-based state action subject to “skeptical scrutiny.” We consider abortion laws under Virginia’s framework, which requires states to defend sex-based laws by showing (1) that the use of sex classifications is substantially related to achieving important government ends, for reasons not reduceable to generalizations about the sexes and (2) laws employing sex classifications may not “be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women.” Following Virginia, we analyze the Mississippi abortion statute in both a historical and a policy context. Part II of the brief demonstrates that Mississippi’s claims to protect both women and the unborn by singling out women and compelling pregnancy reason from sex-role stereotypes about women (the statute terms them “maternal patients”) that were employed in the nineteenth-century campaign to ban abortion and its modern successors. This might be sufficient to establish an equal protection violation, but we go further to demonstrate how these traditional sex-role assumptions distort Mississippi’s approach to protecting unborn life.
Part III of the brief examines Mississippi reasons for employing sex-based coercive laws to protect health and life. The brief shows that Mississippi targeted women resisting motherhood for coercive abortion restrictions while refusing to enact numerous policies, many federally funded, that provided non-coercive and nondiscriminatory alternatives by which the State could have protected life and health—such as comprehensive sex education and access to contraception; Medicaid expansion; public benefits and child-care assistance. Did the state endeavor to protect health and life by helping those who seek its assistance—either in avoiding pregnancy or in raising healthy families—before singling out for coercion those who violated sex-role stereotypes? Given this historical and policy context, under Virginia Mississippi has failed to offer an “exceedingly persuasive justification” for the means it chose to protect health and life. The abortion ban it adopted enforces a sex-based and coercive classification that re-entrenches stereotypes and “perpetuate[s] the legal, social, and economic inferiority of women.”
Part IV concludes by anticipating—and rejecting—claims that abortion bans promote equality by preventing abortion from being used for eugenic purposes. We distinguish between laws that protect individual choice and laws that promote eugenics by limiting reproductive freedom in order to control the demographic character of the community. We offer historical illustrations of campaigns for eugenics, including Mississippi’s history of sterilizing women of color as punishment for nonmarital childbearing and with attention to the racial identity of the community.
Efforts to associate abortion rights with eugenics blame women for state policies—many surveyed in our brief—that perpetuate the very conditions in which growing numbers of poor women and women of color decide to end their pregnancies. Analyzing abortion restrictions in this larger policy context, our brief asks, how is this mix of policies—favored by states banning abortion—pro-life? How might the characteristics of the persons the state is regulating have shaped Mississippi’s choice of coercive rather than supportive strategies to protect health and life?
In some instances, however, these same stereotypes may favor women. Rachlinski and Wistrich set out to test this phenomenon, which they term “benevolent sexism.” They study whether judges are affected by gender bias in two contexts where women regularly experience better outcomes than men: child custody disputes and criminal sentencing. Judges are supposed to be impartial in their decisions and are typically forbidden from relying on gender when determining outcomes. The confirmation of gender bias would therefore be an important (albeit unsurprising) finding.2
As the authors note, the mere fact that women experience systematically better outcomes in some contexts, like custody disputes, cannot prove the existence of gender bias among judges, as other factors unique to those individual cases might influence outcomes.
Cynthia Soohoo, Reproductive Justice and Transformative Constitutionalism
Since the founding of the United States, women1 have fought for control over their bodies and the ability to make reproductive and parenting choices, free from control and coercion by the government, communities, institutions, private actors, and family. Reproductive oppression violates basic human rights to make decisions about one’s body, life, and future and, if one chooses, to have, parent, and nurture children. These rights go to the heart of what it means to be a human and live a life with dignity and respect. Yet, from the founding of the United States, our constitutional structure has failed to recognize--much less protect and prevent--reproductive oppression. Indeed, for much of U.S. history, the legal system sanctioned and furthered oppression, rather than remedied it.
Though revolutionary in some respects, for the most part, the U.S. Constitution left existing political, social, and economic relationships untouched, and further entrenched rather than abolished slavery. Enslaved people were denied freedom and autonomy over their own labor, bodies, and family life. For enslaved Black women, this included control over their reproductive capacity and their ability to parent their children. For non-enslaved women, state and common law legal disabilities continued, which disqualified women from political rights and stripped married women of legal personhood, rendering their property, labor, and bodies subject to the dominion of their husbands.
Following the Reconstruction Amendments, the Nineteenth Amendment, and the dismantling of state coverture laws, the state began replacing private control over women’s bodies. In the 1860s, states started passing laws criminalizing abortion and contraception, and by the beginning of the twentieth century, states asserted even more direct control over women’s fertility through forced sterilization laws. After World War II, forced sterilization fell out of favor as eugenic ideas became associated with Nazi Germany, and in the 1960s and 1970s, legal challenges resulted in the decriminalization of contraception and abortion. However, with the rise of population control ideology and later “welfare reform,” a new form of state control emerged, which cast state interference into the reproductive lives of certain women as an acceptable exercise of government power. Overt legal restrictions and compulsions were replaced by coercive programs--often tied to public benefits--to discourage childbearing and later to discourage abortion. Today, rather than reversing this trend, we see it extended to the private sector, with employers and health facilities trying to impose religious or moral beliefs about contraception and abortion on the people they employ or serve through restrictions on the provision of services or health care coverage. Further, the state continues to coerce and often compel reproductive choices in carceral settings.
Some lessons emerge from this history. In the United States, reproductive oppression has taken the form of either discouraging/prohibiting or encouraging/requiring childbearing, depending on societal attitudes about the fitness and value of certain mothers and their children at a given point in time. While its form changes, at bottom, reproductive oppression is the instrumentalization of a person’s reproductive capacity to serve the goals of others. In the United States, these goals have been inextricably tied to slavery, capitalism, white supremacy, nativism, classism, ableism, and cisheteropatriarchy.
In 1994, a Black women’s caucus in Chicago coined the term “reproductive justice” as a framework and vision to articulate what it means to be free from reproductive oppression.2 That vision reflected and built upon a history of organizing and activism by women of color to address the reproductive oppression faced by their communities.3 Reproductive justice recognizes that all people have the human rights (1) not to have a child, (2) to have a child, and (3) to parent children in safe and healthy environments.4 It also recognizes that all people have a right to sexual autonomy and gender freedom.5
This Article begins with the premise that all people have the right to be free from reproductive oppression and that legal systems should be designed to achieve rather than thwart reproductive justice. Part I describes reproductive justice in greater depth. Part II looks at the history of reproductive oppression in the United States, with attention to the role that the law has played in sanctioning, codifying, and enforcing forms of oppression. Part III considers how transformative constitutionalism might better support the goals of reproductive justice than our current constitutional structure. Finally, Part IV considers possible legal strategies to expand constitutional protection for reproductive justice under our existing constitutional scheme.
In undertaking this endeavor, I recognize that reproductive justice activists are skeptical about the place of legal strategies in the quest for reproductive justice.6 I share this skepticism.7 Indeed, historically, the mainstream reproductive rights movement has invested disproportionate attention and resources to legal approaches, crowding out other actors and strategies.8 As discussed below, the Constitution protects a limited set of rights that have been narrowly interpreted. For the most part, U.S. constitutional rights have been limited to their “negative” dimensions, and legal victories often are meaningless without the political will and pressure to implement them. Given all these infirmities, I do not suggest that more resources and energy be expended on legal strategies at the expense of organizing or the investment in resources that families need to thrive, including health care, housing, and safe and healthy communities.
However, it is useful to consider alternative constitutional approaches to envision how the law could do more.
Monday, April 25, 2022
Spain has passed a new law banning harassment of women accessing abortion care. An article by Maureen Breslin published by The Hill provides a translation of the key language:
[A]nyone trying “to impede [a woman] from exercising her right to voluntarily interrupt pregnancy” through “bothersome, offensive, intimidating or threatening acts” will face jail time of between three and 12 months, or community service.
It will ban anti-abortion activists from protesting outside of abortion service providers and clinics and extends to ban harassment of those performing abortions or working in the abortion providers as well, reports CBS.
If/When/How has prepared a vital information guide for medical providers in Texas. The guide is titled "What You Need to Know: Mandatory Reporting Requirements, Law Enforcement, and Patient Confidentiality in Texas." It is available on the organization's website. The fact sheet "gives an overview of some of the major mandatory reporting requirements and where they may intersect with patient privacy - with a specific focus on self-managed abortion." If/When/How intends this fact sheet to "help reduce hospital-site criminalization of pregnancy outcomes by helping providers understand what type of reporting the law requires." Stay tuned to the If/When How website for future updates in a rapidly evolving legal environment.
Mariel Padilla of the 19th News published an article titled "Military sexual assault survivors and advocates demand accountability in a 'world of predators." The article describes a campaign titled "Red, White, and Bruised."
The campaign launched during National Sexual Assault Prevention and Awareness Month, and includes seven concrete demands: the resignation of high-profile officers who they say have obstructed justice; for Congress to open investigations into U.S. Army Forces Command, Army Reserve Command and Fort Bragg; passage of the Military Justice Improvement and Increasing Prevention Act of 2021; allow service members and veterans to sue the federal government for accountability; bar “credibly accused” perpetrators of domestic violence, child abuse or sexual assault crimes from being employed with the Defense Department; charge and prosecute people with obstruction of justice for interfering with the reporting of sexual and domestic abuse; and improve transparency in investigations of military sexual misconduct.
Thursday, April 21, 2022
Milan Markovic & Gabriele Plickert, "The Gender Pay Gap and High-Achieving Women in the Legal Profession"
Law and Social Inquiry, Forthcoming
Although women have made significant strides in the legal profession, female attorneys continue to earn far less than male attorneys. Relying on survey data from a large sample of full-time attorneys in Texas, we find a gender pay gap of $35,000 at the median that cannot be explained by differences in human capital or occupational segregation. We also provide evidence that the legal market especially disadvantages women who excel in law school. Whereas high academic achievement boosts male lawyers’ incomes substantially, it does not have the same effect on female lawyers’ incomes. High-achieving female lawyers earn less than high-achieving male lawyers across practice settings and earn less than their lower-achieving male counterparts in private practice. We conclude that discrimination in the legal profession operates partly by devaluing female attorneys’ human capital, such that sterling academic credentials and other traits that are valued in men are far less valued in women.
Legislation introduced Thursday by a bipartisan group of women senators would honor Supreme Court justices Ruth Bader Ginsburg and Sandra Day O’Connor by requiring statues of them in the U.S. Capitol or on Capitol grounds.
The bill was introduced by Sen. Amy Klobuchar, D-Minn., Sen. Lisa Murkowski, R-Alaska, Sen. Susan Collins, R-Maine, and Sen. Kyrsten Sinema, D-Ariz., and has 17 co-sponsors. Members of the Democratic Women Caucus and Bipartisan Women’s Caucus also introduced a similar bill in the House on Thursday.
"Ruth Bader Ginsburg and Sandra Day O’Connor were trailblazers long before reaching the Supreme Court, opening doors for women at a time when so many insisted on keeping them shut," Klobuchar said. "The Capitol is our most recognizable symbol of Democracy, a place where people from across our country have their voices represented and heard. It is only fitting that we honor their remarkable lives and service to our country by establishing statues in the Capitol."
Emily Gold Waldman, Naomi Cahn & Bridget J. Crawford, Contextualizing Menopause in the Law, Harvard J. L. & Gender (forthcoming)
“It is horrendous, but then it’s magnificent,” says one character about menopause in an episode of the 2019 Netflix comedy Fleabag. Her younger interlocutor is incredulous at this proclamation. That younger character, and even the audience, may be somewhat taken aback by this frank discussion. After all, menopause is not a subject that is commonly discussed, let alone praised. Whether among friends, acquaintances, or colleagues (fictional or not), silence about menopause is more likely the norm. This is true in the law, too. The law mostly ignores menopause.
The law’s silence about menopause is linked to a broader cultural silence about the inevitable consequences of the aging process. It is also linked to longstanding silence and stigma around the menstrual cycle. A growing menstrual advocacy movement, however, has begun to chip away at stigmas and shame surrounding menstruation, in the course of pursuing policy and legal changes that make menstrual products more affordable and available. This Article imagines a role for the law in addressing challenges faced by those transitioning to menopause, whether in the workplace or beyond. It considers why that has not yet occurred, and explores the possible contours of a future legal landscape.
To inform this analysis, the Article situates its discussion of menopause in a broader context: the socio-legal treatment of pregnancy, breastfeeding, and menstruation. By viewing the four reproduction-associated conditions or processes together, rather than in silos, it is possible to discern a hierarchy of favorable treatment, with breastfeeding and pregnancy at the top, trailed by menstruation, and with menopause at the bottom. The Article also highlights a connective thread across these processes: law’s abnormal/normal binary often maps uneasily onto them.
Ultimately, the Article argues that the law should move beyond individual one-off accommodations for “abnormal” manifestations of these conditions. The law should instead recognize and incorporate protections for the broad spectrum of what can be considered “normal” experiences. Such an approach challenges the abnormal/normal dichotomy and is necessarily part of a larger scholarly dialogue that challenges binary thinking about gender and disability. By chipping away at the stigma surrounding menopause, this Article seeks for menopause a socio-legal solicitude equal to the one that exists for breastfeeding and pregnancy and that is beginning to emerge for menstruation.
Wednesday, April 20, 2022
Doriane Lambelet Coleman, Sex Neutrality, 85 Law & Contemporary Problems (2022)
This article closes out the volume on Sex in Law in which it appears with reflections on the normative question whether it would be best on balance if the law were to evolve to be sex neutral. Specifically, it considers whether—as some observers and policymakers have suggested—we would be better off if law could not see or act on the basis of sex, and if it prohibited regulated institutions from doing the same. Arguably, this move is the next logical step in the evolution of law’s treatment of sex from its historical use as a basis for ordering society according to the state’s general police powers to its increasingly limited modern use by both the states and the federal government as a basis for addressing discrimination and the differences that continue to stand in the way of sex equality.
The question whether—the biology and ubiquity of the taxonomy notwithstanding—the law should be sex neutral is both current and recurring. That is, we are pressed to consider it today by some of the same groups that have posed it in the past, including those that take one or more of these positions: Law that demands equality should express equality. The best way for the law to contribute to the dismantling of structural “isms”—including sexism—is by forcing neutrality. All forms of group-based affirmative action are inherently unjust. Gender minorities but also females are likely to fare better in the long run if sex is removed from any calculus that yields social goods. Unusual political bedfellows are the norm here, even as related questions about how sex is defined and what sexism is still fair game are front and center in the culture wars. As a result, the debates are more significant and disruptive than they were in earlier periods, an indicator of the kind of great social upheaval that tends to make for the development of new law in the Anglo-American tradition.
This article briefly summarizes the history of sex in law (Structural Sexism) and the reforms of the nineteenth and twentieth centuries (Sex Skepticism) before turning to the current moment in which these debates are taking place (Sex Neutrality). In this context, it describes and then counters the arguments in favor of sex neutrality on the grounds that sex is real, it is significant for individuals and the society in ways that matter to good governance, and it is precisely the law’s role to take such taxonomies into account in the fulfillment of its institutional mission. The article concludes with an effort to settle the terms on which disparately motivated groups might agree to pursue commonly held objectives.
Stephanie Toti, Foreword, The Never-Ending Struggle for Reproductive Rights, Michigan L. Rev. (April 2022)
My career has largely focused on reproductive rights. It is an area of the law that is perpetually at a crossroads and therefore always ripe for reflection. These rights, long recognized and deeply valued by a majority of Americans, are continually under attack and always—it would seem—on the brink of elimination. Almost from the day Roe v. Wade was decided, critics began calling for it to be overruled, and commentators began predicting its downfall. Although it has weathered the storm for nearly fifty years, those critics and commentators remain undeterred, still forecasting Roe’s imminent demise. And who knows? Perhaps this charged moment in our nation’s history, which seems increasingly like the dystopian future that prescient novelists warned of long ago, will see a disruption in constitutional protection for reproductive rights. Or perhaps the rights that have been central to the liberty and equality of women and gender-expansive people for half a century will continue to endure.
In this Foreword, I would like to reflect on two aspects of reproductive rights law in particular. First, there is a seeming duality in the Supreme Court’s abortion jurisprudence. On the surface, it embodies a longstanding commitment to safeguarding the right to abortion. But just below the surface, the caselaw reflects a deep tension between this commitment and the Court’s recognition that certain members of our society—some motivated by “unprincipled emotional reactions” and others motivated by “principles worthy of profound respect”—will never accept that the Constitution grants the authority to make decisions about the outcome of a pregnancy to the individual who is pregnant rather than to the government. Second, the abortion right has proven surprisingly durable despite powerful efforts to subvert it. It seems that the vital relationship of this right to core constitutional values like liberty, equality, and freedom of belief, and the critical role that it plays in the ability of women and all people with the capacity for pregnancy to participate fully and equally in society, make it extremely difficult to cast aside, rhetorical denunciations notwithstanding.
Book Review, The Feminist War on Crime: The Unexpected Role of Women's Liberation in Mass Incarceration
Aziza Ahmed, Recovering Feminist Lessons from the Past for a Less Carceral Future, JOTWELL, reviewing, Aya Gruber, The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration (2021).
In a moment when mass incarceration, police reform, and abolition are dominating national headlines, Aya Gruber’s book, The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration, takes on one of the most complicated questions of the politics of policing and incarceration: gender violence. Her book provides a history of the uncomfortable relationship between the carceral state and feminist organizing to end violence against women. And, it offers a path forward that begins to address mistakes of the past by reigniting those modes of feminism focused on poverty, welfare, and race that were sidelined with the rise of what is now called “carceral feminism.”
Gruber begins her book by connecting the dots between the anti-sexual violence activism of the 19th century and today. In doing so, Gruber centers the role of race in structuring how imaginaries of sexual exploitation and violence occur. The voices of dominant groups (including white feminists) constructed the larger social narrative of sexual violence. Their ideas of sexual exploitation were shaped by the racialized ideas undergirding the political economy of the time, including the anti-immigrant sentiments of Chinese exclusion and the racist ideologies wrapped into slavery.***
Understanding our contemporary moment, and the choices activists are making in calling for criminal justice reforms, requires a sense of the past: the decisions that have come to shape contemporary anti-sexual violence organizing and what feminists could have done better. As Gruber powerfully shows, to find a path forward we cannot simply rely on the dominant feminist visions of prior moments, which often were mired in a racial and carceral feminist politics. Instead, advocates should unearth the dissenting feminist voices that long argued that it was possible to have a world free of sexual violence and without the cruelty of the carceral state
Thursday, April 14, 2022
Naomi Cahn, June Carbone & Nancy Levit, The Instrumental Case for Corporate Diversity, J. of Law & Inequality
The moral case for diversity in businesses is compelling. The business case for diversity (that “diverse companies do better”) is mixed: studies in the business literature do not prove that simply adding diversity causes the improvement; instead, they posit that the improvement is likely to be “endogenous,” that is, the factors that encourage and sustain diversity, such as greater transparency, also improve financial performance. In this article, we make what we call “the instrumental case for diversity.” If the same factors that correlate with greater diversity also correlate with improved performance, then greater diversity can be a benchmark for better corporate management. It can make diversity metrics a tool (though not necessarily an exclusive or necessary tool) in measuring the reform of dysfunctional corporate cultures. Diversity might then become part of an iterative process; maintaining diversity will require management reforms such as greater transparency that will in turn fuel transformations in management cultures that further both greater diversity and better overall performance.
Moving Beyond a Simplistic Application of Intersectionality Theory in Analyzing Employment Discrimination Against Black Women
Jamillah Bowman Williams, Beyond Sex-Plus: Acknowledging Black Women in Employment Law and Policy, Employee Rgts & Employment Policy J (forthcoming)
It has been more than 30 years since Kimberlé Crenshaw published her pathbreaking article critiquing the inadequacy of antidiscrimination law in addressing claims at the intersection of race and sex discrimination. This Article focuses on the challenges Black women continue to face when bringing intersectional claims, despite experiencing high rates of discrimination and harassment. The new status quo has not resolved the problems that she documented, and has introduced a set of second generation intersectionality issues. Most significantly, many courts now recognize that Black women experience discrimination differently than do white women or Black men. Yet, despite the professionally and psychologically disabling consequences of such discrimination, judges have failed to develop a new analytic paradigm for addressing intersectional claims under Title VII. Likewise, Congress has failed to offer a legislative solution, and the Equal Employment Opportunity Commission provides scant guidance for employees, employers, and attorneys attempting to navigate these claims. Even the recent flurry of #MeToo-inspired state legislative reforms miss the opportunity to address this persistent problem. Despite vocal resistance to Critical Race Theory, the ongoing metoo movement and increased receptiveness to address systemic racism following the mass protests in 2020, make this an opportune time to renew our discussion of intersectionality and reshape the meager analytical framework of antidiscrimination law. This Article lays the foundation for future research and second generation law and policy proposals that will take crucial steps towards finally acknowledging and addressing the real discrimination Black women face.
Book Review, NYT, A French Feminist Tells Us to Embrace Our Inner Hag, reviewing, Mona Chollet, In Defense of Witches: The Legacy of the Witch Hunts and Why Women are Still on Trial
Catalonia’s left-leaning Parliament recently passed a resolution pardoning the hundreds of women executed as witches between the 15th and 18th centuries. A similar bill is making its way through the Scottish Parliament. Both were inspired by growing outrage about historical — and contemporary — femicide and by a post-MeToo impulse to honor women who were burned, hanged or drowned as heretics.
This same spirit of exoneration runs through “In Defense of Witches,” a thought-provoking, discursive survey by Mona Chollet, a bright light of Francophone feminism. Chollet celebrates not only the witches of the past, but also the so-called “witches” of today: independent women who have chosen not to have children, aren’t always coupled, often defy traditional beauty norms (letting their hair go gray), and thus operate outside the established social order. That’s especially true in France, which may celebrate the femme libre, but which, from its tax laws to its robust public day care, is built to promote the family and motherhood. It is also, not incidentally, a country where a certain vision of femininity supports the economy through the biggest beauty industry in the world.
Clearly, Chollet has struck a nerve. “In Defense of Witches,” her first book to appear in English, was a best seller when it came out in France in 2018. A Swiss-born journalist and an editor at Le Monde Diplomatique, she has grown a following with work that calls attention to sexism, the gender gap in salaries and the societal pressures placed on French women in a culture with clear ideas about how women are expected to look and act — and of course to make it all look effortless. Anglo-American women have long been obsessed by clichés of French femininity. (Today that’s perhaps best exemplified by the series “Emily in Paris,” in which a naïve American is inducted into the worldly ways of the French.) But in today’s real France, Chollet has emerged as a quiet revolutionary, pushing back against the clichés and the patriarchy that shapes them.***
“In Defense of Witches” explores how women who assert their powers are too often seen as a threat to men and society, how those who don’t bear children are too often seen as a disturbing anomaly and how women at middle age too often disappear. These days they’re not burned at the stake but sidelined at work by the insidious invisible hand of midcareer misogyny, or by standards of beauty that place a higher premium on youth, with women’s “expiry date” tied to their fertility. Sometimes, by choice or by circumstance, a woman becomes what Chollet calls a “femme fondue,” or dissolving woman, who becomes overwhelmed by “the service reflex” and disappears into motherhood or child care, losing her grip on the first person.
Wednesday, April 13, 2022
Bridget J. Crawford, Pink Tax and Other Tropes, Yale J. Law & Feminism (forthcoming)
Law reform advocates should be strategic in deploying tax tropes. Through an examination of five common tax phrases—the “nanny tax,” “death tax,” “soda tax,” “Black tax,” and “pink tax”—this Article demonstrates that tax rhetoric is more likely to influence law when used to describe specific economic injustices resulting from actual government duties, as opposed to figurative "taxes" in the form of other real-life burdens or differences. Slogans describing figurative taxes are less likely to influence law and human behavior, even if they have descriptive force in both popular and academic literature as a short-hand for group-based disparities. This Article catalogues and evaluates what makes for effective tax talk, in terms of impact on both the law and day-to-day actions on the ground. With this roadmap, lawyers, policy makers and others will be able make more forceful and precise tax-based arguments aimed at reforming the law and changing human behavior.
This Article makes three principal claims—one descriptive, one empirical, and one normative.
The Article first develops a taxonomy of tax phrases, based on the object of critique. The classification distinguishes between criticisms of compulsory formal levies, on the one hand, and burdens or oppressions that are akin to taxes, on the other. The taxonomy also notes some differences among tax tropes based on their linguistic form. Some phrases deploy a single word modifier for “tax” (like “nanny,” “death,” or “soda”) to signify a larger relationship, event, or transaction that is subject to taxation. Other phrases use a single-word modifier for “tax” (like “Black” or “pink”) that is strongly associated with the persons subject to taxation.
The Article next engages in a content analysis of multiple data sets of printed popular and scholarly literature to compare the relative “success” of the phrases “nanny tax,” “death tax,” “soda tax,” “Black tax,” and “pink tax” in terms of frequency of use, links to legal reform, and impacts on taxpayer behavior. The resulting preliminary hypothesis is that tax tropes that deploy suggestive modifiers to describe literal taxes are more effective than those that allude to identity axes associated with figurative taxes.
Given the particular variability of the “pink tax” trope, the Article turns to normative recommendations for how gender equality advocates might rethink use of that phrase in particular. The “pink tax” is useful as an overarching description of related manifestations of gender inequality: the gender wage gap, gender-based pricing differences in consumer goods or services, disproportionate expenses incurred by a large portion of the population for safe travel or to maintain stereotypically “feminine” appearances, and unequal time burdens experienced by those responsible for households or caregiving. But only one manifestation of the “pink tax,” as a description for the state sales tax on menstrual products, has been well served by a tax shorthand phrase. “Tampon tax” talk has fueled litigation and advocacy efforts; it has led to sales tax reform in least ten jurisdictions, with more states expected to follow. Indeed, “pink tax” rhetoric describing figurative taxes might not, on its own, lead directly to legal change. For that reason, at least when arguing for law reform, gender equality advocates should not over-rely on “pink tax” talk and figurative tax tropes.
Kate Greasley, Pornography and the Limits of Speech Act Analysis, forthcoming in New Directions in Jurisprudence (R. Chang & A. Srinivasan eds., OUP, 2022)
Some feminist philosophers have argued that harmful pornography is not mere speech, but, in the right conditions, constitutes the speech act of subordinating women. This chapter considers the ramifications of this speech act analysis for the standard liberal argument that pornography should enjoy protection from legal interference under the principle of free speech. It begins by setting out the putative normative significance of the view that pornography is the ‘illocutionary’ act of subordination, and not only speech that harms. This apparent significance inheres in the idea that free speech only protects expression as such, not harmful conduct carried out through communicative means. It then explores some reasons for which the speech act analysis might be thought to obscure a core thread of the feminist critique of pornography-as-speech, by acceding to, or even further entrenching, the double standard according to which pornography, but not some other harmful speech, is legally assimilated with its expressive content. I end by suggesting some ways in which the speech act analysis can bolster that feminist argument in legal and political terms, by placing the double standard of pornography’s protection into sharper resolution.
Joseph Seiner, Time, Equity, and Sexual Harassment, 12 U.C. Irvine L. Rev.573 (2022)
Sexual harassment remains a pervasive problem in the workplace. Recent studies and empirical research reveal that this unlawful conduct continues to pervade all industries and sectors of the economy. The #MeToo movement has made great progress in raising awareness of this problem and in demonstrating the lengths that some employers will go to conceal a hostile work environment. The movement has further identified the lasting emotional toll workplace harassment can have on its victims.
The research in this area demonstrates that the short timeframe harassment victims have to bring a federal discrimination charge—180 or 300 days depending on the state—is wholly inadequate. The deception, misrepresentation, and sexual abuse encountered by many workplace harassment victims can make it impossible to file a timely charge. The pandemic has further highlighted the difficulties harassment victims can face in meeting this deadline through no fault of their own. This Article argues that the only practicable solution to this problem is a more robust application of the centuries-old doctrine of equitable tolling to pause the harassment time filing deadline where appropriate.
This Article identifies five equitable tolling guideposts that the courts should consider before dismissing a sexual harassment claim on the basis of an untimely charge—psychological harm, employer threats, fear, workplace deception, and public health. This Article discusses how each of these markers may impact the timeliness of a harassment claim and explains when the use of equitable tolling may be appropriate. Given the extensive research in this area, as well as our expanded understanding of the pervasiveness of sexual harassment in the workplace, employers should no longer be permitted to run out the clock on these claims through their own improper conduct.