Gender and the Law Blog

Bipartisan Women Congress Reps Lead Effort to Allow Proxy Voting for New Parents

2 Mothers Bring the House to a Halt Over Push to Allow Proxy Voting for New Parents

Two moms brought business on the floor of the House of Representatives to a grinding halt on Tuesday over their push to allow remote voting for new parents.

"We said don't f*** with moms," Rep. Brittany Pettersen, D-Colo., said on the steps of the U.S. Capitol alongside Rep. Anna Paulina Luna, R-Fla.

"We worked as a team," Luna said. "And I think that today is a pretty historical day for the entire conference in showing that the body has decided that parents deserve a voice in Washington and also to the importance of female members having a vote in Washington, D.C."

Luna and Pettersen have been working to pass legislation that would allow new parents to vote by proxy for 12 weeks around the birth of a new child. Luna tried several different tactics to get the bipartisan bill passed. House Speaker Mike Johnson, R-La., originally refused to put the bill on the floor. So Luna teamed up with Democrats to bypass the speaker and force a vote.

When it became clear they had the 218 votes needed to do that, Johnson still tried to stop them. He took the unusual step of designing a special rule to prevent a vote, but nine Republicans voted alongside Democrats to block it.

Pettersen thanked the Republicans who stood with her and Luna and told reporters she expects more GOP members will support the bill when it eventually comes to the floor.

 

Publication of Gender & Law 2024-2025 Volume

Thomson Reuters has published its 2024-2025 volume of Gender & the Law. The volume was edited by Aníbal Rosario Lebrón, Daniela Kraiem, and Jamie R. Abrams. The Editorial Board that selected the featured scholarship included the volume editors as well as April G. Dawson (North Carolina Central University School of Law), Elizabeth R. Kukura (Drexel University Thomas R. Kline School of Law), Laura Lane-Steele (University of South Carolina School of Law), and Neoshia R. Roemer (Seaton Hall Law School) .

The Foreward to the book is available here. The Foreward frames the books themes as follows: 

Dobbs v. Jackson Women’s Health Organization, decided in mid 2022, dominated Gender and the Law scholarship in 2023 and early 2024. Like a tidal wave, the reversal of the 50-year-old precedent transformed the legal landscape. While the decision was not unexpected, the implications were far-reaching and fast moving.

 

The Editorial Board looked in depth at the wide range of scholarship produced in this immediate aftermath and found ourselves with overflowing lists of articles. We had to make hard choices about what to include in this volume because of the many outstanding pieces published and the vast implications of Dobbs. The articles we selected represent not only excellence in the scholarship produced in this area but also we hope they will lead our readers to consider angles or aspects of the many issues raised by the Dobbs decision that might otherwise have been overlooked.

 

In addition to these articles, which make up over half of the volume, the Editorial Board was also struck by how scholars are rethinking and exploring new ground in topics that feminist and queer scholars have been exploring for decades, such as sex discrimination, gender-based violence, the importance of legal pedagogy, and the meaning of equality. This field of law remains vibrant and is attracting new voices and approaches.

 

It is also worth noting that a striking number of articles in the Gender and the Law area were published this year in flagship law reviews and journals. For years, gender-focused journals have played an enormous role in keeping gender and the law scholarship vibrant and moving forward. Adding the voices of gender and the law scholars to flagship journals shows the maturity of the scholarship and the (long-overdue) recognition that the interaction of gender and law is not a peripheral topic, but rather at the heart of both legal scholarship and the lived reality of everyday people. There was a time, not long ago, when junior scholars were pulled aside and cautioned not to write about reproductive rights before tenure, lest their scholarship be under-valued. This volume proves that the legal academy has finally centered gender issues, and it has done so at a particularly critical time. As we send this volume to the press, regressive legal movements threaten the very autonomy of women, the diversity of the academy, and the academic freedom of progressive scholars. We hope that this momentum toward centering Gender and the Law topics continues and withstands any backlash.

 

Women’s equality, trans rights, and LGBTQ+ advocacy are all at the core of legal and political debates, and the articles we have selected reflect their enormous salience in today’s world.

 

The Foreward frames the book's organization as follows: 

This volume opens with the scholarship produced in the wake of Dobbs. The incredible breadth of this work required us to break the scholarship into three categories. The first section examines the historical and constitutional issues immediately raised by the decision. The second one turns to works centering on the effect of Dobbs on the reproductive experiences of people often absent from mainstream conversations about abortion such as Native Americans and people with disabilities. The final section illuminates how Dobbs is not narrowly confined to abortion. It will engender massive changes to the core relationship between people and the state. The Dobbs discussion closes with a look at how new technologies combined with this new precedent should ring alarm bells for people, regardless of whether they will ever become pregnant.

 

* * *

The second part of this volume bridges the discussion on Dobbs with discrimination based on pregnancy and pregnancy loss.

 

* * * 

We continue the theme of how technology poses a threat to rights but shift away from Dobbs and reproductive health care to think through the violent and gendered implications of two other kinds of technologies: cyber abuse and the technologies of war.

 

* * *

We move to our next section with several outstanding articles addressing developments in the movement for LGBTQ+ Equality. We lead with two articles addressing a pressing–and often tense–conflict among some scholars within the feminist and queer academy, with critical implications in courtrooms and legislatures worldwide: to what degree can biological differences justify sex discrimination? We then follow with two articles that explore the practical implications of calculating and calibrating gender identities in the realm of the administrative state and within legal education.

 

The full Table of Contents is here. 

Study Analyzes Gendered Service Work in Academia

Margaretha Järvinen and Nanna Mik-Meyer, Giving and Receiving: Gendered Service Work in Academia, Current Sociology (2024) [ResearchGate Link]

Deploying the perspective of ‘relational work’, this article investigates the mechanisms behind the gender-unequal distribution of academic service. The concept of relational work is used to analyse how men and women in academia balance collective against individual interests when agreeing or disagreeing on service tasks. Four types of relational work are identified: compliance, evasiveness, barter and investment, with compliance being more common among women, evasiveness and barter being more common among men and investment being tied to temporality in a gendered pattern. The article shows that men are more successful in pursuing individual interests against service demands and how this depends on their relational work as well as organisational role expectations, reducing women’s prospects of ‘saying no’. The study is based on qualitative interviews with 163 associate and full professors in the social sciences and CV data on their service contributions.

Millennial Women Lawyers Demand Work-Life Balance

Anna Stolley Persky, Millennials Demand Work-Life Balance More Than Their Predecessors, But Challenges Remain, ABA J. (Dec. 1, 2024)

 

Giugi Carminati, 41, had the first of her four children when she was 24 and attending the University of Houston Law Center. As Carminati began practicing law in Houston, she and her husband thought they could have it all. Carminati figured she would put her children in day care and continue working her way up to partner.

 

But child care costs for four children were “crippling,” Carminati says. She estimates that the cost of an au pair, who had a limited work schedule, along with things like after-school care, summer-care costs and overnight-sitter fees when Carminati traveled, worked out to $45,000 annually. Her husband, a physician, had little flexibility in his schedule.

 

“It was unlivable to be expected to operate as an attorney with long and unpredictable hours and travel,” says Carminati, who is part of the millennial generation born between *38 1981 and 1996. She eventually left private practice and started working in-house in 2022. Her schedule allows her to work remotely--including on a sailboat in the summer.

 

Millennials tend to emphasize a healthy work-life balance when choosing employers, according to the Deloitte Global 2024 Gen Z and Millennial Survey. That includes members of the generation like Carminati, who are lawyers with young children. Also, various reports say the profession, known for long work hours and high-pressure environments, is still difficult for many women with parenting responsibilities: Like generations before them, they often cobble together child care with a mix of nannies, babysitters, day care settings and assistance from relatives.

 

According to the 2023 ABA study Legal Careers of Parents and Child Caregivers: Results and Best Practices from a National Study of the Profession, 61% of the mothers surveyed said they experienced demeaning comments about being a working parent, compared with 26% of fathers. The study, sponsored by the ABA Commission on Women in the Profession, also found that 65% of the mothers interviewed were responsible for arranging child care, versus 7% of the fathers.

 

But a growing number of young lawyers are pushing back, according to attorneys and legal recruiters interviewed by the ABA Journal.

 

Money matters

 

“The millennial generation is less tolerant of the kind of sexism that many women for many generations just put up with as they tried to assimilate into the workforce,” says Tracy A. Thomas, the Seiberling Chair of Constitutional Law at the University of Akron School of Law.

 

And law firms have responded accordingly. Law firms of all sizes increasingly are offering hybrid work schedules, for example. In addition, there is less need for extensive travel due to online depositions and hearings, says Thomas, 59.

 

Millennials, she adds, are also more willing than prior generations to switch jobs to achieve a work environment that fits their needs. However, they can “run up against a wall” with billable hours.

 

Many law firms ask associates to bill 2,000 hours or more annually, but lowering that requirement to 1,800 could help attorneys have more work-life balance, Law.com reported in 2023. But the lower number could also reduce law firm profits up to 20%, according to the article.

 

“There's still a generational disconnect and friction between younger lawyers and leaders in law firms and the industry,” says Thomas, who studies gender and the law. “So long as the ideal worker is the person who works the most billable hours and firms still reward those lawyers with promotions, the choices set up for the younger generation, and particularly working mothers, are limited.”

 

In some ways, millennials also have options that weren't available to older generations, thanks to a changing work environment and the shift to remote work during the coronavirus pandemic. Sabrina Sacks Mann, 55, a Philadelphia legal recruiter, has noticed that the millennial generation will push for legal careers that fit their needs, with an emphasis on time with family.

 

“They are more likely to question the status quo,” says Mann, who has helped arrange the lateral placement of attorneys in law firms and corporations since 2002.

 

But Joanna Grossman, 56, a professor at Southern Methodist University Dedman School of Law in Dallas, says the legal profession is still resistant to real structural change.

 

“Millennials have a healthier view of work-life balance, and it would be better for the legal industry if people in law firms worked fewer hours, but in the end, profit is king,” says Grossman, the inaugural Ellen K. Solender Endowed Chair in Women and the Law. “The typical law firm model is not compatible for people who have substantial child care or nonwork responsibilities.”

How Television is Depicting Abortion Post-Dobbs

An article titled "Women's Lives Are on the Line, and Our Hands Are Tied”: How Television Is Reckoning With a Post-Dobbs America" was published by Stephanie Herold in Women's Health Issues. The article concludes: 

Since Dobbs, more television plotlines are portraying obstacles to abortion care, yet they continue to tell stories of white, non-parenting teenagers who make up a small percentage of real abortion patients. Plotlines overrepresent procedural abortion over the more common medication abortion. Depictions of health-related reasons for abortion seeking obscure more commonly provided reasons for abortions, such as mistimed pregnancies, caregiving responsibilities, and financial concerns. Considering the low levels of abortion knowledge nationwide, understanding what (mis)information audiences encounter onscreen is increasingly important.

Arnow-Richman on "Beyond the Glass Ceiling: Panes of Equity Partnership"

Rachel Arnow-Richman has published Beyond the Glass Ceiling: Panes of Equity Partnership in Volume 17 of the Florida International University Law Reivew. The abstract is below: 

This Article, prepared for a “micro-symposium” on Professor Kerri Stone’s monograph Panes of the Glass Ceiling (2022), explores the partnership pay gap in large law firms and the role of high-profile litigation in facilitating pay equity. There is a rich literature and extensive data on the gender attainment gap in elite law practice, particularly with regard to women’s attrition from practice and poor representation within the partnership ranks. Less attention has been paid to the way in which the exceptional women who achieve equity partner status continue to lag behind their male peers. This Article explores “Women v. BigLaw,” a cluster of equal pay cases brought by women partners in the late 2010s against elite firms. Using Stone’s work as a lens, it reveals how the same unspoken beliefs that underlie the law firm glass ceiling operate above it, placing women partners at the bottom of a new compensation hierarchy centered on origination credit. Due to historical allocations, a culture of deference toward male rainmakers, and implicitly biased attorney development and evaluation practices, origination operates as a form of “legacy credit” that locks in preexisting entitlements favoring male partners. Despite this, gender equity in law practice has been framed principally as a professional value, not a legal imperative. Women v. BigLaw and the unprecedented use of the court system by women lawyers reveals, however, that partnership pay practices pose a liability risk to firms. This new reality may incent structural change in ways that attention to gender equity as a managerial and professional goal could not.

New Book Justice Jackson's Autobiography

Kimberly Robinson, Book Review, Justice Jackson had "Wrenching Time" as Big Law Working Mom, reviewing Lovely One by Ketanji Brown Jackson.

Supreme Court Justice Ketanji Brown Jackson described her return to law firm life after the birth of her first daughter as “wrenching,” saying she “drastically underestimated the challenges of new motherhood.”

“I can honestly say that going back into the office as a new mother, and returning to the cadence and pressures of Big Law, was the stuff of nightmares,” Jackson said in her memoir, “Lovely One,” which was released Tuesday.

She describes the challenges of commuting, breastfeeding, and having to slip out of the office apologetically “at the unspeakably early hour of five P.M. each workday.” And in particular, she details the isolation and lack of motivation she felt of returning to Goodwin Procter after four months of maternity leave.

For “me, there was a hollowness to the corporate law enterprise,” Jackson wrote.

Women and Corporate Governance: Time Horizons and Stakeholder Analysis

June Carbone, Women and Corporate Governance: Time Horizons and Stakeholder Analysis, Chicago-Kent Law Review, Forthcoming

The study of gender intrinsically involves consideration of time. The assumption of childcare responsibilities, whether done by men or women, requires a different orientation toward the life course that marshals parental time and resources for investment in the early childhood years with the expectation of a payoff later in time. For primary breadwinners, this may involve a willingness to seize immediate gains in income or status during the critical childrearing years in exchange for greater risk or less security in the future. For primary caretakers, the same considerations may involve a greater preference for secure, flexible, or collaborative employment during the peak childrearing years even if it involves lower immediate income and fewer opportunities for personal advancement. These different temporal dimensions overlap with traditional gender stereotypes: supposedly masculine preferences for competition, particularly zero-sum competition tied to short-term metrics, versus feminine collaboration tied to longer-term institutional interests; masculine-coded risk-taking tied to individual status gains versus the security that comes from group membership and mutual support; and investment in individual advancement versus communal well-being. 

Consideration of the temporal dimension underlying gendered orientations toward the life cycle—and evaluation of the fate of women as a product of these different time horizons—also sheds a different light on the relationship between shareholder interests and those of other stakeholders such as workers and customers. Much of what is done in the name of shareholder primacy advances the interests of short-term shareholders at the expense, not only of other stakeholders, but of medium- to longer-term shareholders. Moreover, many of the divisions among employees—both within management and within line positions—involve distinctions between those with long-term interests in firm stability and those with a more contingent or transactional relationship to a given firm. What unites the short-term interest of activist shareholders and the fate of employees, however, is not simply corporate theory—finance scholars debate whether markets will ultimately correct for potentially counterproductive short-term actions—but rather the executive compensation systems and firm cultures that implement such perspectives. These systems have consequences that extend well beyond individual management decisions, changing the nature of the executives and the executive mindsets that thrive in such environments. Focusing on the ways that distinctions between short-term and long-term perspectives overlap with gendered employment values has a series of consequences for the debate about the relationship between corporate theory and labor and employment law.

Legislating Flexibility in the Post-Pandemic Workplace

Madeleine Gyory, "Legislating Flexibility in the Post-pandemic Workplace, Villanova L. Rev. (forthcoming)  

Working parents and caregivers in the United States struggle to balance the dual demands of work and care. Many working caregivers need flexible work arrangements (“FWAs”)—changes to their hours, schedule, or location—to allow them to balance work and care. But access to flexibility remains out of reach for many workers and is least accessible to the most marginalized. The COVID-19 pandemic underscored this problem, as huge numbers of women dropped out of the workforce to care for family. While no federal or state law requires employers to grant FWAs to caregivers, several states and localities have passed “right to request” laws, which establish steps employers must follow when workers ask for flexibility. Several cities go further to provide caregivers with limited rights to FWAs. One city, San Francisco, responded to the pandemic by granting caregivers robust legal rights to flexible work arrangements.

This Article offers the first analysis of FWA laws since the start of the pandemic and since passage of the nation’s strongest FWA law in San Francisco. The Article uses three case studies to interrogate how FWA statutes across the country protect or fail working caregivers and exposes gaps in protection. Using San Francisco’s law as a model, the Article argues that other states and cities should respond to the crisis of care exposed by the pandemic by passing comprehensive flexible workplace laws. The Article offers a roadmap for legislative action, recommending that future FWA laws should go beyond the right to request and grant broad substantive protections that cover a diverse array of workers. Building on prior scholarship advocating for accommodation of caregivers in the workplace, the Article argues that legislative intervention is needed to ensure access to flexibility irrespective of income, education, race, or gender.

Prashasti Bhatnagar on "The Pregnant Workers Fairness Act Leaves Agricultural Workers Behind"

Prashasti Bhatnagar has published The Pregnant Workers Fairness Act Leaves Agricultural Workers Behind in volume 52 of the Journal of Law, Medicine, and Ethics. The conclusion is excerpted here: 

Employment conditions contribute to workers’ ability to be healthy, particularly for immigrant pregnant workers. This article highlights how laws like PWFA often do not protect pregnant immigrant workers in the agricultural industry, resulting in health inequities. Advocacy efforts by immigrant workers and grassroots organizations have resulted in some protections, but there are still gaps. Therefore, future efforts geared towards eliminating pregnancy discrimination and the resulting health inequities must center the lived experiences of immigrant workers and understand workplace pregnancy discrimination as an immigrant justice issue. In order to achieve health justice, governments should engage with workers and grassroots organizations to build community power and create systems that invest in joy, well-being, safety, and liberation. 

Study Finds that Effects of California's Paid Family Leave Act Did Not Help Women's Careers and Gender Pay Gap

Martha Bailey, Tanya Byker, Elena Patel, Shanthi Ramnath, The Long-Run Effects of California's Paid Family Leave Act on Women's Careers and Childbearing: New Evidence from a Regression Discontinuity Design and U.S. Tax Data" 

We use administrative tax data to analyze the cumulative, long-run effects of California's 2004 Paid Family Leave Act (CPFL) on women's employment, earnings, and childbearing.***

A growing body of evidence suggests that the gender gap in pay emerges abruptly at motherhood, as new mothers work less for pay in order to increase their caregiving at home. These differences are also evident in U.S. tax data, which show that the “child penalty” for women in annual wage earnings grows sharply after their first child is born.

Academics and policymakers have mobilized around this issue, citing the absence of paid family leave in the United States as a major obstacle to gender equity in the labor market. Paid family leave policies, they argue, could enable workers to take longer leaves to care for newborns instead of dropping out of the labor force. Remaining attached to employers could help workers retain job- and firm-specific human capital and decrease skill depreciation, minimizing wage losses due to caregiving. Because more women leave the labor force than men for caregiving reasons, formalizing paid leave policies could narrow the gender gap in pay.***

Our findings challenge the conventional wisdom that paid leave benefits improve women’s short- or long-term career outcomes. In fact, CPFL significantly decreased employment and earnings of first-time mothers in the short run. First-time mothers taking up paid leave under CPFL were 6 percent less likely to be employed and earned 13 percent less during the first three years after giving birth. Moreover, we find evidence that these earnings effects persisted, with wage earnings remaining 13 percent lower nine to 12 years later.

Maybell Romero on "Shamed"

Maybell Romero has posted a draft work-in-progress on SSRN titled "Shamed." The abstract previews: 

Victims of rape, sexual assault, and sexual abuse have long had to contend with victim blaming and victim shaming. While legal scholars have had fruitful and theoretically engaging debates regarding the validity and merits of using shaming sanctions and shaming criminal defendants, there has been precious little written about the shame that victims face, let alone a recognition that their interaction with shame as both a social force and emotion is multidimensional. In a previous piece titled “Ruined”, I examined the language judges use during sentencing hearings in sexual assault cases to describe victims, such as pronouncing them “broken,” “ruined,” or “destroyed.” This Article serves as a continuation of the inquiry I started in “Ruined” by expanding in focus. It seeks to differentiate between the related concepts of shame and stigma and explain why shaming of rape victims is so common. I propose a novel typology with which to examine a rape victim’s experience and separate the shame that victims are made to feel by the criminal adjudicative process, the shame victims are supposed to perform, and the shame victims are supposed to feel into discrete components to consider, revealing that shame in relation to such victims is multilayered and much more complex than legal scholarship has made it out to be.

I share my own experiences with each of these manifestations of shame to demonstrate the usefulness of my new typology, but I also relate how I have felt ashamed to come forward with my story as a practicing attorney as well as my experiences of being shamed in the legal academy. I conclude, however, with a note of optimism, reflecting on the positive things to have come with my very public self-disclosure of being a rape and sexual abuse victim and hoping to encourage others to employ personal narrative and autoethnographic methods in their own scholarship, as well.

Reform of Sexual Harassment Laws in Australia

Belinda Smith, Respect@Work Amendments: A Positive Reframing of Australia’s Sexual Harassment Laws,  
(2023) 36 Australian Journal of Labour Law 145

Australian law on sexual harassment has seen many changes in the past few years. This article outlines and analyses these changes in light of the findings of the inquiry that recommended them, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces. The Report found that sexual harassment was pervasive, harmful and clearly not being addressed by the existing laws, which relied almost entirely on individual victims to lodge formal complaints and bear the burden of driving change. The legislative amendments serve to harmonise and improve individual protections across the Sex Discrimination Act 1984 (Cth), Fair Work Act 2009 (Cth) and work health and safety laws. The most significant change, though, is the introduction of a new duty on persons conducting a business or undertaking to take positive steps to prevent harassment and sex discrimination. While its deficiencies are acknowledged, this duty could play an important functional and symbolic role in shifting regulatory attention from victims to their employers and other duty holders, and more importantly, from redressing harm after the fact to preventing it in the first place.

Rachel Arnow-Richman on "Beyond the Glass Ceiling: Panes of Equity Partnership"

Rachel Arnow-Richman has posted Beyond the Glass Ceiling: Panes of Equity Partnership on SSRN. This article is forthcoming in the Florida International University Law Review. The abstract is excerpted here:

This Article . . . explores the partnership pay gap in large law firms and the role of high-profile litigation in facilitating pay equity. There is a rich literature and extensive data on the gender attainment gap in elite law practice, particularly with regard to women’s attrition from practice and poor representation within the partnership ranks. Less attention has been paid to the way in which the exceptional women who achieve equity partner status continue to lag behind their male peers. This Article explores “Women v. BigLaw,” a cluster of equal pay cases brought by women partners . . . against elite firms. [I]t reveals how the same unspoken beliefs that underlie the law firm glass ceiling operate above it, placing women partners at the bottom of a new compensation hierarchy centered on origination credit. Due to historical allocations, a culture of deference toward male rainmakers, and implicitly biased attorney development and evaluation practices, origination operates as a form of “legacy credit” that locks in preexisting entitlements favoring male partners. Despite this, gender equity in law practice has been framed principally as a professional value, not a legal imperative. Women v. BigLaw and the unprecedented use of the court system by women lawyers reveals, however, that partnership pay practices pose a liability risk to firms. This new reality may incent structural change in ways that attention to gender equity as a managerial and professional goal could not.

Aya Gruber Publishes "A Tale of Two Me Toos"

Aya Gruber has published A Tale of Two Me Toos in volume 2023 of the Illinois Law Review. The abstract is excerpted here: 

What is #MeToo’s legacy? The conventional account currently being indelibly forged into our collective memory is that #MeToo was an unconditional progressive victory. It was a reckoning of the disempowered against the powerful that profoundly challenged sexist culture. This Article complicates and even counters that narrative by shining a light on #MeToo’s dark side, namely, its carceral and neoliberal messages and policy reforms. Although today’s George-Floyd-mindful feminists often describe #MeToo as having nothing to do with criminal law, the reality is that the movement featured familiar tough-on-crime discourses, passionately called for more criminal law and prosecutorial power, and, in fact, produced several new carceral laws and policies. Yet, just hours after famous actor Alyssa Milano sent the tweet heard around the world, Black Twitter revealed that Me Too already existed: Tarana Burke’s “me too movement.” This Me Too centered on survivors’ material and emotional needs, focused on young women of color living in socioeconomic precarity, and embraced noncriminal “transformative justice.” Milano’s #MeToo, by contrast, incorporated popular narratives of criminality, bolstered the legitimacy of the penal state, and relied on traditional notions of sex and gender. And it was Milano’s that became the Me Too. This Article contrasts the two Me Toos to critique the individualistic and punitive #MeToo movement that is and mourn the intersectional and restorative Me Too movement that could have been. #MeToo’s emphasis on sensational stories and social media derived evidence of “epidemics” effectively cut off debate, enabling carceral reforms to pass at a dizzying pace. This Article is the first to catalogue, describe, and examine the actual criminal laws and policies erected in #MeToo’s name. Even a surface analysis of these reforms reveals that, contrary to advocates’ claims, they do not just close “loopholes.” Instead, each new or broadened criminal law raises troubling issues of civil liberties, defendants’ rights, and state power, and each portends to sweep in people—including women—who bear little resemblance to the unrepentant monstrous offenders featured in #MeToo discourse.

Nobel Prize in Economics Awarded to Claudia Goldin for Work on the Gender Pay Gap

The Nobel Prize explains the relevance of her research:

Historically, much of the gender gap in earnings could be explained by differences in education and occupational choices. However, this year’s economic sciences laureate Claudia Goldin has shown that the bulk of this earnings difference is now between men and women in the same occupation, and that it largely arises with the birth of the first child. 

  ***

By trawling through the archives and compiling and correcting historical data, this year’s economic sciences laureate Claudia Goldin has been able to present new and often surprising facts. She has also given us a deeper understanding of the factors that affect women’s opportunities in the labour market and how much their work has been in demand. The fact that women’s choices have often been, and remain, limited by marriage and responsibility for the home and family is at the heart of her analyses and explanatory models. Goldin’s studies have also taught us that change takes time, because choices that affect entire careers are based on expectations that may later prove to be false. Her insights reach far outside the borders of the US and similar patterns have been observed in many other countries. Her research brings us a better understanding of the labour markets of yesterday, today and tomorrow.

UChicago Alum Claudia Goldin Wins Nobel Prize for Research on Gender and Labor

        Detailing Goldin's work and books.

Podcast, Claudia Goldin: Why do Women Still Make Less Than Men?, Harvard Magazine.

 

Widiss on "The Federal Pregnant Workers Fairness Act: Essential Support, Especially in Post-Dobbs America"

Deborah A. Widiss has published The Federal Pregnant Workers Fairness Act: Essential Support, Especially in Post-Dobbs America on SSRN. The article is forthcoming in the Employee Rights and Employment Policy Journal in 2023. The abstract is excerpted here: 

The federal Pregnant Workers Fairness Act, enacted in December 2022, is landmark legislation that will help ensure workers can stay healthy through a pregnancy. It responds to the reality that pregnant workers may need changes at work, such as permission to sit on a stool, carry a water bottle, relief from heavy lifting, or reduced exposure to potentially dangerous chemicals. Workers may also need schedule modifications or leave for prenatal appointments, childbirth, or post-partum recovery, or accommodations to address medical conditions related to pregnancy or childbirth.

Previously, federal sex discrimination law and federal disability law sometimes required employers to provide such accommodations, but many pregnancy-related needs fell between the cracks. Both employees and employers were confused about how the requirements of those laws interacted. PWFA, passed with strong bipartisan support, provides a clear standard modeled on disability law: employers must provide reasonable accommodations for pregnancy, childbirth, and related medical conditions, unless doing so would be an undue hardship.

This Article analyzes the new federal statute’s substantive provisions in detail, as well as key legislative history, models for the statutory language, and the Equal Employment Opportunity Commission’s proposed regulations. It explains the basic reasonable accommodation requirement, other substantive requirements, the likely scope of “related medical conditions,” and the remedies that will be available if violations occur. The Article also highlights how new restrictions on abortion access make PWFA even more essential. In states that have sharply curtailed abortion rights, more women are carrying pregnancies, including high-risk pregnancies, to term. PWFA is not a substitute for the autonomy to make decisions regarding reproductive health, but it can help keep pregnant workers healthy and assure they are treated with dignity and fairness.

Women's Weak Language is a Source of Strength

Adam Grant, Op Ed, NYT, Women Know Exactly What They're Doing When They Use "Weak Language."

“Stop using weak language.” If you’re a woman, you’ve probably gotten this advice from a mentor, a coach or a teacher. If you want to be heard, use more forceful language. If you want a raise or a promotion, demand it. As the saying goes, nice girls don’t get the corner office.

This advice may be well intentioned, but it’s misguided. Disclaimers (I might be wrong, but …), hedges (maybe, sort of), and tag questions (don’t you think?) can be a strategic advantage. So-called weak language is an unappreciated source of strength. Understanding why can explain a lot about the way women acquire power and influence — and how men do, too.

It turns out that women who use weak language when they ask for raises are more likely to get them. In one experiment, experienced managers watched videos of people negotiating for higher pay and weighed in on whether the request should be granted. The participants were more willing to support a salary bump for women — and said they would be more eager to work with them — if the request sounded tentative: “I don’t know how typical it is for people at my level to negotiate,” they said, following a script, “but I’m hopeful you’ll see my skill at negotiating as something important that I bring to the job.” By using a disclaimer (“I don’t know …”) and a hedge “(I hope …”), the women reinforced the supervisor’s authority and avoided the impression of arrogance. For the men who asked for a raise, however, weak language neither helped nor hurt. No one was fazed if they just came out and demanded more money.

In 29 studies, women in a variety of situations had a tendency to use more “tentative language” than men. But that language doesn’t reflect a lack of assertiveness or conviction. Rather, it’s a way to convey interpersonal sensitivity — interest in other people’s perspectives — and that’s why it’s powerful.***

New evidence reveals that it’s not ambition per se that women are being penalized for. In fact, women who are perceived as intelligent and capable, determined and achievement-oriented, independent and self-reliant are seen as more promotable to leadership positions.

The problem arises if people perceive them to be forceful, controlling, commanding and outspoken. These are qualities for which men are regularly given a pass, but they put women at risk of being disliked and denied for leadership roles

Sexual Harassment Reconceived as Misappropriation and Waste of Corporate Human and Financial Assets

Jennifer Ann Drobac, The Misappropriation, Embezzlement, Theft, and Waste of Corporate Human and Financial Assets: Sexual Harassment Reconceived, 36 ABA J. LAB. & EMP. L. 425-477 (2022).

This article suggests how sexual harassment should be treated by companies as a civil misappropriation, embezzlement, conversion, or theft—as well as a civil rights violation. Additionally, some payment associated with sex-based harassment should be considered corporate waste. The misappropriation approach considers not only how sex-based harassment constitutes a civil misappropriation, embezzlement, conversion, or theft, but it also responds to three anticipated objections to sexual harassment as a civil misappropriation: (1) sexual harassment is a minor corporate expense; (2) identification of sexual harassment as civil misappropriation of corporate human assets commodifies targets; and (3) this new concept will change neither corporate responses nor corporate cultures. First, in response, sexual harassment is not a minor expense but one that costs companies billions of dollars annually. It is, therefore, in a company’s financial interest to treat the problem as a theft of valuable assets. Second, only corporate failure to recognize the market value of female professional talent dehumanizes people. Almost all human beings engage in work, and men, in particular, are valued for their work. Thus, the misappropriation solution puts targets on the same plane as privileged men, valued for their market productivity (as opposed to sexual or reproductive utility). Third, the identification of sexual harassment as a theft, conversion, embezzlement, or misappropriation, as well as a civil rights violation, encourages companies to modify and improve their remedial responses, corporate culture, profitability, and transparency. By making corporations and harassment targets as potential allies, instead of adversaries, the reconception of sex-based harassment as a misappropriation of corporate human assets incentivizes new collaborations for social and economic justice.

Study Analyzes Why the Gender Pay Gap Has Stalled

Peter Blair and Benjamin Posmanick have published a working paper titled Why Did Gender Wage Convergence in the United States Stall with the Human Capital and Economic Opportunity Global Working Group. The abstract provides: 

During the 1980s, the wage gap between white women and white men in the US declined by approximately 1 percentage point per year. In the decades since, the rate of gender wage convergence has stalled to less than one-third of its previous value. An outstanding puzzle in economics is “why did gender wage convergence in the US stall?” Using an event study design that exploits the timing of state and federal family-leave policies, we show that the introduction of the policies can explain 94% of the reduction in the rate of gender wage convergence that is unaccounted for after controlling for changes in observable characteristics of workers. If gender wage convergence had continued at the pre-family leave rate, wage parity between white women and white men would have been achieved as early as 2017.

The article concludes: 

[U]sing the introduction of family-leave policies, we explain 94% of the stagnation in gender wage convergence that is unaccounted for after controlling for changes in observable characteristics between men and women. A key lesson from our work is that legally-mandated labor market flexibility can have the unintended effect of stymieing gender wage convergence, notwithstanding the increasing evidence that flexibility which arises endogenously in the labor market through technological innovation, or from firms changing their own policies, can lead to reduced gender wage gaps * * * .

 

The evidence that we provide on the impact of leave policies on gender wage convergence in the US contributes to a growing literature documenting negative impacts of leave policies on gender wage equality in Europe and other OECD countries * * *. Because the leave offered in the US is less generous that what is offered in peer countries, our results suggests an important role for economists to consider what features of family-leave policy design can soften the equity-efficiency trade-off arising from the introduction of family-leave policies. We leave this work to future studies by other scholars having answered the question: “why did gender wage convergence in the United States stall?”