Gender and the Law Blog

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?”

Missouri House Republications Adopted Stricter Dress Code for Women, Arms Must be Concealed

Missouri House Republicans Adopted Stricter Dress Code -- Just for Women

The Republican-controlled Missouri House of Representatives used its session’s opening day Wednesday to tighten the dress code for female legislators, while leaving the men’s dress code alone.

The changes were spearheaded by state Rep. Ann Kelley (R), a co-sponsor who was among the Republicans seeking to require women to wear a blazer when in the chamber. She was met by swift opposition from Democrats who called it “ridiculous.”

The state House eventually approved a modified version of Kelley’s proposal, which allows for cardigans as well as jackets, but still requires women’s arms to be concealed. Missouri Democrats tore into Republicans for pushing the new restrictions on what women in the chamber could wear. ***

 

While previous rules said that “dresses or skirts or slacks worn with a blazer or sweater and appropriate dress shoes or boots” were allowed to be worn by female lawmakers, Kelley, one of the co-sponsors of H.R. 11, said Wednesday that women needed to wear jackets on the floor as “it is essential to always maintain a formal and professional atmosphere.”

Senate Passes Protections for Pregnant Workers and New Mothers

Senate Passes Protections for Pregnant Workers and New Mothers

The Pregnant Workers Fairness Act and the PUMP for Nursing Mothers Act passed the Senate with bipartisan support on Thursday as amendments to the omnibus spending package.

Why it matters: It's a major milestone for women's workplace civil rights. Advocates have pushed for protections for pregnant workers for over a decade, arguing that thousands of women lose their jobs each year — either fired or placed on unpaid leave — because employers are under no obligation to offer pregnant workers reasonable accommodations.

• Those would include things like extra bathroom breaks, the ability to sit while working a cash register or restrictions on how much weight they can lift.

Patrice Ruane Publishes Article on Women's Employment from the Great Depression to the Great Recesssion

Patrice Ruane has published From Pin Workers to Essential Workers: Lessons About Women's Employment and the Covid-19 Pandemic from the Great Depression and the Great Recession in volume 29 of the UCLA Journal of Gender and the Law. The abstract is here: 

This Article argues that inaccurate ideas about women and work during economic downturns, including misconceptions about which women work and how they work, lead to inadequate policy responses and ultimately hurt working women. New Deal-era federal women’s aid programs, designed around an artificial picture of the average working woman, did not provide the same robust level of jobs support that men’s programs provided. Similarly, the major federal stimulus package during the Great Recession invested in male-majority industries but failed to invest in industries dependent upon women’s labor, in part because of the misconception that working women were already “winning” the jobs race. Framing the average working woman during the pandemic recession as a remote worker in a two-income household has the potential to steer federal policy away from avenues that would help the majority of women workers who are not remote workers in two-income households. Recovery efforts during the Great Depression and the Great Recession were gender-informed and effective, but biased toward men. These recovery efforts were concentrated in male-majority industries and consequently led to men’s employment recovering long before women’s employment did. Because pandemic-related job losses have been so unevenly borne by women, gender-informed recovery policies are not only justifiable, but necessary to achieve equitable recovery.

 

This Article also questions the speculation, articulated in an influential paper by a group of economists, that the COVID-19 pandemic will accelerate changing social norms and lead to greater gender parity by increasing the number of people who are accustomed to working remotely and driving men to take on additional childcare responsibilities. The conditions following the Great Depression and the Great Recession were more conducive to changing gender norms and expectations because both events disrupted traditional male-breadwinner models of the family and resulted in large numbers of families in which the woman was employed and the man unemployed. But neither resulted in lasting improvements in gender equity in the home or at work. Both events were followed by a reactionary impulse to return to a traditionally gendered view of the organization of labor. The pandemic recession does not present the opportunity to disrupt gender norms by creating more households headed by women breadwinners, yet the risk of a conservative reversion to more traditionally gendered norms is still present.

 

Gendered and Racialized Emotional Labor in Public Organizations

Cynthia Barboza-Wilkes, REPRODUCING INEQUITY IN ORGANIZATIONS: GENDERED AND RACIALIZED EMOTIONAL LABOR IN PUBLIC ORGANIZATIONS, PhD Thesis (USC School of Public Policy) 

Emotional labor research in public administration lags behind other fields, is often omitted from discussions of representative bureaucracy, and rarely looks at its gendered and racialized dimensions. The existing scholarship fails to consider the dynamic nature of emotions and that different emotions (e.g., happiness versus anger) might warrant different emotional labor techniques for different groups. Meanwhile, scholars from sociology, applied psychology, and organizational behavior widely recognize the importance of emotional labor, but few have used an intersectional lens to study the well-recognized phenomenon.

This dissertation uses an intersectional approach to codify the difficult-to-measure and often unobserved emotional labor that can institutionalize inequity within public organizations. An intersectional approach is essential to make visible the experiences of those at the intersection of multiple marginalized identities, and this dissertation describes in detail how the antecedents, experiences, and consequences of emotional labor differ based on the employee’s combination of gender and racial identity. Using a mixed-methods research design that combines daily diary entries and semi-structured interviews, this work (1) describes and measures the emotional labor embedded in both service encounters with the public and internal interactions among colleagues, (2) looks at subgroup differences in the emotional effort at the intersection of race and gender, and (3) assesses the relationship between emotional labor and burnout to inform our understanding of the well-being of a diverse public sector workforce.

I find meaningful differences within and between individuals in the emotions needed to effectively engage the public and navigate public institutions. The results reveal that, compared to their peers, women of color engage in more taxing forms of emotional labor, feel more emotionally constrained by organizational rules, are more cognizant of managing gendered and racialized stereotypes, and are more sensitive to whether the climate allows for authentic expression. I also show that public employees experienced heightened burnout during the pandemic, and the suppression of emotion contributed to that burnout, but in different ways for different groups. In particular, women of color who suppressed negative emotions were more likely to experience a reduced sense of personal accomplishment, increased cynicism, disengagement from their work, and more emotional exhaustion.

This project reveals important distinctions in the type of emotional labor demanded of public employees and how those emotional demands differ across gender and racial identities. The results make visible the experiences of those at the margins of multiple lived experiences of oppression, allowing women of color to articulate their own emotional experiences in ways that center their voices. Importantly, this work highlights the importance of factoring emotional labor into the experience of burnout at work while emphasizing that the relationship between the two varies for individuals of different backgrounds. I provide concrete proof that there is an uneven distribution of emotional labor in public organizations, and it falls predominantly on women of color.

Measuring a construct as complex and dynamic as emotional labor lays the groundwork for important reform. By codifying, measuring, and describing the differential emotional burdens embedded in public organizations, I quantitatively demonstrate the need for equitable human resource management practices that address how organizations structurally reinforce inequity.

Gender Disparities in Law Firm Partner Pay

The ABA Journal reports on ongoing disparities in law firm partner pay with some movement toward lessening the gap.  

The average male law firm partner earns 34% more than the average female partner, which is less of a differential than in prior years, according to a survey by recruiting firm Major, Lindsey & Africa in association with Law360.

Average compensation for male partners in midsize and large law firms is $1,212,000 for male partners and $905,000 for female partners, according to the 2022 Partner Compensation Survey. A summary and a link to download the survey is here.

The pay differential was 53% in 2018 and 44% in 2020.

Average partner compensation overall was $1,119,000, up 15% from 2020. Median compensation was $675,000.

Remote Work as Reinforcing Gender Inequality and the Difficulty of Work-Life Balance

Tammy Katsabian, The Work-Life Virus: Working from Home and its Implications for the Gender Gap and Questions of Intersectionality, Forthcoming in the Oklahoma Law Review

Work–life balance is considered to be the top challenge for working women globally. The COVID-19 pandemic catalyzed a worldwide experiment regarding the various components of this challenge and its possible solutions. Because the pandemic forced numerous workers to shift their working lives from the office to their private homes, it created the largest global experiment in remote work in human history, with implications for women’s equality.

As this article wishes to show, the phenomenon of remote work illuminates gender inequality and the difficulty of work–life balance. Since remote work is mainly conducted from the personal residence of the employee, it generates a hybrid private–professional site and brings to the workplace context the private characteristics of the employee. Thus, remote work exposes how women’s traditional role in the private sphere—caregivers—influences their ability to progress at work. The ubiquity of the trend of remote work during the pandemic also revealed what third-wave feminism argued long ago: the feminine experience is not unitary; different women must cope with different difficulties. The pandemic showed that the ability to shift to remote work and successfully balance work with familial duties is not uniform among women. Questions of financial and marital status are also part of this equation.

It appears that working from a distance with the help of technology will become the most prominent way to conduct work in the future. Unless different regulatory models are developed, the current massive telecommuting trend has the potential to strengthen gendered and socioeconomic inequalities in U.S. society. Against this background, this article suggests a model for a solution that considers private–professional hybridity and both employers and governmental authorities. In this way, the article offers broad systemic solutions intended to diminish the effect of an employee’s familial and socioeconomic background on her ability to shift to telework on an equal basis with others and, in doing so, participate equally in the digitalized labor market of the future. 

Bloomberg Law on "Women's Big Law Exodus"

Ayanna Alexander published an article for Bloomberg Law titled, Women's Big Law Exodus Picks Up Pace in Blow to Diversity Hunt. The article summarizes data published by Leopard Solutions.  

Veteran women attorneys are jettisoning Big Law in favor of in-house jobs at a higher rate, an accelerating trend that hits top law firms at a time when they’re fighting to improve their diversity.

In 2021, only 35% of women who left one of the top 200 law firms in the US joined another Big Law firm . . . . Through the first nine months of 2022, that number has shrunk to 28%. Moving to in-house positions remains the most popular second choice for women who say that gives them more control over their careers.

* * * 

Big Law firms intending to improve their diversity need to consider the factors driving women away from their ranks, which may mean taking a harder look at how firms are structured and operate, said Sonya Olds Som, the global managing partner for the Legal, Risk, Compliance & Government Affairs practice group at executive search firm Diversified Search Group, which also places in-house attorneys.

ABA Survey on the Impact of Raising Children on Legal Careers

The ABA Commission on Women in the Profession is conducting its first-ever survey studying how raising children impacts legal careers. 

The American Bar Association Commission on Women in the Profession, joined by many other national affinity bars and regional bar associations, seeks your help in this first-ever national survey for understanding the impact of raising children on legal careers. We are seeking participation by men and women, both with and without children.

 

Your participation will contribute to understanding how different policies and practices can help lawyers with children navigate their careers, and how employers can create better workplace cultures that benefit all lawyers.

 

Please complete the Survey by September 28 at 11 p.m. Eastern/10 p.m. Central/9 p.m. Mountain/8 p.m. Pacific time.

Blog readers can circulate this survey in their networks to help capture this important survey data. 

 

Shanta Trivedi on "Supreme Mom Guilt" in Ms. Magazine

Shanta Trivedi writes for Ms. Magazine The Supreme Mom Guilt is Real: Judge Ketanji Brown Jackson and Motherhood. 

The struggles of employed motherhood in a society that is not built to support mothers (formal wage-earners or stay-at-home moms) has been documented time and again. But, in many ways, what Jackson was expressing is unique to Black women. Black women have historically been more likely to be a part of the workforce than their white counterparts. Black women and other women are color are also more likely to do work that supports white women’s ability to work outside the home, such as caregiving and housecleaning. And, for many Black women, they are the “only” of both their gender and race at work, putting even more pressure on them in already complicated work settings where they regularly face microaggressions, harassment or blatant misogynoir—the toxic, combined discrimination against Black females.

* * *

All mothers feel pressure to be perfect and the judgment that they face is real, but Black mothers face a microscope unlike no other, particularly when compared to the upper-middle class white version of Pinterest and Etsy-fueled parenting. In the midst of an exercise designed to scrutinize her and her life, despite her perfect resume, she highlighted her perceived imperfection as a parent. But perhaps there is no better evidence to the contrary than from her own children. 

Stereotypes, Sexism, and Superhuman Faculty

 Teneille R. Brown has posted Stereotypes, Sexism, and Superhuman Faculty on SSRN. This article is a preprint of a work forthcoming in volume 16 of the Florida International Law Review.  This is a powerful and personal read capturing many important takeaways of pandemic teaching as its hardships have mapped on to gender, race, and parental status. 

Despite our relative privilege, lawyers are not immune to the pandemic’s breathtaking ability to expose gender inequality. While working moms in other industries are afforded far fewer supports, and often cannot work from home, the lack of support offered by law schools and law firms has still been appalling. We risk losing much of the fragile equality we have won, as women scale back their pursuit of leadership positions, and have less focused time to spend researching cases, preparing for class, giving talks, or writing. The data are in: women lawyers’ productivity plummeted during the pandemic. This carried over to academic writing generally, where women’s submissions nosedived in the spring and summer. Women with children have lost 500 hours of research time, which makes them “disproportionately less likely to be promoted in rank and perhaps even more likely to drop out of academia altogether.” 

* * * 

As it might be clear by now, treating people as superhuman is an insidious and hollow form of adulation. Even though it seems positively valenced, it nonetheless reflects a form of dehumanization.  

 * * *  

Law faculty are not superhumans, and there is no virtue in regarding ourselves as such. We are individuals—empowered with the full range of complex thoughts and emotional vulnerabilities. This is not to say that all humans experience emotions to the same degree, or that we all draw from the same emotional depth or complexity. But for some, denying our emotional experience is a rejection of the self. Further, treating faculty as superhumans leads to workplace environments that are cold, uncaring, and discriminatory.

 

Unfortunately, the depth and complexity of the problem is disheartening, and there are no easy solutions. It is not enough to have women in leadership roles if those women espouse ambivalent sexism in their speech or policies. And it is not enough to respond to requests by working moms for accommodations, as those requests will often render those asking for them less competent. Research does suggest that women take less of a hit to their competence if they frame requests as advocating for others, and when they explicitly draw attention to sexist stereotypes. Thus, by making colleagues and administrators aware of the [Stereotype Content Model] and the deep social psychological roots of ambivalent sexism, we can begin to open their eyes. But because of the blow we take to competence when we mention our caregiving roles, professional women cannot make systemic change alone.

New Beginnings: A Feminist Evaluation of Gendered Stigma in the Modern Legal Profession

New Beginnings: A Feminist Evaluation of Gendered Stigma in the Modern Legal Profession

By: Amanda M. Fisher

Published in: Rutgers Journal of Law and Public Policy, Volume 19:1

The modern woman lawyer faces many of the same challenges that women in law faced during their earliest entry into the profession. While circumstances have certainly improved for women in law, gendered stigma is still prevalent in the profession. In this article, “gendered stigma” refers to circumstances resulting from one’s gender as a salient feature of their work, serving to discredit one’s abilities and accomplishments. Women began to enter the legal profession in large numbers in the 1970s, gaining attention as they did so. Although early research on women in the law focused on blatant discrimination, that type of discrimination is fortunately less common now. Much of the modern research addressing women’s status in the legal profession, however, focuses on the quantitative evidence, like the number of women in the profession and their salaries as compared to men. Numerical evidence does show progress, but qualitative evidence reveals that the gender-driven experiences of women new to the profession are eerily similar to those of women who have long retired from the profession. This belies the assumption that simply improving numbers, e.g., having more women in the profession, would solve the disparities between men and women who practice law. This article relies on identity theory and stigma to inform the cycle of gendered stigma prevalent in the legal profession to critically examine basic tenets of the profession that must change for progress to flourish. This theoretical foundation can then inform practical solutions for mitigating the negative effects of gendered stigma on the profession and the individuals serving within it.

Internal Report on Culture and Processes at TIME'S UP

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

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

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

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

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

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

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

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

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

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

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

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

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

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

EEOC, Policy Guidance on Veterans' Preferences Under Title VII

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

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

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

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

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

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

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

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

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

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

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

The Gay Perjury Trap

By: Christopher R. Leslie

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

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

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

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

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

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

Proposed Reconciliation Plan and Paid Leave

Progressives push back on decision to shrink Biden's paid family leave program

Progressive Democrats in the Senate and House are pushing back against a preliminary decision by President Biden and Democratic leaders to significantly cut funding for a national family paid leave program from the budget reconciliation bill.

 

A group of 15 Senate Democrats led by Sen. Kirsten Gillibrand (D-N.Y.) on Wednesday sent a letter to Biden, Senate Majority Leader Charles Schumer (D-N.Y.) and Speaker Nancy Pelosi (D-Calif.) urging them to include a more robust family and medical paid leave program in the legislation.

 

“We urge you to include a national paid leave program that is meaningful, comprehensive and permanent in the Build Back Better Act. It must be universal to cover all workers, provide progressive wage replacement to help the lowest wage earners, and cover all existing types of leave with parity,” the senators wrote.

 

The letter was also signed by Sens. Richard Blumenthal (D-Conn.), Jeanne Shaheen (D-N.H.), Mazie Hirono (D-Hawaii), Tammy Duckworth (D-Ill.), Tammy Baldwin (D-Wis.), Elizabeth Warren (D-Mass.), Tina Smith (D-Minn.), Cory Booker (D-N.J.), Dick Durbin (D-Ill.), Maggie Hassan (D-N.H.), Alex Padilla (D-Calif.), Amy Klobuchar (D-Minn.), Jacky Rosen (D-Nev.) and Ben Cardin (D-Md.).

 

It comes a day after Biden informed liberal Democrats at a White House meeting Wednesday that the emerging legislation will only provide four weeks of paid leave benefits instead of the 12 weeks initially discussed by lawmakers.

 

The program is also expected to be means tested to be limited to lower-income families. 

 

This proposed cut isn’t sitting well with Democratic senators who argue that funding a generous national paid leave program will boost the economy and address what they say is a child care crisis.

 

“Paid leave is a critical policy to improve the economic security of families, support businesses, and increase economic growth,” they wrote.

 

“The pandemic has exposed an acute emergency on top of an ongoing, chronic caregiving crisis for working people and employers alike. We cannot emerge from this crisis and remain one of the only countries in the world with no form of national paid leave. Now is the time to make a bold and robust investment in our nation’s working families,” they argued.  

Accidental Feminism: Gender parity and selective mobility among India's professional elite

Accidental Feminism: gender parity and selective mobility among India's professional elite

Preface to: Accidental feminism: Gender parity and selective mobility among India's professional elite

By Swethaa Ballakrishnen

Princeton : Princeton University Press, 2021.

In India, elite law firms offer a surprising oasis for women within a hostile, predominantly male industry. Less than 10 percent of the country’s lawyers are female, but women in the most prestigious firms are significantly represented both at entry and partnership. Elite workspaces are notorious for being unfriendly to new actors, so what allows for aberration in certain workspaces?

Drawing from observations and interviews with more than 130 elite professionals, Accidental Feminism examines how a range of underlying mechanisms—gendered socialization and essentialism, family structures and dynamics, and firm and regulatory histories—afford certain professionals egalitarian outcomes that are not available to their local and global peers. Juxtaposing findings on the legal profession with those on elite consulting firms, Swethaa Ballakrishnen reveals that parity arises not from a commitment to create feminist organizations, but from structural factors that incidentally come together to do gender differently. Simultaneously, their research offers notes of caution: while conditional convergence may create equality in ways that more targeted endeavors fail to achieve, “accidental” developments are hard to replicate, and are, in this case, buttressed by embedded inequalities. Ballakrishnen examines whether gender parity produced without institutional sanction should still be considered feminist.

In offering new ways to think about equality movements and outcomes, Accidental Feminism forces readers to critically consider the work of intention in progress narratives.

Pandemic Practice - The Disparate Impact on Female Attorneys

Liane Jackson, How Pandemic Practice Left Lawyer-moms Facing Burnout, ABA Journal, August/September Issue (2021).

This article explores the pandemic’s effect on the “participation gap in the labor market” between women and men, and posits that “hard-won gains are disappearing,” “the gap is widening,” and experts posit that the effects “will be felt in the legal industry for years to come.”

It will come as no surprise that “women are America’s default social safety net” and have therefore “taken on the lion’s share of pandemic parenting,” as numerous studies have already shown.  This is due to a number of social pressures and norms, which this article addresses.  Of particular note is the “idealized version of intensive motherhood” which sets a standard by which “women are expected to sacrifice their careers, their well-being, their sleep, [and] their mental health for the good of their children.”  Competing with this social construct, is another equally pervasive standard to which female lawyers are held “of total commitment . . . this ideal worker norm that says you’re supposed to sacrifice everything for your job.”  It is no wonder, in this zero sum game, that increased drinking, stress, desire to leave the profession, and mental health issues are being reported in higher percentages of women than men as a result of a pandemic which left parents with few childcare options and a lead role in their children’s education. “The pandemic has disproportionately affected women and minority attorneys, with female lawyers of color feeling increased isolation and stress.”

So what can we do to alleviate the disadvantage experienced by female attorneys as we begin to return from pandemic-induced remote work environments?  Liane Jackson argues that flexible work options need to be accompanied by a genuine commitment to not allowing those options to come with a conscious or unconscious institutional/advancement penalty.  This requires a “recognizing that family has a value, households have a value and people have a value outside the workplace.”  To do otherwise will “continue[] to threaten retention rates.” We must be intentional as we begin to emerge from this pandemic to not penalize female attorneys whose "productivity" (as traditionally measured) may have fallen below that of male counterparts due to the unequal sharing of pandemic pressures discussed above.  Employers should focus on retention and advancement standards that are equitable to female attorneys who continue to be marginalized by disparate and competing social pressures.  “Women are still being marginalized, and they don’t always have the power base to fight back.” We must do better.