Monday, November 23, 2020
Darren Rosenblum, Diversity and the Board of Directors: A Comparative Perspective"
Draft Chapter for Elgar's Research Handbook on Comparative Corporate Governance (Afsharipour & Gelter, eds.), Forthcoming
Upon Norway’s adoption of its corporate board quota, nobody would have predicted that, within fifteen years, most of the top ten economies would follow suit. When Norway adopted its corporate board quota in 2003, it took a clear, new direction for corporate governance and for equality law. In so doing, it recognized two things: 1) the central role that the private sector plays in determining questions of equality, and 2) the responsibility of the state to ensure that the private sector would rectify entrenched discrimination. These statutes effectively feminized boards across Europe and elsewhere. This Chapter maps the divergent directions these quota efforts have taken, in both civil and common law jurisdictions. Contrasts among these efforts reveal distinct frameworks for inclusion. As social science makes sense of the efficacy of these efforts, this Chapter suggests directions that future inclusion efforts may take.
Thursday, November 19, 2020
How Pregnant Employees Fare When Denied Workplace Accommodations, Some Improvement 5 Years After Young v. UPS
Nicole B. Porter, Accommodating Pregnancy Five Years After Young v. UPS: Where We Are & Where We Should Go, 14 St. Louis U. J. Health L. & Pol'y, Forthcoming
This Article will explore how pregnant employees fare when they are denied accommodations in the workplace that would have allowed them to work safely through their pregnancies. The two most commonly used legal avenues for pregnant plaintiffs are the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA). Successful cases under the ADA were very rare until Congress expanded the ADA’s definition of disability in 2008. And PDA claims became easier after the Supreme Court’s 2015 decision in Young v. United Parcel Service, Inc.1 Five years after that decision, this Article will analyze the body of PDA cases decided since Young, and all of the ADA cases where pregnancy is the claimed disability since the ADA was amended in 2008. Although the picture is not quite rosy for pregnant plaintiffs, it is perhaps more positive than many scholars predicted it would be. Nevertheless, there remain many gaps in protection — some caused by the statutes’ limitations — but many caused by litigants’ and judges’ inability (or unwillingness) to properly interpret these two statutes. This Article will explain where we are and explore options for where we should go in the future.
Friday, October 23, 2020
L. Camille Hebert, How Sexual Harassment Law Failed its Feminist Roots, 22 Georgetown J. Gender Law (forthcoming)
The dawn of sexual harassment law showed so much promise. But in spite of the hopefulness with which the legal recognition of sexual harassment was greeted, the intervening years have shown that the law of sexual harassment has not lived up to its potential. Rather than creating a cause of action empowering women to challenge employment practices that have subjected them to degrading treatment while limiting their workplace opportunities, courts have instead recognized a number of elements of a cognizable claim of sexual harassment that have effectively sanctioned the continuance of the conduct, while effectively blaming women for its occurrence. The judicial imposition of the elements of a claim for sexual harassment and the judicial gloss placed on those elements has turned the cause of action for sexual harassment into something far different than the feminists who worked for recognition of the cause of action envisioned. The courts have turned that promise into a cause of action that seeks to protect the workplace from women who would make claims of sexual harassment, rather than a cause of action that seeks to protect women from discriminatory workplaces. This article explores how some of that lost promise might be recaptured, first through a reshaping of the law by the courts and legislatures within the frame of the existing structure of the cause of action, explaining how the courts could apply the existing elements of the cause of action in a way more consistent with the purpose of Title VII to assure women of the right to workplace equality. The article then imagines a more fundamental reshaping of the law of sexual harassment, exploring what the law of sexual harassment might look like if it were designed by feminists, forged by an overriding concern about ensuring women’s workplace equality rather than protecting existing workplace norms.
Wednesday, October 21, 2020
Equal Pay Lawsuits by Women Law Professors Allege Significant Continuing Gender Discrimination in Academia
*** Linda Mullenix’s annual salary, however, is at least $31,000 less than three male law professors at her school. Like Mullenix, some of these male professors teach civil procedure. However, they have had shorter careers and fewer publications than she has, and for the most part, similar student evaluations, according to the Equal Pay Act lawsuit she filed in the U.S. District Court for the Western District of Texas in December 2019. The complaint also alleged sex discrimination and retaliation under Title VII of the Civil Rights Act of 1964. Additionally, she alleged her raise for the 2018-2019 academic year was only $1,500, while other UT law professors with fewer accomplishments received $10,000 raises.
And this is not the first time Mullenix has complained to the university about compensation issues. In 2011, she retained counsel and sent a demand letter asserting an equal pay claim after she discovered a male professor with less experience annually earned $50,000 more than she did. Eight years later, that pay gap had decreased—by $17; that professor now earns $49,983 more than Mullenix, per her 2019 lawsuit. As a result of her actions, she has been described as “poison” by school administrators, according to the complaint, because she repeatedly speaks out about pay inequity at the law school.
In May, a Texas federal judge granted the university’s motion to partially dismiss Mullenix’s lawsuit on the basis that she failed to allege a causal connection between her pay complaints and receiving the lowest raise of any law school faculty member. The order dismissed Mullenix’s Title VII retaliation claim; her Equal Pay Act and sex discrimination claims are ongoing.
Mullenix’s lawyer, Colin Walsh of the Austin firm Wiley Walsh, told the ABA Journal he will continue with her Title VII discrimination and Equal Pay Act claims and looks forward to entering the discovery phase. Meanwhile, a spokesman for the university told the Journal the institution “strongly supports” equal pay based on merit and performance, and it has done work to ensure salary equity for faculty members. Law school faculty pay, he wrote in an email, is decided by “a committee review of teaching, service and scholarship with professional criteria applied to make these determinations.”
At least five equal pay lawsuits have been filed by female law professors since 2016; the actions involve four schools. One of those schools has been sued more than once, and three of the lawsuits remain open.
Although law schools may rely on several factors in determining compensation, in actuality, law school deans often have significant discretion in deciding what to pay professors, and their unchecked decisions can be tainted by gender bias, according to lawyers interviewed by the ABA Journal. Salaries, raises and appointments should be based on teaching, service and scholarship. But dean evaluations in those areas can be biased as well, some say, with men getting better appointments and more respect for their research and writing, with little regard for the work’s quality and importance.
Moreover, professors who have filed Equal Pay Act claims have seen their careers impacted in other ways. For instance, more than one used the word “poison” to describe how they were viewed after confronting law school leadership with discrimination concerns. Others found themselves removed from important faculty committee assignments (a factor used in determining pay) and put on “‘do nothing’ committees.”
Walsh says pay discrimination against women is just as much of a problem in the law schools as it is in the private sector.
“It may be a bit worse because of instances of institutional misogyny. Any place you have a large contingency of older white men, you’re going to have a pay gap,” Walsh adds.
In all of the Equal Pay Act lawsuits, plaintiffs say they were treated worse by the schools after suing.
See also Chronicle of Higher Ed, A Raft of Pay-Gap Lawsuits Suggests Little Progress for Academic Women
Last week, five female professors at Rutgers University filed a lawsuit in state court accusing their institution of paying them tens of thousands of dollars less than their male colleagues. Days earlier, Princeton University agreed to a settlement, worth nearly $1.2 million, after a U.S. Department of Labor review found that 106 female full professors had been paid less than their male counterparts between 2012 and 2014. And in September, four female professors at Northern Michigan University settled their own pay-discrimination lawsuit for $1.46 million.
The University of Arizona resolved a pair of similar cases in 2019, doling out $190,000 to a trio of female former deans and $100,000 to an associate professor, all of whom alleged they’d been underpaid. And the University of Denver settled in 2018 with seven female law professors to the tune of $2.66 million.
To understand the raft of pay-discrimination lawsuits, The Chronicle spoke to Jennifer A. Reisch, who represented the lead plaintiff in the Denver case and argued on behalf of a professor at the University of Oregon who awaits a ruling on her own gender-discrimination case
Friday, October 16, 2020
Amelia Miazad, Sex, Power, and Corporate Governance, 54 U.C. Davis L. Rev. (2020)
For decades, social scientists have warned us that sexual harassment training and compliance programs are ineffective. To mitigate the risk of sexual harassment, they insist that we must cure its root cause — power imbalances between men and women.
Gender-based power imbalances pervade our corporate governance and plague start-ups and billion-dollar companies across sectors and industries. These power imbalances start at the top, with the composition of the board and the identity of CEOs and executive management. Pay inequity and boilerplate contractual terms in employment contracts further cement these imbalances.
In response to the #MeToo movement, key stakeholders are shifting their focus from compliance to corporate culture for the first time. This influential group of stakeholders, which includes investors, employees, regulators, D&O insurance carriers, and board advisors, are asking companies to uproot gender-based power imbalances. As a result of mounting pressure, seismic corporate governance reforms are underway. Boards are becoming more gender diverse, companies are beginning to address pay inequity and abandon mandatory arbitration and non-disclosure agreements, and boards are holding CEOs to account for sexual harassment and misconduct.
While the “old boys’ club” is still thriving in corporate America, this Article is the first comprehensive account of how the power imbalances on which it depends are shifting.
Tuesday, October 13, 2020
Brooke Coleman, #SoWhiteMostlyMale Federal Procedural Rulemaking Committees, UCLA L. Rev. Disc. (Forthcoming)
Of the 630 members of a specialized set of committees responsible for drafting the federal rules for civil and criminal litigation, 591 of them have been white. That’s 94% of the committee membership. Of that same group, 513—or 81%—have been white men. Decisionmaking bodies do better work when their members are diverse; these rulemaking committees are no exception. The Federal Rules of Practice and Procedure are not mere technical instructions, nor are they created by a neutral set of experts. To the contrary, the Rules embody normative judgments about what values trump others, and the rulemakers—while expert—are not disinterested actors. This essay examines racial and gender diversity across six different committees. The data tell a textured story of homogeneity, diversity, and power. Critically, the respective committees’ demographic compositions differ both historically and now. But there is one significant similarity across all committees: The Chief Justice can and should appoint a more diverse set of individuals to these committees, and the rulemaking committee members, the Judiciary, and the Bar should demand it.
Friday, October 2, 2020
Catharine MacKinnon's Sexual Harassment Work as Invention of a New Form of Common Law Legal Reasoning
Charles Barzun, Catharine MacKinnon and the Common Law
Few scholars have influenced an area of law more profoundly than Catharine MacKinnon. In Sexual Harassment of Working Women (1979), MacKinnon virtually invented the law of sexual harassment by arguing that it constitutes a form of discrimination under Title VII of the Civil Rights Act of 1964. Her argument was in some ways quite radical. She argued, in effect, that sexual harassment was not what it appeared to be. Behavior that judges at the time had thought was explained by the particular desires (and lack thereof) of individuals was better understood as a form of social domination of women by men. Judges, she argued, had failed to see that such conduct was a form of oppression because the social and legal categories through which they interpreted it was itself the product of male power.
This argument is not your typical legal argument. It may not even seem like a legal argument at all. But this article explains why on one, but only one, model of legal reasoning, MacKinnon’s argument properly qualifies as a form of legal reasoning. Neither the rationalist nor the empiricist tradition of common-law adjudication can explain the rational force of her argument. But a third, holistic tradition of the common law captures its logic well. It does so because, like MacKinnon’s argument (but unlike the other two traditions), it treats judgments of fact and value as interdependent. This structural compatibility between MacKinnon’s argument about gender oppression, on the one hand, and the holistic tradition of the common law, on the other, has theoretical and practical implications. It not only tells us something about the nature of law; it also suggests that critical theorists (like MacKinnon) may have more resources within the common law tradition to make arguments in court than has been assumed.
Tuesday, September 29, 2020
Shiu-Yik Au, Andreanne Tremblay & Leyuan You, "Times Up: Does Female Leadership Reduce Workplace Sexual Harassment?"
We examine the role of female leadership in reducing the incidence of workplace sexual harassment. We estimate the incidence rate of sexual harassment through textual analysis of employees’ job reviews, published online during the period 2011-2017. We find that firms with a higher proportion of women on the board of directors experience less sexual harassment. An increase of one female director is associated with an 18.2% decrease in the sexual harassment rate. The effect is both statistically and economically significant and is not limited to female directors as we find similar results with female CEO and executives. The mechanism for reduced sexual harassment is linked to overall improved social policies. Our results are robust to several adjustments for endogeneity concerns.
Thursday, September 3, 2020
Julie Goldscheid, #MeToo, Sexual Harassment and Accountability: Considering the Role of Restorative Approaches, Ohio State J. Dispute Resolution, Forthcoming
Questions about the meaning of accountability for civil rights violations, and about what role the law can play in advancing accountability, are critically important to law reform. With respect to gender violence, the #MeToo movement has prompted widespread recognition of what feminists have long known, that sexual harassment is pervasive both in and out of the workplace. Yet its persistence, notwithstanding sexual harassment laws and policies that now have been on the books for decades, should spur reflection about what law and policy reforms actually would deter and prevent harassment, and what approaches would meaningfully advance equality at work.
Sexual harassment at work lies at the intersection of parallel critiques of anti-discrimination law and of criminal legal interventions in response to gender violence. Both critiques should be taken into account in developing workplace responses to sexual harassment. In both contexts, commentary as well as pilot programs have begun to explore the possibility of incorporating restorative programs to promote healing and redress harms.
This Article builds on those foundations and argues that workplaces should integrate restorative approaches into the options available to workers who raise sexual harassment complaints. It summarizes, and draws parallels between critiques of criminal legal regimes addressing gender violence, on the one hand, and workplace discrimination, on another. It describes principles common to restorative justice approaches and reviews the emerging research on the use of restorative justice with gender violence cases. It offers a beginning assessment of how restorative justice approaches might be incorporated into workplace sexual harassment responses, and identifies challenges that will have to be addressed for effective implementation.
Tuesday, August 4, 2020
“Hey, guys!” It’s the greeting that launched a thousand meetings and Zoom calls.
Etymologists trace the term “guys” to the historical figure Guy Fawkes. It’s evolved from the name of one man who attempted to assassinate King James I in 1605 to an informal address for a group of people in contemporary American English.
But when used to address your colleagues, it’s a gendered greeting that could be sending signals about who is ― and isn’t ― included in your workplace.
The Case Against Using “Hey, Guys”
The problem with “guys” is that it is a “masculine word,” according to Amy Jeffers, an organizational development specialist in diversity, equity and inclusion. There are better alternatives, such as “Hey, everyone” or “Hey, folks” that are not gender-assuming, Jeffers added.
Sociologist Sherryl Kleinman wrote an essay in the journal Qualitative Sociology against terms such as “you guys” in 2002, pointing out that they reinforce a language that already privileges men. Kleinman cited words such as chairman, postman and freshman as other examples.
”‘Get over it,’ some people say,” she wrote. “Those words are generic. They apply to everyone. But then how come so-called generics are always male?”
GLSEN, an education organization that advocates for policies designed to protect LGBTQ students and students of marginalized identities, advised defaulting to gender-neutral language such as “friends,” “folks,” “all” or “y’all” rather than “brothers and sisters” or “guys,” “ladies,” “ma’am” or “sir.”
Wednesday, July 8, 2020
Douglas Branson, Gender Diversity, Diversity Fatigue, and Shifting the Focus, 87 Geo. Wash. U. L. Rev. 1061 (2019)
The women’s movement has been with us for approximately 50 years. Women are airline pilots, police officers, engineers, fire fighters, physicians, and veterinarians. By contrast, the progress to corporate senior executive positions has been paltry, in fits and starts, at best in baby steps. Ascendant males would tell you that women have made no business case for increasing the number of female executives. In response, this Article contends that the focus, exclusively upon women themselves, is all wrong. The focus should be on corporations themselves, the employers, and not exclusively on aspiring women. Beyond lip service, corporations have done little, throwing a few dollars at STEM programs that may lead to a first or second position, but not to leadership roles. Information technology empirical studies show that of the measly 4.8% of executive positions women hold, only two are held by women with STEM degrees. All of the remaining 25 female executives have law or business degrees with MBAs predominating. The tech industry attempts to crowd out women completely, by hiring males from foreign countries who enter the United States with H1-B visas that allow them to stay for six years and often permanently. It is high time for corporations themselves to undertake concrete steps of the nature with which this Article concludes.
See also Douglas Branson, The Future of Tech is Female (2018)
The Future of Tech is Female considers the paradoxes involved in women’s ascent to leadership roles, suggesting industry-wide solutions to combat gender inequality. Drawing upon 15 years of experience in the field, Douglas M. Branson traces the history of women in the information technology industry in order to identify solutions for the issues facing women today. Branson explores a variety of solutions such as mandatory quota laws for female employment, pledge programs, and limitations on the H1-B VISA program, and grapples with the challenges facing women in IT from a range of perspectives.
Branson unpacks the plethora of reasons women should hold leadership roles, both in and out of this industry, concluding with a call to reform attitudes toward women in one particular IT branch, the video and computer gaming field, a gateway to many STEM futures. An invaluable resource for anyone invested in gender equality in corporate governance, The Future of Tech is Female lays out the first steps toward a more diverse future for women in tech leadership
Tuesday, July 7, 2020
Deborah Rhode, #MeToo: Why Now? What Next?, Duke L. J. (2019)
This Essay explores the evolution, implications, and potential of #MeToo. It begins by reviewing the inadequacies of sexual harassment law and policies that have permitted continuing abuse and that prompted the outrage that erupted in 2017. Discussion then turns to the origins of the #MeToo movement and assesses the changes that it has propelled. Analysis centers on which changes are likely to last and the concerns of fairness and inclusion that they raise. A final section considers strategies for sustaining the positive momentum of the movement and directing its efforts toward fundamental reform.
Wednesday, June 10, 2020
Naomi Cahn, June Carbone & Nancy Levit, Women, Rule-Breaking, and The Triple Bind, 87 Geo. Wash L. Rev. 1105 (2019).
Two growing literatures critique Hobbesian corporate cultures. Management analyses document the way high-stakes/zero-sum bonus systems undermine, rather than enhance, productivity as they subvert teamwork, valorize self-interested behavior, and weaken ethical standards. This literature treats negative effects of such systems, including lawless and unethical behavior, as the unintended consequences of efforts to shake up complacent institutions or replace an insular old guard with an ambitious and meritocratic new workforce. A second, darker literature terms such Hobbesian environments “masculinities contests” that select for those executives who best exemplify masculine traits such as a single-minded focus on professional success, physical strength, and the willingness to engage in no-holds-barred competition. This literature treats the rule-breaking environment that results as an incidental byproduct of the way that such cultures valorize masculine traits. Drawing on insights from criminology, psychology, and feminist theory, this Article suggests another possibility: that certain management cultures intentionally design the competitions to facilitate breaking the rules with impunity.
In a Hobbesian world, where some profit handsomely from defying convention, zero-sum competitions play a role that extends beyond valorizing alpha males. They select for leaders who will lie, shortchange their families, and break the law to get results—and do so without explicit orders that might subject upper management to accountability for the practices. In such a world, women fall behind not necessarily because of misogyny, though such environments often breed it. Instead, they lose because of a triple bind. First, women cannot prevail in such competitions unless they can outmaneuver men, credibly display greater devotion to the job, or more brazenly flout the laws. Second, they are disproportionately disliked and punished for displaying the self-centered, rule-breaking behavior of men. Third, women become less likely to seek positions because they correctly perceive that they could not thrive and are more likely than men to decide they do not wish to do so on such terms, reinforcing the male-identified character of such environments. Where these companies’ business models depend not just on the ability to upend traditional practices, but to break the law, the companies cannot address gender disparities without addressing the business model itself. The Article concludes that gender inequality is intrinsically intertwined with the evisceration of the rule of law in corporate America.
Tuesday, June 9, 2020
The Minnesota Supreme Court has reaffirmed the requirement that workers alleging they were subjected to a hostile work environment under state law prove that harassment was “severe or pervasive” in order to prevail.
The seven-member court in a unanimous decision on Wednesday rejected a bid by Assata Kenneh, who says nonprofit residential care facility operator Homeward Bound Inc fired her for complaining about sexual harassment, to lower the bar for plaintiffs to show that discrimination interfered with their ability to work.
To read the full story on Westlaw Practitioner Insights, click here: bit.ly/2Bz9E9oMinnesota's "severe or pervasive" standard was borrowed from jurisprudence developed under Title VII of the Civil Rights Act of 1964, the federal law barring workplace discrimination. Kenneh argued that the standard was confusing, and was not necessary because unlike Title VII, Minnesota law contains a precise definition of sexual harassment.But the court said the standard reflected a "common-sense understanding" that sexual harassment must be "more than minor" to create a hostile work environment.Homeward Bound hired Kenneh to work at a residential facility for people with disabilities in 2014, and two years later she transferred to a different facility and transitioned into a role as a program resource coordinator. Kenneh claims that in the few months after her transfer, the company's maintenance supervisor routinely made sexually-charged comments and gestures, including licking his lips and telling Kenneh she was "beautiful" and "sexy."Kenneh complained and while the maintenance supervisor denied her claims, he was told to cease the behavior and not to be alone with Kenneh. But the harassment did not stop, she says, and she was ultimately fired after asking for a more flexible schedule so she could avoid the supervisor.Kenneh sued Homeward Bound in state court in Minneapolis, accusing the company of creating a hostile work environment and retaliation in violation of state anti-discrimination law. Homeward Bound denied the claims and said Kenneh was fired over performance and attendance issues.A state judge in 2018 granted the company's motion to dismiss. He said the supervisor's conduct was "boorish and obnoxious," but that Kenneh had failed to meet the high bar of showing that it was either severe or pervasive.A mid-level appeals court last year affirmed. Kenneh appealed, arguing that requiring plaintiffs to prove conduct was severe or pervasive places a higher bar on them than the text of the state law. The law defines sexual harassment as "unwelcome sexual advances or communication of a sexual nature (that) has the purpose or effect of substantially interfering with an individual's employment."Kenneh's lawyers argued that the federal standard, which Minnesota courts began applying to state-law claims in 1986, has been applied inconsistently and created confusion, and was different from proving substantial interference.The Minnesota Supreme Court on Wednesday disagreed. Anti-discrimination law is not a "general civility code," Justice Anne McKeig wrote for the court, and the severe or pervasive standard ensures that only conduct that a reasonable person would find abusive or hostile is actionable.The case is Kenneh v. Homeward Bound Inc, Minnesota Supreme Court, No. A18-0174.
Thursday, June 4, 2020
According to AARP employment data, women over the age of 55 face a dual threat to their careers and earning power amid the financial and labor market turmoil due to Covid-19. In April, approximately 20 million jobs were lost in the United States and the unemployment rate reached a staggering 14.7%.
Between March and April, the unemployment rate for women age 55 and over catapulted from 3.3% to 15.5%, the largest increase reported by the Department of Labor’s Bureau of Labor Statistics.
This stark data is consistent with numerous studies that have found that the stereotypes leading to ageism and sexism are exacerbated when combined in a single employee.
Why Are Older Women Impacted So Acutely?
Various factors have converged to magnify the labor-market toll on two separate sets of workers: female and older employees. It is thus an unfortunate reality that older female employees will be hit harder by the unforgiving Covid-19 employment landscape. As discussed below, this is often referred to as “sex-plus” discrimination, meaning sex discrimination plus some other protected characteristic such as age or race. . . .
Thursday, May 28, 2020
Law & Society Association, Virtual Conference Program
Gender and Punishment
May 28 - 11:00 AM - 12:45 PM
Moving away from antiquated perspectives that neglected to study gender because there were "so few" women in the criminal justice system, these papers use feminist perspectives to examine disparate treatment, gender gaps, and punitivism.
Chair/Discussant(s) Rupali Samuel, LLM, Harvard Law School
|Gender Equality and the Shifting Gap in Female-To-Male Incarceration Rates
Presenter(s) Heather McLaughlin, Oklahoma State University
Co-Presenter(s) Sarah Shannon, University of Georgia
Negotiating Criminal Records: Access to Employment for Reintegrating Women in Canada
The Gap Between Correctional Law & Practice: An Intersectional Feminist Analysis
The Gendered Economy of Prison Intimacy
Moving Rules: Struggles for Reproductive Justice on Uneven Terrain
May 28 - 11:00 AM - 12:45 PM
Moving Rules will consider how recent developments in the struggle for reproductive justice in Argentina, Poland, Ireland and Mozambique contribute to our understanding of legal rules as complex entities that move as they are made. The papers will consider how rules move across space and time as they are made through feminist cause lawyering, witnessing legal reproduction, communist legacies, and oppositional legal consciousness.
Chair(s) Paola Bergallo, Universidad Torcuato Di Tella
Discussant(s) Ruth Fletcher, Queen Mary University of London
Building Democracy and Legal Change: A Study of Feminist Cause Lawyering in Argentina
We Were Communists - Historical, Political, and Ideological Determinants of Sexual Reproductive Rights
Witnessing Legal Reproduction
Sexual Harassment: Victims and Survivors
May 28 - 11:00 AM - 12:45 PM
Sexual harassment and violence are pervasive problems in various institutional spheres. Many victims and survivors are discounted and ignored. The papers in this session explore a range of questions involving victims and survivors of sexual harassment, such as: what obstacles has the #MeToo movement encountered when confronting sexual assault and harassment in the military? What roles do and should victim impact statements have in revealing systemic institutional sexual abuse in specific cases and shaping broader policy to meet the needs of victims? What role does time have in shaping a victim's experience of sexual violence? Does the law represent an adequate feminist response to such violence? How do innovative multi-media exhibits,provide new ways for observers and bystanders to listen to survivors' stories and experiences?
Chair(s) Julie Goldscheid, City University of New York
Discussant(s) I. India Thusi, California Western School of Law
#MeToo, Confronts Culture, and Complicity in the Military
From "Larry" the "Monster" to Sisterhood: What the Nassar Victim Impact Statements Reveal About Systemic Institutional Sexual Abuse
Multiracial Women, Sexual Harassment, and Gender-Based Violence
Sexual Harassment, Workplace Culture, and the Power and Limits of Law
Female Judges in Five Fragile States
May 28 - 02:15 PM - 04:00 PM
In post-conflict and transitional developing countries, situations of political rupture may create new opportunity structures that favour the entry of women into public positions of power. Post-conflict assistance often includes gender friendly rule of law reforms, and the conflict itself may have placed rights issues in focus. How these conditions affect women's access to, and utilization of, positions of judicial power has not received much scholarly attention. This session explores three main questions regarding women judges in five fragile and conflict-related states: Angola, Afghanistan, Guatemala, Haiti, and Uganda: (1) What are the main pathways of women judges to the bench? (2) What are the gendered experiences of women on the bench? (3) How and in what ways does having more women on the bench impact on judicial outcomes?
Chair(s) Paola Bergallo, Universidad Torcuato Di Tella
Discussant(s) Ulrike Schultz, Fernuniversitat in Hagen
Female Judges in Angola: When Party Affiliation Trumps Gender
Women Magistrates in Haiti: Challenging Gender Inequality in a Frail Justice System
Women on the Bench in Afghanistan: Equal but Segregated?
Women on the Bench in Guatemala: Between Professionalization and State Capture
Women on the Bench – Perspectives from Uganda
Wednesday, May 27, 2020
#MeToo: The Narrative of Resistance Meets the Rule of Law
May 27 - 01:00 PM - 02:45 PM
The purpose of the panel is to explore the contemporary cultural, political, social, and legal space that #MeToo occupies, including its limitations and possibilities. Participants will also compare the #MeToo movement to other popular social movements like #BlackLivesMatter, drawing parallels and convergences, and engaging with some of the controversies that have accompanied #MeToo.
Julie Suk, The Graduate Center, CUNY
Penelope Andrews, New York Law School
Brenda Cossman, University of Toronto
Farnush Ghadery, King's College
Teri McMurtry Chubb, Mercer University School of Law
Ruthann Robson, City University of New York (CUNY School of Law)
Tuesday, May 26, 2020
For decades, federal and state laws have prohibited sexual harassment on the job; despite this fact, extraordinarily high rates of gender-based workplace harassment still permeate virtually every sector of the American workforce. Public awareness of the seriousness and scope of the problem increased astronomically in the wake of the #MeToo movement, as women began to publicly share countless stories of harassment and abuse. In 2015, the Equal Employment Opportunity Commission’s Task Force on the Study of Harassment in the Workplace published an important study analyzing a wide range of factors contributing to this phenomenon. But the study devotes only limited attention to a factor that goes straight to the heart of the problem: our reflexive inclination to discount the credibility of women, especially when those women are recounting experiences of abuse perpetrated by more powerful men. We will not succeed in ending gender-based workplace discrimination until we can understand and resist this tendency and begin to appropriately credit survivors’ stories.
How does gender-based credibility discounting operate? First, those charged with responding to workplace harassment--managers, supervisors, union representatives, human resource officers, and judges—improperly discount as implausible women’s stories of harassment, due to a failure to understand either the psychological trauma caused by abusive treatment or the practical realities that constrain women’s options in its aftermath. Second, gatekeepers unjustly discount women’s personal trustworthiness, based on their demeanor (as affected by the trauma they often have suffered); on negative cultural stereotypes about women’s motives for seeking redress for harms; and on our deep-rooted cultural belief that women as a group are inherently less than fully trustworthy.
The impact of such unjust and discriminatory treatment of women survivors of workplace harassment is exacerbated by the larger “credibility economy”—the credibility discounts imposed on many women-victims can only be fully understood in the context of the credibility inflations afforded to many male harassers. Moreover, discounting women’s credibility results in a particular and virulent set of harms, which can be measured as both an additional psychic injury to survivors, and as an institutional betrayal that echoes the harm initially inflicted by harassers themselves.
It is time—long past time--to adopt practical, concrete reforms to combat the widespread, automatic tendency to discount women and the stories they tell. We must embark on a path toward allowing women who share their experiences of male abuses of workplace power to trust the responsiveness of their employers, judges, and our larger society.
New Book: Presumed Incompetent II: Personal Narratives of Race, Class, Power, and Resistance of Women in Academia
The courageous and inspiring personal narratives and empirical studies in Presumed Incompetent II: Race, Class, Power, and Resistance of Women in Academia name formidable obstacles and systemic biases that all women faculty—from diverse intersectional and transnational identities and from tenure track, terminal contract, and administrative positions—encounter in their higher education careers. They provide practical, specific, and insightful guidance to fight back, prevail, and thrive in challenging work environments. This new volume comes at a crucial historical moment as the United States grapples with a resurgence of white supremacy and misogyny at the forefront of our social and political dialogues that continue to permeate the academic world.
Contributors: Marcia Allen Owens, Sarah Amira de la Garza, Sahar Aziz, Jacquelyn Bridgeman, Jamiella Brooks, Lolita Buckner Inniss, Kim Case, Donna Castaneda, Julia Chang, Meredith Clark, Meera Deo, Penelope Espinoza, Yvette Flores, Lynn Fujiwara, Jennifer Gomez, Angela Harris, Dorothy Hines, Rachelle Joplin, Jessica Lavariega Monforti, Cynthia Lee, Yessenia Manzo, Melissa Michelson, Susie E. Nam, Yolanda Flores Niemann, Jodi O’Brien, Amelia Ortega, Laura Padilla, Grace Park, Stacey Patton, Desdamona Rios, Melissa Michal Slocum, Nellie Tran, Rachel Tudor, Pamela Tywman Hoff, Adrien Wing, Jemimah Li Young
For the first volume, see Presumed Incompetent: The Intersections of Race and Class for Women in Academia
Tuesday, May 12, 2020
Call for Papers
AALS Section on Professional Responsibility 2021
Co-Sponsored by AALS Sections on Civil Rights,
Employment Discrimination Law, Leadership, and Minority Groups
Legal and Judicial Ethics in the Post-#MeToo World
The Section on Professional Responsibility seeks papers addressing the role of legal and judicial ethics in the Post-#MeToo world. This program calls for scholars to confront big questions facing the profession about sexual discrimination, harassment and other misconduct. In 2016, the American Bar Association amended Model Rule 8.4(g) to say that it is professional misconduct to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socio-economic status in conduct related to the practice of law.” Few jurisdictions have adopted this change, and some explicitly rejected it on First Amendment grounds. In 2019, the federal judiciary amended the Code of Conduct for U.S. Judges to make clear that misconduct includes engaging in unwanted, offensive, or abusive sexual conduct and to protect those who report misconduct, but some argue the reforms do not go far enough and they do not apply to state judges or to the U.S. Supreme Court. Congress held hearings on sexual misconduct in the federal judiciary in early 2020. Lawyers and members of the judiciary have avoided investigations into credible allegations of sexual assault, discrimination, and harassment by resigning their positions, only to move on in other positions in the legal profession and, in some instances, repeating the same misconduct. Headlines regularly feature attorneys and their involvement in sexual misconduct in the workplace and beyond, whether as bystanders, facilitators, or perpetrators. This program seeks contributions to address these complex and controversial issues. Panelists will discuss the role of lawyer and judicial ethics as a means to remedy the enduring sexual misconduct in the legal profession and beyond. Jaime Santos, founder of Law Clerks for Workplace Accountability and commentator for the acclaimed podcast Strict Scrutiny, is confirmed as a presenter. At least two additional presenters will be competitively selected from this call for papers.
Topics discussed at the program might include:
- Does ABA Model Rule 8.4(g) addressing sexual harassment run afoul of the First Amendment?
- Is ABA Model Rule 8.4(g) merely a values statement or is it a source for discipline?
- What obligations, if any, do disciplinary authorities have to investigate credible, public information about alleged sexual misconduct by the lawyers licensed to practice in their jurisdictions?
- Should regulators adopt new rules or policies to address sexual misconduct, including the ability of lawyers and judges to avoid investigations by resigning their positions?
- If other areas of law (criminal, civil) do not cover aspects of sexual misconduct, is there a role for professional conduct rules to do so because of the lawyer’s special role in society?
- What reporting obligations do law schools have as they certify students’ fitness in bar admission applications? How does this fit within the Title IX framework?
- Should ethical rules on sexual misconduct that apply to the federal judiciary also apply to the U.S Supreme Court?
- How should reporting systems be improved?
To be considered, please email your paper to Renee Knake, Chair of the Section on Professional Responsibility, no later than August 1, 2020 at email@example.com Preference will be given to completed papers, though works-in-progress are eligible for selection. The Call for Paper presenters will be responsible for paying their registration fee and hotel and travel expenses. Please note that AALS anticipates that the Annual Meeting will go forward (https://am.aals.org/), and the theme is The Power of Words.