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.

New Article on "Law Clerk Selection and Diversity: Insights from Fifty Sitting Judges of the Federal Courts of Appeals"

Jeremy Fogel. Mary Hoopes, and Goodwin Liu have published a forthcoming article on SSRN titled Law Clerk Selection and Diversity: Insights from Fifty Sitting Judges of the Federal Courts of Appeals. The article is forthcoming in the Harvard Law Review. The abstract states: 

Judicial clerkships are key positions of responsibility and coveted opportunities for career advancement. Commentators have noted that the demographics of law clerks do not align with the student population by law school, socioeconomic background, gender, race, or ethnicity, and that ideological matching is prevalent between judges and their clerks. But extant studies draw on limited data and offer little visibility into how judges actually select clerks. For this study, we conducted in-depth individual interviews with fifty active judges of the federal courts of appeals to learn how they approach law clerk selection and diversity. Our sample, though not fully representative of the judiciary, includes judges from all circuits, appointed by Presidents of both parties, with average tenure of fourteen years. The confidential interviews, which drew in part upon the peer relationship that two of us have with fellow judges, yielded rich and candid insights not captured by prior surveys.

This Article reports our findings, among them: (1) With few exceptions, appellate judges hire clerks as an “ensemble” and assign positive value to diversity, although judges vary significantly in the dimensions of diversity they seek. (2) Most judges disclaim any interest in ideological alignment when hiring clerks; we situate this finding in the context of factors that contribute to ideological segmentation of the clerkship market. (3) Republican appointees, compared to Democratic appointees, more often identified socioeconomic diversity as the primary dimension of diversity they seek. (4) Judges who graduated from law schools outside the U.S. News & World Report top twenty are significantly more likely than other judges to hire clerks from schools outside the top twenty. (5) Almost all judges in our sample consider gender in clerkship hiring, and many have specific goals for gender balance. Republican appointees reported more difficulty drawing women into their applicant pool than Democratic appointees. (6) Most judges in our sample assign positive value to racial diversity and consider race to some degree in evaluating applicants, although it is important to note that some judges believe strongly that such consideration is inappropriate. (7) Many judges who view racial diversity positively nonetheless reported difficulty hiring Black and Hispanic clerks. The judges with the most robust records of minority hiring are those who make affirmative efforts to draw minority candidates into their applicant pool or place greater emphasis on indicators of talent besides grades and law school rank, or do both. (8) Black judges are particularly successful in hiring Black clerks; we estimate that Black judges, who comprised less than one-eighth of active circuit judges during our study, accounted for more than half of the Black clerks hired each year in the federal courts of appeals.

These findings have implications for judicial selection; in short, diversity among judges affects diversity among clerks. Further, one of our most consistent findings is that judges do not discuss clerk hiring or diversity with each other. This silence reflects norms of judicial culture that foster collegiality and mutual deference while tending to inhibit peer-to-peer discussion of how judges select their clerks. Yet many judges want to hire more diverse clerks and would like to learn from their colleagues’ practices. We propose measures to increase transparency, facilitate peer exchange, and increase judges’ capacity to achieve their hiring objectives, whatever they may be.

 

Marcy Karin on "Addressing Periods at Work"

Marcy Karin has published Addressing Periods at Work in volume 16 of the Harvard Law and Policy Review (2022). The abstract reads: 

Structural workplace changes are needed to acknowledge, anticipate, and accommodate menstruation, without harming equity or economic security for current and former menstruators. The biological process of menstruation does not stop at work, but workplaces are not designed to support needs related to periods, perimenopause, or menopause. Specifically, some workers who menstruate have needs related to menstrual accommodations like time away from work or access to menstrual products and private and sanitary spaces to dispose of menstrual discharge and the products that absorb them. Workers also have needs related to working free from indignities and harassment because of menstruation. Yet, periods and blood are stigmatized, gendered, and subject to taboos. The corresponding shame, lack of menstrual education, gender composition and power dynamics of workplaces, and overall structural mismatch makes some menstruators susceptible to discrimination and harassment at work.

This article explores this landscape of menstruation, menopause, and work. After identifying and categorizing menstrual needs at work, it analyzes employer-provided policies and existing legal requirements that offer some protections and supports to current and former menstruators at work. It then explores how these existing policies and law fail to comprehensively address menstrual needs or corresponding problems such as absenteeism, lost wages, privacy violations, health implications, harassment, and other menstrual indignities. Building on available menstrual experiences, voluntary employer policies, international models, and analysis of applicable federal law and related litigation, the article recommends public policy interventions to minimize menstrual injustices and acknowledge that menstruation and menopause at work matter.

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?”

Study Shows Individual Level Traits of Vocal Masculinity Influence Corporate Executive Status for Women

John Lynch, CEOs, Masculinity, and Language" 

The lack of female CEOs and the persistent gender pay gap, especially at higher income levels, have become popular topics both in academics and society. Most studies focus on the differences between males and females that perpetuate this "glass ceiling," while few look at within-gender traits that can help mitigate its effects. In this paper, I use novel measures of CEO and CFO vocal masculinity and language complexity to gain insight into how these individual-level traits influence executive status and compensation both within and across genders. I find that vocal masculinity, within females, positively impacts their likelihood of becoming a CEO while the opposite is true for males. When it comes to communication, CEOs speak with greater complexity than CFOs while both female CEOs and CFOs use more complex language and speak longer during earnings calls than their male counterparts. Differences in CEO-CFO language complexity are greater at low entrenchment firms while differences in masculinity are greater at high entrenchment firms. Additionally, while boards with greater female representation hire more female CEOs, they surprisingly seem to place a greater emphasis on female masculinity, while male masculinity plays a larger role at firms with male-dominated boards. Finally, for both male and female CEOs, compensation is positively related to masculinity, while increased language complexity only matters for females. These results help provide insight into the determinants of CEO status and compensation and may help explain how boards view and reward perceived competency across genders.

NALP Publishes its Annual Report on Diversity in U.S. Law Firms

The National Association of Law Placement has published its 2022 data on Diversity in U.S. Law Firms.

The introduction outlines the findings and conclusions of this important annual report: 

Overall, women and people of color continued to make measured progress in representation at major U.S. law firms in 2022 as compared with 2021, according to the latest demographic findings from the analyses of the 2022 NALP Directory of Legal Employers (NDLE) — the annual compendium of legal employer data published by NALP. At the associate level, women now make up almost half of all associates — and will soon likely become the majority based on the summer associate demographics — where women have surpassed the 50% threshold for the past 5 years.

 

By race/ethnicity, Black associates saw the biggest year-over-year increase in representation, up by more than half of a percentage point to 5.77% of all associates. Likewise, Black summer associates saw large gains this year, increasing by 0.7 percentage points to 11.85% of all summer associates. The share of summer associates who are women and/or people of color continues to exceed that of associates by 6-15 percentage points, suggesting that the associate ranks will persist in their diversification over the next few years.

 

Progress at the partnership level has moved at a more sluggish pace, particularly for women of color. Black and Latinx women each continued to account for less than 1% of all partners in 2022. The percentage of Black partners overall increased by just 0.1 percentage points, from 2.22% of all partners in 2021 to 2.32%. Latinx partners experienced a similar increase, growing from 2.86% of all partners in 2021 to 2.97% in 2022. 

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.

 

Class Action Complaint Alleging Sex Discrimination in Twitter Layoffs

Plaintiffs Carolina Bernal Strifling and Willow Wren Turkal have filed a Class Action Complaint in the United States District Court for the Northern District of California alleging that Twitter, Inc. disproportionately discharged or constructively discharged women employees as part of recent layoffs. They sue under Title VII and California's Fair Employment and Housing Act. The complaint alleges: 

4. The mass termination of employees at Twitter has impacted female employees to a much greater extent than male employees – and to a highly statistically significant degree. Moreover, Elon Musk has made a number of publicly discriminatory remarks about women, further confirming that the mass termination’s greater impact on female employees resulted from discrimination. Musk also quickly implemented new policies at Twitter that would have a disparate impact on women, thus forcing more women to leave the company.  

* * *  

30. Prior to the layoffs [on November 4, 2022], Twitter employed approximately 2,234 female employees and 2,900 male employees in the United States. Of those employees, approximately 1,271 females and 1,350 males were notified that day they were being laid off.

 

31. Thus, 57% of female employees were laid off on November 4, 2022, while 47% of male employees were laid off.

* * *  

34. Further, the disparity between women and men being laid off cannot be explained based upon a justification that Musk intended to retain more employees in engineering-related roles.

35. According to the spreadsheet, prior to the layoffs of November 4, 2022, Twitter employed approximately 1,003 female and 2,150 male employees in engineering-related roles in the United States. Of those employees, approximately 630 females and 1,037 males were notified that day they were being laid off. Thus, 63% of females in engineering-related roles were laid off on November 4, 2022, while 48% of male employees in engineering-related were laid off.

Read the full class action complaint here.  

Susan Saab Fortney on "Taking Courthouse Discrimination Seriously: The Role of Judges as Ethical Leaders"

Susan Saab Fortney has published Taking Courthouse Discrimination Seriously: The Role of Judges as Ethical Leaders in volume 70 of the Kansas Law Review (2022). The abstract provides: 

Sexual misconduct allegations against Alex Kozinski, a once powerful judge in the U.S. Court of Appeals for the 9th Circuit, spotlighted concerns related to sexual harassment in the judiciary. Following news reports related to the alleged misconduct, Chief Justice John G. Roberts, Jr. charged a working group with examining safeguards to deal with inappropriate conduct in the judicial workplace. Based on recommendations made in the Report of the Federal Judiciary Workplace Conduct Working Group, the Judicial Conference approved a number of reforms and improvements related to workplace conduct in the federal judiciary. The reforms included revising the Code of Conduct for U.S. Judges. As amended, the Code of Judicial Conduct for U.S. Judges now clearly states that judges should neither engage in, nor tolerate, workplace conduct that is reasonably interpreted as harassment, abusive behavior, or retaliation for reporting such conduct. Under this provision, judges should not turn a blind eye to others’ misconduct, but should accept their responsibilities as ethical leaders committed to a diverse, inclusive, and respectful workplace where harassment is not tolerated. Drawing on the Report of the Federal Judiciary Workplace Conduct Working Group, related studies, and a survey of state codes, this article examines areas where state Codes of Judicial Conduct and related procedural rules should be revised to address more effectively the serious problems of harassment and other workplace misconduct at the courthouse.

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.

Congress Passes Bill to Ban NDAs in Workplace Sexual Harassment Cases

Congress Passes Bill to Ban NDAs in Workplace Sexual Harassment Cases

On Wednesday, Congress passed bipartisan legislation, the Speak Out Act, which bans the use of nondisclosure agreements in cases of workplace sexual assault and harassment, by a vote of 315 to 109. The bill passed in the Senate in September and is now headed to the Oval Office to be signed into law.***

The Speak Out Act prohibits the use of NDAs between employers and current, former and prospective employees in cases of sexual assault and harassment. It also invalidates existing NDAs in cases that have not yet been filed. The legislation comes on the heels of the passage of a bill that banned mandatory arbitration in sexual harassment and assault cases. 

“This is a one-two punch,” Frankel said. “When you think about how many people are subjected to these agreements and how rampant sexual assault and abuse is in this country, these are two incredibly significant new laws that are going to change the culture and force corporations to protect their workers instead of trying to hide the dirty little secrets.***

Imre Szalai, a social justice professor at Loyola University New Orleans, told The 19th this summer when the bill was introduced that arbitration agreements and NDAs were developed in the United States for commercial purposes to handle business-to-business disputes in a more speedy and cost-effective manner. The federal arbitration law was first enacted in 1925, but sometime between the 1970s and 1990s, Szalai said there was a “snowball effect” and these agreements began appearing more broadly in consumer and employment relationships. And now, the U.S. relies on its corporate sector to resolve internal disputes more than any other country in the world. 

Congress Passes Bill to Ban NDAs in Workplace Sexual Harassment Cases

Congress Passes Bill to Ban NDAs in Workplace Sexual Harassment Cases

On Wednesday, Congress passed bipartisan legislation, the Speak Out Act, which bans the use of nondisclosure agreements in cases of workplace sexual assault and harassment, by a vote of 315 to 109. The bill passed in the Senate in September and is now headed to the Oval Office to be signed into law.***

The Speak Out Act prohibits the use of NDAs between employers and current, former and prospective employees in cases of sexual assault and harassment. It also invalidates existing NDAs in cases that have not yet been filed. The legislation comes on the heels of the passage of a bill that banned mandatory arbitration in sexual harassment and assault cases. 

“This is a one-two punch,” Frankel said. “When you think about how many people are subjected to these agreements and how rampant sexual assault and abuse is in this country, these are two incredibly significant new laws that are going to change the culture and force corporations to protect their workers instead of trying to hide the dirty little secrets.***

Imre Szalai, a social justice professor at Loyola University New Orleans, told The 19th this summer when the bill was introduced that arbitration agreements and NDAs were developed in the United States for commercial purposes to handle business-to-business disputes in a more speedy and cost-effective manner. The federal arbitration law was first enacted in 1925, but sometime between the 1970s and 1990s, Szalai said there was a “snowball effect” and these agreements began appearing more broadly in consumer and employment relationships. And now, the U.S. relies on its corporate sector to resolve internal disputes more than any other country in the world. 

Congress Passes Bill to Ban NDAs in Workplace Sexual Harassment Cases

Congress Passes Bill to Ban NDAs in Workplace Sexual Harassment Cases

On Wednesday, Congress passed bipartisan legislation, the Speak Out Act, which bans the use of nondisclosure agreements in cases of workplace sexual assault and harassment, by a vote of 315 to 109. The bill passed in the Senate in September and is now headed to the Oval Office to be signed into law.***

The Speak Out Act prohibits the use of NDAs between employers and current, former and prospective employees in cases of sexual assault and harassment. It also invalidates existing NDAs in cases that have not yet been filed. The legislation comes on the heels of the passage of a bill that banned mandatory arbitration in sexual harassment and assault cases. 

“This is a one-two punch,” Frankel said. “When you think about how many people are subjected to these agreements and how rampant sexual assault and abuse is in this country, these are two incredibly significant new laws that are going to change the culture and force corporations to protect their workers instead of trying to hide the dirty little secrets.***

Imre Szalai, a social justice professor at Loyola University New Orleans, told The 19th this summer when the bill was introduced that arbitration agreements and NDAs were developed in the United States for commercial purposes to handle business-to-business disputes in a more speedy and cost-effective manner. The federal arbitration law was first enacted in 1925, but sometime between the 1970s and 1990s, Szalai said there was a “snowball effect” and these agreements began appearing more broadly in consumer and employment relationships. And now, the U.S. relies on its corporate sector to resolve internal disputes more than any other country in the world. 

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.

The Empirical Evidence for a New Approach to Sexual Harassment for Businesses

Jennifer Drobac & Mark Russell, Unmasking Sexual Harassment: The Empirical Evidence for a New Approach  
17 N.Y.U. J.L. & BUS. 315-390 (2021)

If moral outrage were enough, 50 years of antidiscrimination law and two full years of #MeToo should have led to the rapid remediation and elimination of sexual harassment by corporate decisionmakers. However, moral condemnation apparently is not enough, so this Article urges a multifaceted approach that combines (to start) research, financial analysis, disclosure, preventative cultural change, and remediation (if still needed). Through disclosure, it suggests a tactic that combines the goals of social entrepreneurship and profit maximization. Estimates suggest that sexual harassment costs U.S. business millions, if not billions, annually. However, most stock exchange-listed companies avoid financial disclosure or other reporting of sexual harassment claims. The onus for the invocation of Title VII and other antidiscrimination protections falls upon the victims and targets of abuse. Our research and empirical evidence demonstrate that corporations need to make changes to improve the proverbial bottom line. The disclosures that companies do make lack useful information for users of financial reports. Further, a high number of perpetrators of corporate sexual harassment are those with power—key executives and Chief Executive Officers (CEOs). Further, a number of non-disclosures of sexual harassment indicate poor management and culture at companies. Our results are consistent with companies that use arbitration and non-disclosure agreements (NDAs) to conceal sexual harassment. Our research supports a new SEC reporting requirement for all publicly traded companies (and a best practices approach for all organizations). Arguably, corporations would save much more by getting ahead of sexual harassment cases, disclosing problems, and avoiding expensive Title VII and shareholder derivative lawsuits. The evidence and common sense call for additional prophylactic action.

Ederlina Co on "Weathering Invisible Labor"

Ederlina Co has published Weathering Invisible Labor in volume 51 of the Southwestern Law Review (2022). The abstract previews: 

Professor Meera Deo’s Unequal Profession: Race and Gender in Legal Academia powerfully demonstrates how the legal academy has adopted many of American society’s social hierarchies as they relate to race and gender. Inspired by Unequal Profession and using a Critical Race Feminism framework, this Essay centers on women of color professors and the problem of invisible labor in legal academia.

Although for many women of color professors invisible labor involves a labor of love, this Essay contends that the legal academy’s unwillingness to recognize it in a meaningful manner marginalizes women of color professors, devalues how important invisible labor is to law students, law schools, and the legal profession, and perpetuates a raceXgender institutional bias. This Essay recommends steps that law school administrators and allies can take immediately to recognize invisible labor but also suggests that the time has come for the legal academy to begin to reexamine how it values “service” more broadly.

The article concludes that: 

Despite the depth of time and commitment that women of color professors devote to invisible labor and the value law students, law schools, and the legal profession take from it, the legal academy does not meaningfully appreciate it as work. The ongoing failure to recognize and credit invisible labor in many law schools is a form of raceXgender institutional bias that marginalizes women of color professors and diminishes the importance of this work. Although the legal academy has tracked much of American society’s progress when it comes to providing equal opportunity for women of color professors, the academy is not immune from American society’s present-day raceXgender challenges. In the same way many of us expect American institutions to work to address inequalities and inequities in society, the academy must be equally diligent about addressing them in our own institution.

Encouraging Bystander Reporting of Sexual Harassment Through a Financial Reward System

Jessica Fink, Using a 'Bystander Bounty' to Encourage the Reporting of Workplace Sexual Harassment" 

Sexual harassment has become a fact of the modern workplace – something that society laments and regrets, but that rarely shocks the conscience when it comes to light. In fact, both the least and most surprising aspect about workplace sexual harassment is the number of individuals who are aware of it occurring: For every Harvey Weinstein, Matt Lauer, and Louis CK, there have been countless observers who knew about their depravity and who did nothing to stop their behavior. In this way, one obvious approach for reducing harassment at work seems clearly to involve mobilizing these bystanders – encouraging those who witness this misconduct to come forward and report the wrongdoing. Yet for a variety of reasons, bystanders often (quite rationally) choose to remain silent.

This article suggests a novel approach for overcoming the forces inhibit bystanders from speaking out. In the context of financial crimes, the law has successfully encouraged bystander reporting by applying a bounty system that provides significant financial rewards to those who report the wrongdoing that they observe. Indeed, those who have observed financial wrongdoing have reaped millions of dollars in rewards, presumably overcoming whatever reluctance they once may have felt about disclosing the misdeeds of colleagues and associates. This article suggests applying a similar bounty system to workplace sexual harassment: It proposes awarding bystanders a piece of the recovery when their reports of observed workplace sexual harassment culminate into successful lawsuits against the perpetrators of this misconduct.

Blowing the whistle on wrongdoing – harassment or otherwise – comes rife with countless concerns for those who consider speaking out. Giving such bystanders a financial incentive to come forward has worked in other contexts to override this reluctance. Perhaps the same can be true for those who observe sexual harassment at work, providing a much-needed step towards reducing this scourge on the workplace.

Black Women Firefighters Sue DC, Alleging Racial and Gender Bias

Black Women Firefighters Sue DC, Alleging Racial and Gender Bias

Four Black female firefighters in the District sued the city Monday, saying they have been “systematically and continuously discriminated against on the basis of their race and gender,” including being denied salary increases and overtime pay and being subjected to unfair disciplinary action.

The lawsuit, filed in U.S. District Court in Washington, comes almost a year after a similar case was filed by 10 current and former Black female police officers in the District who complained of “repeated, coordinated and relentless retaliation” against Black women on the police force who complained about discrimination and other misconduct. That case is pending in U.S. district court.

The fire department case “is about systemic characteristics of [the Department of Fire and Emergency Medical Services] that turn it into a ‘boys club,’ in which Black women are tolerated, but not embraced or treated as equals, and in which Black women always have to beg, scrape and fight just to be treated fairly,” one of the plaintiffs’ lawyers, Pamela Keith, said in a statement.

Women's police and firefighter discrimination cases were among the first venues for women's rights equality cases when the earliest public interest litigation began in the 1970s with the Women's Law Fund in Cleveland, Ohio, running parallel to Ruth Bader Ginsburg's ACLU Women's Rights Project.  See Tracy Thomas, The Struggle for Gender Equality in the Northern District of Ohio, 171 n.27, in Justice and Legal Change on the Shores of Lake Erie (Paul Finkelman & Roberta Anderson eds.,2012).