Thursday, February 6, 2020
Third Circuit Upholds Philadelphia Ban on Employers Asking About Salary History Against First Amendment Challenge
In a decision that could have national implications for the wage equity movement, a federal appeals court Thursday sided with the city of Philadelphia, saying it can ban employers from asking job applicants their salary history.
The U.S. Court of Appeals for the Third Circuit partly reversed a 2018 lower court decision that said the city could not ban employers from asking about salary history, but could ban them from relying on it to set wages. The Greater Philadelphia Chamber of Commerce sued the city after the law was passed in 2017, claiming it violated the commercial-speech rights of employers.***
The 67-page unanimous opinion, representing the three-judge panel, was written by Judge Theodore McKee, who wrote that while the provision does limit employers’ speech, it is “only because that limitation prevents the tentacles of any past wage discrimination from attaching to an employee’s subsequent salary.”***
Philadelphia was the first city in the country to pass such a ban, following a statewide ban in Massachusetts. More than a dozen states and municipalities followed suit, including New Jersey.
Wednesday, November 27, 2019
Wendy Hess, Addressing Sexual Harassment in the Legal Profession: The Opportunity to Use Model Rule 8.4(G) to Protect Women From Harassment, 94 Univ. Detroit Mercy L. Rev.579 (2019)
This Article explores options available to legal professionals in order to become more aware of and address sexual harassment within the profession. The potential avenues of redress for sexual harassment by those in the legal profession vary. The applicable remedy depends on factors such as: jurisdiction, nature of the harassment, context of the harassment (site of conduct, identity of harasser, and identity of target), and relief sought. This Article discusses two primary avenues: antidiscrimination and anti-harassment protections under Title VII and disciplinary proceedings pursuant to attorney ethics rules. In Part I, the Article explores the ways in which Title VII has not adequately protected women from sexual harassment. Part II of the Article explores potential redress from attorney ethics rules, focusing specifically on Model Rule 8.4(g). The Article discusses advantages of state adoption of Rule 8.4(g) and adds a new perspective to the scholarship about Rule 8.4(g) by addressing the potential disadvantage of reliance on anti-discrimination laws to interpret the rule.
Tuesday, November 26, 2019
Hushing Contracts and the Public Policy Defense to Enforcing Nondisclosure Agreement About Sexual Wrongdoing
David Hoffman & Erik Lampmann, Hushing Contracts, 96 Wash. U. L. Rev. 165 (2019)
The last few years have brought a renewed appreciation of the costs of nondisclosure agreements that suppress information about sexual wrongdoing. Recently passed bills in a number of states, including New York and California, have attempted to deal with such hush contracts. But such legislation is often incomplete, and many courts and commentators continue to ask if victims of harassment can sign enforceable settlements that conceal serious, potentially metastasizing, social harms. In this Article, we argue that employing the public policy doctrine, courts ought to generally refuse to enforce hush agreements, especially those created by organizations. We restate public policy as a defense which should to be concerned with managing externalities, and which expresses a legitimating account of contract law.
The New York Times won a Pulitzer and helped ignite the #MeToo movement with its reporting on sexual harassment. But the Times still doesn’t understand what sexual harassment is. In its official definition and the stories it pursues, the Times employs a sexualized conception of sexual harassment that is twenty years out of date in the law. It’s also disconnected from the lived experience of most people and from the findings of social science research. In this, the Times is not alone. Even the two leading enforcers of federal antidiscrimination law — the EEOC and the Department of Justice — still at times issue pronouncements that fail to reflect current Title VII law or even those agencies’ own enforcement priorities.
Lost in these outdated but still pervasive definitions of sexual harassment are the many ways employees are undermined, excluded, sabotaged, ridiculed, or assaulted because of their sex, even if not through words or actions that are “sexual” in nature. “Put-downs” and not simply “come-ons,” these types of sexual harassment are even more pervasive than the overtly sexualized forms. Relegating them to another category or term such as “gender harassment” or “sex-based harassment” treats them as secondary to the sexualized forms, causes society to misunderstand the dynamics at play even in the latter, and skews the focus of workplace training (and subsequent reporting) about sexual harassment. With the #MeToo movement giving unprecedented attention to the problem of sexual harassment, now is the time to better understand that term.
Tuesday, November 5, 2019
Nicole Porter, Relationships and Retaliation in the #MeToo Era, Florida Law Review (forthcoming)
In this #MeToo era, so much important work is being done (and so many stories are being told and listened to) but very little of the work focuses on retaliation. And none of it focuses on situations where the fear of retaliation is not necessarily job loss (although that certainly happens) but rather, is the fear of harming workplace relationships. This article will use a real-life story of harassment to demonstrate how much workplace relationships matter (especially to women) and how the fear of harming those relationships often affects an employee’s willingness to report harassment. Thus, this article argues for reforms surrounding harassment and retaliation law that recognize this reality. Right now, courts penalize victims of harassment for not reporting harassment soon enough because they feared harming their workplace relationships; or, when they do report, courts penalize them by holding that the relationship-based harm they experienced after reporting wasn’t a real harm worthy of a remedy. The reasoning of these courts is that reasonable employees would not and should not be deterred from reporting harassment because they fear relationship-based harms. And yet, most of the empirical evidence tells us that the opposite is true—that reasonable employees (sometimes men, but especially women) often do avoid reporting because of fear of harming their relationships in the workplace. The law should reflect this reality.
Thursday, October 31, 2019
Rep. Katie Hill (D-Calif.), 32, is one of the youngest female members of Congress and the first-ever openly bisexual member of the House. She arrived in Washington in January, part of a historic wave of women, winning a longtime Republican seat.
Hill resigned on Sunday after a series of nude photos, published online without her consent, led her to disclose a romantic relationship with a former campaign staffer. In the days since, people have asked: If Hill was a middle-aged man — and not the woman behind “the most millennial campaign ever” — would she still be in Congress?
I posed that question to Carrie Goldberg, a lawyer who specializes in sexual privacy violations and is the author of “Nobody’s Victim: Fighting Psychos, Stalkers, Pervs, and Trolls.” Goldberg has decades of experience working with women — and it is overwhelmingly women — who are victims of revenge porn, which is defined as sexually explicit photos of someone shared online without their consent. The images often come from a former partner “hell-bent on their destruction,” Goldberg says, as looks likely in Hill’s case. ***
Caroline Kitchener: Whoever sent these photos to Red State — were they breaking the law?
Carrie Goldberg: Absolutely. In the last five years, we’ve gone from having three states with criminal non-consensual porn laws to having 46 states, plus D.C. These laws apply to situations where naked images or videos are disseminated online or offline without the subject’s permission. A lot of the laws do have an exception for newsworthiness. But the sexual humiliation of a person, even a public figure or celebrity, should never be newsworthy.
CK: What counts as an exception for newsworthiness?
CG: The newsworthy exception derives from the idea that there are certain images that are so powerful — images from the Holocaust, from the Vietnam War. We’re talking about images where the image itself is newsworthy, the nudity is not.***
CK: Was Red State breaking the law when they published these photos?
CG: You hear a lot about section 230 of the Communications Decency Act, which usually shelters platforms from liability for content that individual users post. However, if the platform itself is making the decision to publish naked pictures, as Red State did here, they don’t benefit from that immunity. And therefore, the platform should be held liable.
CK: So is there a case for Hill going after Red State?
CG: Without giving legal advice, I would say, hell yes.
Monday, September 9, 2019
Kerri Lynn Stone, Competing Interests and Best Practices in the Wake of #MeToo, JOTWELL
Professor Arnow-Richman’s starting point is, appropriately, as she puts it, the “extreme power imbalance in the workplace” that engenders “a world in which high-level decision-makers wield unrestricted control over employees,” while the entity can turn a blind eye to the way in which this unfettered discretion may be abused. (P. 90.) Lower-level employees are not accorded such latitude, and they are typically expeditiously disciplined or otherwise dealt with in the face of their inappropriate behavior. The #MeToo Movement, Professor Arnow-Richman correctly points out, was the force that kicked up a lot of the dust that enabled us to see just how uneven this landscape has been. Specifically, she argues that as society begins to grapple with balancing aggressive policing of workplace harassment with ensuring that accused harassers are accorded fair treatment (rather than summary and automatic dismissal), it needs to address inequities among workers at different ranks in the workplace. Moreover, she notes, misconceived corporate responses have companies punishing sexualized actions, rather than policing sex-based harassment that is not sexual in nature. Having astutely pointed out that “employers are inclined to tolerate sexual harassment and other misconduct by top-level employees but aggressively police ‘inappropriate’ behavior by the rank-and-file” (P. 85), Professor Arnow-Richman then sets out to address this problem.
This piece is both important and timely
Tuesday, September 3, 2019
Instead of using MeToo as a learning opportunity to become more aware of the harassment most women generally face in the world at large and in the workplace specifically, a new study has found that many men have decided to go the opposite route and simply avoid women in the workplace full-stop.
The study out of the University of Houston was conducted across a range of industries and surveyed both men and women in 2018 at the height of MeToo and then again in early 2019 after the conversation had died down a bit.
The 2019 survey found that 27 percent of men surveyed have gone the Mike Pence route and now avoid one-on-one meetings with woman co-workers, 21 percent said they would now be more reluctant to hire women for roles that require close interaction, and 19 percent are reluctant to hire an “attractive” woman. Those numbers are up from 2018 when only 15 percent of men admitted to discriminating against women they wanted to bone.
And while many men said they were more likely to be sexist following reports of sexism because they can no longer tell which behaviors are making co-workers uncomfortable, the study also found that men and women pretty much agree on what constitutes harassment.
Monday, July 29, 2019
Erin Mulvaney & Hassan Kanu, Anonymous Workplace Harassment Suits Double in #MeToo Era
The workers wanted to hold their former employers accountable for alleged harassment and discrimination. What they feared was using their names to do so.
Since the start of 2019, courts have confronted: a woman who didn’t want the details of an alleged sexual assault made public; a man who said he was harassed for being gay but didn’t want his sexuality revealed to his family; and a group of women who feared “career suicide” as they challenged what they describe as a fraternity culture in their workplace.
They wanted to sue under pseudonyms. But in each case, workers wrestled with the difficult choice of whether to go forward publicly, risking retaliation and embarrassment. Attorneys who represent workers say forcing employees to proceed under those circumstances can create a chilling effect, provide leverage to companies, and may mean that alleged victims fear coming forward.
These cases are among the growing number of discrimination lawsuits filed in recent years that forced courts to balance potential harm to plaintiffs with the company and public’s right to an open judicial system.
A Bloomberg Law analysis showed that discrimination and harassment lawsuits filed anonymously doubled in the wake of the ongoing #MeToo movement. There were 52 of those suits filed in 2018, up from 24 the previous year and just 17 in 2016. They’re on pace to reach 2018 levels this year as well, with 24 filed through the first half of 2019—about as many as in all of 2015 through 2016.
Wednesday, July 17, 2019
Harvard Business Review, A Study Used Sensors to Show that Men and Women are Treated Differently at Work
Gender equality remains frustratingly elusive. Women are underrepresented in the C-suite, receive lower salaries, and are less likely to receive a critical first promotion to manager than men. Numerous causes have been suggested, but one argument that persists points to differences in men and women’s behavior.
Which raises the question: Do women and men act all that differently? We realized that there’s little to no concrete data on women’s behavior in the office. Previous work has relied on surveys and self-reported assessments — methods of data collecting that are prone to bias. Fortunately, the proliferation of digital communication data and the advancement of sensor technology have enabled us to more precisely measure workplace behavior.
We decided to investigate whether gender differences in behavior drive gender differences in outcomes at one of our client organizations, a large multinational firm, where women were underrepresented in upper management. In this company, women made up roughly 35%–40% of the entry-level workforce but a smaller percentage at each subsequent level. Women made up only 20% of people at the two highest seniority levels at this organization.***
But as we analyzed our data, we found almost no perceptible differences in the behavior of men and women. Women had the same number of contacts as men, they spent as much time with senior leadership, and they allocated their time similarly to men in the same role. We couldn’t see the types of projects they were working on, but we found that men and women had indistinguishable work patterns in the amount of time they spent online, in concentrated work, and in face-to-face conversation. And in performance evaluations men and women received statistically identical scores. This held true for women at each level of seniority. Yet women weren’t advancing and men were.
The hypothesis that women lacked access to seniority, in particular, had little support. In email, meeting, and face-to-face data, we found that both men and women were roughly two steps, or social connections, away from senior management (so if John knows Kate and Kate knows a manager, John is two steps from a manager).
Some have argued that women lack access to important, informal networks because they don’t reach out to or spend time with “the boys club.” But this didn’t hold up in our data. We found that the amount of direct interaction with management was identical between genders and that women were just as central as men in the workplace’s social network.
Our analysis suggests that the difference in promotion rates between men and women in this company was due not to their behavior but to how they were treated. This indicates that arguments about changing women’s behavior — to “lean-in,” for example — might miss the bigger picture: Gender inequality is due to bias, not differences in behavior.
Tuesday, July 16, 2019
Center for Applied Feminism, Univ. of Baltimore, Video Recordings from Applied Feminism and #MeToo (April 2019)
The center co-sponsored with the UB Law Review the 11th Feminist Legal Theory Conference: Applied Feminism and #MeToo. The conference mixed activism and scholarship focusing on sexual harassment and gender-based violence law. Sixteen scholars and practitioners presented papers concerning a wide array of legal topics, from sexual assaults during police searches to the credibility of survivors in courtrooms.
The keynote speaker was Debra Katz, the lawyer who represented Christine Blasey Ford during the confirmation hearings for now-Justice Brett Kavanaugh. In addition, hotel workers from a union presented about being sexually harassed and their campaign to end such treatment in hotels. Center members continued to work with UB law students and the Reproductive Justice Inside coalition to create model policies for reproductive health care and menstrual hygiene product access for Maryland correctional facilities.
Thursday, July 11, 2019
Joan Williams, Jodi Short, Margot Brooks, Hilary Hardcastle, Tiffanie Ellis, Rayna Saron, "What's Reasonable Now? Sexual Harassment Law after the Norms Cascade" , Michigan State L. Rev. (2019)
This Article asks whether Brooks v. San Mateo and four other appellate hostile-environment sexual harassment cases that have each been cited more than 500 times remain good precedent in the light of the norms cascade precipitated and represented by #MeToo. The analysis is designed to interrupt the “infinite regression of anachronism,” or the tendency of courts to rely on cases that reflect what was thought to be reasonable ten or twenty years ago, forgetting that what was reasonable then might be different from what a reasonable person or jury would likely think today. These anachronistic cases entrench outdated norms, foreclosing an assessment of what is reasonable now. To interrupt this infinite regression, this Article pays close attention to the facts of the cases-in-chief discussed below enabling the reader, and the courts, to reassess whether a reasonable person and a reasonable jury would be likely to find sexual harassment today.
Monday, April 15, 2019
A group of Democratic lawmakers on Tuesday unveiled a bill aimed at strengthening protections against harassment in the workplace, including sexual harassment.
Sen. Patty Murray (D-Wash.) and Democratic Reps. Katherine Clark (Mass.), Ayanna Pressley (Mass.), Elissa Slotkin (Mich.) and Debbie Mucarsel-Powell(Fla.) introduced the "Be HEARD Act," which stands for Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination in the Workplace.
Several 2020 Democratic presidential contenders have also signed onto the legislation, including Sens. Kamala Harris (D-Calif.), Elizabeth Warren(D-Mass.), Kirsten Gillibrand (D-N.Y.), Bernie Sanders (I-Vt.), Amy Klobuchar(D-Minn.) and Cory Booker (D-N.J.), among other senators.
The legislation aims to eliminate the tipped minimum wage, which largely leaves service worker pay up to customers, as well as end mandatory arbitration and pre-employment nondisclosure agreements and give workers more time to report harassment, among other provisions.
On Tuesday, Democrats in Congress will introduce legislation aimed at helping those workers. Called the Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination (BE HEARD) in the Workplace Act, it would close loopholes in federal discrimination law that leave many domestic workers without legal protections from sexual harassment. It would authorize grants for low-income workers to help them seek legal recourse if they are harassed. And, crucially for food service workers like Tucker, it would eliminate the lower minimum wage for tipped workers, which many say makes servers vulnerable to harassment by customers.
“Some women did and do still think that in order to make the extra tip, they have to ignore unwanted touches and unwanted comments,” Tucker said, “and we shouldn’t have to.”
The legislation could face an uphill battle in a Republican-controlled Senate. But it’s an example of a larger move toward systemic changes that would go beyond deposing a few big-name men, and help the many workers in America whose harassment never makes the news.
Tuesday, April 9, 2019
Catherine Ross Dunham & Christopher Leupold, Third Generation Discrimination: An Empirical Analysis of Judicial Decision Making in Gender Discrimination Litigation
In this progressive era of #MeToo and other movements which highlight the reality of women’s experiences in the workplace and other settings, the question arises as to why discrimination-based civil lawsuits are not more successful for female litigants. The courts have served as an important tool in reforming discriminatory workplace cultures by directly addressing and punishing overtly discriminatory workplace behavior such as blatant pregnancy and gender discrimination or grievous acts of sexual harassment. But the same courts have not been able to function as a safe haven for women who have their careers curtailed by implicit bias-based gender discrimination brought under Title VII. Gender discrimination lawsuits brought under a theory of bias-based discrimination, more specifically bias-based gender discrimination, have not offered reliable remedies for female litigants and have not impacted workplace culture in any meaningful way.
Bias-based gender discrimination theory involves structural discrimination – facially neutral workplace policies that are applied to favor the male dominant group and consequently written and managed by a male-dominated upper hierarchy. Successful litigants in bias-based gender discrimination cases must convince the judicial decision-maker not only that the law of Title VII applies, not only that the facts at issue constitute discrimination, but also that the workplace is mired in multi-layer structural discrimination flowing from an implicit bias against female employees. In order for the federal courts to function fully as interpreters of Title VII, policing our workplaces for equity and inclusion, the judicial gatekeepers must engage their own biases and preconceptions when evaluating the subject workplace.
This article follows an earlier piece which theorized there is an additional layer of implicit bias-based discrimination which inhibits the success of plaintiffs in Title VII lawsuits. That article argued that lawsuits seeking relief under facts of implicit bias-based workplace discrimination are further inhibited by bias in the courts, specifically the implicit biases of the federal judges who monitor the progress of the plaintiff’s case. This additional layer of implicit bias-based discrimination, Third Generation Discrimination, theorizes that a federal judge may be influenced by his or her own traits when evaluating gender discrimination cases which involve bias-based theories of gender discrimination.
This article is based on the authors’ study of Title VII cases in federal district courts over a ten-year period. The authors studied the judicial rulings on dispositive motions in Title VII cases and compared those outcomes to demographic information for the deciding judge, including race, gender, age and political affiliation. Part II of the article summarizes the theories of Second and Third Generation Discrimination, creating a framework for the research to follow. Part III of the article describes and explains the relevant research by outlining the parameters of the sample, explaining the statistical method followed, and discussing the research results. Part IV of the article analyzes the results of the authors’ research and theorizes how the authors’ findings can inform future discussions of gender discrimination.
Tuesday, April 2, 2019
Today is Equal Pay Day, the symbolic day when women's earnings finally catch up to men's earnings from the previous year. It takes a few extra months because of the 23 percent gender wage gap that women typically face. However, this is not the day for every woman, as the wage gap varies by race and ethnicity.
Equal Pay Day was originated by the National Committee on Pay Equity (NCPE) in 1996 as a public awareness event to illustrate the gap between men's and women's wages.
The Equal Pay Act bars wage differences between male and female employees for comparable work—except in cases of seniority, merit, quantity or quality of production, or “any other factor other than sex.”
The Lilly Ledbetter Fair Pay Act provides "that pay discrimination claims on the basis of sex, race, national origin, age, religion and disability 'accrue' whenever an employee receives a discriminatory paycheck, as well as when a discriminatory pay decision or practice is adopted, when a person becomes subject to the decision or practice, or when a person is otherwise affected by the decision or practice."
Most states also have equal pay acts.
US Dep't of Labor, Equal Pay:
When the Equal Pay Act was signed into law by President Kennedy in 1963, women were earning an average of 59 cents on the dollar compared to men. While women hold nearly half of today's jobs, and their earnings account for a significant portion of the household income that sustains the financial well-being of their families, they are still experiencing a gap in pay compared to men's wages for similar work. Today, women earn about 81 cents on the dollar compared to men — a gap that results in hundreds of thousands of dollars in lost wages. For African-American women and Latinas, the pay gap is even greater.
Women's demand for equal pay goes back to the beginning of the women's rights movements. Part of the Declaration of Sentiments of women's rights proclaimed at Seneca Falls in 1848 criticized the "scant remuneration" women were paid and demanded equality. "Equal pay for equal work" was a mantra of the 1894 women's rights convention, continuing the longstanding demand for equal opportunity and equal pay.
Last year, the Ninth Circuit Court of Appeals (en banc) held in Rizo v. Yovino that the use of salary histories violates the equal pay act.
A dated, but still important article: Sara Zeigler, Litigating Equality: The Limits of the Equal Pay Act
This article assesses the effectiveness of legal remedies available under the Equal Pay Act (EPA) in closing the gender gap in pay. Although employers frequently attribute women’s lesser pay to lags in seniority and the life choices made by women, the evidence suggests that the narrow language of the EPA, its omission of the more subtle forms of sex discrimination, and the powerful disincentives for most women to pursue claims under the act have rendered it largely ineffective in curtailing sex discrimination in compensation. Through an examination of recent developments in the area of pay equality, the article demonstrates that the act, as enforced, has produced neither equality nor equity. Arguing that the reality of sex discrimination in pay shapes life choices (rather than the reverse), the article identifies the obstacles to closing the pay gap and strategies for more effective enforcement.
The proposed Paycheck Fairness Act seeks to address some of these limitations.
Rep. Rosa DeLauro (D–Conn.) has introduced the bill in every Congress since 1997. But that’s not to say the bill is without momentum; the House voted on the Paycheck Fairness Act for the first time in eight years last week—and passed it by its highest vote total ever.
When DeLauro first proposed the legislation, its stated purpose was to “revise and increase remedies and enforcement on behalf of victims of discrimination in the payment of wages on the basis of sex.” In essence, giving sharper teeth to the Equal Pay Act of 1963 that was supposed to enshrine the concept of ‘equal pay for equal work’ in the law.
In the intervening two decades, the bill’s language hasn’t changed dramatically because the problem it targets—the reality of women’s unequal pay for equal work—remains. The gender pay gap was 26% in 1997; it now hovers in the 20% range, according to Census data.
Elizabeth C. Tippett, The Legal Implications of the #MeToo Movement, 103 Minnesota L. Rev. 229 (2018)
This Article examines the implications of the MeToo movement for employment law and employment practices. Employers are likely to face increased liability for harassment, as courts eventually update their standards for what qualifies as “severe or pervasive” harassment, and demand more of employers seeking to establish the Faragher/Ellerth defense. Employers also face greater risks of public scandals, as employees speak out and state legislatures limit the enforceability of non-disclosure agreements.
Consequently, employers can be expected to take a more punitive approach to documented instances of harassment. This will not only include termination, but also meaningful intermediate forms of discipline like a demotion or the removal of supervisory responsibilities. To limit their potential liability associated with these more punitive measures, employers are likely to modify standard language in executive employment agreements and privacy policies.
Lastly, the Article explores how standard harassment policies may have contributed to the problems exposed by the MeToo movement. The Article advocates for transparent harassment policies that disclose the contextual factors that influence disciplinary decisions. Employers should also draft broader discrimination policies that treat discriminatory and harassing comments by supervisors as a breach of trust. These changes would harmonize employer policies with their underlying litigation risks, and better convey employer expectations in the MeToo era.”
Monday, April 1, 2019
Melissa Murray, Consequential Sex: #MeToo, Masterpiece Cakeshop, and Private Sexual Regulation, 113 Northwestern L. Rev. 825 (2019)
The last sixty years have ushered in a tectonic shift in American sexual culture, from the sexual revolution—with its liberal attitudes toward sex and sexuality—to a growing recognition of rape culture and sexual harassment. The responses to these changes in sexual culture have varied. Conservatives, for their part, bemoan the liberalization of sexual mores and the rise of a culture where “anything goes.” And while progressives may cheer the liberalization of attitudes toward sex and sexuality and the growing recognition of sexual harassment and sexual assault, they lament the inadequacy of state efforts to combat sexual violence. Although these responses are substantively different, both evince a sense of the state’s failure. For conservatives, the changes wrought by the decriminalization of “deviant” sexual behavior, the shift to no-fault divorce regimes, and the recognition of constitutional protections for sex and sexuality suggest that the state has abdicated its historic role in imposing consequences on those who do not comply with traditional sexual mores. For progressives (and especially feminists), state efforts to properly regulate rape, sexual assault, and sexual harassment are, at best, anemic and, at worst, utterly ineffectual. As they see it, the state has failed to impose consequences for harassment, assault, and other offensive sexual conduct.
But it is not just that these two constituencies believe that the state has failed to properly regulate sex and sexuality; they have also responded in uncannily similar ways to these lapses. Specifically, in response to the state’s failure to regulate, private actors on both sides of the ideological spectrum have stepped into the regulatory void, challenging extant sexual norms and articulating new visions of appropriate sex and sexuality. These private regulatory efforts are evident in the rise and proliferation of conscience objections or exemptions, as exemplified in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, as well as in the emergence of the #MeToo movement. As this Article maintains, conscience objections allow private actors to reject the extant normative regime and instead articulate and enforce their own views of appropriate sex and sexuality through the denial of goods and services. The #MeToo movement has similarly sought to advance an alternative vision of appropriate sex and sexuality through private action. Using social media and the press, the #MeToo movement has identified recidivist harassers and workplaces where sexual harassment and sexual assault are rife, advocated for increased workplace harassment training, and, ultimately, called for the expulsion from the workplace of many high-profile men who, for years, engaged in objectionable conduct.
As this Article explains, the fact that private actors are stepping in to regulate in the state’s stead is not necessarily novel. Private actors have often played a regulatory role—particularly in contexts where norms are in flux or contested. Nevertheless, the private regulation seen in Masterpiece Cakeshop and #MeToo evinces a new turn in the regulation of sex and sexuality. In the absence of appropriate state regulation of sex and sexuality, private actors are coming to the fore to take on a more visible role in regulating sex and sexuality, and in doing so, have claimed and recast parts of the public sphere as private space suitable for the imposition of their own norms and values.
Friday, March 15, 2019
The federal judiciary will change its response to workplace sexual misconduct charges effective immediately, the policy-making body for the federal courts announced today.
It is itself “misconduct not to report misconduct,” Chief Judge Merrick Garland, of the U.S. Court of Appeals for the D.C. Circuit, said in a press briefing following the bi-annual Judicial Conference meeting.
The changes clarify what behavior is prohibited, address informal methods to report misconduct, and provide for training mechanisms to educate employees on prohibited behaviors, said Garland, who heads the Executive Committee of the Judicial Conference.
The changes stem from a June 2018 report Chief Justice John G. Roberts Jr. commissioned after sexual harassment allegations against then-Ninth Circuit Judge Alex Kozinski emerged. Kozinski has since retired.
Roberts’ year-end report detailed the steps the judiciary has already taken to address concerns in the #MeToo era, including the creation of a working group to address inappropriate workplace conduct for law clerks and court employees.
The working group made the recommendations implemented today and Garland said it will remain in place to “keeps tabs” on the judiciary’s progress and perhaps make suggestions in the future.
The codes of conduct don’t officially apply to Supreme Court justices, but they have previously said they consult and follow them.
Justice Elena Kagan said during a budget hearing March 7 that Roberts is currently studying whether to develop a code of conduct that applies specifically to Supreme Court justices. It’s something that’s being “very seriously” weighed, she said.
Kimberly Houser, Can AI Solve the Diversity Problem in the Tech Industry? Mitigating Noise and Bias in Employment Decision-Making, 22 Stanford Tech. L. Rev. (forthcoming)
After the first diversity report was issued in 2014 revealing the dearth of women in the tech industry, companies rushed to hire consultants to provide unconscious bias training to their employees. Unfortunately, recent diversity reports show no significant improvement, and, in fact, women lost ground during some of the years. According to a 2016 Human Capital Institute survey, nearly 80% of leaders were still using gut feeling and personal opinion to make decisions that affected talent-management practices. By incorporating AI into employment decisions, we can mitigate unconscious bias and variability in human decision-making. While some scholars have warned that using artificial intelligence (AI) in decision-making creates discriminatory results, they downplay the reason for such occurrences – humans. The main concerns noted relate to the risk of reproducing bias in an algorithmic outcome (“garbage in, garbage out”) and the inability to detect bias due to the lack of understanding of the reason for the algorithmic outcome (“black box” problem). In this paper, I argue that responsible AI will abate the problems caused by unconscious biases and noise in human decision-making, and in doing so increase the hiring, promotion, and retention of women in the tech industry. The new solutions to the garbage in, garbage out and black box concerns will be explored. The question is not whether AI should be incorporated into decisions impacting employment, but rather why in 2019 are we still relying on faulty human-decision making?
Thursday, March 14, 2019
Marion Crain & Ken Matheny, Sexual Harassment and Solidarity, 87 Geo. Wash. L. Rev. 56 (2019)
In the waning months of 2017, Americans endured an almost daily barrage of news reports describing sexual harassment by powerful men in entertainment, media, politics, and law. The media focus continued in 2018 as reactions proliferated, ranging from walkouts at Google by workers protesting the company’s handling of sexual-misconduct allegations against its male executives, to new initiatives by government agencies and private firms designed to reduce the incidence of sexual harassment and to promptly remediate it when it occurs. Although sexual harassment had been headline news before—most notably, during the 1991 Anita Hill–Clarence Thomas debacle—never had so many victims joined hands and come forward demanding change. The media spotlight presented a tremendous opportunity to reframe sexual harassment from an individual, personal, and idiosyncratic instance of sexual desire to a common abuse of gender and economic power affecting millions of working women and men on a daily basis. Feminist legal scholars have known for years that expectations about appropriate gender roles create an environment where sexual harassment functions to protect male privilege. Nevertheless, the message that sexual harassment is a systemic feature of workplace gender inequality never reached the general public. Instead, the mainstream media’s systematic focus on sexual harassment as a twisted manifestation of male sexual desire grabbed headlines and implied that when the harasser is discharged, the story ends. But sexual harassment is about much more than men behaving badly. It is a structural problem linked to unequal pay and occupational segregation by sex.
One might think that labor unions would come forward as advocates for such a large segment of workers suffering economic disadvantage in the workplace. Yet despite the frequent use of the word “solidarity” in media reports about #MeToo, organized labor was conspicuously absent from the dialogue. Although union leaders made public statements denouncing sexual harassment and promised to redouble union efforts to eradicate it, most disclaimed legal responsibility for preventing and addressing sexual harassment in the workplace. Not all the blame for labor’s passive stance can be laid at labor’s doorstep, however. Unions are hamstrung by a legal structure that creates a fundamental role conflict where they represent a workforce that includes both potential harassers and victims, and National Labor Relations Act protection for worker concerted action for mutual aid has been cabined by courts and the National Labor Relations Board to the point that labor’s tradition of solidarity is barely recognizable.