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.
Monday, April 27, 2020
No Room of One's Own: Data Suggest Covid-19 is Negatively Impacting Women's, but not Men's, Research Productivity
It was easy to foresee: within academe, female professors would bear the professional brunt of social distancing during COVID-19, in the form of decreased research productivity.
Now the evidence is starting to emerge. Editors of two journals say that they’re observing unusual, gendered patterns in submissions. In each case, women are losing out.
Editors of a third journal have said that overall submissions by women are up right now, but that solo-authored articles by women are down substantially.
In the most obvious example of the effects of social distancing carving into women's research time, Elizabeth Hannon, deputy editor of the British Journal for the Philosophy of Science, wrote on Twitter that she’d received “negligible” submissions from women within the last month. “Never seen anything like it,” she added***
This doesn’t mean that COVID-19 "hasn’t taken a toll on female authors, though," Dolan and Lawless wrote, as women submitted just eight of the 46 solo-authored papers during this time. That’s 17 percent, compared to 22 percent of solo-authored papers in the larger data set.
"As a percentage change, that’s substantial," the editors said. "Even if women’s overall submission rates are up, they seem to have less time to submit their own work than men do amid the crisis.”
The revelations generated much chatter, including from gender studies scholars and women in all fields who are desperately trying to balance teaching and otherwise working from home with increased caregiving responsibilities. Those responsibilities include all-day minding of children due to school and daycare closures, homeschooling, and the cooking and cleaning associated with having one’s family at home all day, every day. Women are also spending time checking in with friends, relatives and neighbors.***
It’s not that men don’t help with all this, or that they’re not also individually overwhelmed by work and family life. But women already juggled more domestic and affective, or emotional, labor with their actual work prior to the pandemic.
Female academics, as a group, also struggled more with work-work balance, as well: numerous studies show they take on more service work than men and are less protective of their research time, to their detriment.
The coronavirus has simply exacerbated these inequities by stripping away what supports women had in place to walk this tightrope, including childcare.*** “My husband is working full-time at home, as am I, and what I’m finding is for men, there is more of an expectation that he can be working all the time than there is for me.”***
“Silence and concentration are pivotal for my thinking and teaching,” she wrote. “This means I have less time for writing scientific articles.”
While she and her colleagues know they’re lucky to be employed and healthy at this time, it still feels “as if I am my own subject” in some work-life balance study.
Minello also expressed concern about when the crisis is over, both parents and nonparents “will participate together in open competition for promotion and positions, parents and nonparents alike.”
Just like academic fathers, nonparents don’t have it easy right now -- no one does. But, again, there are well-documented challenges that academic mothers, in particular, face. Those challenges, together, have been dubbed the motherhood penalty. And they’re laid bare right now.
Six weeks into widespread self-quarantine, editors of academic journals have started noticing a trend: Women — who inevitably shoulder a greater share of family responsibilities — seem to be submitting fewer papers. This threatens to derail the careers of women in academia, says Leslie Gonzales, a professor of education administration at Michigan State University, who focuses on strategies for diversifying the academic field: When institutions are deciding who to grant tenure to, how will they evaluate a candidate’s accomplishments during coronavirus?
“We don’t want a committee to look at the outlier productivity of, say, a white hetero man with a spouse at home and say, ‘Well, this person managed it,’” says Gonzales. “We don’t want to make that our benchmark.”
Women across the nation are experiencing a unique side effect of coronavirus: their voices being drowned out.
Mita Mallick is the head of diversity and inclusion at Unilever, an international consumer goods company. In a recent interview with the New York Times, she said she was interrupted multiple times at a weekly virtual team meeting.
“I’m interrupted, like, three times and then I try to speak again and then two other people are speaking at the same time interrupting each other,” said Mallick.
Mallick’s title of inclusion doesn’t mean anything if she can’t get a word in—and no, men are not facing similar problems. Studies show that, in meetings, men speak more often and dominate conversation. Their presence is seen as powerful and elite, while women are seen as incompetent.
Mallick’s experience is not unique—so much so that a popular term was coined to describe this phenomenon: mansplaining. “Mansplaining” describes a man oversimplifying common concepts to women in a degrading or condescending tone. Use it in a sentence? Women experience the act of mansplaining six times a week at work.
Women and mansplaining have been together formally since Rebecca Solnit’s 2008 essay, “Men Who Explain Things,” when she coined the term (after a man tried to explain her own book to her)—but men’s condescending behavior towards women, specifically to feel more dominant in social settings, has been around for decades.
Most recently, there was the slightest ounce of hope that the digital, remote workplace—forced by COVID-19 pandemic—would make the problem of mansplaining a little bit better. Perhaps the act of everyone behind a camera with buttons to push “mute” and “unmute” would civilize meetings and provide equal speaking time for all.
News flash: It didn’t.
Deborah Tannen, a Georgetown University professor of linguistics and the author of eight books on women and men in the workplace, knew that Zoom conferencing and other forms of remote working wouldn’t change the problem and probably make mansplaining and male conversation domination worse.
In person, “women often feel that they don’t want to take up more space than necessary so they’ll often be more succinct,” said Tannen.
Online platforms allow men to mansplain, interrupt and dominate meetings more—and now more than ever before, women can’t get a word in.
While being succinct automatically makes our time on video shorter, men often take women’s ideas and run with it. It’s an ownership problem too.
In her research, Tannen found that many of the inequities in meetings can be boiled down to gender differences in conversation styles and conventions. That includes speaking time, the length of pauses between speakers, the frequency of questions and the amount of overlapping talk. More often than not, men and women differ on almost every one of those aspects, Tannen said, which leads to clashes and misunderstandings.
Men don’t just talk more—they talk louder. Not surprisingly, men who speak more and louder tend to be seen with more power and as such in dominant positions. Experts believe they enjoy the opportunity to explain things to women because they perceive it makes them seem smarter and in authority.
“Whatever the motivation, women are less likely than men to have learned to blow their own horn,” according to Tannen, “and they are more likely than men to believe that if they do so, they won’t be liked.”
Friday, March 27, 2020
Confronting and Debunking the Common Reasons Given for Slow Progress for Gender Equity in Corporate Leadership
Kellye Testy, From Governess to Governance: Advancing Gender Equity in Corporate Leadership, 87 G.W. Law Rev. 1095 (2019)
Even as corporate influence on every aspect of life continues to grow, women (overall, and especially women of color) remain woefully underrepresented in corporate governance roles, particularly on boards of directors. This lack of gender diversity in the corporate boardroom is prevalent not only in more established companies but also persists — often at even higher levels — in new ventures as well. This Essay details the persistent lack of progress over more than a half century in diversifying leadership in corporate governance. This progress is especially concerning given that the benefits of diversity for sound decision-making and overall corporate welfare have been established empirically, putting into question whether those boards that fall short on gender equity are meeting their fiduciary duties of good governance. The Essay confronts and debunks the common reasons given for slow progress and outlines specific steps that corporate boards and others seeking to improve gender equity in corporate governance can deploy to make faster and more consistent progress.
This Essay is part of the George Washington Law Review's 2018 symposium, Women and Corporate Governance: A Conference Exploring the Role and Impact of Women in the Governance of Public Corporations.
Thursday, March 19, 2020
The Legal and Ethical Implications of Non-Disclosure Agreements and Arbitration Clauses in the MeToo Era
We’ve heard the horrific reports of sexual assault on children, women, and men, in the context of the workplace, Hollywood, sports, and even sacred places. Now. But often these incidents took place many years ago, and we are just learning why and how. Secret settlements. Deals reached in private to buy secrecy in exchange for the release and dismissal of claims. Oftentimes through private and alternative dispute resolution (ADR) processes such negotiation, mediation, or arbitration. In most cases, the parties were represented by lawyers, loyal advocates, who are also officers of the court; third-party neutrals serving as mediators or arbitrators administered the dispute resolution process. While the immediate cases were privately resolved, the accused harasser/predator remained at large. This paper examines the role, use, and possible misuse or complicity of lawyers, neutrals, and ADR in the process of procuring and enforcing “secret settlements” in cases that effectively shielded predators, harassment, and other misconduct and left similarly situated non-parties at risk. This Article examines the existing rules, structures, and rationales for confidentiality and private dispute resolution, alongside the ethical considerations for lawyers, neutrals, and the ADR process in reaching and enforcing “secret settlements.” The paper explores the legal and ethical considerations for the professionals involved in situations where a secret settlement or provision for non-disclosure leaves similarly situated non-parties at risk. The Article counsels that lawyers, neutrals, and ADR consider the impact on others and protection of vulnerable persons from potential harm as professional ethics obligations in the advocacy and representation of parties to private settlements in order to ensure integrity of people, process, and substantive outcomes.
Monday, March 9, 2020
CA Gender Quota for Corporate Boards is Working, as Mandates Increase and More States Consider Similar Legislation
Among the largest 3,000 largest U.S. publicly traded companies, only about one in five board members are women, according to Equilar, which tracks corporate governance data. And it says nearly one in 10 boards have no women.
In 2018, California became the first state to mandate gender diversity in boardrooms with the passage of a bill called SB 826. The measure, requires publicly traded companies based there to have at least one female board director — or face a $100,000 fine.
At the time, the bill's sponsor, State Sen. Hannah-Beth Jackson, called it a "giant step forward for women." Multiple studies show that corporations with female directors are more profitable, Jackson noted.
If supercharging the push toward gender parity on boards was the goal, it appears to be working.
The nonprofit advocacy group 2020 Women on Boards has been tracking changes at more than 400 major California companies. Before the law, 75 firms lacked a female board member, the group found. By the middle of 2019, two-thirds of those companies had added at least one woman to their boards. The law gave companies until Dec. 31, 2019, to comply.
A report this month by the California secretary of state found that 282 publicly held corporations in the state reported compliance with the law, up from 173 in July 2019.***
TheBoardlist, a database that companies can search to find female directors, has experienced a 20% increase in inquiries — and not just in California.
"I think there was this halo effect simply because the topic has been discussed so much more in the last year or two," said Shannon Gordon, CEO of theBoardlist. "Companies are kind of coming around to the value of diversity on boards."
In January, Goldman Sachs CEO David Solomon turned heads when he announced that this summer, the bank will stop taking companies public in the U.S. and Europe unless they have at least one diverse board member.***
But in the year since its passage, critics have lodged a handful of lawsuits challenging California's law on grounds that it's discriminatory.
The Pacific Legal Foundation sued California in November on behalf of electronics manufacturer OSI Systems shareholder Creighton Meland, a retired corporate lawyer. The suit argues that California's gender mandate for boards is unconstitutional.
"The law violates the 14th Amendment's promise of equal treatment before the law. And it actually forces people to make decisions on the basis of sex," said Anastasia Boden, a senior attorney at the Pacific Legal Foundation.
Plus, Boden says, mandating gender diversity ultimately hurts women "by relegating them to quota hires and making them seem like space fillers."
As the data trickles in on the first full year of California's law, companies are now looking ahead to complying with the second leg of the law. By the end of next year, it calls for California-based companies to have at least two female directors on five-member boards, and at least three female directors on boards with six or more members.
The law cites studies showing that having a critical mass creates an environment where women are no longer viewed as outsiders.
"There's a 30% rule. When you have a minimum of 30%, that's when you see a transformation of culture and a true transformation of how business operates," says Shelley Zalis, CEO of The Female Quotient, a company aimed at advancing gender equality. "But we have to start somewhere."
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