Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Friday, November 9, 2018

Google Has New Sexual Harassment Policies Following Employee Walkout, Including Ending Forced Arbitration

Google to End Forced Arbitration for Sexual Harassment Claims

Google said it would end its requirement for employee sexual-harassment claims to be handled in private arbitration, a move that comes one week after thousands of workers walked out of the company’s offices around the world to protest its handling of workplace issues.

 

In a memo on Thursday, Chief Executive Sundar Pichai told staff that Google will also include greater detail on sexual-harassment claims in regular reports and provide more services to employees who raise concerns, including counseling and career support.

 

The policy change for harassment claims is a victory for the organizers of the world-wide walkout, in which employees huddled outside of Google offices from Singapore to San Francisco chanting “Time’s Up!” and holding signs that read “Worker’s rights are women’s rights.”

 

The protest organizers published a letter with five demands, including an end to forced arbitration, a system that encourages HR staff to treat victims of harassment fairly and greater transparency around the reports on harassment claims. In its steps announced Thursday, Google didn’t address two of the demands: that the company commit to end pay inequity for women and minorities; and that the company’s chief diversity officer report directly to the CEO.

After #GoogleWalkout, Google CEO Rolls Out New Sexual Harassment Policies

In a separate statement, Google outlined its commitments and actions policies in detail. Most significantly, the company will make arbitration optional for individual sexual harassment and sexual assault claims (according to the note, it has never required confidentiality in the arbitration process). It will make its policies on harassment, discrimination, retaliation, standards of conduct and workplace concerns more public to workers. It will also create an investigations practice guide and publish it internally so employees understand how the company handles concerns. The policies only apply to full-time employees, however.

 

November 9, 2018 in Business, Workplace | Permalink | Comments (0)

Wednesday, October 31, 2018

Exploring the Feminist Critique of #MeToo

Brenda Cossman, #MeToo, Sex Wars 2.0 and the Power of Law, Asian Yearbook of Human Rights and Humanitarian Law (Forthcoming)

In this essay, I explore these contestations between and among feminists within the #MeToo movement. Some feminists have expressed discomfort and disagreement with elements of the #MeToo. This critique was quickly framed as a generational one, with media reports focusing on the conflict between millennials and second wave feminists. I argue that it is more productive to situation the disagreements and contestations of #MeToo within the context of what I refer to as Sex Wars 2.0 – that is, the return of the feminist sex wars of the 1970s and 1980s. I also explore the controversies around role of law in the #MeToo movement. #MeToo critiques, including some feminist voices, have denounced the absence of the rule of law, with individual men losing their livelihoods without the due process of law. I argue that this critique is itself symptomatic of the broader role of law in the legal regulation of sexual violence. Law has long been the arbiter of sexual violence, both defining and harms and deciding whether that harm has occurred. Even in its apparent absence, law is I argue deeply present. It is this power of law that casts a long shadow over #MeToo and helps explain the due process critiques and some of the feminist contestations around the overreach of law.

October 31, 2018 in Legal History, Media, Theory, Violence Against Women, Workplace | Permalink | Comments (0)

Wednesday, October 24, 2018

Feminist Judgments and #MeToo

Margaret Johnson, Feminist Judgments & #MeToo

The Feminist Judgments book series and the #MeToo movement share the feminist method of narrative. Feminist Judgments is a scholarly project of rewriting judicial opinions using feminist legal theory. #MeToo is a narrative movement by people, primarily women, telling their stories of sexual harassment or assault. Both Feminist Judgments and #MeToo bring to the surface stories that have been silenced, untold, or overlooked. These narrative collections can and do effectuate gender justice change by empowering people, changing perspectives, opening up new learning, and affecting future legal and nonlegal outcomes.


Narrative’s power is evidenced by the #MeToo movement, which resurged on October 16, 2017. People posted their personal stories of being subjected to sexual  harassment or assault—often contradicting previously assumed or accepted narratives told by powerful people. Within twenty-four hours, there were more than twelve million #MeToo posts on Twitter, Facebook, and other social media platforms. And people listened to the en masse telling of how (generally) men had exercised the power and control of sexual assault, harassment or misconduct. The listening shifted power structures. In less than two months, these narratives led to the removal of influential men from their previously vaunted positions. ***

 

The Feminist Judgments Project questions the assumption that published court opinions are the only acceptable narrative of a judicially addressed conflict. In rewriting landmark opinions from a feminist perspective, the project brings to the surface untold, ignored, and suppressed alternative narratives of those conflicts. The project examines court opinions and rewrites them using the same facts and case precedent as the original opinion—but in a new light. That new light is feminist legal theory. With the new perspective, or what Professor Carolyn Grose calls “goggles,” in place, different facts and precedent may come into view.

October 24, 2018 in Gender, Scholarship, Theory, Workplace | Permalink | Comments (0)

Thursday, October 18, 2018

Extending the Sex Plus Discrimination Doctrine to Age Discrimination Claims

Marc Chase McAllister, Extending the Sex Plus Discrimination Doctrine to Age Discrimination Claims Involving Multiple Discriminatory Motives, 60 Boston College L. Rev. (forthcoming)

This article examines a double judicial split in age discrimination cases, one pertaining to Title VII and the other to the ADEA. First, this article considers whether the Title VII sex-plus discrimination doctrine should apply to discrimination claims specifically combining sex and age, and contends that such claims should be more routinely permitted to combat discrimination against older female employees. Second, this article considers whether the sex-plus discrimination doctrine should extend to age-plus discrimination claims under the ADEA. In a thorough analysis, this article shows that the ADEA’s “but for” standard of causation permits discrimination claims based on the combination of age and another immutable characteristic, like race or gender. Nevertheless, because Congress has not amended the ADEA to clarify how it applies in cases involving multiple discriminatory motives, courts will likely remain hesitant to recognize ADEA plus discrimination claims. Accordingly, this article proposes that Congress amend the ADEA to state that an ADEA plaintiff may prevail upon proof that his or her age was “a motivating factor for an adverse employment action, even though other discriminatory or illegitimate factors may have also motivated the employer.”

October 18, 2018 in Equal Employment, Theory, Workplace | Permalink | Comments (0)

After MeToo, Using the Law of Agency for Strict Liability for Employers for Sexual Harassment

David Oppenheimer, Twenty Years After Faragher and Ellerth, Is It Time to Revisit Strict Liability for On-the-Job Sexual Harassment?

In 1995, I published the attached article in the Cornell Law Review, arguing that a proper application of agency law would impose strict vicarious liability on employers for nearly all on-the-job sexual harassment. (See Exacerbating the Exasperating: Title VII Liability of Employers for Sexual Harassment Committed by Their Supervisors, 81 Cornell L. Rev. 66 (1995).) Three years later, the U.S. Supreme Court decided the cases Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Ellerth v. Burlington Industries, 524 U.S. 742 (1998), taking a different approach. The Court held that in the absence of a tangible employment decision (such as termination of employment), an employer sued for sexual harassment could assert an affirmative defense that it had an anti-harassment policy that the employee unreasonably failed to invoke, and that it vacted properly once on notice of the harassment.

 

As the #MeToo movement dramatically illustrates, in the ensuing twenty years, the law of harassment has woefully failed to protect women workers. All too often women harassed on the job find their cases dismissed or decided against them on summary judgment because they failed to properly follow their employer’s anti-discrimination policy, even when the employer knew of the harassment. As Lauren Edelman argues in Working Law (2016), courts have accepted the existence of anti-discrimination policies as persuasive proof of a lack of discrimination/harassment, even in the face of evidence that the policies are ineffective, or serve only a symbolic purpose.

 

This may be a good time, then, to return to the common law of agency, and the duties it imposes on employers to protect the safety of employees. For good reasons of public policy, worked out over many years, those rules usually impose strict liability on employers for harm caused by or to employees, and treat these as duties an employer may not delegate to others. Re-visiting Exacerbating the Exasperating seems like a good place to start.

October 18, 2018 in Business, Equal Employment, Theory, Workplace | Permalink | Comments (0)

Wednesday, October 17, 2018

Watching the Bandwagon Effect of New Laws on Sexual Harassment Training

Erin Mulvaney, Watching the Bandwagon Effect for Mandatory Sexual Harassment Training

The #MeToo movement inspired progressive legislatures this year to revisit mandatory sexual harassment training programs statewide for nearly all workers and supervisors, part of the sweeping effort confronting power imbalances between men and women in the workplace.

 

The most comprehensive sexual harassment policies were passed in California and New York, two states that are often leaders on new initiatives in the employment law space. New York’s state rules went into effect this month, and employers have until October 2019 to implement training programs. California bolstered its existing training requirement.

 

Very few states have mandatory sexual harassment training requirements. Delaware’s new sexual harassment training law, signed in August, takes effect in January 2019. That law imposes training requirements on employers with at least 50 employees in the state, according to a Jackson Lewis P.C. analysis.

 

A handful of states this year, including Maryland and Louisiana, also bolstered or added sexual harassment training requirements for government employees, according to the National Conference of State Legislatures, which tracked the dozens of measures proposed and enacted this year aimed at tackling the issue.

 

Few states and local governments followed suit since California’s first training law was passed more than a decade ago, but employment attorneys say the newly passed measures could push momentum.

 

“Other states and jurisdictions will see the lead that California and New York have taken,” said Jason Habinsky, an employment partner at Haynes and Boone in New York. “There is sometimes a bandwagon effect.”

October 17, 2018 in Equal Employment, Legislation, Workplace | Permalink | Comments (0)

Wednesday, October 10, 2018

Women Owned Law Firms Surge Amid Gender Disparity in the Profession

Women Owned Law Firms Surge Amid Gender Disparity in the Profession

Work-life balance is often pegged as the reason women leave traditional law firms. But for the growing number of women establishing their own firms, their departure is often rooted more deeply in gender inequality in the profession than in raising children or having more free time.

 

“If women were feeling valued, were getting properly rewarded for their efforts, were getting their fair share and it wasn’t a constant struggle to get your origination credit, and feel you are part of the team—then you would stay,” said Nicole Galli, who in 2017 co-founded a trade association, Women Owned Law, which has already grown to 200 members.***

 

By founding their own firms, women are crafting new game rules that provide for fair compensation, equal promotions, full inclusion and better career development opportunities.

 

“There are women further along in their careers—partners in firms—who’ve done everything ‘right.’ They leaned in. They figured out the work-life balance, as it is. They made it to a measure of objective success. They have books of business. They have clients. It’s still death by a thousand paper cuts. It’s still a struggle,” said Galli, managing partner in the Law Offices of N.D. Galli in Philadelphia.

 

Data shows a mass exodus of female attorneys who leave traditional firms before they reach the upper echelon. The National Association of Women Lawyers found in a 2017 survey that women make up 46 percent of associates but just 30 percent of non-equity partners. Only 19 percent of equity partners are women, the American Bar Association’s Commission on Women in the Profession reported in January.

October 10, 2018 in Business, Equal Employment, Women lawyers, Workplace | Permalink | Comments (0)

MeToo One Year Later: More Awareness, More EEOC Success, New Laws in CAL and NY

A Year After it Began has #MeToo Become a Global Movement

In the year since, the global conversation about sexual harassment — and worse — has shifted, but the lasting impact of the moment remains unclear.

From Stockholm to Seoul, from Toronto to Tokyo, a torrent of accusations has poured forth. Survivors spoke out, and many were taken seriously. Powerful men lost their jobs. A few went to prison. How diverse societies — some liberal, others conservative — saw sexual harassment seemed to be changing.

On Friday, a year after the New York Times and the New Yorker published their stories about Weinstein, two activists who have sought to end sexual violence in conflict zones — Congolese gynecologist Denis Mukwege and Yazidi assault survivor Nadia Murad — were awarded the 2018 Nobel Peace Prize.

But for all the early anticipation that things had changed forever, in many countries the #MeToo movement either fizzled or never took flight.

1 Year Later, How MeToo is Changing America

Joanna Grossman, Beneath the Fray: Federal Courts Continue the Work of Enforcing Sexual Harassment Laws

This week marks the one-year anniversary of Harvey Weinstein’s fall from grace, after the New York Times published a bombshell investigative article about a lifetime of egregious sexual misdeeds. One year later, the #MeToo movement came into sharp contrast with the GOP-controlled Senate, which voted to elevate Judge Brett Kavanaugh to the US Supreme Court despite credible allegations of sexual misconduct. But while we ponder questions big and small about the problem of sexual misconduct and how to deal with it, courts continue the everyday work of hearing sexual harassment cases. In a recent case, EEOC v. Favorite Farms, Inc., a federal district court in Florida did exactly that, refusing to grant an employer’s motion for summary judgment in a workplace rape case that deserves a full trial on the merits.

Eric Bachman, In Response to #MeToo Movement, EEOC is Filing More Sexual Harassment Lawsuits, and Winning

The Equal Employment Opportunity Commission (EEOC) recently announced how the #MeToo movement has impacted its enforcement efforts, which has implications across the country and particularly in corporate America.

Not surprisingly, the heightened awareness about sexual harassment-including what constitutes harassment and the harm it inflicts-generated by the #MeToo campaign has resulted in the EEOC filing "a 50% increase in suits challenging sexual harassment over FY 2017."  More broadly, the total number of EEOC Charges of Discrimination alleging sexual harassment increased by about 12% from last year, and the EEOC found reasonable cause to believe discrimination had occurred in nearly 20% more charges in 2018 than in 2017.

Allyson Hobbs, One Year of #MeToo: The Legacy of Black Women's Testimonies, New Yorker

We can create a more inclusive narrative. As the legal scholar Kimberlé Crenshaw recently argued, “black feminist frameworks have been doing the hard work of building the social justice movements that race-only or gender-only frames cannot.” To do better by all women, we must listen and recognize the historical and contemporary circumstances that shape their experiences and have real consequences on their lives. The historian Elsa Barkley Brown has written, “We have still to recognize that being a woman is, in fact, not extractable from the context in which one is a woman—that is, race, class, time, and place.”

Congress Still Can't Pass its Own Sexual Harassment Bill

The House and the Senate passed two different bills earlier this year—but months after those votes, lawmakers are doubtful that they can reconcile the two pieces of legislation before the midterm elections.

“Here on Thursday, there is this very high-profile hearing and questions of sexual harassment, and yet Congress is allowing this bill to deal with sexual harassment in Congress [to languish],” said Meredith McGehee, the executive director at Issue One, a government watchdog group that advocates for stronger ethics laws.

Sen. Roy Blunt (R-MO), who along with Sen. Amy Klobuchar (D-MN) is overseeing the process of reconciling the House and Senate versions, predicted that the effort would not be completed before the midterm elections.

“[The] discussion continues to be active,” he told The Daily Beast. “I think we’ll get this done, but I do not think we’ll get it done before the election.”

See also 2018 Legislation on Sexual Harassment in the Legislature

 California Law Prohibits Nondisclosure Agreements as Part of Sexual Harassment Settlements

NY Enacts Sweeping Sexual Harassment Legislation

Amid #MeToo NY Employers Face Strict New Sexual Harassment Laws

October 10, 2018 in Equal Employment, Legislation, Media, Pop Culture, Workplace | Permalink | Comments (0)

Tuesday, October 9, 2018

CFP Applied Feminism and MeToo

The Center for Applied Feminism at the University of Baltimore announces its call for papers its call for papers for the 2019 Feminist Theory Conference.  

2019 Feminist Legal Theory Conference
Call for Papers

APPLIED FEMINISM AND #METOO

The Center on Applied Feminism at the University of Baltimore School of Law seeks paper proposals for the Eleventh Feminist Legal Theory Conference.  We hope you will join us for this exciting conference on Friday, April 12, 2019.  The theme is the #MeToo movement.

 

The resurgent #MeToo movement and the Kavanaugh confirmation hearings have put a spotlight on sexual harassment and sexual assault in our society.  Across America, the #MeToo movement has spurred women to share their stories of sexual harassment, run for office, advocate for change, litigate abuses, and build coalitions.  As a result of this social movement, there are emerging proposals to change the law, workplaces, schools and family dynamics to decrease sexual harassment and assault and ensure better responses to complaints.  In addition, the Kavanaugh hearings have created discussions about credibility, trauma, anger, and employment qualifications.  In sum, we are at a critical moment, a reckoning, of the persistent systemic sexual harassment and assaults of women.  At the same time, certain voices seem less visible in the movement, such as men who are harassed and assaulted, women who are low-income, women of color, women living with disabilities, and those who are imprisoned or subject to police violence.  And proposals for change may be too limited. 

 

We seek submissions of papers that focus on the topic of Applied Feminism and #MeToo.  This conference aims to explore the following questions: What impact has #MeToo had on feminist legal theory, critical race feminist theory, class crit feminist theory, and other critical legal theories? How has #MeToo changed law and social policy? What more needs to be done, and how? How can #MeToo be expanded to address all victims and survivors of sexual harassment and assault? How can we respond to intersecting forms of oppression like race, class, and disability? How can law and theory address the barriers to persons making claims of sexual harassment and assault? How can law and theory address distrust and anger towards sexual harassment and assault claims? What should be individual and systemic responses to sexual harassment and assault claims? What more can be done to eradicate sexual harassment and assault in the workplace, institutional, and other settings? 

 

We welcome proposals that consider these questions and any other related questions from a variety of substantive disciplines and perspectives. As always, the Center’s conference will serve as a forum for scholars, practitioners, and activists to share ideas about applied feminism, focusing on connections between theory and practice to effectuate social change. The conference will be open to the public and will feature a keynote speaker. Past keynote speakers have included Nobel Laureate Toni Morrison, Dr. Maya Angelou, Gloria Steinem, Senators Barbara Mikulski and Amy Klobuchar, NOW President Terry O’Neill, EEOC Commissioner Chai Feldblum, U.S. District Judge Nancy Gertner, and Obama administration official Jocelyn Frye.

 

To submit a paper proposal, by Friday, November 2, 2018, please complete this form and include your 500 word abstract: https://docs.google.com/forms/d/e/1FAIpQLSeTVf_gKjDmLaMlx_OX_AvKY9iUPCNy-CULsiThkpb_ie89ZQ/viewform?usp=sf_link.  We will notify presenters of selected papers by early December. About half the presenter slots will be reserved for authors who commit to publishing in the annual symposium volume of the University of Baltimore Law Review. Thus, the form requests that you indicate if you interested in publishing in the University of Baltimore Law Review's symposium issue. Authors who are interested in publishing in the Law Review will be strongly considered for publication. For all presenters, working drafts of papers will be due no later than March 22, 2019. Presenters are responsible for their own travel costs; the conference will provide a discounted hotel rate as well as meals. 

 

We look forward to your submissions. If you have further questions, please contact Prof. Margaret Johnson at majohnson@ubalt.edu. For additional information about the conference, please visit law.ubalt.edu/caf.

October 9, 2018 in Call for Papers, Theory, Workplace | Permalink | Comments (0)

Tuesday, September 18, 2018

Will Tort Law Have its MeToo Moment

Martha Chamallas, Will Tort Law Have its #MeToo Moment?, Journal of Tort Law (forthcoming)

Using tort law’s treatment of claims for domestic violence and sexual assault as examples, this essay identifies prominent features of a feminist historical approach to law to demonstrate how gender inequality is reproduced over time, despite changes in legal doctrine. When informed by feminist theory, history can function as a critique of past and present regimes of inequality, highlighting the various techniques of exclusion and marginalization that emerge to prevent law from redressing serious, recurring injuries suffered disproportionately by women. The essay explores two such techniques: sexual exceptionalism that treats gender-related torts differently than other harms and the adoption of ostensibly neutral rules that have a disparate impact on women and marginalized groups. The essay speculates as to whether the #MeToo movement can provide the momentum to produce a break from the past, particularly with respect to third-party claims holding employers and other institutional defendants responsible for sexualized harms.

September 18, 2018 in Theory, Violence Against Women, Workplace | Permalink | Comments (0)

Monday, September 10, 2018

Are Breastfeeding Protection Laws Anti-Feminist?

Dara Purvis, Are Breastfeeding Protections Anti-Feminist? JOTWELL, reviewing Meghan Boone, Lactation Law, ___ Calif. L. Rev. ___ (forthcoming 2018), available at SSRN.

If one reason that women have been held back in the workforce is difficulty reconciling caregiving responsibilities and work-related duties, then one obvious method of reform should be to require employers to accommodate caregiving, particularly those forms of caregiving that are disproportionately or exclusively fulfilled by women. For example, because a typical full-time work schedule is not conducive to a new mother’s schedule of breastfeeding or pumping breast milk, many women are forced to prioritize work over breastfeeding. In response, both state and federal laws require employers of a certain size to accommodate new mothers returning from maternity leave by providing them with breaks and a suitably private area in the workplace to pump breast milk, allowing them to return to work and continue to feed their babies breast milk. Surely a win for feminism and facilitating women’s employment choices, right?

 

In her forthcoming article Lactation Law, Meghan Boone answers no, at least as such statutes are currently written. From the opening paragraphs, she poses a startlingly counterintuitive example of a Maine teacher whose child was stillborn. In the following days, she began lactating, an understandably traumatic process for someone mourning a stillbirth. As she grieved, she learned of nonprofit organizations that collected donated breast milk and distributed it to babies who would otherwise not be fed breast milk and decided to participate. The school where she worked, however, refused to accommodate her pumping breast milk because the Maine statute that required employers to accommodate lactation only applied to mothers nursing or pumping milk for their own children. Because the teacher’s breast milk would be donated to other babies, the school was not required to accommodate her desire to pump breast milk while she was at work.

 

From this difficult puzzle, Boone identifies a troubling feature of statutes protecting the right to pump breast milk at work or breastfeed in public: such laws do not protect women qua women. They protect infants, justified by the current medical opinion that infants fed breast milk enjoy health advantages that are not available to formula-fed infants. The significance of breastfeeding and pumping breast milk, in other words, has little to do with the lactating woman. Rather, lactation is a service that a mother provides to her child.***

 

This may seem like a distinction without a difference, but Boone persuasively outlines how legal protections for lactation reject decisions that characterize breastfeeding as an autonomy interest that shapes women’s decisions about how to mother, and instead underscore societal perceptions of what mothers should be.

 

On this reading, Boone argues, the current state of lactation law further entrenches gendered expectations, which, at least in some respects, is worse than having no lactation law at all. Existing statutes reinforce the idea of breastfeeding as something that women should do if they are the right kind of mother, but not for too long, and not in ways that fall outside of the norm. Boone proposes fundamental changes to lactation law: focusing on the physiological experience of lactation rather than a maternal relationship, removing the justification tied to an infant biologically related to the lactating woman, and recognizing that promoting women’s health is also a public goal supported by lactation law. Her reforms are a thoughtful and comprehensive solution to the deep-rooted issues with current flawed protections of lactating women. My only quandary is that Boone’s demonstration of the gender and maternal stereotypes embodied in lactation law is so thoroughly persuasive that it makes the prospect of reform seem very unlikely.

September 10, 2018 in Family, Workplace | Permalink | Comments (0)

Tuesday, September 4, 2018

Is MeToo Only a Social Movement or a Legal Movement Too?

L. Camille Hebert, Is "MeToo" Only a Social Movement or a Legal Movement Too?, 22 Employee Rights & Employment Policy J. (2018)

This essay discusses some of the effects of the “MeToo” movement as a social movement, bringing issues of sexual assault and sexual harassment to the forefront. The essay then raises the question of whether that movement might also have implications for the law of sexual harassment. The essay discusses three elements of the law of sexual harassment—the “because of sex” requirement, the requirement that the harassment be subjectively hostile and objectively severe or pervasive, and the standard for employer liability for harassment—and explores the way that the “MeToo” movement might affect the way in which courts apply those elements. The essay then discusses other ways in which the law relevant to sexual harassment claims has been and may be changed by the movement, including with respect to mandatory pre-dispute arbitration agreements and nondisclosure agreements.

September 4, 2018 in Equal Employment, Workplace | Permalink | Comments (0)

Monday, August 27, 2018

Study Documents Persistent Employment Discrimination Against Older Women and Ineffective Legal Redress

Joanna Song McLaughlin, Falling Between the Cracks: Discrimination Laws and Older Women

Theories and evidence suggest that older women may experience unique discrimination for being both old and female in the workplace. To provide remedy for this type of discrimination – known as intersectional discrimination – legal scholars argue that age and sex discrimination laws must be used jointly and acknowledge intersectional discrimination (age-plus-sex or sex-plus-age discrimination) as a separate cause of action. Nonetheless, in general, courts have declined to do so even though older women are protected under both age and sex discrimination laws. This raises a concern that age discrimination laws may be ineffective, or less effective in protecting older women. I test this implication by estimating the differential effect of age discrimination laws on labor market outcomes between older women and older men. My findings show that age discrimination laws did far less to improve labor market outcomes for older women than for older men. This may explain one reason for persistent discrimination against older women found in existing literature and supports the legal scholars’ argument that older women’s intersectional discrimination must be recognized as a separate cause of action.

August 27, 2018 in Equal Employment, Workplace | Permalink | Comments (0)

Before MeToo: Was Media Representation of Sexual Harassment Accurate?

Joni Hersch & Beverly Moran, He Said, She Said, Let's Hear What the Data Say: Sexual Harassment in the Media, Courts, EEOC, and Social Science, 101 Kentucky L.J. 753 (2013)

In this article, we examine whether two national newspapers (the New York Times and the Wall Street Journal) provide a realistic representation of sexual harassment in the workplace. Whether intentional or inadvertent, the national media influences attitudes and subsequent behavior. Victims of sexual harassment who encounter such accounts may find comfort and validation in learning that others have had similar experiences, and that may lead to greater willingness to report their own harassment. It is only through exposing illegal behavior that such workplace practices can be eradicated.

 

We expected the news articles to provide more information about age, marital status, and race of the parties. These facts are almost never given in the newspaper accounts. Nevertheless, the demographics of the victims
covered in the newspaper articles we surveyed are largely reflective of the victims of sexual harassment reported in the three data sources we analyze. We also find that there is fairly limited information provided about the
specific nature of the harassment.

 

We expected a more even distribution of attention between the accuser and the accused in all accounts. In fact, the accused is almost always the focus where the incident only generates one news story. On the other hand,
where the incident generates several reports, the articles tend to become more even-handed in their coverage of the accused and the accuser. We also expected that the parties would speak for themselves. In fact, a large
part of the communication with the press is through attorneys. We found that there is virtually no coverage of events taking place before litigation.... [T]he articles on sexual harassment tend to wait for litigation, despite studies showing that the majority of incidents are not reported, much less litigated. Although understandable from the press' point of view, the focus on litigation gives the impression that most sexual harassment is handled in the courts....

 

Our main focus is on identifying whether the media's portrayal of sexual harassment accurately reflects the reality of sexual harassment as indicated in surveys, charge filings with the EEOC, and in complaints filed in district court. We provide and compare empirical evidence from these four different sources, and conclude with
an assessment of whether the media does accurately characterize sexual harassment.

August 27, 2018 in Equal Employment, Media, Workplace | Permalink | Comments (0)

Tuesday, July 31, 2018

Podcast: Catharine MacKinnon on Sexual Harassment in the Age of MeToo

Podcast: Signs, Ask a Feminist: Catharine MacKinnon and Durba Mitra Discuss Sexual Harassment in the Age of #MeToo

Durba Mitra (DM): Today as part of Signs’ Ask a Feminist series, I have the opportunity to speak about sexual harassment and the #MeToo movement with feminist legal scholar Catharine MacKinnon, a lawyer, writer, teacher, and activist who is Elizabeth A. Long Professor of Law at the University of Michigan Law School and the James Barr Ames Visiting Scholar of Law at Harvard Law School since 2009, and one of the most cited legal scholars in the English language. MacKinnon is the author of numerous books, including the groundbreaking work Sexual Harassment of Working Women: A Case of Sex Discrimination, published in 1979 by Yale University Press, when Professor MacKinnon was completing her PhD at Yale. MacKinnon went on to write the brief and win, as cocounsel, the landmark Supreme Court case Meritor Savings Bank v. Vinson, which established sexual harassment as discrimination. MacKinnon has authored numerous books on critical issues, including Feminism UnmodifiedToward a Feminist Theory of the State, and Are Women Human? I had the opportunity before this interview to read some of Professor MacKinnon’s research related to her landmark first book in an extraordinary resource, her own papers, acquired by the Arthur and Elizabeth Schlesinger Library on the History of Women in America at the Radcliffe Institute at Harvard. Her study, published almost forty years ago, became the basis of transformations not only in sexual harassment law but in wider discourses that shaped the public perception of the very idea of sexual harassment. Supreme Court Justice Ruth Bader Ginsburg cites MacKinnon’s Sexual Harassment as the landmark study, the foundation for legal debates and social understanding on discrimination on the basis of sex.

July 31, 2018 in Equal Employment, Theory, Workplace | Permalink | Comments (0)

Thursday, July 26, 2018

CFP New Book Collection -- Believe Me: How Trusting Women Can Change the World 

Believe Me: A call for submissions

Jaclyn Friedman and Jessica Valenti — the editors who brought you the groundbreaking anthology Yes Means Yes: Visions of Female Sexual Power and a World Without Rape — are seeking submissions for a new book.

Believe Me: How Trusting Women Can Change the World will ask and answer a question that will change the way we think about sexual violence: What if we believed women?

We are close to a tipping point on trusting women: the explosion of activism inspired by #metoo is just the latest evidence. What Americans need now is to be pushed over the edge.

The need has never been more urgent. In part because of the progress women 

have made and are poised to make, we’re living in an age of profound backlash. An unrepentant misogynist, accused many times over of sexual harassment and assault, is our president. The Department of Education is consulting “men’s rights” groups, once rightly seen as the dangerous fringe, as they form education policy around rape. Online harassment is a scourge; misogynists are more emboldened than ever.

While Believe Me will be focused primarily on sexual assault, we are also looking for essays that take the premise and apply it broadly, including (but not at all limited to):

  • How race, gender identity, and class impact what kinds of women are believed and how they’re treated.
  • How conservative women have co-opted feminism and its tenant to ‘believe women’ in order to roll back women’s rights
  • How believing women about their own experience of themselves could transform the fight for trans rights and specifically reduce violence against trans women.
  • A vision of masculinity that isn’t defined by power over women.
  • How white women’s “believability” has harmed communities of color — in particular men of color accused of violence against white women
  • The inherent misogyny of white supremacists and the inherent white supremacy of misogynists.
  • What it’s like to not believe yourself about your own experience of sexual violence, and how we can help survivors overcome that internalized disbelief.
  • How male victims of sexual violence deal with additional stigmas, including the fear of being feminized
  • The link between the rise of marginalized voices on social media and online harassment, and the disinformation campaigns that have radically undermined democracy here in the U.S.
  • The many connections between violence against women and our inhumane immigration policies
  • How listening to women could change the way we think about justice and consequences for rapists

Essays will be between 2000 and 3000 words.

To submit, please email a short pitch (NOT a complete essay) about what you’d like to write, along with two clips of previous pieces (they don’t have to be published, we’d just like a sense of your writing) to believeme2019 at gmail dot com. All contributors will be paid. The deadline for submissions is September 1.

July 26, 2018 in Books, Call for Papers, Workplace | Permalink | Comments (0)

Tuesday, June 19, 2018

Senate Judiciary Committee Skeptical of Judiciary's Response to Sexual Harassment in Courthouses

Joan Biskupic, Senators Unhappy With Judiciary's Response to Sexual Harassment in Courthouses

Senators from both parties expressed frustration and concern on Wednesday about the US judiciary's response to sexual harassment in federal courthouses.

 

Judiciary Chairman Chuck Grassley complained that judicial officials, who studied the problem for six months after claims of misbehavior against US Appeals Court Judge Alex Kozinski became public, produced only a "vague" report with no assessment of how widespread abuse might be.

 
Grassley, an Iowa Republican, warned that it might be time for an independent inspector general to oversee misconduct -- a proposal judicial officials have long fought as being unnecessary and a potential violation of the Constitution's separation of powers.
  
James Duff, director of the Administrative Office of the US Courts, insisted that judges are sufficiently addressing sexual misconduct.
 
"It's not as prevalent as it is in other workplaces," Duff said. 
 
When Sen. John Kennedy, R-Louisiana, pressed him to be more specific and use a scale of 1 to 10, with 10 being "off the charts" sexual offenses, Duff further hesitated but answered, "By comparison to the other workplaces, it's probably ... maybe ... whatever I say ... it's just a guess, maybe a 3 or 4."
 
The Judiciary Committee hearing offered the first forum for examining the third branch's response to sexual harassment claims and broader misconduct issues since complaints against the California-based Kozinski emerged in December. The Washington Post, which first reported on Kozinski, highlighted an account from a law clerk who said the judge had asked her to look at pornographic images on his office computer.
 
A CNN special report in January, examining about 5,000 judicial orders arising from misconduct complaints over the past decade, found that courthouse employees and others with potentially valid complaints against judges rarely use the complaint system, or get no relief when they do. Judges overseeing the system seldom find that a claim warrants an investigation or that a judge should be disciplined.

June 19, 2018 in Equal Employment, Workplace | Permalink | Comments (0)

Open Statement on Sexual Harassment from Employment Discrimination Law Scholars

This open statement on sexual  harassment law by leading law scholars includes 10 principles important to understanding sexual harassment as well as concrete proposed reforms tailored to each principle.

Open Statement on Sexual Harassment from Employment Discrimination Law Scholars

 Law Professors Rachel Arnow-Richman, Ian Ayres, Susan Bisom-Rapp, Tristin Green, Rebecca Lee, Ann McGinley, Angela Onwuachi-Willig, Nicole Porter, Vicki Schultz, and Brian Soucek

Introduction

We, the undersigned legal scholars and educators with expertise in employment discrimination law, seek to offer a new vision and agenda for eliminating sexual harassment and advancing workplace equality. We are inspired by the #MeToo movement: The courage and sheer number of people who have come forward to report harassment and abuse, the cross-race, cross-class solidarity among activists, the media’s in-depth and sustained coverage, and the public’s willingness to hear and believe so many victims all suggest this is a watershed moment for change.

Inspired by recent events and renewed activism, we wish to contribute to the current momentum by broadening the conversation about the law. We know that law alone cannot create change. Yet we know also that change rarely occurs without the law. For over forty years, employees, activists, educators, and policymakers have looked to the legal system to address sexual harassment in the workplace. These efforts have produced important theories and information, steps forward and setbacks, that yield important lessons for the future. Title VII and other existing laws against discrimination provide an important tool in the fight against sexual harassment, one that will require continued leadership from enforcement agencies. But broader reforms are needed to address the conditions in which harassment flourishes and to make the legal system more responsive to employees. To reduce sexual harassment and move toward a fairer, more inclusive workplace and society for people of all sexes and genders, we offer the following principles and proposals for reform gained from years of working for change within the law.

 

Ten Principles for Addressing Sexual Harassment

Principle #1: The problem with workplace harassment is sexism, not sexual desire.

Principle #2: Harassment includes many forms of sexism and abuse, not just sexual misconduct.

Principle #3: Sexual harassment is directly linked to sex segregation and inequality.

Principle #4: Same-sex harassment and LGBTQ harassment are prohibited sex discrimination, too.

Principle #5: Race-based harassment and intersectional race/sex harassment and discrimination against women and men of color must be specifically addressed.

Principle #6: Broader occupational and other structural vulnerabilities must be reduced.

Principle #7: Banning all sexual behavior is not a solution and can even be harmful to the cause of eliminating harassment.

Principle #8: Protection against retaliation for victims of harassment and people who stand up for them must be strengthened.

Principle #9: Victims of harassment should have the same recourse to the legal system as other victims of discrimination.

Principle #10: Prevention and remedies must move beyond punishing individual wrongdoers to encourage systemic institutional change.

June 19, 2018 in Equal Employment, Workplace | Permalink | Comments (0)

Leading Law Scholars on MeToo and Sexual Harassment Law in Joint Collaboration of Yale and Stanford Law Reviews

The #MeToo movement has prompted a national dialogue about sexual harassment. This Companion Collection, launched in collaboration with the Stanford Law Review, aims to draw lessons from the #MeToo movement for activists, scholars, policymakers, lawyers, and judges. Across the two journals, the Collection offers twelve scholars’ insights on the ways sexual harassment produces and is produced by broader forms of inequality. Companion Essays can be found at the Stanford Law Review Online.

 

Articles in Yale Law Journal

Vicki Schultz, Reconceptualizing Sexual Harassment, Again

The #MeToo movement has spurred a renewed focus on sexual harassment. But often, the narratives that emerge overemphasize sexualized forms of harassment at the expense of broader structural causes.  This Essay builds on Schultz's previous work to explore those institutional drivers of harassment.

Brian Soucek, Queering Sexual Harassment Law
Franchina v. City of Providence may be the first judicial opinion of the #MeToo movement. But it also points beyond the #MeToo movement, exemplifying harassment that is motivated by desires to enforce gender roles and why sexual orientation discrimination is sex discrimination under Title VII.

Rachel Arnow-Richman, Of Power and Process: Handling Harassers in an At-Will World

Pressure is mounting on companies to take swift disciplinary action regarding alleged sexual harassment. But our employment law incentivizes employers to tolerate high-ranking harassers while cracking down on inappropriate behavior by the rank-and-file. This Essay suggests a better path forward.

Angela Onwuachi-Willig, What About #UsToo?: The Invisibility of Race in the #MeToo Movement

The #MeToo movement has rightly been praised for breaking long-held silences about harassment. It has also rightly been critiqued for ignoring unique forms of harassment that women of color face. This Essay calls for a sexual harassment law that embraces intersectional, multidimensional identity.

Ramit Mizrahi, Sexual Harassment Law After #MeToo: Looking to California as a Model

The #MeToo movement has motivated people to speak out about sexual harassment, but many of those speaking remain vulnerable to retaliation. This Essay provides the perspective of an employment lawyer on the shortcomings of sexual harassment law and how state law can afford greater protection.

Tristin K. Green, Was Sexual Harassment Law a Mistake? The Stories We Tell

Does our sexual harassment law hinder the larger project of reducing harassment? This Essay demonstrates that the law constrains stories of harassment and hamstrings our calls for reform. Ultimately, the law, not just public perception, must change if this movement is to have a lasting effect.

 

Essays in Stanford Law Review

June 19, 2018 in Masculinities, Pop Culture, Scholarship, Workplace | Permalink | Comments (0)

Wednesday, June 13, 2018

Senate Judiciary Committee Hearing Today on Sexual Harassment by Judges

Watch the hearing here on CSPAN Senate Committee Examines Workplace Misconduct in the Federal Judiciary, June 13, 2018

Joan Biskupic, CNN, Senate Judiciary Committee Takes up #MeToo in the Courts

The Senate Judiciary Committee will hear testimony related to judicial misconduct on Wednesday, including from a Washington lawyer who says she collected numerous accounts of sexual harassment by judges, in the first public airing of US judges' #MeToo moment.

Jaime Santos says that after women went public last December with complaints against California-based US Appeals Court Judge Alex Kozinski, she and colleagues began trying to address the larger harassment issue by talking to women who had worked closely with federal judges in prestigious law clerk positions.
"Harassment and abuse within the judiciary are not the rule, but these experiences are not uncommon," Santos, who is a former law clerk from the 9th Circuit, where Kozinski served, says in prepared testimony. "Law clerks and externs from numerous federal courts shared with us that they had felt demeaned, belittled, or humiliated during their clerkships or externships.
 
"Some shared stories about being asked sexual questions during job interviews, hearing their judge or co-clerks speak about female attorneys in derogatory and objectifying terms, and being groped or kissed in public and in private."
 
A CNN special report in January, examining about 5,000 judicial orders arising from misconduct complaints over the past decade, found that courthouse employees and others with potentially valid complaints against judges rarely use the judiciary's misconduct system, or get no relief when they do. Judges overseeing the system seldom find that a claim warrants an investigation or that a judge should be disciplined.
 
On Wednesday the Senate committee is also scheduled to hear from James Duff, director of the Administrative Office of the US Courts, who oversaw a group set up to examine judicial misconduct. Chief Justice John Roberts established the working group in December after The Washington Post first reported complaints from women against Kozinski.
 
In his prepared remarks, Duff highlights the group's proposal for a national Office of Judicial Integrity, with a hotline for employees to seek counseling, guidance and intervention if harassed. Duff also says the current process for reporting complaints against judges "works well when utilized." He said officials are trying to make it easier to use.
The working group reported earlier this month that "inappropriate conduct" in courthouses is "not limited to a few isolated instances," but the group did not detail the magnitude of employee abuse beyond saying it was "not pervasive."
It did make several recommendations, including that judges put a greater priority on improving workplace culture, the code of conduct be revised to make clear what behavior is prohibited and the complaint system be made more transparent and accessible.
 

Live tweeting commentary on the hearing by Courtney Milan (pen name of former law prof and Kozinski judicial clerk Heidi Bond) @courtneymilan 

For more on the Working Group Report from the committee which studied the issue:

The Federal Judiciary Working Group Issues Its Report on Workplace Sexual Misconduct

Working Group Recommends Changes to Prevent Workplace Harassment in the Judiciary

June 13, 2018 in Courts, Judges, Legislation, Women lawyers, Workplace | Permalink | Comments (0)