A federal appeals court on Tuesday revived a former public defender’s lawsuit challenging the federal judiciary’s handling of her sexual harassment and discrimination claims about a supervisor’s unwelcome attention at work.
Monday, June 13, 2022
California Corporate Gender Diversity Law Struck Down, But Other States and Countries Continue Trend of New Laws
In 2018, California broke new ground for women when Governor Jerry Brown signed the first-in-the-nation requirement that publicly traded companies in the state have at least one woman on their board of directors by the end of 2019, and two or three (depending on company size) by the end of 2021. The bill’s co-sponsor state Senator Hannah-Beth Jackson put it bluntly: “We are not going to ask any more. We are tired of being nice. We’re tired of being polite. We are going to require this because it’s going to benefit the economy. It’s going to benefit each of these companies.”
Alas, it was too good to last. Last month, the law was deemed unconstitutional in a bench trial by Los Angeles County Superior Court Judge Maureen Duffy-Lewis because it wasn’t designed to remedy a “specific, purposeful, intentional and unlawful” instance of discrimination. She added that the state’s claims that diverse boards would directly boost California’s economy could not be proven.
It’s no surprise that Judicial Watch, the conservative group that prevailed in the litigation, trotted out the dreaded “Q Word” in opposing the measure: quotas. Legal precedent holds that quotas violate the Civil Rights Act of 1964, which prohibits discrimination against people based on race, gender, religion, age and other protected identities, because they could lead companies or schools to discriminate against people outside the targeted groups.
Never mind that in this case the poor, underrepresented targeted group happened to be wealthy white men, who have dominated corporate boards since Queen Elizabeth I the granted the first corporate charter to the East India company in 1600.
The ruling is without question a legal and moral setback, but fortunately for the future of women on boards in corporate America, that particular train may have already left the station. In the short time the law was in force, the percentage of board seats held by women virtually doubled—from 15.5 percent to 31.9 percent. In raw numbers, that translates to 766 female board members when the law was passed to 2046 by the end of 2021. ***
It’s clear from the pitiful progress since California led the way that stronger action is needed. Cases in point: Washington state’s law requires boards to have at least 25 percent of their makeup be members who self-identify as women. But violators face no penalties. Three other states—Maryland, New York and Illinois—merely require boards to disclose their demographic makeup. Ohio “encourages,” but does not require, disclosure.
We should take a page from the European Union playbook, where 40 percent female board seats for publicly traded companies were required as of March of this year. Under the new rules by the Council of the E.U., listed companies must meet the mandate by 2027
Wednesday, June 8, 2022
David Horton, The Limits of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act
132 Yale Law Journal Forum (2022 Forthcoming)
In March 2022, President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (the Ending Forced Arbitration Act). The bill voids pre-dispute arbitration clauses in cases with allegations related to sexual misconduct. The legislation—which earned bipartisan support—was a stunning victory for the #MeToo movement and critics of forced arbitration.
However, this Essay explores a design choice that limits the impact of the new law. Previously, Congress has restricted forced arbitration through standalone statutes that apply with the full force of its legislative power. Conversely, federal lawmakers inserted the Ending Forced Arbitration Act within the FAA. Thus, the Ending Forced Arbitration Act only governs if the FAA governs. But the FAA is subject to several exceptions. In turn, when a case falls through the cracks of federal arbitration law, state law applies. Counterintuitively, the Essay demonstrates that many states require arbitration where federal law now does not. Thus, to truly achieve the goal of preventing allegations of sexual misconduct from being sent to private dispute resolution, either Congress must separate the Ending Forced Arbitration Act from the FAA or states should revise their arbitration statutes.
Thursday, May 26, 2022
Molly Pratt, "'He Took It Out.' How Comedic Television Shows Shape Jurors' Perceptions of Workplace Sexual Harassment," 90 U.M.K.C. L. Rev. (2022)
This Comment analyzes the ways in which depictions of sexual harassment in media, specifically situational comedic ("sit-com") television series, affect potential jurors' understanding and evaluation of workplace sexual harassment claims. Part I begins by explaining the "cultivation theory," which hypothesizes that television shapes viewers' beliefs about the world around them. This section also considers social science evidence that exemplifies how people are influenced by different forms of media, especially media depictions that sexually objectify women. Next, Part II describes the elements of the two different types of harassment claims to provide a backdrop of what real humans, not characters on television, endure every day at work. Part III compares two major sensationalized claims of sexual harassment that have occurred over the past thirty years. Part IV summarizes various episodes of Seinfeld, Veep, and Curb Your Enthusiasm that include scenes of sexual harassment in order to analyze how prospective jurors might consider the illegal harassment shown on television almost every night. Finally, Part V proposes actions that can be taken by the legal and entertainment industries to ameliorate the harmful effects that comedic depictions of sexual harassment can have on juries.
Comedic television episodes which downplay workplace sexual harassment situations that would otherwise make for valid claims under Title VII may cause jurors to become desensitized to the severity of real-world harassment experienced by real-world victims. While this Comment aims to illustrate how media consumption affects the breadth of the legal industry, its underlying goal is to shed light on how inaccurate depictions of legal issues can be harmful to a viewer who is untrained in the law.
Monday, May 23, 2022
Deborah Widiss, Pregnant Workers Fairness Acts: Advancing a Progressive Policy in Both Red and Blue America, Nevada L.J. (forthcoming)
Pregnant workers often need small changes—such as permission to sit on a stool or to avoid heavy lifting—to work safely through a pregnancy. Federal law does not explicitly address this need. However, in the past decade, twenty-five states have passed laws that guarantee pregnant employees a right to reasonable accommodations at work. Despite the stark partisan divides in contemporary America, the laws have passed in both Republican- and Democratic-controlled states. This Essay, written for a symposium on using state legislation to advance civil rights, offers the first relatively-detailed case study of this remarkably effective campaign.
Advocates have generated bipartisan support by highlighting that the laws, generally known as Pregnant Workers Fairness Acts, simultaneously advance numerous distinct policy objectives. Lack of accommodations for pregnancy is a major barrier to women’s equality that disproportionately disadvantages poor and working-class women of color. Addressing this need is also a pro-family policy that promotes maternal and infant health and reduces liability risk to employers. These various frames help sell the policy to lawmakers across the political spectrum.
The state-level success has also been the result of effective partnerships between national organizations and state and local groups. Additionally, the Essay shows how the state legislative campaign has been reinforced by litigation in federal courts, advocacy to federal agencies and Congress, and worker organizing. Finally, the Essay explores how state-level organizing—even unsuccessful state campaigns—has bolstered support for analogous federal legislation.
Thursday, April 28, 2022
4th Circuit Rules Constitution's Fifth Amendment Equal Protection Clause Protects Against Sexual Harassment
The ruling comes as leaders of the federal judiciary have overhauled the court’s process for reporting misconduct, and as Congress is considering legislation to extend protections to the judiciary’s more than 30,000 employees who lack the same legal rights as other government and private-sector workers.
In a 118-page decision, the appeals court said Tuesdaythat judiciary employees in management roles can be held liable for “their deliberate indifference to sexual harassment committed by a federal judiciary employee or supervisor against another federal judiciary employee,” according to the opinion, written by Judge Mary Beck Briscoe of the U.S. Court of Appeals for the 10th Circuit.
The panel said the Fifth Amendment’s equal protection clause “secures a federal judiciary employee’s right to be free from sexual harassment in the workplace. It thus both guards against sexual harassment perpetrated by other federal judiciary employees and protects federal judiciary employees from deliberate indifference on the part of federal judicial employees charged with preventing sexual harassment and investigating complaints of sexual harassment.
The decision is: Strickland v. United States (4th Circ. Apr. 26, 2022) (procedural due process and equal protection claims)
C. Strickland’s equal protection claim
We next turn to the second claim for relief asserted in Strickland’s complaint, which alleges that defendants “violated the equal protection component of the Fifth Amendment’s Due Process Clause, which confers a right to be free from sex discrimination in federal employment.” ***
The Fifth Amendment to the United States Constitution provides, in pertinent part, that “[n]o person shall . . . be deprived of life, liberty, or property, without due process of 77 law.” U.S. Const. Amend. V. “In numerous decisions,” the Supreme “Court has held that the Due Process Clause of the Fifth Amendment forbids the Federal Government to deny equal protection of the laws.” Davis, 442 U.S. at 234 (internal quotation marks omitted). “To withstand scrutiny under the equal protection component of the Fifth Amendment’s Due Process Clause, classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” Id. at 234₋35 (internal quotation marks omitted). “The equal protection component of the Due Process Clause thus confers . . . a federal right to be free from gender discrimination which cannot meet these requirements.” Id. at 235.
In analyzing Strickland’s Fifth Amendment equal protection claim, the district court began by concluding that Strickland was “attempt[ing] to graft precedent interpreting Title VII onto the Fifth Amendment.” JA, Vol. IV at 1520. The district court in turn concluded that the Fourth Circuit would not recognize such a claim. Id. at 1521. In support, the district court stated that “the Fourth Circuit has not held that courts must apply Title VII standards to free-standing Fifth Amendment claims” and, “[t]o the contrary,” has “rejected a similar attempt to graft Title VII standards onto a free-standing Fourteenth Amendment equal protection claim.” Id. at 1522 (emphasis in original) (citing Wilcox v. Lyons, 970 F.3d 452, 460 (4th Cir. 2020)). The district court concluded that “Strickland’s complaint is devoid of any allegation that women are treated differently than men under the EDR Plan,” and that “Strickland does not allege that the actions taken against her were on the basis of her sex.” Id. at 1523. “Instead,” the district court concluded, Strickland “theorizes that the [defendants] discriminated against her on the basis of sex when they mishandled 78 her sexual harassment complaints, ultimately leading to retaliation and constructive discharge.” Id.
We conclude that the district court misconstrued both the Fourth Circuit’s decision in Wilcox and, more importantly, Strickland’s equal protection claim. In Wilcox, the Fourth Circuit “conclude[d] that a pure retaliation claim is not cognizable under the Equal Protection Clause” of the Fourteenth Amendment. In doing so, the Fourth Circuit noted that neither it nor the Supreme Court “has recognized an equal protection right to be free from retaliation.” 970 F.3d at 458. Instead, the court noted that it “has consistently considered retaliation claims brought under Section 1983 to be more properly characterized as claims asserting a violation of the First Amendment.” Id.
The court explained that “[r]etaliation for reporting alleged sex discrimination imposes negative consequences on an employee because of the employee’s report, not because of the employee’s sex.” Id. at 460. “The very premise of a retaliation claim,” the court noted, “is that the employer has subjected an employee to adverse consequences in response to her complaint of discrimination.” Id. Thus, the court noted, “[t]he necessary causal link is between the employee’s complaint and the adverse action, not between her sex and the adverse action.” Id. The court emphasized that “continued sexual harassment and adverse treatment of a female employee unlike the treatment accorded male employees remains actionable as a violation of the Equal Protection Clause even when the sex discrimination and harassment continue after, and partially in response to, the female employee’s report of prior discrimination and harassment.” Id. at 461 (emphasis added). But, the court noted, “[t]he employee’s claim in such a case is not a claim of pure 79 retaliation, but instead implicates the basic equal protection right to be free from sex discrimination that is not substantially related to important governmental objectives.” Id. (internal quotation marks omitted; emphasis added). Although the court’s holdings were limited to the Equal Protection Clause of the Fourteenth Amendment, we have no doubt, given the Supreme Court’s equivalent treatment of equal protection claims under the Fifth and Fourteenth Amendments, that they should be extended to retaliation claims brought under the equal protection component of the Fifth Amendment’s Due Process Clause. See Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975) (noting that the Supreme Court’s “approach to Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment.”).
***Thus, Strickland has not alleged a pure retaliation claim, but rather has alleged a violation of her right under the Equal Protection Clause of the Fifth Amendment to be free from sex discrimination.
We also agree with Strickland that, under Fourth Circuit law, her complaint adequately alleged that defendants were deliberately indifferent to her complaints of sexual harassment. The Fourth Circuit has held in the context of a § 1983 action that a school official can be liable under the Equal Protection Clause of the Fourteenth Amendment for his or her deliberate indifference to student-on-student sexual harassment. Feminist Majority Found. v. Hurley, 911 F.3d 674, 701–02 (4th Cir. 2018).***
Because the Supreme Court’s “approach to Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment,” Weinberger, 420 U.S. at 638 n.2, we conclude that the principles outlined by the Fourth Circuit in Feminist Majority Foundation apply equally to the circumstances alleged by Strickland in this case. More specifically, federal judiciary employees who occupy supervisory roles and/or who are charged with enforcing an EDR plan can, under Feminist Majority Foundation, be held liable under the Fifth Amendment 82 for their deliberate indifference to sexual harassment committed by a federal judiciary employee or supervisor against another federal judiciary employee. This conclusion is based on the principle that the Fifth Amendment’s Equal Protection Clause secures a federal judiciary employee’s right to be free from sexual harassment in the workplace. It thus both guards against sexual harassment perpetrated by other federal judiciary employees and protects federal judiciary employees from deliberate indifference on the part of federal judicial employees charged with preventing sexual harassment and investigating complaints of sexual harassment.
The elements of such a claim, we conclude, are essentially identical to those outlined by the Fourth Circuit in Feminist Majority Foundation: (1) the plaintiff was subjected to sexual harassment by another employee or supervisor; (2) the plaintiff alerted supervisory officials and/or officials responsible for overseeing the court’s EDR plan about the sexual harassment; (3) the supervisory officials and/or officials responsible for overseeing the court’s EDR plan responded to the allegations with deliberate indifference; and (4) the deliberate indifference was motivated by a discriminatory intent.***
Thus, in sum, we conclude that Strickland’s complaint adequately alleged that defendants violated her equal protection rights under the Fifth Amendment and that the district court erred in concluding otherwise.
Monday, April 25, 2022
Mariel Padilla of the 19th News published an article titled "Military sexual assault survivors and advocates demand accountability in a 'world of predators." The article describes a campaign titled "Red, White, and Bruised."
The campaign launched during National Sexual Assault Prevention and Awareness Month, and includes seven concrete demands: the resignation of high-profile officers who they say have obstructed justice; for Congress to open investigations into U.S. Army Forces Command, Army Reserve Command and Fort Bragg; passage of the Military Justice Improvement and Increasing Prevention Act of 2021; allow service members and veterans to sue the federal government for accountability; bar “credibly accused” perpetrators of domestic violence, child abuse or sexual assault crimes from being employed with the Defense Department; charge and prosecute people with obstruction of justice for interfering with the reporting of sexual and domestic abuse; and improve transparency in investigations of military sexual misconduct.
Thursday, April 14, 2022
Moving Beyond a Simplistic Application of Intersectionality Theory in Analyzing Employment Discrimination Against Black Women
Jamillah Bowman Williams, Beyond Sex-Plus: Acknowledging Black Women in Employment Law and Policy, Employee Rgts & Employment Policy J (forthcoming)
It has been more than 30 years since Kimberlé Crenshaw published her pathbreaking article critiquing the inadequacy of antidiscrimination law in addressing claims at the intersection of race and sex discrimination. This Article focuses on the challenges Black women continue to face when bringing intersectional claims, despite experiencing high rates of discrimination and harassment. The new status quo has not resolved the problems that she documented, and has introduced a set of second generation intersectionality issues. Most significantly, many courts now recognize that Black women experience discrimination differently than do white women or Black men. Yet, despite the professionally and psychologically disabling consequences of such discrimination, judges have failed to develop a new analytic paradigm for addressing intersectional claims under Title VII. Likewise, Congress has failed to offer a legislative solution, and the Equal Employment Opportunity Commission provides scant guidance for employees, employers, and attorneys attempting to navigate these claims. Even the recent flurry of #MeToo-inspired state legislative reforms miss the opportunity to address this persistent problem. Despite vocal resistance to Critical Race Theory, the ongoing metoo movement and increased receptiveness to address systemic racism following the mass protests in 2020, make this an opportune time to renew our discussion of intersectionality and reshape the meager analytical framework of antidiscrimination law. This Article lays the foundation for future research and second generation law and policy proposals that will take crucial steps towards finally acknowledging and addressing the real discrimination Black women face.
Wednesday, April 13, 2022
Joseph Seiner, Time, Equity, and Sexual Harassment, 12 U.C. Irvine L. Rev.573 (2022)
Sexual harassment remains a pervasive problem in the workplace. Recent studies and empirical research reveal that this unlawful conduct continues to pervade all industries and sectors of the economy. The #MeToo movement has made great progress in raising awareness of this problem and in demonstrating the lengths that some employers will go to conceal a hostile work environment. The movement has further identified the lasting emotional toll workplace harassment can have on its victims.
The research in this area demonstrates that the short timeframe harassment victims have to bring a federal discrimination charge—180 or 300 days depending on the state—is wholly inadequate. The deception, misrepresentation, and sexual abuse encountered by many workplace harassment victims can make it impossible to file a timely charge. The pandemic has further highlighted the difficulties harassment victims can face in meeting this deadline through no fault of their own. This Article argues that the only practicable solution to this problem is a more robust application of the centuries-old doctrine of equitable tolling to pause the harassment time filing deadline where appropriate.
This Article identifies five equitable tolling guideposts that the courts should consider before dismissing a sexual harassment claim on the basis of an untimely charge—psychological harm, employer threats, fear, workplace deception, and public health. This Article discusses how each of these markers may impact the timeliness of a harassment claim and explains when the use of equitable tolling may be appropriate. Given the extensive research in this area, as well as our expanded understanding of the pervasiveness of sexual harassment in the workplace, employers should no longer be permitted to run out the clock on these claims through their own improper conduct.
Monday, January 24, 2022
Christopher J. Ryan, Jr. & Meghan Dawe have published Mind the Gap: Gender Pay Disparities in the Legal Academy in Volume 34 of the Georgetown Journal of Legal Ethics. The authors conclude:
The distribution of salaries of law professors in our analysis indicates that, of the 1,051 respondents who reported their earnings, 64.6 percent earn below $150,000 annually and 35.4 percent earned at above that threshold. Looking at the intersection of gender and race, we observe white women and women of color earned salaries of $150,000 or greater at far lower rates than white men, by nearly 15 percentage points and by 25 percentage points, respectively. In fact, on average, women of color and white women earn more than $24,000 and nearly $14,000 less than white men, respectively. Men of color earned salaries at or exceeding $150,000 at roughly comparable rates to white men, but on average, men of color earn more than $7,000 less than white men.
* * *
A wealth of research has demonstrated that the gender wage gap in the legal profession is both pervasive and persistent. Our investigation of a rich and unique dataset of tenured law professors reveals gender stratification in the legal academy, clearly demonstrated by our finding that tenured women law professors—and especially women of color—receive lower compensation than their male colleagues. We find evidence that women law professors are very likely to earn lower salaries and additional income than men, even when they both enjoy the same protection of tenure. Moreover, we find that gendered earnings disparities are experienced more acutely by women of color. In addition to documenting that gendered earnings disparities exist, it is important to examine the mechanisms that underly these persistent forms of gender—and racialized—inequality. Our findings demonstrate the salience of human capital and social capital in mediating the relationship between gender and earnings in the legal academy.
Wednesday, January 5, 2022
UPS Face Class Action Over Alleged Sexual Discrimination
According to a proposed class action lawsuit, UPS has an “old boys’ club” culture in which female employees, particularly those over the age of 40, face systemic age as well as gender discrimination.
Old Boys’ Club Norm
The lawsuit, which was filed against United Parcel Service, Inc. (UPS) and Ricardo Moreno, a coordinator at UPS’ Oakland, California hub, claims that female employees face a pervasive double standard and frequently report to work uncertain of their position and whether they will be demoted regardless of seniority.
According to the UPS Women Discrimination Class Action Lawsuit, female UPS employees, particularly those perceived as “outwardly feminine,” are required to demonstrate their commitment to UPS in ways that no other employee is and are subject to a standard operating procedure that prevents them from being promoted to supervisory roles and earning overtime regardless of performance.
UPS fails to compensate these women fairly for their seniority and, in doing so, leaves a permanent mark on their careers, adding that the options available to women at UPS are sometimes pointless.
Concerning Moreno, the lawsuit states that he is the “chief harasser,” encouraging other UPS supervisors to undermine and single out women he believes are too feminine to perform more work.
Additionally, the case contends that Moreno assigns supervisors to perform in violation of UPS policy in order to deprive female employees of time on the clock as part of a broader practice of harassment and discrimination against women.
The UPS Women Discrimination Class Action Lawsuit asserts that female UPS employees who speak up about unfair treatment “risk isolation,” i.e., assignment to areas with workflows that are too heavy for a single person, and the possibility of being driven out of their employment if they fail to reach the new, impossibly high standards.
Tuesday, January 4, 2022
NPR's Adrian Florido speaks with economist Teresa Ghilarducci about a bill passed by the New York City Council that would require most employers to post salary ranges for jobs.
ADRIAN FLORIDO, HOST:
The New York City Council last month passed a bill that requires private employers to post the salary range for all open jobs. The law is set to take effect in April. Similar laws already exist in a handful of places around the country. Their goal is to improve pay transparency and tackle inequities that often affect women, Black and brown people and other groups.
To learn more about these laws, we called someone who studies them. Professor Teresa Ghilarducci teaches economics and policy at the New School of Social Research in New York. Professor Ghilarducci, welcome.
By: Amanda M. Fisher
Published in: Rutgers Journal of Law and Public Policy, Volume 19:1
The modern woman lawyer faces many of the same challenges that women in law faced during their earliest entry into the profession. While circumstances have certainly improved for women in law, gendered stigma is still prevalent in the profession. In this article, “gendered stigma” refers to circumstances resulting from one’s gender as a salient feature of their work, serving to discredit one’s abilities and accomplishments. Women began to enter the legal profession in large numbers in the 1970s, gaining attention as they did so. Although early research on women in the law focused on blatant discrimination, that type of discrimination is fortunately less common now. Much of the modern research addressing women’s status in the legal profession, however, focuses on the quantitative evidence, like the number of women in the profession and their salaries as compared to men. Numerical evidence does show progress, but qualitative evidence reveals that the gender-driven experiences of women new to the profession are eerily similar to those of women who have long retired from the profession. This belies the assumption that simply improving numbers, e.g., having more women in the profession, would solve the disparities between men and women who practice law. This article relies on identity theory and stigma to inform the cycle of gendered stigma prevalent in the legal profession to critically examine basic tenets of the profession that must change for progress to flourish. This theoretical foundation can then inform practical solutions for mitigating the negative effects of gendered stigma on the profession and the individuals serving within it.
Friday, December 3, 2021
Jamillah Bowman Williams, Maximizing #MeToo: Intersectionality & the Movement, 62 B.C. L. Rev. 1797 (2021).
This article addresses the intersectionality of identities in the context of sexual harassment, and how the failure to recognize the impact of this intersection results in responses to sexual harassment in the workplace that do not adequately protect women of color. “Given the high rate at which women of color experience harassment and assault, the unique types of racialized sex harassment they experience, and the compounded forms of structural disadvantage they face in a range of domains, it is particularly important for anti-discrimination law to address their concerns.” This is because, “the intersectional experience is greater than the sum of racism and sexism” and thus legal and social frameworks to address sexual harassment must “acknowledge the complex and overlapping web of racism and sexism.” For example, current Title VII forces plaintiffs to choose whether to bring their discrimination case “because of race” or “because of sex” but not both, and “[e]mpirical research has found that plaintiffs bringing intersectional claims are less than half as likely as plaintiffs bringing single claims to win their cases.” Social reform movements have similarly fallen short.
Given broad access to social media, lower barriers to participation, and increased demands for an intersectional approach to feminism, #MeToo had the potential to have very inclusive participation across demographics, strong alliances, and coalitions, but the movement has fallen short of this opportunity. The experiences of white affluent, and educated women have dominated the narrative with a focus on bringing down high-profile assailants [ ].
In response, Professor Williams proposes legal reform, organizational reform, and cultural reform to address the failure to account for intersectionality in the current response to sexual harassment. “This strategy will benefit all victims of harassment and is particularly critical for women of color.” Professor Williams warns that absent these “significant organizational and cultural changes, proposed legal remedies will continue to fail.”
Thursday, December 2, 2021
On Wednesday, the first comprehensive federal legislation on workplace harassment and discrimination was reintroduced in Congress. The Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination—or BE HEARD in the Workplace—Act aims to create a safe and harassment-free workplace, expand protections, and help facilitate justice for workers nationwide. The bill is sponsored in the Senate by Sens. Patty Murray (D-Wash.) and Marie Hirono (D-Hawaii), and in the House by Reps. Katherine Clark (D-Mass.), Ayanna Pressley (D-Mass.), Sylvia Garcia (D-Texas), Elissa Slotkin (D-Mich.) and Marilyn Strickland (D-Wash.).
“It doesn’t matter who you are, or where you work—everyone deserves to be treated fairly, respectfully and with dignity,” said Murray.
The BE HEARD in the Workplace Act would:
- extend the scope of current laws, including civil rights protections and anti-harassment laws, to include all workers, no matter the workplace’s
- size, as well as extend these laws to apply to interns, fellows, volunteers, trainees and independent contractors;
- widen the definition of “sex discrimination” at work to include harassment and any form of discrimination based upon sexual orientation or gender identity;
- require nondiscrimination training;
- extend the statute of limitations for complaints from 180 days to four years; and
- mandate that the Census Bureau do further research on harassment in the workplace.
“Even with the laws we have on the books and the #MeToo movement shedding light on this problem, it’s still way too easy for employers to get away with committing these offenses,” said Hirono.To promote transparency and accountability, the BE HEARD in the Workplace Act would also stop pre-employment non-disclosure agreements and mandatory arbitration, which requires employees and customers to file complaints and resolve conflicts within the company, instead of in a court. Mandatory arbitration is used in 54 percent of the cases involving non-union employers in the private sector, and the system is disadvantageous to workers, who win only 1.6 percent of these cases on average. Rates of mandatory arbitration have increased since the onset of the pandemic.
Monday, November 29, 2021
Kit Johnson has posted her recent article on SSRN, Women of Color in Immigration Enforcement. This article was just published in volume 21 of the Nevada Law Journal 997 (2021). The article makes several important findings about gender diversity in immigration enforcement:
Immigration enforcement agencies do not employ large numbers of female agents. The majority of female agents, however, are women of color. This is consistent with the remarkable diversity of immigration enforcement agencies. Women of color have the potential to benefit immigration enforcement agencies. Such agents have unique skills and abilities that can enhance their work, their engagement with the migrants they police, and the growth of agencies they operate within. Yet women of color also face barriers to their recruitment and retention that tie to their training, work, and workplace culture. DHS has been taking steps to diversify its law enforcement ranks. But it can do more. Just looking at the issues outlined in this Essay, the agency could: establish a daycare at the Artesia training center; eliminate training requirements that rest on upper-body strength if not a necessary component of immigration enforcement work; actively oversee training to expose and eliminate any sexist behavior by trainers; and aggressively work to end misogynist culture within the agency. All would make immigration enforcement agencies more welcoming to women of color, and that, in turn, could benefit the agencies. Finally, this Essay has led me to conclude that there is a real need for empirical focused on women of color in immigration enforcement, particularly within the OFO and ICE. It is my hope that this Essay may spark further investigation.
Monday, November 22, 2021
TIME'S UP just published Phase 1 of its report prepared by an independent consultant making "recommendations, tools, and plans that examine its structure, processes and culture.” The publication provides critical insights into the trajectory of the organization, a few of which are excerpted here:
- "In its urgency to pursue a very noble vision, TIME’S UP’s mission and operational model was largely undefined for some time. It grew rapidly, often chasing the short-term, important issues of the day versus tracking activities back to the larger or longer-term strategic vision. In so doing, the organization would be experienced by some of its employees and many stakeholders as distracted or unfocused."
- "While the fallout of the pandemic can in no way be blamed for TIME’S UP’s current state of crisis, it is still important to acknowledge that it did have some effect on the overall functioning of the organization during the past two years and may have exacerbated existing structural/internal issues."
- "[I]nterviewees identified “conflicts of interest,” to use their words, that now seem readily apparent in certain professional and personal relationships (previous and/or existing) maintained by the board chair, the CEO, and other board members."
- "TIME’S UP has been negatively impacted by a perception of Democratic partisanship. Some questioned the organization’s capacity to hold all accused of wrongdoing to the same standards of accountability as well its ability to provide a consistent space for all accusers to come forward."
The full report is available here. TIME'S UP's mission is to "create a society free of gender-based discrimination in the workplace and beyond. We want every person — across race, ethnicity, religion, sexuality, gender identity, and income level — to be safe on the job and have equal opportunity for economic success and security."
Friday, November 19, 2021
Latonia Haney Keith, Visible Invisibility: Feedback Bias in the Legal Profession, 23 J. Gender Race & Just. 315 (2020).
In this article, Vice President Latonia Haney Keith, highlights “feedback bias” as a contributing factor to “the legal profession [ ] ‘losing the war on retention [with] women and minorities leav[ing] the profession because they feel unprotected and undervalued.’” Feedback bias refers to the phenomenon of “employers and educators reinforc[ing] and perpetuat[ing] bias, albeit unintentionally” when providing assessment and evaluations to employees and students. The article highlights three cognitive biases that affect feedback and evaluating performance. The three are “confirmation bias, in-group bias and availability heuristic.” For example, in the confirmation bias context:
“[G]etting noticed as a leader in the workplace is more difficult for women than for men.” This is the confirmation bias cycle at work. When people are consistently exposed to leaders that fit a particular mold, they will continue to seek out or notice only those leaders who fit that same mold. So, when evaluating the performance of a lawyer or law student, a supervisor’s or faculty’s preconceived notions will impact their evaluation. If, for example, a preconception exists that males are assertive, it will be easier for a supervisor or faculty to recall instances in which a male employee or student asserted themselves in a meeting. Conversely, a supervisor or faculty may easily forget instances in which a female employer or student similarly asserted herself by, for example, suggesting an effective strategy or navigating a tough client interaction.
The article then goes into how these types of bias can manifest in feedback provided to employees and students. “Women are for more likely to receive critical, subjective or vague feedback, and their performance is less likely to be attributed to their abilities and skills. . . . When women [do] receive more specific feedback, it [is] either tied to their caregiving abilities, attribute their accomplishments to teamwork rather than leadership or ‘overly focus on their communication style.’” How do we move forward then? Vice President Keith suggests a number of solutions, particularly in the context of law school feedback, including leveraging anonymous evaluation processes, incorporating objective measures and articulable rubrics, avoiding ambiguity, incorporating a broader group of reviewers, and increasing the frequency of evaluation among other best practices.
Wednesday, November 17, 2021
Cereals manufacturer Kellogg's has announced it will provide more support to staff experiencing the menopause, pregnancy loss or fertility treatment.
The firm said about 1,500 workers at its factories in Trafford and Wrexham and its Salford headquarters would benefit from a number of new measures.
They include extra paid leave for those undergoing fertility treatment or staff who suffer the loss of a pregnancy.
It said it was aiming to help staff feel "psychologically safe" at work.
The announcement was made as MPs are due to vote on a private members' bill later that, if passed, would make hormone replacement therapy free for those going through the menopause in England.***
Under the plans, managers will be trained on how to talk about the menopause and pregnancy loss and paid leave for pregnancy loss will be given without the need for a doctor's note.
It also intends to give staff going through fertility treatment three blocks of leave each year as well as access to a private space to administer treatment if necessary.
The firm's Europe vice-president in human resources Sam Thomas-Berry said it was "launching several new workplace policies for even better equity and inclusion".
Tuesday, November 16, 2021
Excerpted from Believing: Our Thirty-Year Journey to End Gender Violence by Anita Hill, published by Viking, an imprint of Penguin Publishing Group, a division of Penguin Random House, LLC. Copyright © 2021 by Anita Hill.
“Not that bad” reflects the attitude that survivors often internalize; that our abusers’ behaviors “were not the worst thing that ever happened to us” serves as a coping mechanism that is problematic. In her anthology Not That Bad: Dispatches from Rape Culture, the writer, public intellectual, and cultural critic Roxane Gay writes with painful eloquence about how for a long time she minimized the gang rape she survived as a teenager. And the heartrending stories in her book from other women who experienced gender‑based violence include scores who remained friendly or intimate with harassers and abusers. Not That Bad poignantly reminds us of the way we deny our pain to keep living. Convincing herself that her experience was not as bad as others’ was Gay’s way of managing her trauma “instead of allowing the magnitude of it to destroy” her. But as Gay points out, this defense mechanism comes at a cost. In her case, as with countless other victims, it numbed her to the pain of her other bad experiences, as well as the trauma others suffered. “The surface of my empathy became callous,” she writes.
Looking back at how the Senate exchange went, I wonder, was Specter gaslighting me and the public, or was he mansplaining? I’ve concluded that he was doing both. If gaslighting was his intent, he was manipulating me (and the public) into questioning the reality and my perception of my own experiences. Given his condescending tone, Specter was also mansplaining—trying to convince us all that he knows better than me how a woman experiences sexual harassment. Mansplaining was the technique, and gaslighting was the goal. Both are forms of denial employed to discount claims of abuse, and they deserve to be called out because they prevent women from being heard and believed when they testify about abuse. Both tactics foster self‑doubt, coaxing victims into thinking that coming forward is pointless, that no one will care.
. . .
How do three simple words, “not that bad,” become so powerful? They gain steam when they are absorbed in all of our social systems, permeating survivors’ minds. The hold that those three little words have comes from hearing them repeated multiple times over the course of a lifetime. The exact language may change, as do the circumstances, but the message that your hurt is of no consequence, so back off, remains the same. Schools deny and neglect gender violence, undermining survivors’ confidence and secure identity even as small children. The same attitude exists in the workplace, which can lead survivors to feel self‑doubt. Individual denial breeds institutional denial, and survivors pay the price. Specter’s words were aimed at persuading me to doubt my significance. His strategy was to convince other potential witnesses and the American public that the stories survivors seek to share and the people who want to hear them are of no importance. Specter’s belittlement of my pain had one clear beneficiary, Clarence Thomas. To abusers, harassers, and rapists, “not so bad” is an absolution and, in Thomas’s case, an assurance that the Senate confirmation process would protect him. To survivors, these words are like a dagger.
Friday, November 5, 2021
John Dayton and Micah Barry, LGBTQ+ Employment Protections: the U.S. Supreme Court’s Decision in Bostock v. Clayton County, Georgia and the Implications for Public Schools, 35 Wis. J. L. Gender & Soc’y 115 (2020).
In this article Professors Dayton and Barry provide a history of LGBTQ+ discrimination and its impact in U.S. communities and schools, examine in depth the U.S. Supreme Court’s decision in Bostock v. Clayton County, and discuss the opinion’s implications for public educational institutions. The article begins by recognizing “the central role employment plays in people’s lives . . . and the history of using employment discrimination to marginalize and harm vulnerable groups.” It points out that “LGBTQ+ persons have been an especially vulnerable group, with laws in many states treating their LGBTQ+ status as a lawful basis for dismissal from employment” and that “the impacts of dismissal on their lives could be devastating.”
As is well known, the Bostock decision made clear that such discrimination in employment is illegal pursuant to Title VII. Further, Professors Dayton and Barry argue, the decision “is likely to reach further than employment law and likely impact interpretations of Title IX.” Thus, it has significant legal implications for public educational institutions. As the article states:
Legal rights mean little, however, unless they are effectively translated from theory into practice. Assuring non-discrimination for all LGBTQ+ persons in schools will require educational and cultural changes in schools, changes that are long overdue. Public school officials would be wise to implement appropriate training and education programs for employees and students concerning LGBTQ+ rights and inclusion to assure legal compliance and that public schools are safe and welcoming places for everyone.
. . . [E]vidence suggests that awareness of protective workplace legislation decreases interpersonal discrimination against LGBTQ+ persons. School officials must assure legal compliance, but school officials may also improve school culture by promoting equal rights and equal respect for all people.
In short public educational institutions, “must ensure that legally compliant polices are established, administered, and respected in their schools.”