Gender and the Law Blog

Study Analyzes Gendered Service Work in Academia

Margaretha Järvinen and Nanna Mik-Meyer, Giving and Receiving: Gendered Service Work in Academia, Current Sociology (2024) [ResearchGate Link]

Deploying the perspective of ‘relational work’, this article investigates the mechanisms behind the gender-unequal distribution of academic service. The concept of relational work is used to analyse how men and women in academia balance collective against individual interests when agreeing or disagreeing on service tasks. Four types of relational work are identified: compliance, evasiveness, barter and investment, with compliance being more common among women, evasiveness and barter being more common among men and investment being tied to temporality in a gendered pattern. The article shows that men are more successful in pursuing individual interests against service demands and how this depends on their relational work as well as organisational role expectations, reducing women’s prospects of ‘saying no’. The study is based on qualitative interviews with 163 associate and full professors in the social sciences and CV data on their service contributions.

Millennial Women Lawyers Demand Work-Life Balance

Anna Stolley Persky, Millennials Demand Work-Life Balance More Than Their Predecessors, But Challenges Remain, ABA J. (Dec. 1, 2024)

 

Giugi Carminati, 41, had the first of her four children when she was 24 and attending the University of Houston Law Center. As Carminati began practicing law in Houston, she and her husband thought they could have it all. Carminati figured she would put her children in day care and continue working her way up to partner.

 

But child care costs for four children were “crippling,” Carminati says. She estimates that the cost of an au pair, who had a limited work schedule, along with things like after-school care, summer-care costs and overnight-sitter fees when Carminati traveled, worked out to $45,000 annually. Her husband, a physician, had little flexibility in his schedule.

 

“It was unlivable to be expected to operate as an attorney with long and unpredictable hours and travel,” says Carminati, who is part of the millennial generation born between *38 1981 and 1996. She eventually left private practice and started working in-house in 2022. Her schedule allows her to work remotely--including on a sailboat in the summer.

 

Millennials tend to emphasize a healthy work-life balance when choosing employers, according to the Deloitte Global 2024 Gen Z and Millennial Survey. That includes members of the generation like Carminati, who are lawyers with young children. Also, various reports say the profession, known for long work hours and high-pressure environments, is still difficult for many women with parenting responsibilities: Like generations before them, they often cobble together child care with a mix of nannies, babysitters, day care settings and assistance from relatives.

 

According to the 2023 ABA study Legal Careers of Parents and Child Caregivers: Results and Best Practices from a National Study of the Profession, 61% of the mothers surveyed said they experienced demeaning comments about being a working parent, compared with 26% of fathers. The study, sponsored by the ABA Commission on Women in the Profession, also found that 65% of the mothers interviewed were responsible for arranging child care, versus 7% of the fathers.

 

But a growing number of young lawyers are pushing back, according to attorneys and legal recruiters interviewed by the ABA Journal.

 

Money matters

 

“The millennial generation is less tolerant of the kind of sexism that many women for many generations just put up with as they tried to assimilate into the workforce,” says Tracy A. Thomas, the Seiberling Chair of Constitutional Law at the University of Akron School of Law.

 

And law firms have responded accordingly. Law firms of all sizes increasingly are offering hybrid work schedules, for example. In addition, there is less need for extensive travel due to online depositions and hearings, says Thomas, 59.

 

Millennials, she adds, are also more willing than prior generations to switch jobs to achieve a work environment that fits their needs. However, they can “run up against a wall” with billable hours.

 

Many law firms ask associates to bill 2,000 hours or more annually, but lowering that requirement to 1,800 could help attorneys have more work-life balance, Law.com reported in 2023. But the lower number could also reduce law firm profits up to 20%, according to the article.

 

“There's still a generational disconnect and friction between younger lawyers and leaders in law firms and the industry,” says Thomas, who studies gender and the law. “So long as the ideal worker is the person who works the most billable hours and firms still reward those lawyers with promotions, the choices set up for the younger generation, and particularly working mothers, are limited.”

 

In some ways, millennials also have options that weren't available to older generations, thanks to a changing work environment and the shift to remote work during the coronavirus pandemic. Sabrina Sacks Mann, 55, a Philadelphia legal recruiter, has noticed that the millennial generation will push for legal careers that fit their needs, with an emphasis on time with family.

 

“They are more likely to question the status quo,” says Mann, who has helped arrange the lateral placement of attorneys in law firms and corporations since 2002.

 

But Joanna Grossman, 56, a professor at Southern Methodist University Dedman School of Law in Dallas, says the legal profession is still resistant to real structural change.

 

“Millennials have a healthier view of work-life balance, and it would be better for the legal industry if people in law firms worked fewer hours, but in the end, profit is king,” says Grossman, the inaugural Ellen K. Solender Endowed Chair in Women and the Law. “The typical law firm model is not compatible for people who have substantial child care or nonwork responsibilities.”

Yvette Butler on "Silencing the Sex Worker"

Yvette Butler has published "Silencing the Sex Worker" in Volume 71 of the UCLA Law Review. The abstract is excerpted here. 

This Article argues that sex workers are silenced when they attempt to contribute to lawmaking processes. As a result, they are unable to contribute their knowledge in a meaningful way. The consequence is that laws reflect only one perspective of life in the sex trades: the prostitution abolitionist position that all sex work is inherently a form of violence against women. Without the ability to help shape this narrative, sex workers will continue to be silenced by the allegation that they are a danger to the feminist movement, courts will make harmful rulings, and legislatures will continue to enact laws that put sex workers in danger.

 

This Article makes several contributions. Firstly, it contributes to feminist philosophical literature by coining the “Cycle of Epistemic Oppression” as a tool to excavate silencing within the law. It then examines how this cycle operates in the context of sex work policy making. Finally, this examination demonstrates the wide applicability of the Cycle of Epistemic Oppression to diverse areas of law.

Rethinking Law and Literature to Define Narrative Justice for MeToo and Other Fields

Geeta Tewari, MeToo: Rethinking Law and Literature to Define Narrative Justice, 102 Oregon L. Rev. 489 (2024) 

The law and literature movement is transforming into something new. This Article will discuss what that newness is, how it came about, and the different shapes it takes to provide the legal community with a platform to contribute to a working definition for narrative justice. Creatively, technologically, and economically, public institutions and legal culture are rethinking the value of voice and story. With concrete examples of innovations and social movements, this Article will demonstrate how both action and inaction have propelled us as a society toward urgency in defining and claiming narrative justice. The Introduction canvasses U.S. case law to discuss patterns of narrative incorporation—or the concerning lack thereof. Recently, we have seen a new growth in this field: an emphasis by activists, artists, and academics, among others internationally, on applying voice, story, and journey to present conflicts and problems. The next Part discusses the critical points where public and private institutions, as well as individual citizens, have catalyzed to birth a new field of narrative justice. Specifically, I discuss the #MeToo movement, as well as cities’ work, community, individual empowerment, recent interdisciplinary legal scholarship, and teaching models, which are all analyzed for their inclusion of narrative. City government “storytellers” and the action of the #MeToo movement are two rich examples of law and literature’s expansion to activism through narrative justice. Finally, in Part IV, I dissect the lack of narrative presently in corporate law and the growing legal field of environmental, social, and governance advising, which should include the concept of narrative justice. This Article concludes with a proposal for a working definition and function of narrative justice, based on the examples reviewed herein as they relate to each other, the precipitating field of law and literature, and the need for updated terminology and pedagogy to further advance the practice of law as a moral, ethical, and just profession.

The Impact of Dobbs on Employment Law and Women Workers

Laura T. Kessler, Reproductive Justice at Work: Employment Law After Dobbs v. Jackson Women’s Health Organization, 109 Cornell L. Rev. (2024)  

In June 2022, in Dobbs v. Jackson Women's Health Organization, the Supreme Court overturned Roe v. Wade and Planned Parenthood v. Casey, landmark decisions which held that the U.S. Constitution protected a right to abortion prior to fetal viability. Overnight, about 64 million American women of childbearing age potentially lost the right to decide what happens in their own bodies. In the two years since the decision, seventeen states have made most or all abortions illegal, with the fight over abortion still taking place in state and federal courts.  Experts across fields have explored the decision's effects on health, economic security, medical privacy, the patient-physician relationship, access to assisted reproduction, marriage equality and other LGBT+ rights, constitutional sex equality, disability rights, and medical research. Less attention has been given to the impact of Dobbs on employment law and women workers. To fill this gap, this Article examines the post-Dobbs landscape in which workers' reproductive experiences and capacities may be used to justify employment discrimination.

Part I provides the sociomedical and legal landscape upon which this Article’s arguments rest.  Specifically, Part I.A. demonstrates that common reproductive health experiences such as abortion, infertility, and miscarriage are often indistinguishable, as the symptoms and treatments for these conditions significantly overlap.  Given this overlap, after Dobbs, all of these reproductive health events are becoming more complicated (and potentially dangerous) medically and uncertain legally. Part I.B. provides a brief overview of four major federal employment statutes relevant to workers’ reproductive freedom and reproductive lives—the Pregnancy Discrimination Act of 1978 (PDA),  the Americans with Disabilities Act of 1990 (ADA),  the Pregnant Workers Fairness Act of 2022 (PWFA),  and Family and Medical Leave Act of 1993 (FMLA).  My emphasis is on how (with the exception of the PWFA, which is new), federal courts have significantly undermined federal protections for workers affected by common reproductive health conditions despite Congress’s broad remedial purposes in passing federal employment statutes and the EEOC’s loyal interpretations of them.

Part II goes on to examine more closely some of the judicially imposed gaps that render federal employment statutes particularly ineffective in addressing workers’ reproductive lives.  In particular, Part II examines the weak or nonexistent medical privacy and antiretaliation protections provided by federal antidiscrimination and family leave laws, largely due to constraining lower court interpretations.  It also examines the mismatch between the culture of secrecy surrounding workers’ common reproductive health experiences such as abortion, infertility, pregnancy, and miscarriage and federal employment statutes and legal doctrines that require workers to share private health information as a precondition to receiving legal protections.  As Part II argues, the criminalization of abortion in the wake of Dobbs is likely to exacerbate these legal and cultural conditions that render federal employment law particularly ineffective in this realm.

Part III turns to solutions, inviting introspection and regulatory shifts to include the full spectrum of a person's reproductive life in mainstream employment law. Among other reforms, Part III examines the recently-passed Pregnant Workers Fairness Act (PWFA), a new federal law providing a basic right to reasonable workplace accommodations for pregnancy and related medical conditions. The PWFA is a significant victory for pregnant workers and women's rights.  But, as Part III argues, in some significant respects, the PWFA does not go far enough, because it does not sufficiently shore up privacy and antiretaliation protections that workers need to meaningfully access reasonable accommodations in a legal landscape where abortion is a crime and even a miscarriage or failed IVF cycle may be prosecuted as an abortion. Therefore, as Part III argues, enhanced medical privacy and antiretaliation protections in all of our federal employment statutes are required.  Without such protections, the entire legal regime of substantive protections from sex and disability discrimination at work will be severely weakened for women workers post-Dobbs.  Finally, Part III argues that it is time for a national paid sick leave law in the United States.  Such a law is also necessary to address the unique vulnerabilities of women workers in a post-Dobbs world.

Eighth Circuit First to Consider EEOC Rule Including Abortion-Related Worker Accommodations

Bloomberg, First Appeals Court to Mull EEOC Abortion Accommodation Rule

• 17 states to argue on appeal for injunction on pregnancy rule
• US Supreme Court’s Loper Bright decision likely to be raised

The EEOC’s inclusion of abortion-related worker accommodations in a pregnancy anti-bias rule will encounter a significant test at the US Court of Appeals for the Eighth Circuit as it reviews a challenge from red state attorneys general.

The 17 state AGs will urge the circuit judges on Tuesday to reverse a district court’s decision that they lacked standing to bring their suit. They seek to block and vacate the US Equal Employment Opportunity Commission’s April final rule under the Pregnant Workers Fairness Act.

The Eighth Circuit will be the first appellate court to hear oral arguments on the regulation as the EEOC’s enforcement of the PWFA has faced conflicting fates in challenges filed by Republican states, as well as some anti-abortion Catholic groups, across the country. An Eighth Circuit decision to allow a pause on the regulation’s enforcement would be a blow to the agency’s rulemaking authority, and could impede on abortion-related workplace accommodations like employee leave.

Arnow-Richman on "Beyond the Glass Ceiling: Panes of Equity Partnership"

Rachel Arnow-Richman has published Beyond the Glass Ceiling: Panes of Equity Partnership in Volume 17 of the Florida International University Law Reivew. The abstract is below: 

This Article, prepared for a “micro-symposium” on Professor Kerri Stone’s monograph Panes of the Glass Ceiling (2022), explores the partnership pay gap in large law firms and the role of high-profile litigation in facilitating pay equity. There is a rich literature and extensive data on the gender attainment gap in elite law practice, particularly with regard to women’s attrition from practice and poor representation within the partnership ranks. Less attention has been paid to the way in which the exceptional women who achieve equity partner status continue to lag behind their male peers. This Article explores “Women v. BigLaw,” a cluster of equal pay cases brought by women partners in the late 2010s against elite firms. Using Stone’s work as a lens, it reveals how the same unspoken beliefs that underlie the law firm glass ceiling operate above it, placing women partners at the bottom of a new compensation hierarchy centered on origination credit. Due to historical allocations, a culture of deference toward male rainmakers, and implicitly biased attorney development and evaluation practices, origination operates as a form of “legacy credit” that locks in preexisting entitlements favoring male partners. Despite this, gender equity in law practice has been framed principally as a professional value, not a legal imperative. Women v. BigLaw and the unprecedented use of the court system by women lawyers reveals, however, that partnership pay practices pose a liability risk to firms. This new reality may incent structural change in ways that attention to gender equity as a managerial and professional goal could not.

Wilkins v. Austin Eliminates Discriminatory HIV Barrier to Military Service

Lambda Legal challenged the United States Military's prohibition on the enlistment of people living with HIV in Wilkins v. Austin. Here are excerpts from Lambda's press release describing the case: 

The lawsuit, Wilkins v. Austin, was filed on behalf of three individual plaintiffs who could not enlist or re-enlist based on their HIV status. Minority Veterans of America (“MVA”) is also an organizational plaintiff. MVA advances the interests of its civilian members who are living with HIV and wish to serve in the military.  

The filing followed the Biden administration’s announcement in July 2022 that it would no longer defend discriminatory restrictions that prevented servicemembers living with HIV from deploying and commissioning as officers. Instead of appealing the decision of the district court declaring these restrictions unlawful and unconstitutional, Defense Secretary Lloyd J. Austin III issued a memorandum outlining changes to the relevant regulations, which stated that individuals who have been identified as HIV-positive, are asymptomatic, and who have a clinically confirmed undetectable viral load will have no medical restrictions applied to their deployability or to their ability to commission while a servicemember based on their HIV-positive status.    

Before the July 2022 announcement, a federal district court handed down one of the most substantial judicial rulings in over two decades for people living with HIV in two cases—Harrison v. Austin and Roe & Voe v. Austin.  The rulings ordered the Department of Defense (DOD)—the world’s largest employer—to stop discriminating against servicemembers living with HIV and to allow them to deploy and commission as officers in the U.S. military. That groundbreaking ruling represented a landmark moment in the fight to advance the rights of people living with HIV. It reflected the reality that HIV is a chronic, treatable condition, not a reason to discriminate.   

Here are Lambda's selected excerpts from the successful opinion in Wilkins v. Austin striking down the policy: 

“Defendants’ policies prohibiting the accession of asymptomatic HIV-positive individuals with undetectable viral loads into the military are irrational, arbitrary, and capricious. Even worse, they contribute to the ongoing stigma surrounding HIV-positive individuals while actively hampering the military’s own recruitment goals." 

“Modern science has transformed the treatment of HIV, and this Court has already ruled that asymptomatic HIV-positive service members with undetectable viral loads who maintain treatment are capable of performing all of their military duties, including worldwide deployment. Now, defendants must allow similarly situated civilians seeking accession into the United States military to demonstrate the same and permit their enlistment, appointment, and induction.”  

Michael Green on "Expanding the Ban on Forced Arbitration"

Michael Green has published Expanding the Ban on Forced Arbitration to Race Claims in volume 72 of the Kansas Law Review. The abstract is excerpted below: 

 

When Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“EFASASHA”) in March 2022, it signaled a major retreat from the Supreme Court’s broad enforcement of agreements to force employees and consumers to arbitrate discrimination claims. But the failure to cover protected discriminatory classes other than sex, especially race, tempers any exuberance attributable to the passage of EFASASHA. This Article prescribes an approach for employees and consumers to rely upon EFASASHA as a tool to prevent both race and sex discrimination claims from being forced into arbitration by employers and companies. This approach relies upon procedural and societal norms, as well as the text and legislative development of the statute, that warrants joining both race and sex discrimination claims in court. This overall prescription seeks to end the forced arbitration of race discrimination claims for employees and consumers.

This Article asserts that despite focusing on sex-based claims, the application of the EFASASHA statute in the courts will result in many race-based claims also being prohibited from being forced into arbitration. Many people of color pursue discrimination claims based on race that also intersect with claims of sex. As these claims arise from the same transaction or occurrence, employees and consumers must take the same steps to bring these claims together in federal court or face res judicata prohibitions leading to inconsistent results.

This Article also concludes that social movements and creative plaintiff efforts that led some businesses to abandon their mandatory arbitration practices before Congress passed EFASASHA should also influence companies to not force arbitration of race claims. These companies must recognize the double-dealing involved in identifying themselves as progressive businesses committed to non-discrimination if they still force arbitration of race discrimination claims when they may not subject similar sex discrimination claims to arbitration after EFASASHA. Although Congress may have political reasons for not listing racial claims explicitly in the EFASASHA legislation, this Article highlights how businesses should understand that the concerns and rationales justifying EFASASHA’s ban on forced arbitration of claims based on sex applies with equal force with respect to arbitration of claims based on race.

Debunking the Motherhood Myth of Why Women are Underrepresented in Traditional Law Firm Partnership

Paula Schaefer, The Motherhood Myth, Traditional Firms, and the Underrepresentation of Women 

This Article makes the case that the motherhood narrative-that women are underrepresented in partnership and leadership ranks of law firms because they are their children's primary caregivers-is a myth. After detailing how the motherhood myth has been used as an excuse for a lack of meaningful change, the Article provides evidence of an alternative narrative: "traditional firms" are structurally and culturally antagonistic to women. These firms are characterized by extreme work expectations and heavy reliance on the unpaid labor of stay-at-home spouses (SAHSs). Traditional firms' dependence upon SAHSs is central to maintaining the firm status quo and driving out women. Next, the Article describes how firm modernization would allow women to gain parity in firm partnership and leadership ranks. The Article argues that modernization should be measured in terms of firm reliance on SAHSs and then responds to counter-arguments that modernization is not possible in the service of clients and is unlikely to improve the retention of women. Finally, the Article explains how three different groups-bar associations and other organizations, firms, and attorneys-should collect and analyze data about firm reliance on SAHSs as a first step towards change.

Eighth Circuit in Case of First Impression Rules Employee Does not Have to Arbitrate Claims She was Sexually Harassed and Raped by Chipotle Co-Worker

Chipotle Can't Force Arbitration of Workplace Rape Claim, US Court Rules

A U.S. appeals court on Monday said a former Chipotle Mexican Grill employee does not have to arbitrate claims that she was sexually harassed and raped by a coworker, because she sued the restaurant chain after a federal law took effect banning agreements to keep such claims out of court.

 

A unanimous three-judge panel, opens new tab of the St. Louis-based 8th U.S. Circuit Court of Appeals said the law that passed Congress with bipartisan support in 2022 applies to any lawsuit filed after it was enacted, rejecting Chipotle's claim that it only covers conduct that occurred after that date.

 

The ruling is the first of its kind by a federal appeals court and could salvage some pending cases and invite new ones involving conduct that occurred prior to the adoption of the law. A California state appeals court in January also said the federal ban applies based on the date a lawsuit is filed and not when the underlying conduct occurs.

 

The plaintiff says a coworker raped her in the bathroom at a Rochester, Minnesota, restaurant in 2021 after verbally harassing her for months, and that Chipotle failed to investigate or respond after she told a manager about the assault. She had signed an agreement to arbitrate employment-related disputes when she was hired, and initially sued Chipotle a few months after the federal law took effect. ***

 

Chipotle denied wrongdoing and moved to send the case to arbitration, citing the agreement the plaintiff had signed. But U.S. District Judge Donovan Frank in St. Paul last year said the agreement could not be enforced because of the federal ban on mandatory arbitration of harassment and assault claims.

 

The 8th Circuit on Monday affirmed. The law applies to "disputes" that arise on or after its effective date, and that term applies to an actual "conflict or controversy," such as a lawsuit, the court said.

 

Black Women Reporters Sue Chicago Tribune for Pay Discrimination

Wash Post, Journalists Sue Chicago Tribune Owner Alleging Pay Discrimination

Chicago Tribune journalists filed suit Thursday against the newspaper’s owner, claiming it has knowingly paid them less than their White or male counterparts.

The federal lawsuit, filed as a class-action claim, seeks back pay for most Black and female reporters at the newspaper over the past five years, and to remedy salary discrepancies for those currently working at the paper.

“My beat has been about Black and Brown communities and inequities — the disparities, the wealth gap, homeownership, all of that,” said reporter Darcel Rockett, one of the seven named plaintiffs. “And to report on this routinely and then, in your own house, for it to fall on deaf ears … it’s debilitating.”

In 13 years, she told The Post, she has received one raise.

The suit is the latest escalation in the tensions between Alden Global Capital — which purchased the Tribune in 2021 on its rapid path to becoming one of the largest newspaper owners in the country — and the journalists who work for it. But it also represents years of frustration with past corporate owners.

Robin R. Runge on "Safe Leave from Work Post-Dobbs"

Robin R. Runge published Safe Leave from Work Post-Dobbs in Volume 28 of the Employee Rights and Employment Policy Journal.  The abstract is excerpted here: 

Given the increasing restrictions on how and where a person who becomes pregnant may seek abortion care, and the large number of workers who experience reproductive coercion including birth control interference, and/or pregnancy related abuse, who may need to seek abortion related services, it is important to examine their rights as workers to take leave from work to seek these services without fear of job loss.

 

Domestic violence impacts a high percentage of working women and people who become pregnant every year. Pregnancy-related abuse, reproductive coercion, birth control sabotage, and interference with abortion-related decisionmaking are common forms of gender-based violence and harassment that may lead a survivor to seek abortion-related medical care. Without access to leave from work for this purpose, many victims of domestic and sexual violence may not seek the services necessary to ensure their health and their safety. Survivors should be able to take job guaranteed time off from work, ideally paid, to seek medical care for a dangerous pregnancy and/or seek other pregnancy related health care including abortion care, which may require travel to another state if their state prohibits abortions, without fear of job loss.

 

This essay examines how state laws providing leave from work to victims of gender-based violence and harassment may be utilized to obtain necessary medical services, including abortion care, to address pregnancy-related abuse and reproductive coercion, birth control sabotage, and interference with abortion-related decision-making that is increasingly necessary post-Dobbs.

New Book, Fair Shake: Women and the Fight to Build a Fair Economy

Naomi Cahn, June Carbone & Nancy Levit, Fair Shake: Women and the Fight to Build a Fair Economy (Simon & Schuster 2024)

In an era of supposed great equality, women are still falling behind in the workplace. Even with more women in the workforce than in decades past, wage gaps continue to increase. It is the most educated women who have fallen the furthest behind. Blue-collar women hold the most insecure and badly paid jobs in our economy. And even as we celebrate high-profile representation—women on the board of Fortune 500 companies and our first female vice president—women have limited recourse when they experience harassment and discrimination.

Fair Shake: Women and the Fight to Build a Just Economy explains that the system that governs our economy—a winner-take-all economy—is the root cause of these myriad problems. The WTA economy self-selects for aggressive, cutthroat business tactics, which creates a feedback loop that sidelines women. The authors, three legal scholars, call this feedback loop “the triple bind”: if women don’t compete on the same terms as men, they lose; if women do compete on the same terms as men, they’re punished more harshly for their sharp elbows or actual misdeeds; and when women see that they can’t win on the same terms as men, they take themselves out of the game (if they haven’t been pushed out already). With odds like these stacked against them, it’s no wonder women feel like, no matter how hard they work, they can’t get ahead.

Fair Shake is not a “fix the woman” book; it’s a “fix the system” book. It not only diagnoses the problem of what's wrong with the modern economy, but shows how, with awareness and collective action, we can build a truly just economy for all.

Final Rule Published Implementing the Pregnant Workers Fairness Act

The EEOC published its Final Rule implementing the Pregnant Workers Fairness Act. The Final Rule and its interpretive guidance are available here. The EEOC's announcement highlighted the following key points of the Final Rule: 

• Numerous examples of reasonable accommodations such as additional breaks to drink water, eat, or use the restroom; a stool to sit on while working; time off for health care appointments; temporary reassignment; temporary suspension of certain job duties; telework; or time off to recover from childbirth or a miscarriage, among others.

• Guidance regarding limitations and medical conditions for which employees or applicants may seek reasonable accommodation, including miscarriage or still birth; migraines; lactation; and pregnancy-related conditions that are episodic, such as morning sickness. This guidance is based on Congress’s PWFA statutory language, the EEOC’s longstanding definition of “pregnancy, childbirth, and related medical conditions” from Title VII of the Civil Rights Act of 1964, and court decisions interpreting the term “pregnancy, childbirth, or related medical conditions from Title VII.

• Guidance encouraging early and frequent communication between employers and workers to raise and resolve requests for reasonable accommodation in a timely manner.

• Clarification that an employer is not required to seek supporting documentation when an employee asks for a reasonable accommodation and should only do so when it is reasonable under the circumstances.

• Explanation of when an accommodation would impose an undue hardship on an employer and its business.

• Information on how employers may assert defenses or exemptions, including those based on religion, as early as possible in charge processing.

The EEOC also provides the following guidance: What You Should Know about the Pregnant Workers Fairness Act.

 

Study Finds that Effects of California's Paid Family Leave Act Did Not Help Women's Careers and Gender Pay Gap

Martha Bailey, Tanya Byker, Elena Patel, Shanthi Ramnath, The Long-Run Effects of California's Paid Family Leave Act on Women's Careers and Childbearing: New Evidence from a Regression Discontinuity Design and U.S. Tax Data" 

We use administrative tax data to analyze the cumulative, long-run effects of California's 2004 Paid Family Leave Act (CPFL) on women's employment, earnings, and childbearing.***

A growing body of evidence suggests that the gender gap in pay emerges abruptly at motherhood, as new mothers work less for pay in order to increase their caregiving at home. These differences are also evident in U.S. tax data, which show that the “child penalty” for women in annual wage earnings grows sharply after their first child is born.

Academics and policymakers have mobilized around this issue, citing the absence of paid family leave in the United States as a major obstacle to gender equity in the labor market. Paid family leave policies, they argue, could enable workers to take longer leaves to care for newborns instead of dropping out of the labor force. Remaining attached to employers could help workers retain job- and firm-specific human capital and decrease skill depreciation, minimizing wage losses due to caregiving. Because more women leave the labor force than men for caregiving reasons, formalizing paid leave policies could narrow the gender gap in pay.***

Our findings challenge the conventional wisdom that paid leave benefits improve women’s short- or long-term career outcomes. In fact, CPFL significantly decreased employment and earnings of first-time mothers in the short run. First-time mothers taking up paid leave under CPFL were 6 percent less likely to be employed and earned 13 percent less during the first three years after giving birth. Moreover, we find evidence that these earnings effects persisted, with wage earnings remaining 13 percent lower nine to 12 years later.

Study Shows that Equal Pay Act and Civil Rights Act Were More Successful than Previously Believed in Addressing the Gender Gap in Pay

Martha J. Bailey, Thomas Helgerman & Bryan Stuart, How the 1963 Equal Pay Act and 1964 Civil Rights Act Shaped the Gender Gap in Pay, IZA Discussion Paper No. 16700

Abstract: 

In the 1960s, two landmark statutes—the Equal Pay and Civil Rights Acts—targeted the long-standing practice of employment discrimination against U.S. women. For the next 15 years, the gender gap in median earnings among full-time, full-year workers changed little, leading many scholars to conclude the legislation was ineffectual. This paper revisits this conclusion using two research designs, which leverage (1) cross-state variation in pre-existing state equal pay laws and (2) variation in the 1960 gender gap across occupation-industry-state-group cells to capture differences in the legislation's incidence. Both designs suggest that federal anti-discrimination legislation led to striking gains in women's relative wages, which were concentrated among below-median wage earners. These wage gains offset pre-existing labor-market forces which worked to depress women's relative pay growth, resulting in the apparent stability of the gender gap at the median and mean in the 1960s and 1970s. The data show little evidence of short-term changes in women's employment but suggest that firms reduced their hiring and promotion of women in the medium to long term. The historical record points to the key role of the Equal Pay Act in driving these changes. 

 Quote: "Yet a closer examination of long-term trends for a broader set of wage earners hints that federal anti-discrimination legislation mattered more than previously believed.

Rachel Arnow-Richman on "Beyond the Glass Ceiling: Panes of Equity Partnership"

Rachel Arnow-Richman has posted Beyond the Glass Ceiling: Panes of Equity Partnership on SSRN. This article is forthcoming in the Florida International University Law Review. The abstract is excerpted here:

This Article . . . explores the partnership pay gap in large law firms and the role of high-profile litigation in facilitating pay equity. There is a rich literature and extensive data on the gender attainment gap in elite law practice, particularly with regard to women’s attrition from practice and poor representation within the partnership ranks. Less attention has been paid to the way in which the exceptional women who achieve equity partner status continue to lag behind their male peers. This Article explores “Women v. BigLaw,” a cluster of equal pay cases brought by women partners . . . against elite firms. [I]t reveals how the same unspoken beliefs that underlie the law firm glass ceiling operate above it, placing women partners at the bottom of a new compensation hierarchy centered on origination credit. Due to historical allocations, a culture of deference toward male rainmakers, and implicitly biased attorney development and evaluation practices, origination operates as a form of “legacy credit” that locks in preexisting entitlements favoring male partners. Despite this, gender equity in law practice has been framed principally as a professional value, not a legal imperative. Women v. BigLaw and the unprecedented use of the court system by women lawyers reveals, however, that partnership pay practices pose a liability risk to firms. This new reality may incent structural change in ways that attention to gender equity as a managerial and professional goal could not.

Aya Gruber Publishes "A Tale of Two Me Toos"

Aya Gruber has published A Tale of Two Me Toos in volume 2023 of the Illinois Law Review. The abstract is excerpted here: 

What is #MeToo’s legacy? The conventional account currently being indelibly forged into our collective memory is that #MeToo was an unconditional progressive victory. It was a reckoning of the disempowered against the powerful that profoundly challenged sexist culture. This Article complicates and even counters that narrative by shining a light on #MeToo’s dark side, namely, its carceral and neoliberal messages and policy reforms. Although today’s George-Floyd-mindful feminists often describe #MeToo as having nothing to do with criminal law, the reality is that the movement featured familiar tough-on-crime discourses, passionately called for more criminal law and prosecutorial power, and, in fact, produced several new carceral laws and policies. Yet, just hours after famous actor Alyssa Milano sent the tweet heard around the world, Black Twitter revealed that Me Too already existed: Tarana Burke’s “me too movement.” This Me Too centered on survivors’ material and emotional needs, focused on young women of color living in socioeconomic precarity, and embraced noncriminal “transformative justice.” Milano’s #MeToo, by contrast, incorporated popular narratives of criminality, bolstered the legitimacy of the penal state, and relied on traditional notions of sex and gender. And it was Milano’s that became the Me Too. This Article contrasts the two Me Toos to critique the individualistic and punitive #MeToo movement that is and mourn the intersectional and restorative Me Too movement that could have been. #MeToo’s emphasis on sensational stories and social media derived evidence of “epidemics” effectively cut off debate, enabling carceral reforms to pass at a dizzying pace. This Article is the first to catalogue, describe, and examine the actual criminal laws and policies erected in #MeToo’s name. Even a surface analysis of these reforms reveals that, contrary to advocates’ claims, they do not just close “loopholes.” Instead, each new or broadened criminal law raises troubling issues of civil liberties, defendants’ rights, and state power, and each portends to sweep in people—including women—who bear little resemblance to the unrepentant monstrous offenders featured in #MeToo discourse.

New Study Shows that Even With Tenure Women are More Likely to Leave Higher Ed

Chronicle, Even With Tenure, Women Are More Likely to Leave Higher Ed

Across academe, women are more likely to leave their faculty positions than men, and attrition is highest for women who have tenure or work in fields outside of science, technology, engineering, and math, according to a new study.

And even when men and women leave at the same rate, their reasons for doing so are gendered: Early-career women are more likely to leave due to issues with work-life balance, while women later in their careers are more likely to leave because of a hostile work environment. Men tend to cite professional reasons, such as a lack of resources or support.***

Women were more likely to leave their faculty roles than men at every career stage, and the gap grew wider at the top of the ladder. At the assistant-professor level, women were 6 percent more likely to leave than men. Among full professors, that figure was 19 percent.

Tenured faculty leaving at the highest rate is surprising, Raj said. But she speculated that women with tenure might be able to transition into other careers more easily than their less-experienced colleagues if the environment drives them out.

Women at less prestigious institutions were also more likely to quit.

Women most often cited issues with workplace climate as their reasons for leaving, such as harassment, dysfunctional department leadership, and feelings of not belonging. Men most often recounted professional reasons for leaving, such as difficulty obtaining funding or poor administrative support.

Previously, research has shown that one of the biggest drivers of inequity between women and men on the faculty is responsibilities at home. Additionally, Raj has observed gender gaps in sponsorship from more senior academics and in service work such as mentoring students.

Study, Science Advances, Gender and Retention Patterns Among US Faculty

Women remain underrepresented among faculty in nearly all academic fields. Using a census of 245,270 tenure-track and tenured professors at United States–based PhD-granting departments, we show that women leave academia overall at higher rates than men at every career age, in large part because of strongly gendered attrition at lower-prestige institutions, in non-STEM fields, and among tenured faculty. A large-scale survey of the same faculty indicates that the reasons faculty leave are gendered, even for institutions, fields, and career ages in which retention rates are not. Women are more likely than men to feel pushed from their jobs and less likely to feel pulled toward better opportunities, and women leave or consider leaving because of workplace climate more often than work-life balance. These results quantify the systemic nature of gendered faculty retention; contextualize its relationship with career age, institutional prestige, and field; and highlight the importance of understanding the gendered reasons for attrition rather than focusing on rates alone.