Gender and the Law Prof Blog

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

Tuesday, May 26, 2020

New Book: Presumed Incompetent II: Personal Narratives of Race, Class, Power, and Resistance of Women in Academia

Presumed Incompetent II:Race, Class, Power, and Resistance of Women in Academia

The courageous and inspiring personal narratives and empirical studies in Presumed Incompetent II: Race, Class, Power, and Resistance of Women in Academia name formidable obstacles and systemic biases that all women faculty—from diverse intersectional and transnational identities and from tenure track, terminal contract, and administrative positions—encounter in their higher education careers. They provide practical, specific, and insightful guidance to fight back, prevail, and thrive in challenging work environments. This new volume comes at a crucial historical moment as the United States grapples with a resurgence of white supremacy and misogyny at the forefront of our social and political dialogues that continue to permeate the academic world.

Contributors: Marcia Allen Owens, Sarah Amira de la Garza, Sahar Aziz, Jacquelyn Bridgeman, Jamiella Brooks, Lolita Buckner Inniss, Kim Case, Donna Castaneda, Julia Chang, Meredith Clark, Meera Deo, Penelope Espinoza, Yvette Flores, Lynn Fujiwara, Jennifer Gomez, Angela Harris, Dorothy Hines, Rachelle Joplin, Jessica Lavariega Monforti, Cynthia Lee, Yessenia Manzo, Melissa Michelson, Susie E. Nam, Yolanda Flores Niemann, Jodi O’Brien, Amelia Ortega, Laura Padilla, Grace Park, Stacey Patton, Desdamona Rios, Melissa Michal Slocum, Nellie Tran, Rachel Tudor, Pamela Tywman Hoff, Adrien Wing, Jemimah Li Young

For the first volume, see Presumed Incompetent: The Intersections of Race and Class for Women in Academia

May 26, 2020 in Books, Education, Race, Workplace | Permalink | Comments (0)

Tuesday, May 12, 2020

CFP Legal and Judicial Ethics in the Post-#MeToo World, AALS Section on Professional Responsibility

Call for Papers

AALS Section on Professional Responsibility 2021

Co-Sponsored by AALS Sections on Civil Rights,

Employment Discrimination Law, Leadership, and Minority Groups

 

Legal and Judicial Ethics in the Post-#MeToo World

The Section on Professional Responsibility seeks papers addressing the role of legal and judicial ethics in the Post-#MeToo world. This program calls for scholars to confront big questions facing the profession about sexual discrimination, harassment and other misconduct. In 2016, the American Bar Association amended Model Rule 8.4(g)  to say that it is professional misconduct to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socio-economic status in conduct related to the practice of law.” Few jurisdictions have adopted this change, and some explicitly rejected it on First Amendment grounds. In 2019, the federal judiciary amended the Code of Conduct for U.S. Judges to make clear that misconduct includes engaging in unwanted, offensive, or abusive sexual conduct and to protect those who report misconduct, but some argue the reforms do not go far enough and they do not apply to state judges or to the U.S. Supreme Court. Congress held hearings on sexual misconduct in the federal judiciary in early 2020. Lawyers and members of the judiciary have avoided investigations into credible allegations of sexual assault, discrimination, and harassment by resigning their positions, only to move on in other positions in the legal profession and, in some instances, repeating the same misconduct. Headlines regularly feature attorneys and their involvement in sexual misconduct in the workplace and beyond, whether as bystanders, facilitators, or perpetrators. This program seeks contributions to address these complex and controversial issues. Panelists will discuss the role of lawyer and judicial ethics as a means to remedy the enduring sexual misconduct in the legal profession and beyond.  Jaime Santos, founder of Law Clerks for Workplace Accountability and commentator for the acclaimed podcast Strict Scrutiny, is confirmed as a presenter. At least two additional presenters will be competitively selected from this call for papers.

Topics discussed at the program might include:

  • Does ABA Model Rule 8.4(g) addressing sexual harassment run afoul of the First Amendment? 
  • Is ABA Model Rule 8.4(g) merely a values statement or is it a source for discipline?
  • What obligations, if any, do disciplinary authorities have to investigate credible, public information about alleged sexual misconduct by the lawyers licensed to practice in their jurisdictions?
  • Should regulators adopt new rules or policies to address sexual misconduct, including the ability of lawyers and judges to avoid investigations by resigning their positions?
  • If other areas of law (criminal, civil) do not cover aspects of sexual misconduct, is there a role for professional conduct rules to do so because of the lawyer’s special role in society?
  • What reporting obligations do law schools have as they certify students’ fitness in bar admission applications? How does this fit within the Title IX framework?
  • Should ethical rules on sexual misconduct that apply to the federal judiciary also apply to the U.S Supreme Court?
  • How should reporting systems be improved?

To be considered, please email your paper to Renee Knake, Chair of the Section on Professional Responsibility, no later than August 1, 2020 at rknake@uh.edu Preference will be given to completed papers, though works-in-progress are eligible for selection.  The Call for Paper presenters will be responsible for paying their registration fee and hotel and travel expenses.  Please note that AALS anticipates that the Annual Meeting will go forward (https://am.aals.org/), and the theme is The Power of Words.

May 12, 2020 in Call for Papers, Equal Employment, Judges, Women lawyers, Workplace | Permalink | Comments (0)

Monday, April 27, 2020

No Room of One's Own: Data Suggest Covid-19 is Negatively Impacting Women's, but not Men's, Research Productivity

Early Journal Submission Data Suggest COVID-19 is Tanking Women's Research Productivity

It was easy to foresee: within academe, female professors would bear the professional brunt of social distancing during COVID-19, in the form of decreased research productivity.

 

Now the evidence is starting to emerge. Editors of two journals say that they’re observing unusual, gendered patterns in submissions. In each case, women are losing out.

 

Editors of a third journal have said that overall submissions by women are up right now, but that solo-authored articles by women are down substantially.

 

In the most obvious example of the effects of social distancing carving into women's research time, Elizabeth Hannon, deputy editor of the British Journal for the Philosophy of Sciencewrote on Twitter that she’d received “negligible” submissions from women within the last month. “Never seen anything like it,” she added***

 

This doesn’t mean that COVID-19 "hasn’t taken a toll on female authors, though," Dolan and Lawless wrote, as women submitted just eight of the 46 solo-authored papers during this time. That’s 17 percent, compared to 22 percent of solo-authored papers in the larger data set.

 

"As a percentage change, that’s substantial," the editors said. "Even if women’s overall submission rates are up, they seem to have less time to submit their own work than men do amid the crisis.”

 

The revelations generated much chatter, including from gender studies scholars and women in all fields who are desperately trying to balance teaching and otherwise working from home with increased caregiving responsibilities. Those responsibilities include all-day minding of children due to school and daycare closures, homeschooling, and the cooking and cleaning associated with having one’s family at home all day, every day. Women are also spending time checking in with friends, relatives and neighbors.***

 

 It’s not that men don’t help with all this, or that they’re not also individually overwhelmed by work and family life. But women already juggled more domestic and affective, or emotional, labor with their actual work prior to the pandemic.

 

Female academics, as a group, also struggled more with work-work balance, as well: numerous studies show they take on more service work than men and are less protective of their research time, to their detriment.

 

The coronavirus has simply exacerbated these inequities by stripping away what supports women had in place to walk this tightrope, including childcare.*** “My husband is working full-time at home, as am I, and what I’m finding is for men, there is more of an expectation that he can be working all the time than there is for me.”***

 

“Silence and concentration are pivotal for my thinking and teaching,” she wrote. “This means I have less time for writing scientific articles.”

 

While she and her colleagues know they’re lucky to be employed and healthy at this time, it still feels “as if I am my own subject” in some work-life balance study.

 

Minello also expressed concern about when the crisis is over, both parents and nonparents “will participate together in open competition for promotion and positions, parents and nonparents alike.”

 

Just like academic fathers, nonparents don’t have it easy right now -- no one does. But, again, there are well-documented challenges that academic mothers, in particular, face. Those challenges, together, have been dubbed the motherhood penalty. And they’re laid bare right now.

Women Academics Submitting Fewer Papers to Journals During Coronavirus

Six weeks into widespread self-quarantine, editors of academic journals have started noticing a trend: Women — who inevitably shoulder a greater share of family responsibilities — seem to be submitting fewer papers. This threatens to derail the careers of women in academia, says Leslie Gonzales, a professor of education administration at Michigan State University, who focuses on strategies for diversifying the academic field: When institutions are deciding who to grant tenure to, how will they evaluate a candidate’s accomplishments during coronavirus?

“We don’t want a committee to look at the outlier productivity of, say, a white hetero man with a spouse at home and say, ‘Well, this person managed it,’” says Gonzales. “We don’t want to make that our benchmark.”

April 27, 2020 in Family, Gender, Pop Culture, Scholarship, Workplace | Permalink | Comments (0)

Online Meetings Exacerbate Gender Inequities in the Workplace of Mansplaining and Interruptions

Mansplaining and Interruptions: Online Meetings Exacerbate Gender Inequities in the Workplace

Women across the nation are experiencing a unique side effect of coronavirus: their voices being drowned out.

 

Mita Mallick is the head of diversity and inclusion at Unilever, an international consumer goods company. In a recent interview with the New York Times, she said she was interrupted multiple times at a weekly virtual team meeting. 

 

“I’m interrupted, like, three times and then I try to speak again and then two other people are speaking at the same time interrupting each other,” said Mallick.

 

Mallick’s title of inclusion doesn’t mean anything if she can’t get a word in—and no, men are not facing similar problems. Studies show that, in meetings, men speak more often and dominate conversation. Their presence is seen as powerful and elite, while women are seen as incompetent.

 

Mallick’s experience is not unique—so much so that a popular term was coined to describe this phenomenon: mansplaining. “Mansplaining” describes a man oversimplifying common concepts to women in a degrading or condescending tone. Use it in a sentence? Women experience the act of mansplaining six times a week at work

 

Women and mansplaining have been together formally since Rebecca Solnit’s 2008 essay, “Men Who Explain Things,” when she coined the term (after a man tried to explain her own book to her)—but men’s condescending behavior towards women, specifically to feel more dominant in social settings, has been around for decades

 

Most recently, there was the slightest ounce of hope that the digital, remote workplace—forced by COVID-19 pandemic—would make the problem of mansplaining a little bit better. Perhaps the act of everyone behind a camera with buttons to push “mute” and “unmute” would civilize meetings and provide equal speaking time for all.

 

News flash: It didn’t. 

 

Deborah Tannen, a Georgetown University professor of linguistics and the author of eight books on women and men in the workplace, knew that Zoom conferencing and other forms of remote working wouldn’t change the problem and probably make mansplaining and male conversation domination worse.

 

In person, “women often feel that they don’t want to take up more space than necessary so they’ll often be more succinct,” said Tannen.

 

Online platforms allow men to mansplain, interrupt and dominate meetings more—and now more than ever before, women can’t get a word in.

 

While being succinct automatically makes our time on video shorter, men often take women’s ideas and run with it. It’s an ownership problem too.

In her research, Tannen found that many of the inequities in meetings can be boiled down to gender differences in conversation styles and conventions. That includes speaking time, the length of pauses between speakers, the frequency of questions and the amount of overlapping talk. More often than not, men and women differ on almost every one of those aspects, Tannen said, which leads to clashes and misunderstandings.

Men don’t just talk more—they talk louder. Not surprisingly, men who speak more and louder tend to be seen with more power and as such in dominant positions. Experts believe they enjoy the opportunity to explain things to women because they perceive it makes them seem smarter and in authority. 

 

“Whatever the motivation, women are less likely than men to have learned to blow their own horn,” according to Tannen, “and they are more likely than men to believe that if they do so, they won’t be liked.”

April 27, 2020 in Business, Pop Culture, Technology, Workplace | Permalink | Comments (1)

Friday, March 27, 2020

Confronting and Debunking the Common Reasons Given for Slow Progress for Gender Equity in Corporate Leadership

Kellye Testy, From Governess to Governance: Advancing Gender Equity in Corporate Leadership, 87 G.W. Law Rev. 1095 (2019)

Even as corporate influence on every aspect of life continues to grow, women (overall, and especially women of color) remain woefully underrepresented in corporate governance roles, particularly on boards of directors. This lack of gender diversity in the corporate boardroom is prevalent not only in more established companies but also persists — often at even higher levels — in new ventures as well. This Essay details the persistent lack of progress over more than a half century in diversifying leadership in corporate governance. This progress is especially concerning given that the benefits of diversity for sound decision-making and overall corporate welfare have been established empirically, putting into question whether those boards that fall short on gender equity are meeting their fiduciary duties of good governance. The Essay confronts and debunks the common reasons given for slow progress and outlines specific steps that corporate boards and others seeking to improve gender equity in corporate governance can deploy to make faster and more consistent progress.

This Essay is part of the George Washington Law Review's 2018 symposium, Women and Corporate Governance: A Conference Exploring the Role and Impact of Women in the Governance of Public Corporations.

March 27, 2020 in Business, Equal Employment, Workplace | Permalink | Comments (0)

Thursday, March 19, 2020

The Legal and Ethical Implications of Non-Disclosure Agreements and Arbitration Clauses in the MeToo Era

Maureen Weston, Buying Secrecy: Non-Disclosure Agreements, Arbitration, and Professional Ethics in the #MeToo Era, 

We’ve heard the horrific reports of sexual assault on children, women, and men, in the context of the workplace, Hollywood, sports, and even sacred places. Now. But often these incidents took place many years ago, and we are just learning why and how. Secret settlements. Deals reached in private to buy secrecy in exchange for the release and dismissal of claims. Oftentimes through private and alternative dispute resolution (ADR) processes such negotiation, mediation, or arbitration. In most cases, the parties were represented by lawyers, loyal advocates, who are also officers of the court; third-party neutrals serving as mediators or arbitrators administered the dispute resolution process. While the immediate cases were privately resolved, the accused harasser/predator remained at large. This paper examines the role, use, and possible misuse or complicity of lawyers, neutrals, and ADR in the process of procuring and enforcing “secret settlements” in cases that effectively shielded predators, harassment, and other misconduct and left similarly situated non-parties at risk. This Article examines the existing rules, structures, and rationales for confidentiality and private dispute resolution, alongside the ethical considerations for lawyers, neutrals, and the ADR process in reaching and enforcing “secret settlements.” The paper explores the legal and ethical considerations for the professionals involved in situations where a secret settlement or provision for non-disclosure leaves similarly situated non-parties at risk. The Article counsels that lawyers, neutrals, and ADR consider the impact on others and protection of vulnerable persons from potential harm as professional ethics obligations in the advocacy and representation of parties to private settlements in order to ensure integrity of people, process, and substantive outcomes.

March 19, 2020 in Courts, Equal Employment, Workplace | Permalink | Comments (0)

Monday, March 9, 2020

CA Gender Quota for Corporate Boards is Working, as Mandates Increase and More States Consider Similar Legislation

A Push to Get More Women On Corporate Boards Gains Momentum

Among the largest 3,000 largest U.S. publicly traded companies, only about one in five board members are women, according to Equilar, which tracks corporate governance data. And it says nearly one in 10 boards have no women.

 

In 2018, California became the first state to mandate gender diversity in boardrooms with the passage of a bill called SB 826. The measure, requires publicly traded companies based there to have at least one female board director — or face a $100,000 fine.

 

At the time, the bill's sponsor, State Sen. Hannah-Beth Jackson, called it a "giant step forward for women." Multiple studies show that corporations with female directors are more profitable, Jackson noted.

 

If supercharging the push toward gender parity on boards was the goal, it appears to be working.

 

The nonprofit advocacy group 2020 Women on Boards has been tracking changes at more than 400 major California companies. Before the law, 75 firms lacked a female board member, the group found. By the middle of 2019, two-thirds of those companies had added at least one woman to their boards. The law gave companies until Dec. 31, 2019, to comply.

 

A report this month by the California secretary of state found that 282 publicly held corporations in the state reported compliance with the law, up from 173 in July 2019.***

 

TheBoardlist, a database that companies can search to find female directors, has experienced a 20% increase in inquiries — and not just in California.

 

"I think there was this halo effect simply because the topic has been discussed so much more in the last year or two," said Shannon Gordon, CEO of theBoardlist. "Companies are kind of coming around to the value of diversity on boards."

 

In January, Goldman Sachs CEO David Solomon turned heads when he announced that this summer, the bank will stop taking companies public in the U.S. and Europe unless they have at least one diverse board member.***

 

But in the year since its passage, critics have lodged a handful of lawsuits challenging California's law on grounds that it's discriminatory.

 

The Pacific Legal Foundation sued California in November on behalf of electronics manufacturer OSI Systems shareholder Creighton Meland, a retired corporate lawyer. The suit argues that California's gender mandate for boards is unconstitutional.

 

"The law violates the 14th Amendment's promise of equal treatment before the law. And it actually forces people to make decisions on the basis of sex," said Anastasia Boden, a senior attorney at the Pacific Legal Foundation.

 

Plus, Boden says, mandating gender diversity ultimately hurts women "by relegating them to quota hires and making them seem like space fillers."

 

As the data trickles in on the first full year of California's law, companies are now looking ahead to complying with the second leg of the law. By the end of next year, it calls for California-based companies to have at least two female directors on five-member boards, and at least three female directors on boards with six or more members.

 

The law cites studies showing that having a critical mass creates an environment where women are no longer viewed as outsiders.

 

"There's a 30% rule. When you have a minimum of 30%, that's when you see a transformation of culture and a true transformation of how business operates," says Shelley Zalis, CEO of The Female Quotient, a company aimed at advancing gender equality. "But we have to start somewhere."

March 9, 2020 in Business, Constitutional, Gender, Workplace | Permalink | Comments (0)

Thursday, February 6, 2020

Third Circuit Upholds Philadelphia Ban on Employers Asking About Salary History Against First Amendment Challenge

Appeals Court Sides with Philly on Salary History Ban

In a decision that could have national implications for the wage equity movement, a federal appeals court Thursday sided with the city of Philadelphia, saying it can ban employers from asking job applicants their salary history.

 

The U.S. Court of Appeals for the Third Circuit partly reversed a 2018 lower court decision that said the city could not ban employers from asking about salary history, but could ban them from relying on it to set wages. The Greater Philadelphia Chamber of Commerce sued the city after the law was passed in 2017, claiming it violated the commercial-speech rights of employers.***

 

The 67-page unanimous opinion, representing the three-judge panel, was written by Judge Theodore McKee, who wrote that while the provision does limit employers’ speech, it is “only because that limitation prevents the tentacles of any past wage discrimination from attaching to an employee’s subsequent salary.”***

 

Philadelphia was the first city in the country to pass such a ban, following a statewide ban in Massachusetts. More than a dozen states and municipalities followed suit, including New Jersey.

 

February 6, 2020 in Business, Equal Employment, Legislation, Workplace | Permalink | Comments (0)

Wednesday, November 27, 2019

Using the Model Rules to Redress Sexual Harassment in the Legal Profession

Wendy Hess, Addressing Sexual Harassment in the Legal Profession: The Opportunity to Use Model Rule 8.4(G) to Protect Women From Harassment, 94 Univ. Detroit Mercy L. Rev.579  (2019)  

This Article explores options available to legal professionals in order to become more aware of and address sexual harassment within the profession. The potential avenues of redress for sexual harassment by those in the legal profession vary. The applicable remedy depends on factors such as: jurisdiction, nature of the harassment, context of the harassment (site of conduct, identity of harasser, and identity of target), and relief sought. This Article discusses two primary avenues: antidiscrimination and anti-harassment protections under Title VII and disciplinary proceedings pursuant to attorney ethics rules. In Part I, the Article explores the ways in which Title VII has not adequately protected women from sexual harassment. Part II of the Article explores potential redress from attorney ethics rules, focusing specifically on Model Rule 8.4(g). The Article discusses advantages of state adoption of Rule 8.4(g) and adds a new perspective to the scholarship about Rule 8.4(g) by addressing the potential disadvantage of reliance on anti-discrimination laws to interpret the rule.

November 27, 2019 in Equal Employment, Women lawyers, Workplace | Permalink | Comments (0)

Tuesday, November 26, 2019

Hushing Contracts and the Public Policy Defense to Enforcing Nondisclosure Agreement About Sexual Wrongdoing

David Hoffman & Erik Lampmann, Hushing Contracts, 96 Wash. U. L. Rev.  165 (2019)

The last few years have brought a renewed appreciation of the costs of nondisclosure agreements that suppress information about sexual wrongdoing. Recently passed bills in a number of states, including New York and California, have attempted to deal with such hush contracts. But such legislation is often incomplete, and many courts and commentators continue to ask if victims of harassment can sign enforceable settlements that conceal serious, potentially metastasizing, social harms. In this Article, we argue that employing the public policy doctrine, courts ought to generally refuse to enforce hush agreements, especially those created by organizations. We restate public policy as a defense which should to be concerned with managing externalities, and which expresses a legitimating account of contract law.

November 26, 2019 in Equal Employment, Workplace | Permalink | Comments (0)

Understanding the Outdated but Pervasive Legal Definitions of Sexual Harassment

Brian Soucek & Vicki Schultz, Sexual Harassment by Any Other Name, 2019 U. Chi. Legal F. 229

The New York Times won a Pulitzer and helped ignite the #MeToo movement with its reporting on sexual harassment. But the Times still doesn’t understand what sexual harassment is. In its official definition and the stories it pursues, the Times employs a sexualized conception of sexual harassment that is twenty years out of date in the law. It’s also disconnected from the lived experience of most people and from the findings of social science research. In this, the Times is not alone. Even the two leading enforcers of federal antidiscrimination law — the EEOC and the Department of Justice — still at times issue pronouncements that fail to reflect current Title VII law or even those agencies’ own enforcement priorities.

Lost in these outdated but still pervasive definitions of sexual harassment are the many ways employees are undermined, excluded, sabotaged, ridiculed, or assaulted because of their sex, even if not through words or actions that are “sexual” in nature. “Put-downs” and not simply “come-ons,” these types of sexual harassment are even more pervasive than the overtly sexualized forms. Relegating them to another category or term such as “gender harassment” or “sex-based harassment” treats them as secondary to the sexualized forms, causes society to misunderstand the dynamics at play even in the latter, and skews the focus of workplace training (and subsequent reporting) about sexual harassment. With the #MeToo movement giving unprecedented attention to the problem of sexual harassment, now is the time to better understand that term.

November 26, 2019 in Courts, Equal Employment, Theory, Workplace | Permalink | Comments (0)

Tuesday, November 5, 2019

Retaliation in the #MeToo Era

Nicole Porter, Relationships and Retaliation in the #MeToo Era, Florida Law Review  (forthcoming)

In this #MeToo era, so much important work is being done (and so many stories are being told and listened to) but very little of the work focuses on retaliation. And none of it focuses on situations where the fear of retaliation is not necessarily job loss (although that certainly happens) but rather, is the fear of harming workplace relationships. This article will use a real-life story of harassment to demonstrate how much workplace relationships matter (especially to women) and how the fear of harming those relationships often affects an employee’s willingness to report harassment. Thus, this article argues for reforms surrounding harassment and retaliation law that recognize this reality. Right now, courts penalize victims of harassment for not reporting harassment soon enough because they feared harming their workplace relationships; or, when they do report, courts penalize them by holding that the relationship-based harm they experienced after reporting wasn’t a real harm worthy of a remedy. The reasoning of these courts is that reasonable employees would not and should not be deterred from reporting harassment because they fear relationship-based harms. And yet, most of the empirical evidence tells us that the opposite is true—that reasonable employees (sometimes men, but especially women) often do avoid reporting because of fear of harming their relationships in the workplace. The law should reflect this reality.

November 5, 2019 in Equal Employment, Workplace | Permalink | Comments (0)

Thursday, October 31, 2019

Revenge Porn Lawyer Weighs in on Rep. Katie Hill's Resignation

Revenge Porn Lawyer Carrie Goldberg Weighs in on Katie Hill's Resignation

Rep. Katie Hill (D-Calif.), 32, is one of the youngest female members of Congress and the first-ever openly bisexual member of the House. She arrived in Washington in January, part of a historic wave of women, winning a longtime Republican seat.

 

Hill resigned on Sunday after a series of nude photos, published online without her consent, led her to disclose a romantic relationship with a former campaign staffer. In the days since, people have asked: If Hill was a middle-aged man — and not the woman behind “the most millennial campaign ever” — would she still be in Congress?

 

I posed that question to Carrie Goldberg, a lawyer who specializes in sexual privacy violations and is the author of “Nobody’s Victim: Fighting Psychos, Stalkers, Pervs, and Trolls.” Goldberg has decades of experience working with women — and it is overwhelmingly women — who are victims of revenge porn, which is defined as sexually explicit photos of someone shared online without their consent. The images often come from a former partner “hell-bent on their destruction,” Goldberg says, as looks likely in Hill’s case. ***

 

Caroline Kitchener: Whoever sent these photos to Red State — were they breaking the law?

Carrie Goldberg: Absolutely. In the last five years, we’ve gone from having three states with criminal non-consensual porn laws to having 46 states, plus D.C. These laws apply to situations where naked images or videos are disseminated online or offline without the subject’s permission. A lot of the laws do have an exception for newsworthiness. But the sexual humiliation of a person, even a public figure or celebrity, should never be newsworthy.

 

CK: What counts as an exception for newsworthiness?

CG: The newsworthy exception derives from the idea that there are certain images that are so powerful — images from the Holocaust, from the Vietnam War. We’re talking about images where the image itself is newsworthy, the nudity is not.***

 

CK: Was Red State breaking the law when they published these photos?

CG: You hear a lot about section 230 of the Communications Decency Act, which usually shelters platforms from liability for content that individual users post. However, if the platform itself is making the decision to publish naked pictures, as Red State did here, they don’t benefit from that immunity. And therefore, the platform should be held liable.

 

CK: So is there a case for Hill going after Red State?

CG: Without giving legal advice, I would say, hell yes.

October 31, 2019 in Media, Workplace | Permalink | Comments (0)

Monday, September 9, 2019

Overhauling Employment Practices in the Wake of MeToo

Kerri Lynn Stone, Competing Interests and Best Practices in the Wake of #MeToo, JOTWELL

Reviewing Rachel Arnow-Richman, Of Power and Process: Handling Harassers in an At-Will World, 128 Yale L.J. Forum 85 (2018).
 

One of my favorite pieces published in labor and employment law this year is Rachel Arnow-Richman’s Of Power and Process: Handling Harassers in an At-Will World, which is a not-to-be-missed call for an overhaul of the contracting practices deployed by employers, one designed to shift the calculus that employers use to police sexual harassers of various corporate ranks. This piece examines a rarely thought-about angle of the #Metoo movement and the changes that it has precipitated and is yet to still effect. Professor Arnow-Richman, a scholar in employment law and in contract law, exposes this angle thoughtfully and sets forth a laudable proposal.

Professor Arnow-Richman’s starting point is, appropriately, as she puts it, the “extreme power imbalance in the workplace” that engenders “a world in which high-level decision-makers wield unrestricted control over employees,” while the entity can turn a blind eye to the way in which this unfettered discretion may be abused. (P. 90.) Lower-level employees are not accorded such latitude, and they are typically expeditiously disciplined or otherwise dealt with in the face of their inappropriate behavior. The #MeToo Movement, Professor Arnow-Richman correctly points out, was the force that kicked up a lot of the dust that enabled us to see just how uneven this landscape has been. Specifically, she argues that as society begins to grapple with balancing aggressive policing of workplace harassment with ensuring that accused harassers are accorded fair treatment (rather than summary and automatic dismissal), it needs to address inequities among workers at different ranks in the workplace. Moreover, she notes, misconceived corporate responses have companies punishing sexualized actions, rather than policing sex-based harassment that is not sexual in nature. Having astutely pointed out that “employers are inclined to tolerate sexual harassment and other misconduct by top-level employees but aggressively police ‘inappropriate’ behavior by the rank-and-file” (P. 85), Professor Arnow-Richman then sets out to address this problem.

This piece is both important and timely

 

September 9, 2019 in Business, Equal Employment, Workplace | Permalink | Comments (0)

Tuesday, September 3, 2019

New Study Shows Men have Responded to MeToo by Avoiding Women in the Workplace

Workplace Study Finds Men Have Responded to MeToo by Being Even Shittier

Instead of using MeToo as a learning opportunity to become more aware of the harassment most women generally face in the world at large and in the workplace specifically, a new study has found that many men have decided to go the opposite route and simply avoid women in the workplace full-stop.

 

The study out of the University of Houston was conducted across a range of industries and surveyed both men and women in 2018 at the height of MeToo and then again in early 2019 after the conversation had died down a bit.

 

The 2019 survey found that 27 percent of men surveyed have gone the Mike Pence route and now avoid one-on-one meetings with woman co-workers, 21 percent said they would now be more reluctant to hire women for roles that require close interaction, and 19 percent are reluctant to hire an “attractive” woman. Those numbers are up from 2018 when only 15 percent of men admitted to discriminating against women they wanted to bone.

 

And while many men said they were more likely to be sexist following reports of sexism because they can no longer tell which behaviors are making co-workers uncomfortable, the study also found that men and women pretty much agree on what constitutes harassment.

September 3, 2019 in Business, Equal Employment, Workplace | Permalink | Comments (0)

Monday, July 29, 2019

The Increasing Use of Anonymous Pseudonyms in Sexual Harassment Cases

Erin Mulvaney & Hassan Kanu, Anonymous Workplace Harassment Suits Double in #MeToo Era

The workers wanted to hold their former employers accountable for alleged harassment and discrimination. What they feared was using their names to do so.

 

Since the start of 2019, courts have confronted: a woman who didn’t want the details of an alleged sexual assault made public; a man who said he was harassed for being gay but didn’t want his sexuality revealed to his family; and a group of women who feared “career suicide” as they challenged what they describe as a fraternity culture in their workplace.

 

They wanted to sue under pseudonyms. But in each case, workers wrestled with the difficult choice of whether to go forward publicly, risking retaliation and embarrassment. Attorneys who represent workers say forcing employees to proceed under those circumstances can create a chilling effect, provide leverage to companies, and may mean that alleged victims fear coming forward.

 

These cases are among the growing number of discrimination lawsuits filed in recent years that forced courts to balance potential harm to plaintiffs with the company and public’s right to an open judicial system.

 

A Bloomberg Law analysis showed that discrimination and harassment lawsuits filed anonymously doubled in the wake of the ongoing #MeToo movement. There were 52 of those suits filed in 2018, up from 24 the previous year and just 17 in 2016. They’re on pace to reach 2018 levels this year as well, with 24 filed through the first half of 2019—about as many as in all of 2015 through 2016.

See also Female FBI Trainees Can Pursue Class Suit Anonymously, For Now

July 29, 2019 in Courts, Equal Employment, Workplace | Permalink | Comments (0)

Wednesday, July 17, 2019

Study Shows Women and Men are Treated Differently at Work

Harvard Business Review, A Study Used Sensors to Show that Men and Women are Treated Differently at Work

Gender equality remains frustratingly elusive. Women are underrepresented in the C-suitereceive lower salaries, and are less likely to receive a critical first promotion to manager than men. Numerous causes have been suggested, but one argument that persists points to differences in men and women’s behavior.

 

Which raises the question: Do women and men act all that differently? We realized that there’s little to no concrete data on women’s behavior in the office. Previous work has relied on surveys and self-reported assessments — methods of data collecting that are prone to bias. Fortunately, the proliferation of digital communication data and the advancement of sensor technology have enabled us to more precisely measure workplace behavior.

 

We decided to investigate whether gender differences in behavior drive gender differences in outcomes at one of our client organizations, a large multinational firm, where women were underrepresented in upper management. In this company, women made up roughly 35%–40% of the entry-level workforce but a smaller percentage at each subsequent level. Women made up only 20% of people at the two highest seniority levels at this organization.***

 

But as we analyzed our data, we found almost no perceptible differences in the behavior of men and women. Women had the same number of contacts as men, they spent as much time with senior leadership, and they allocated their time similarly to men in the same role. We couldn’t see the types of projects they were working on, but we found that men and women had indistinguishable work patterns in the amount of time they spent online, in concentrated work, and in face-to-face conversation. And in performance evaluations men and women received statistically identical scores. This held true for women at each level of seniority. Yet women weren’t advancing and men were.

 

The hypothesis that women lacked access to seniority, in particular, had little support. In email, meeting, and face-to-face data, we found that both men and women were roughly two steps, or social connections, away from senior management (so if John knows Kate and Kate knows a manager, John is two steps from a manager).

 

Some have argued that women lack access to important, informal networks because they don’t reach out to or spend time with “the boys club.” But this didn’t hold up in our data. We found that the amount of direct interaction with management was identical between genders and that women were just as central as men in the workplace’s social network.

 

Our analysis suggests that the difference in promotion rates between men and women in this company was due not to their behavior but to how they were treatedThis indicates that arguments about changing women’s behavior — to “lean-in,” for example — might miss the bigger picture: Gender inequality is due to bias, not differences in behavior.

July 17, 2019 in Business, Equal Employment, Workplace | Permalink | Comments (0)

Tuesday, July 16, 2019

Video Recording Symposium on Applied Feminism and #MeToo

Center for Applied Feminism, Univ. of Baltimore, Video Recordings from Applied Feminism and #MeToo (April 2019)

 The center co-sponsored with the UB Law Review the 11th Feminist Legal Theory Conference: Applied Feminism and #MeToo. The conference mixed activism and scholarship focusing on sexual harassment and gender-based violence law. Sixteen scholars and practitioners presented papers concerning a wide array of legal topics, from sexual assaults during police searches to the credibility of survivors in courtrooms.

The keynote speaker was Debra Katz, the lawyer who represented Christine Blasey Ford during the confirmation hearings for now-Justice Brett Kavanaugh. In addition, hotel workers from a union presented about being sexually harassed and their campaign to end such treatment in hotels. Center members continued to work with UB law students and the Reproductive Justice Inside coalition to create model policies for reproductive health care and menstrual hygiene product access for Maryland correctional facilities.

July 16, 2019 in Conferences, Equal Employment, Workplace | Permalink | Comments (0)

Thursday, July 11, 2019

What's Reasonable Now? Changing the Sexual Harassment Law after the MeToo Shift

Joan Williams, Jodi Short, Margot Brooks, Hilary Hardcastle, Tiffanie Ellis, Rayna Saron, "What's Reasonable Now? Sexual Harassment Law after the Norms Cascade" , Michigan State L. Rev. (2019) 

This Article asks whether Brooks v. San Mateo and four other appellate hostile-environment sexual harassment cases that have each been cited more than 500 times remain good precedent in the light of the norms cascade precipitated and represented by #MeToo. The analysis is designed to interrupt the “infinite regression of anachronism,” or the tendency of courts to rely on cases that reflect what was thought to be reasonable ten or twenty years ago, forgetting that what was reasonable then might be different from what a reasonable person or jury would likely think today. These anachronistic cases entrench outdated norms, foreclosing an assessment of what is reasonable now. To interrupt this infinite regression, this Article pays close attention to the facts of the cases-in-chief discussed below enabling the reader, and the courts, to reassess whether a reasonable person and a reasonable jury would be likely to find sexual harassment today.

July 11, 2019 in Equal Employment, Workplace | Permalink | Comments (0)

Monday, April 15, 2019

US Senators Propose Anti-Sexual Harassment Bill, the "Be Heard Act"

Dems Unveil Anti-Workplace Harassment Bill

A group of Democratic lawmakers on Tuesday unveiled a bill aimed at strengthening protections against harassment in the workplace, including sexual harassment.

 

Sen. Patty Murray (D-Wash.) and Democratic Reps. Katherine Clark (Mass.), Ayanna Pressley (Mass.), Elissa Slotkin (Mich.) and Debbie Mucarsel-Powell(Fla.) introduced the "Be HEARD Act," which stands for Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination in the Workplace.

 

Several 2020 Democratic presidential contenders have also signed onto the legislation, including Sens. Kamala Harris (D-Calif.), Elizabeth Warren(D-Mass.), Kirsten Gillibrand (D-N.Y.), Bernie Sanders (I-Vt.), Amy Klobuchar(D-Minn.) and Cory Booker (D-N.J.), among other senators.

 

The legislation aims to eliminate the tipped minimum wage, which largely leaves service worker pay up to customers, as well as end mandatory arbitration and pre-employment nondisclosure agreements and give workers more time to report harassment, among other provisions.

Democrats' Bill to Fight Sexual Harassment, Explained

On Tuesday, Democrats in Congress will introduce legislation aimed at helping those workers. Called the Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination (BE HEARD) in the Workplace Act, it would close loopholes in federal discrimination law that leave many domestic workers without legal protections from sexual harassment. It would authorize grants for low-income workers to help them seek legal recourse if they are harassed. And, crucially for food service workers like Tucker, it would eliminate the lower minimum wage for tipped workers, which many say makes servers vulnerable to harassment by customers.

 

“Some women did and do still think that in order to make the extra tip, they have to ignore unwanted touches and unwanted comments,” Tucker said, “and we shouldn’t have to.”

 

The legislation could face an uphill battle in a Republican-controlled Senate. But it’s an example of a larger move toward systemic changes that would go beyond deposing a few big-name men, and help the many workers in America whose harassment never makes the news.

April 15, 2019 in Equal Employment, Legislation, Workplace | Permalink | Comments (0)