Archive for the ‘Feminism and Gender’ Category
posted by Kaimipono D. Wenger
Last Friday, Justice Ruth Bader Ginsburg spoke at the 13th Annual Women and Law Conference at Thomas Jefferson Law School. A packed house listened as panelists discussed a variety of issues relating to women in the judiciary, and the highlight of the day was an extended and candid Q&A with Justice Ginsburg herself. Read the rest of this post »
posted by Danielle Citron
Let me build on Professor Franks’s incisive post on the blaming-the-victim response in the revenge porn context. As Franks rightly notes, a recurring response to women’s suffering is to blame the victims. As I discussed here, cyber harassment victims are often told that they provoked the abuse by blogging in their own names, sending pictures to boyfriends, or writing about sex. The public said the same about domestic violence and sexual harassment. Society minimized the culpability of the abusers and maximized the responsibility of victims to justify those practices. Law certainly was not necessary to address them. Then, as now, the public refused help to blameworthy women.
Before the 1970s, society tolerated abuse of so-called “recalcitrant” wives. The public’s attitude was that the battering was justified by the wife’s provocations. The notion was that if the woman had been a neater housekeeper, a more submissive helpmate, or a more compliant sexual partner, “her nose would not have been broken, her eye would still be uncut, [and] bruises would never have marked her thighs.” Judges and caseworkers asked battered wives to accept responsibility for provoking violence, rather than assessing their abusers’ conduct. The solution was to “fix” battered women. Social workers advised them to clean their homes and have dinner ready for their husbands when they arrived home from work. Consider a judge’s response to a man’s beating of his wife. While before the judge, the man said he hit his wife because of her unkempt hair, unsatisfactory cooking, and nagging because he refused to take her out. He told the judge: “Look at her. I wouldn’t take her to a dog fight.” The judge agreed. He determined that “straightening out the situation” required the wife to improve her appearance. Elizabeth Pleck, Domestic Tyranny: The Making of American Social Policy Against Family Violence From Colonial Times to the Present (Urbana IL: University of Illinois Press, 2004), 136. Psychiatrists supplied a medical diagnosis for the experience of battered wives. In esteemed medical journals, researchers claimed that wives suffered from “feminine masochism” that drove them to goad their husbands into beating them because they derived sexual and psychic pleasure from abuse. In other words, women enjoyed the humiliation. Police officers refused to arrest batterers because their wives brought on the abuse. In the mid-1970s, police training guides tended to portray battered women as nagging or domineering and instructed officers that removal of the abusive husband would be unreasonable if that were the case. The public also ignored domestic abuse because women failed to leave their abusers. Judge Richard D. Huttner, the administrative judge of New York City Family Court, recalled a colleague’s reaction to domestic violence victims: “Why don’t they just get up and leave? They have been taking these beatings all these years and now they want me to intercede. All they have to do is get out of the house. What do they want from me?”
The “blame the victim” sentiment pervaded the response to sexual harassment. The traditional view was that women belonged in the private sphere, the home. Women entered the public sphere, the workplace, at their own risk. Society insisted that women invited their supervisors’ sexual advances by dressing provocatively and flirting. Employers said that female employees were “responsible for at least some of what happened.” In the 1970s, a broadcasting executive justified sexual harassment in his workplace: “You know, some women dress so that people look at their breasts.” Courts legitimated this view by permitting employers to argue that women invited employer’s sexual advances. Society refused to take sexual harassment seriously because female employees had the chance, but refused, to change supervisors or jobs. Female employees were told that they bore responsibility for their predicament because they stayed and risked more harassment. Their failure to leave was proof that supervisors’ sexual advances were not unwelcome. In a Redbook story about Congressman who hired female staffers because they agreed to provide sex to them, reporter Sally Quinn criticized the women as failing to stand up for them selves. She described the women as “choosing to compromise [their] bodies.” Sally Quinn, “The Myth of the Sexy Congressmen,” Redbook, October 1976: 96.
posted by UCLA Law Review
Volume 60, Issue 2 (December 2012)
|The Battle Over Taxing Offshore Accounts||Itai Grinberg||304|
|The Structural Exceptionalism of Bankruptcy Administration||Rafael I. Pardo & Kathryn A. Watts||384|
|Patients’ Racial Preferences and the Medical Culture of Accommodation||Kimani Paul-Emile||462|
|“Not Susceptible to the Logic of Turner”: Johnson v. California and the Future of Gender Equal Protection Claims From Prisons||Grace DiLaura||506|
posted by Gaia Bernstein
Egg freezing has become the new hot trend in the infertility industry. Although infertility practitioners first used egg freezing in the mid 1980s, it was only recently that success rates have significantly risen making this an attractive option for women. A woman can now freeze her eggs at any age and use it a few years later or much later with the sperm of her then chosen partner or a donor to have a baby through IVF. Using egg freezing technology, a woman can today have a baby at a time that best suits her career and family situation.
There is no doubt that egg freezing as a viable option is a huge revolution for women’s autonomy. But the big question is why only now? Why has egg freezing become a really viable option only during the first decade of the Twenty-First Century. We have known how to freeze sperm since the 1950s. And, embryo freezing was first tried out around the same time as egg freezing, during the mid-1980s. Yet, unlike egg freezing, embryo freezing became common practice soon thereafter. So why did we have to wait so long for effective egg freezing technology?
The answer usually given to this question is that it was just too complicated technologically and took a long time to develop. But were technological complications the only cause for delay? Is it really much harder to freeze and thaw eggs for later IVF use than to freeze and thaw embryos for later use? We tend to be taken by the illusion that science is value neutral — that scientific progress is not affected by choices directed by social values. But even if technological diffiuclties played a role in the delay, could egg freezing technology have been held back because resources were invested elsewhere? Unlike other forms of reproductive technology that promote the reproductive interests of both men and women, egg freezing promotes mainly the autonomy interests of women. Egg freezing’s impact on women autonomy can be compared only to the revolutionary effect of the birth control pill. At the same time, the infertility industry is comprised overwhelmingly by male practitioners. And while some have no doubt worked relentlessly to promote egg freezing technology, it may be time to stop assuming that technological complications held back this important women emancipating technology. It may be time to begin asking whether the advancement of egg freezing was placed on the back burner for years because of the type of interests it promotes?
December 7, 2012 at 10:26 am Tags: egg freezing, infertility, IVF, oocyte cryopreservation, reproductive technology, women autonomy Posted in: Family Law, Feminism and Gender, Health Law, Technology Print This Post 6 Comments
posted by Caroline Mala Corbin
In my last post, I argued that the requirement that religiously affiliated organizations include contraception in their health insurance plans does not violate the Free Exercise Clause. That’s not such a hard argument to make given the Employment Division v. Smith rule that neutral laws of general applicability are constitutional, no matter what kind of burden they may create for religious practices.
The Religious Freedom Restoration Act (RFRA), on the other hand, is easier to violate. RFRA was passed in reaction to Employment Division v. Smith. Congress wanted to restore the more demanding (at least on paper) pre-Smith test for religious liberty claims. The Supreme Court struck down RFRA as applied to the states but not as applied to the federal government. Under RFRA, a federal law cannot impose a substantial burden on a person’s exercise of religion unless it passes strict scrutiny.
Saving the question of whether the contraception mandate imposes a substantial burden for another post, would it pass strict scrutiny? Does the contraception mandate advance a compelling state interest in a narrowly tailored way? It is not hard to come up with compelling reasons why women who do not want to become pregnant should have access to contraception. Women’s ability to control their reproduction is essential to their wellbeing, their bodily integrity, and their ability to participate as equals in the social, economic, and political life of the nation. In fact, the failure to cover contraception may well amount to sex discrimination if a health insurance plan covers all basic preventive care except for pregnancy-related preventive care like contraception. (While pregnancy discrimination is not considered sex discrimination for equal protection purposes thanks to Geduldig v. Aiello, it is sex discrimination for Title VII purposes thanks to the Pregnancy Discrimination Act.) Promoting women’s health, liberty, equality, and equal access to health care are all compelling state interests.
Nevertheless, at least one court has concluded that the contraception mandate was not motivated by a compelling interest because it contains too many exceptions, such as the ones for grandfathered plans and small employers. So, while the court acknowledged that “the promotion of public health” is generally a compelling state interest, it held that “any such argument is undermined by the existence of numerous exceptions to the preventive care coverage mandate. . . . A law cannot be regarded as protecting an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited.” I disagree. The number of exceptions might matter if there were some question about whether the state’s interest really was compelling or not. If we are not sure about the importance of uniform appearance among police officers, numerous exceptions to grooming requirements might lead to the conclusion that it is not as important as the state claims. However, such exceptions should not matter when the state’s goals have long been recognized as compelling — and surely we are past the point of debating whether promoting women’s liberty and equality and preventing sex discrimination are compelling state interests.
Perhaps, then, it could be argued that the law is not narrowly tailored. How strict the tailoring must be under RFRA in not clear. If RFRA is meant to reinstate the pre-Smith test as practiced, then it is not very demanding, since the Supreme Court rarely found that laws failed strict scrutiny in Free Exercise Clause challenges. In any case, one argument that should be rejected is that the law is not sufficiently tailored because the government could provide contraception instead. But that can’t be right. Imagine a bookstore that refused admittance to Hispanics. Or imagine an employer whose insurance covered cancer screenings for white employees but not Asian ones. Now imagine the bookstore or employer arguing that a law banning race discrimination in places of public accommodation or in the provision of employment benefits fails strict scrutiny because the state could sell the books or provide the benefits instead. Such a claim is a distortion of strict scrutiny and should fail.
November 2, 2012 at 11:05 am Tags: contraception, contraception mandate, health care, religious liberty, RFRA, women Posted in: Constitutional Law, Feminism and Gender, First Amendment, Health Law, Religion Print This Post 5 Comments
posted by Caroline Mala Corbin
The Affordable Care Act is changing the health care landscape. Among the changes is that employers that provide health insurance must cover preventive services, including contraception. Although the requirement does not apply to religious organizations, it does apply to religiously affiliated ones. This “contraception mandate” has generated a huge outcry from some religious leaders, most notably the United States Conference of Catholic Bishops. They insist that forcing Catholic hospitals, schools, or charities to include contraception in their employee insurance plans violates religious liberty.
It doesn’t. It certainly doesn’t violate the Free Exercise Clause. After Employment Division v. Smith, neutral laws of general applicability are constitutional, regardless of the burden they may impose on religious practices. Indeed, the law upheld in Smith banned a religious sacrament. But it was neutral, in that it did not intentionally target religion, and it was generally applicable, in that it was neither riddled with exceptions nor grossly underinclusive. The regulation requiring employers who provide health insurance to include contraception in that coverage is likewise a neutral law of general applicability.
While a recent Supreme Court decision (Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC) carved out an exception to this “neutral-generally-applicable-laws-do-not-violate-the-Free-Exercise-Clause” rule, it does not apply here. This exception — which holds that religious institutions are immune from neutral, generally applicable anti-discrimination laws when they are sued by their ministers — was designed to protect churches’ ability to pick their leaders without interference from the state. However, the provision by religiously-affiliated organizations of health insurance to their employees, many of whom do not belong to the same faith as their religious employer, clearly does not involve ministers or internal church governance. In short, there is no valid Free Exercise Claim.
What about the Religious Freedom Restoration Act? Stay tuned.
October 29, 2012 at 1:52 pm Tags: ACA, contraception, contraception mandate, equality, free exercise, health care, religious liberty, women Posted in: Civil Rights, Constitutional Law, Employment Law, Feminism and Gender, First Amendment, Health Law, Religion Print This Post 19 Comments
posted by Mary Anne Franks
My reaction to Robin West’s extraordinary scholarship always includes some mixture of distress and excitement: distress over the failures of law and humanity she describes with such devastating clarity, and excitement about the potential applications of her insights. In this post, I want to discuss how Robin’s critique of both liberal legalism and what she calls “neo-critical” legal theory in Normative Jurisprudence – particularly the former’s fetishization of individual rights and the latter’s decidedly uncritical celebration of consent – usefully illuminates the recent controversy over the outing of Michael Brutsch, aka “Violentacrez,” the man behind some of the most controversial forums on the popular social news website, reddit.com. One of these, the “/r/creepshot” forum (or “subreddit”), which encouraged users to submit surreptitious photographs of women and girls for sexual commentary, garnered national attention when it was discovered that a Georgia schoolteacher was posting pictures of his underage students. Brutsch’s outing (or “doxxing“) sparked outrage from many in the reddit community, and has led to an intriguing online and offline debate over Internet norms and practices. The defense of Brutsch and the forums he helped create – mostly sexual forums targeting women and girls – has been dominated by a highly selective conception of the right to privacy, the insistence on an unintelligibly broad conception of “consent,” and a frankly bewildering conception of the right to free speech. Attempts to criticize or curtail these forms of online abuse have also been primarily framed in terms of “rights,” to uncertain effect. Robin’s critiques of rights fetishism and the ideology of consent offer valuable insights into this developing debate.
I will attempt to briefly summarize (and no doubt oversimplify, though I hope not misrepresent) the points Robin makes that I think are most useful to this conversation. Liberal legalism’s focus on rights rests on a seductive fantasy of individual autonomy: it “prioritizes the liberty and autonomy of the independent individual, shrouds such a person in rights, grants him extraordinary powers within a wide ranging sphere of action, and in essence valorizes his freedom from the ties and bonds of community. It relegates, in turn, the interests, concerns, and cares of those of us who are not quite so autonomous or independent … those of us for whom our humanity is a function of our ties to others rather than our independence from them … to the realm of policy and political whim rather than the heightened airy domain of right, reason, and constitutional protection” (41). The critical legal studies movement attempted to correct some of this rights fetishism by pointing out that “rights” are not only radically indeterminate (i.e. rights can be interpreted and granted in conflicting ways), but that they are also legitimating (that is, bestowing the status of “right” on narrowly drawn freedoms can obscure the injustice and inequality that fall outside of them, thus insulating them from critique).
Robin persuasively demonstrates that neo-critical legal theorists held on to the indeterminacy thesis while jettisoning the critique of legitimation. Concerns about legitimation are concerns about suffering, and neo-crits are largely uninterested in, if not contemptuous of, suffering. Their primary concern is power and pleasure, which is accordingly supported by what Robin calls “the ideology of consent.” To the neo-crits, consent has the power to fully shield any act from either legal or moral critique. Robin addresses the way the ideology of consent plays out in the context of sex by looking to the work of Janet Halley. According to Robin, Halley espouses a view of sex that takes “[c]onsent to sex … as full justification for a collective blindness to both societal and individual pressures to engage in unwanted sex, so long as the sex is short of rape”(142). Sex is presumptively pleasurable, and as such presumptively immune from critique. As Robin describes Halley’s position, “sex is almost always innocent, and when consensual, there can be no ‘legitimate’ basis for criticism. Consensual sex is just too good to be circumscribed, or bound, by claims of its unwelcomeness or unwantedness. The claims that consensual sex is in fact unwelcome or unwanted are likely false in any event. The harms sustained, even if the claims are true, are trivial” (146). (I came to similar conclusions regarding Halley’s work in my review of her book, Split Decisions: How and Why to Take a Break from Feminism).
Now to apply these insights to the Michael Brutsch/creepshot controversy. The moderators of the creepshot subreddit provide this helpful definition of “creepshot” on the “subreddit details” page:
posted by Caroline Mala Corbin
The United States Conference of Catholic Bishops (USCCB) has been leading the charge against the contraception mandate, but its opposition to the mandate does not represent the USCCB’s first entanglement with contraception lawsuits. ACLU of Massachusetts v. Sebelius involved an Establishment Clause challenge to a grant given to the USCCB pursuant to the Trafficking Victims Protection Act. The grant was to provide services to victims of sex trafficking, who are often forced into prostitution and forced to endure rape or other sexual abuse. In accepting the grant, the USCCB made very clear that its religious beliefs prevented them from providing contraception or abortion to their clients, or referring them to others who would. (More specifically, the USCCB stated it would bar its subcontractors from providing or referring these services.) Even though access to contraception and abortion are crucial for women and girls who have been sexually trafficked, the U.S. Department of Health and Human Services (HHS) nonetheless awarded the USCCB over $15 million dollars. The ACLU sued, alleging Establishment Clause violations. USCCB responded by claiming that HHS was merely accommodating its sincere religious beliefs. The ACLU won.
Sometimes the line between constitutional accommodation of religious belief and unconstitutional advancement of religion can be hard to draw. Sometimes, however, it is not. HHS should never have awarded the grant. It is true that religious groups may now compete on an equal basis with secular groups for government grants and contracts. But they should also be rejected on an equal basis if they cannot fulfill basic grant requirements. The point of the grant, after all, is to help the intended beneficiaries. Any group, secular or religious, that cannot provide the requisite services, which in this case includes contraception and abortion, is simply not qualified. To accommodate the USCCB at the expense of trafficked sex victims goes too far. At this point, “accommodation devolve[s] into an unlawful fostering of religion.”
October 20, 2012 at 2:25 pm Tags: contraception, establishment, funding, religious liberty, sex trafficking Posted in: Civil Rights, Constitutional Law, Feminism and Gender, First Amendment, Religion Print This Post 8 Comments
posted by Caroline Mala Corbin
In Bob Jones University v. United States, the IRS revoked the tax exempt status of two religiously affiliated schools because they discriminated on the basis of race. One school (Goldsboro Christian Schools) refused admittance to black students, the other (Bob Jones University) barred interracial dating and marriage. Both schools claimed that the discrimination was religiously mandated, and that the loss of their tax exempt status violated the Free Exercise Clause. The schools lost. The Supreme Court characterized tax exemptions as a taxpayer subsidy for charitable organizations that, at the very least, do not contravene fundamental public policy like our commitment to racial equality, and held that racist schools did not satisfy that requirement: “[I]t cannot be said that educational institutions that, for whatever reasons, practice racial discrimination, are institutions exercising beneficial and stabilizing influences in community life or should be encouraged by having all taxpayers share in their support by way of special tax status.” In addition, the Court held that eliminating race discrimination in education was a narrowly tailored and compelling state interest. The bottom line is that a university may discriminate based on race, but it should not expect to be considered a beneficial organization entitled to tax subsidies.
Assuming Bob Jones was correctly decided, should its holding be limited to discrimination in education, or discrimination on the basis of race? I think not. In fact, the IRS denies tax exempt status to any nonprofit organization, religious or not, that invidiously discriminates on the basis of race. If you are a church that excludes blacks, or won’t let blacks become ministers, you may have the constitutional right to exist, but you won’t get any government money to help you prosper. Should the same policy apply to organizations, religious or not, that invidiously discriminate on the basis of sex?
October 15, 2012 at 4:00 pm Tags: Bob Jones, discrimination, free exercise, Race, sex, taxes Posted in: Civil Rights, Constitutional Law, Education, Feminism and Gender, First Amendment, Law and Inequality, Race, Religion Print This Post 10 Comments
posted by Stanford Law Review
The Stanford Law Review Online has just published an Essay by Andrew Kloster entitled The Violence Against Women Act and Double Jeopardy in Higher Education. Mr. Kloster argues that proposed changes to the Violence Against Women Act have potentially serious implications for persons accused committing sexual assault in university proceedings:
The reauthorization of the Violence Against Women Act (VAWA), set to expire this year, has elicited predictable partisan rancor. While there is little chance of the reauthorization being enacted by Congress so close to an election, the Senate draft includes a provision that raises interesting issues for the rights of students involved in sexual assault disciplinary proceedings on campus. The Senate version of VAWA could arguably condition a university’s receipt of federal funds on a requirement that the university always provide an appeal right for both accuser and accused. Setting aside the massive rise in federal micromanagement of college disciplinary proceedings, the proposed language in VAWA raises serious, unsettled issues of the application of double jeopardy principles in the higher education context.
Whatever the legal basis, it is clear that both Congress and the Department of Education ought to take seriously the risk that mandating that all universities receiving federal funds afford a dual appeal right in college disciplinary proceedings violates fundamental notions of fairness and legal norms prohibiting double jeopardy. College disciplinary hearings are serious matters that retain very few specific procedural safeguards for accused students, and permitting “do-overs” (let alone mandating them) does incredible damage to the fundamental rights of students.
Read the full article, The Violence Against Women Act and Double Jeopardy in Higher Education at the Stanford Law Review Online.
October 10, 2012 at 10:30 am Tags: Constitutional Law, Criminal Law, Criminal Procedure, Education, feminism Posted in: Constitutional Law, Criminal Law, Criminal Procedure, Education, Feminism and Gender, Law Rev (Stanford) Print This Post One Comment
posted by Madhavi Sunder
Another day brings another cornucopia of exciting and important comments on my book, From Goods to a Good Life: Intellectual Property and Global Justice. I thank Professors Molly Van Houweling, Jessica Silbey, Michael Madison, and Mark McKenna, and earlier Concurring Opinions commentators —Professors Deven Desai, Lea Shaver, Laura DeNardis, Zahr Said, and Brett Frischmann—for reading my book so carefully, and engaging it so helpfully. I focus here on Professor Van Houweling’s framing of an important issue arising in the discussion.
Professor Van Houweling has provoked stimulating discussion with her astute observation of two competing visions of intellectual property within the emergent “capabilities approach” school of intellectual property we identified earlier this week. Professor Van Houweling contrasts Professor Julie Cohen’s alternative justification of copyright as a tool for promoting corporate welfare (sustaining creative industries), with my attention to intellectual property laws as tools for promoting livelihood and human welfare (sustaining human beings in their quest for a good life).
September 14, 2012 at 1:15 am Posted in: Civil Rights, Constitutional Law, Culture, Cyber Civil Rights, Education, Feminism and Gender, First Amendment, Jurisprudence, Law and Humanities, Law and Inequality, Media Law, Race, Symposium (From Goods to a Good Life), Technology, Uncategorized, Web 2.0 Print This Post One Comment
posted by Madhavi Sunder
I am moved and honored by this deep engagement with my book by this amazing array of scholars. Let me reply to each that has chimed in so far, and seek to situate my work within the broader IP discourse at the same time.
What a difference a few years make! Professor Said, who is younger than I am, arrived on the IP scene more recently, and happily she found a more plural discourse than I saw several years back. In the first few years of the new century, scholars on both the Right and Left seemed unified in their commitment both to the incentives rationale and the ultimate goal–innovation. Scholars on the Left saw the incentives rationale as limiting IP rights, because they argued that intellectual property need not offer rights beyond those necessary to incentivize creation. They also argued that too many property rights might result in an anticommons and erode the public domain. Some public domain scholars—to whom my book is both homage and reply—worried that opening IP to alternative discourses such as human rights might bolster property owners’ arguments rather than limit them.
The public domain scholars opened a space for critique in a field that was “coming of age.” In my new book, From Goods to a Good Life: Intellectual Property and Global Justice (Yale University Press 2012), I seek to both consolidate and expand that critique. I argue that we need to rethink the ultimate goal of intellectual property itself. We should seek not simply to promote more goods, but rather the capability of people to live a good life. To that end, we need to ask new questions beyond just how much intellectual production law spurs, and turn to disciplines beyond law and economics for guidance. Which goods are being produced and which are neglected under market incentives? Even when goods are produced, like AIDS medicines, how can we ensure just access to these knowledge goods? Surely access to essential medicines for people who cannot afford them is important if we believe in the dignity of all human beings. But what about access to culture, such as films, music, and literature? I argue that participation in these cultural activities is just as important – singing and dancing together and sharing stories are activities central to our humanity. They promote learning, sociability, and mutual understanding.
September 12, 2012 at 9:37 pm Posted in: Civil Rights, Feminism and Gender, Health Law, Intellectual Property, Jurisprudence, Property Law, Race, Symposium (From Goods to a Good Life), Technology, Uncategorized, Web 2.0 Print This Post No Comments
posted by Leora Eisenstadt
Michael Maslanka of work matters recently made some predictions about the Supreme Court’s handling of current employment law issues and about what the Court will likely take up next in this field. He predicted that the Court will soon address a growing split among district and some circuit courts on whether an employee engages in protected activity when he/she rebuffs an unwanted sexual advance. I was frankly surprised to see that there is a split on this issue, which seems fairly obvious to me. I will lay it out here and hope to hear what others think.
Under Title VII, it is unlawful for an employer to “discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” In Dozier-Nix v. District of Columbia, the court recently found, correctly I think, that rejecting an unwanted sexual advance counts as “protected activity” under the opposition clause (i.e. “because he has opposed any practice made an unlawful employment practice by this subchapter”). But the court noted that not all courts are in agreement on this point and referenced a collection of cases on both sides of the issue and a recent Fifth Circuit case, LeMaire v. Louisiana Department of Transportation and Development, that came out the other way. The Fifth Circuit rejected a retaliation claim based on rejection of sexual advances because the plaintiff had failed to provide any authority to suggest that it did constitute protected activity and cited an unpublished Fifth Circuit case in support.
Although the Fifth Circuit relied on a lack of authority, it seems to me to have overlooked the basic meaning of the retaliation provision in Title VII. Clearly, I think, rejecting sexual advances (i.e. sexual harassment) constitutes opposing a practice made unlawful under Title VII. Consider the likely scenario when this issue arises: A supervisor sexually propositions his subordinate employee. She (I’m using the genders most commonly associated with these claims but it could arise in many variations) rejects his advances, telling him she is not interested. Before she has a chance to complain about the sexual harassment to a manager, her supervisor demotes her, saying that after their interaction, he is no longer comfortable supervising her work. Eventually, the female employee complains and after a three-month investigation, the harasser is terminated. But for three months, the employee earns less money, has diminished responsibilities, and misses professional development opportunities. There is no doubt that her rebuff of the sexual advance led to an adverse employment action. I don’t think there is a doubt that the rebuff itself was protected activity. In fact, this scenario turns the sexual advance into a kind of after-the-fact quid pro quo harassment, and there is little debate about its illegality. The boss never told her she would be demoted unless she went out with him but her rejection led to that consequence.
Can courts that find such actions not to be protected activity really intend victims of harassment to endure sexual advances in the moment and complain later in order to insure they won’t face retaliation? What if the sexual advance was more than verbal? Is an employee required to endure physical touching or worse to preserve her job? I cannot imagine how the answer could be yes but perhaps I’m not seeing all sides of the issue. I’ll look forward to comments on this.
I also want to say that this is my final post as a guest blogger for the month of August. I am now back to focusing my energies on the fall semester, revisions to my forthcoming article in the Berkeley Journal of Employment and Labor Law, and the roller-coaster that is the hiring market! I have truly enjoyed my time as a guest blogger. Thanks so much to CoOp for this opportunity.
posted by Leora Eisenstadt
Although I am somewhat hesitant to add another voice to an already loud debate about the work-family conflict that has arisen again in the last month or so, I am finding it difficult to stay quiet. As the working mother of a 3 ½ year old and a 3 month old, this is the legal and policy issue that affects me most these days.
When Anne-Marie Slaughter wrote her piece in the Atlantic, arguing that women in top government and business positions are leaving because of the difficulty of combining work and family, she predictably drew loud praise and equally loud critique (including an interesting post by Sherilyn Ifill, linked to from Concurring Opinions). But then, Marissa Mayer, Yahoo’s newly appointed CEO, added her voice to the debate (perhaps unwittingly) when she told Fortune that she was pregnant and that her maternity leave would be “a few weeks long, and I’ll work throughout it.” That comment brought a new onslaught of responses including criticism that she was doing a disservice to all working women whose employers would now expect them to “work throughout” their maternity leaves.
Whether this is a male/female issue or merely a parenting issue that cuts across gender, what is clear from the numerous opinions out there is that one size does not fit all. In fact, if I am any example, one approach might not even work throughout one person’s working/parenting life. As a first time mom and associate at a law firm, I took a 6½ month leave, made possible by a hefty pay check and 12 weeks of paid leave. Now that it’s my second time around and I am transitioning to academia, I chose to work from home through the first few months after my son was born and (mostly) don’t regret it.
The notion of privileging women or parents by building in options for them is not new and is, in fact, the dominant approach in many European countries and in Israel (which I have written about in the past). But it has not been the American way. Might we be changing? In my prior article, I wrote about the emergence of the Israeli approach as a function of the society’s overall collectivist culture and a national interest in promoting reproduction and the parent-child bond. I am wondering whether there is a chance that Americans could recognize this too.
Of course, that would not be the end of the debate. What would the privileging of women or parents mean for equality? If women (by law) gain options that men don’t have, do they come out equal, better, or worse? For example, if we mandate paid maternity leave as some countries do, will employers stop hiring fertile age women out of fear that they will exercise this option and be less productive than men? What if the option is non-gendered and open to all parents? Will men exercise the option or continue to feel pressure to return to work immediately after a child is born? Will women? While the answers to these questions remain unclear, one thing is obvious—this is not a problem that parents can solve on their own. Beyond the debate in the media, it is high time for a serious debate in government about remedies (beyond the Family Medical Leave Act) for working parents who are having trouble being good at both jobs.
August 9, 2012 at 1:09 pm Tags: feminism, gender, maternity leave, parenting, sex discrimination Posted in: Employment Law, Feminism and Gender, International & Comparative Law, Uncategorized Print This Post 3 Comments
posted by Danielle Citron
My colleague (and guest blogger) Sherrilyn Ifill has an insightful post on Anne-Marie Slaughter’s attention-grabbing Atlantic piece and future book on the silly notion of “having it all.” As Professor Ifill’s post makes clear, Slaughter’s lament captures a microscopic part of the problem–most working women, especially minorities, cannot remotely have any part of the illusory promise. Professor Ifill calls upon professional women, the 1%, to help the plight of the other 99% of working women with kids, because they can and because they should. Professor Ifill’s post on the relevance of legal scholarship rightly captured lots of attention, and this post should too.
posted by Leora Eisenstadt
I am thrilled to be guest-blogging for Concurring Opinions for the month of August. For my first post, I thought I would draw your attention to an interesting case out of the Seventh Circuit last month. In Passananti v. Cook County, the court considered a hostile work environment sexual harassment claim brought by an investigator for the Cook County Sheriff’s Department. The primary issue on appeal was whether the “frequent and hostile use of the word ‘bitch’ [was] a gender-based epithet that contributed to a sexually hostile work environment.” In other words, is “bitch” always sexist?
Putting aside the use of the word in dog-training circles, you might be wondering how this word could possibly not be sexist? It turns out that the Seventh Circuit, in a prior case, actually concluded that the use of the word was not based on sex but rather on personal animosity that “arose out of an earlier failed relationship between the plaintiff and the harasser.”
But in Passananti, the Seventh Circuit reversed the lower court, finding that the mere use of the term in this case, without other gendered words, is sufficient for a finding of sexual harassment. And the court, quite reasonably, pointed out that “when gender-specific language is used in the workplace . . . context is key.” A laudable approach until you look one step further at the specific context that the court looked to for help here: “The jury heard testimony that Sullivan used the word “bitch” regularly in reference to the plaintiff. He did not use the word in jest, but instead used it together with his threats against Passananti’s employment.” Not exactly convincing. We are supposed to understand that the term is gendered because he didn’t use it in jest and was threatening her employment?
Most of us would agree that the supervisor’s use of the word “bitch” in this case was gender-derogatory for one simple reason: he is a man, using a gendered word, against a woman, and there is no other explanation for its use. Can the term have different meanings in other contexts? Absolutely. When women use it amongst themselves, for one, the term can be endearing or playful. But it is rarely benign when spoken by a man and directed at a woman. But nowhere in the court’s lengthy discussion of context does this simple truth appear. Why is the court so hesitant to name this reality – that linguistic meaning is the product of multiple contextual factors, including, importantly, the identity of the speaker?
I’ll save additional discussion and some possible answers for a later post. Suffice it to say, I am thinking a lot about this question right now and have just posted a draft of my article on the topic on SSRN. I’ll discuss the article in a later post but for now here’s the link to The N-Word at Work: Contextualizing Language in the Workplace.
posted by Danielle Citron
Lucky for CoOp readers, I had a chance to talk to Professor Anita Allen about her new book Unpopular Privacy, which Oxford University Press recently published. My co-blogger Dan Solove included Professor Allen’s new book on his must-read privacy books for the year. And rightly so: the book is insightful, important, and engrossing. Before I reproduce below my interview with Professor Allen, let me introduce her to you. She is a true renaissance person, just see her Wikipedia page. Professor Allen is the Henry R. Silverman Professor of Law and professor of philosophy at the University of Pennsylvania Law School. She is also a senior fellow in the bioethics department of the University of Pennsylvania School of Medicine, a collaborating faculty member in African studies, and an affiliated faculty member in the women’s studies program. In 2010, President Barack Obama named Professor Allen to the Presidential Commission for the Study of Bioethical Issues. She is a Hastings CenterFellow. Her publications are too numerous to list here: suffice it to say that she’s written several books, a casebook, and countless articles in law reviews and philosophy journals. She also writes for the Daily Beast and other popular media.
Question: You began writing about privacy in the 1980s, long before the Internet and long before many of the federal privacy statutes we take for granted. What has changed?
I started writing about privacy when I was a law student at Harvard in the early 1980s and have never stopped. Unpopular Privacy, What Must We Hide (Oxford University Press 2011) is my third book about privacy in addition to a privacy law casebook Privacy Law and Society (West Publishing 2011). My original impetus was to understand and explore the relationships of power and control among governments, individuals, groups, and families. In the 1970s and 1980s, the big privacy issues in the newspapers and the courts related to abortion, gay sex, and the right to die. Surveillance, search and seizure, and database issues were on the table, as they had been since the early 1960s, but they often seemed the special province of criminal lawyers and technocrats.
To use a cliché, it’s a brave new world. Since my early interest in privacy, times have indeed changed, the role of electronic communications and the pervasiveness of networked technologies in daily life has transformed how personal data flows and how we think about and prioritize our privacy. Terms like webcam, “text messaging,” “social networking,” and “cloud computing” have entered the lexicon, along with devices like mobile, personal digital assistants, and iPads.
The public is just beginning to grasp ways in which genetics and neuroscience will impact privacy in daily life—I have begun to reflect, write, and speak more about these matters recently, including in connection with my work as a member of President Obama’s Presidential Commission for the Study of Bioethical Issues.
Question: Your book coins the phrase “unpopular privacy.” In what way is privacy unpopular?
First let me say that I think of “popular privacy” as the privacy that people in the United States and similar developed nations tend to want, believe they have a right to, and expect government to secure. For example, typical adults very much want privacy protection for the content of their telephone calls, e-mail, tax filings, health records, academic transcripts, and bank transactions.
I wrote this book because I think we need to think more about “unpopular” privacy. “Unpopular” privacy is the kind that people reject, despise, or are indifferent to. My book focuses on the moral and political underpinnings of laws that promote, require, and enforce physical and informational privacy that is unpopular with the very people that those laws are supposed to help or control. (I call such people the beneficiaries and targets of privacy laws.) “Don’t Ask, Don’t Tell,” for instance, was an unpopular government mandated privacy for military service members. My book suggests that some types of privacy that should be popular aren’t and asks what, if anything, we should do about it.
Question: If people don’t want privacy or don’t care about it, why should we care?
We should care because privacy is important. I urge that we think of it as a “foundational” good like freedom and equality. Privacy is not a purely optional good like cookies and sports cars. Since the 1960s, when scholars first began to analyze privacy in earnest, philosophers and other theorists have rightly linked the experience of privacy with dignity, autonomy, civility, and intimacy. They have linked it to repose, self-expression, creativity, and reflection. They have tied it to the preservation of unique preferences and distinct traditions. I agree with moral, legal and political theorists who have argued that privacy is a right.
I go further to join a small group of theorists that includes Jean L. Cohen who have argued that privacy is also potentially a duty; and not only a duty to others, but a duty to one’s self. I believe we each have a duty to take into account the way in which one’s own personality and life enterprises could be affected by decisions to dispense with foundational goods that are lost when one decides to flaunt, expose, and share rather than to reserve, conceal, and keep.
If people are completely morally and legally free to pick and choose the degrees of privacy they will enter, they are potentially deprived of highly valued states that promote their vital interests, and those of their fellow human beings. For me, this suggests that we need to restrain choice—if not by law, then by ethics and other social norms. Respect for privacy rights and the ascription of privacy duties must comprise a part of a society’s formative project for shaping citizens. Read the rest of this post »
posted by Sarah Waldeck
This week the National Association of Women Lawyers (NAWL) released its Survey on the Retention and Promotion of Women in Law Firms, which compiles data on the professional progress of women in the nation’s 200 largest firms. Most of the reporting on NAWL’s survey results has focused on the decrease in the number of female first and second year associates. While the decline is only slight—47 percent of first and second year associates are women, compared to 48 percent a year ago—it is the first decrease since NAWL began reporting survey results in 2006. NAWL speculates that the decline is attributable to changes in law school enrollments, where there have also been slight decreases in the percentage of female students.
The most interesting part of the report, however, discusses where women find themselves in the hierarchal complexities of today’s law firms. As the NAWL survey points out, large law firms are no longer comprised of simply partners, associates, and a few of counsel. Instead, firms are a mix of equity and non-equity partners, associates, staff attorneys, and of counsel. Read on after the jump for sobering highlights about how women tend to fit into organizationally-complex large law firms. Read the rest of this post »
posted by Kaimipono D. Wenger
As noted in earlier discussions, conservative pundit John Derbyshire recently wrote: “Is there anyone who thinks sexual harassment is a real thing? Is there anyone who doesn’t know it’s all a lawyers’ ramp, like “racial discrimination“? You pay a girl a compliment nowadays, she runs off and gets lawyered up.” (Some other pundits have expressed similar views.)
For comparison, here are a few snippets from the facts of some court opinions in actual recent sexual harassment cases. (major trigger warning — these cases contain some extremely disturbing fact patterns) Read the rest of this post »
posted by Kaimipono D. Wenger
You mention male privilege in a blog post, and it’s inevitable: Someone else (usually male) will start asking about female privilege. If men have privilege, don’t women have privilege too? And does that undercut the idea of male privilege as a type of gender subordination which is built into society? (Because, the implication goes, we all have privilege — and so feminists should stop complaining about male privilege.)
And, so, predictably, some critics of feminism, “men’s rights” blogs, and the like have assembled lengthy lists of female privilege. (Women get their dates paid for — it isn’t fair!) And it’s true that there are areas where, taken on a stand-alone basis, male and female treatment appears to favor women. As we’ll see, I don’t think these areas really provide an analogue to male privilege.
We’ll start with the obvious, descriptive matter: Some areas exist in which women have some advantages. For one obvious example, some bars offer free drinks to women on some evenings. (Ladies night.) Looked at in isolation, these could be viewed as areas of female privilege. However, in context, it seems evident that this apparent female privilege fills one of two roles. Read the rest of this post »