Category: Feminism and Gender

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Feminist Legal Theorizing about the Second Amendment: What Heller Missed

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In my previous post, I suggested that it’s long past time for a feminist analysis of the right to keep and bear arms.  Drawing on my forthcoming article, “Guns, Race, and Sex,” this part follows the Court’s lead in Heller v. McDonald by examining the ratification history of the Second Amendment.

In Heller, the Court split the provision’s text into two parts.  The majority decided that the second (“operative”) clause, supported by the first (“prefatory”) clause, equaled an individual right to possess and carry weapons for self-defense purposes–not limited to militia service.  But closer examination of the Amendment’s terms and the context surrounding its ratification suggests structural purposes extending the individual use of firearms.

Based on their experience dealing with a distant and detached sovereign, among other things, the framers were deeply troubled by the prospect of a standing army.  To them, professional soldiers would be loyal to and help empower central government.  At the same time, they recognized the need for national security.  As a result, the Second Amendment reference to the militia reflects a compromise among the framers to provide for defense, but doing so in a way that would not jeopardize state sovereignty.  Put differently, it’s another check on federal power.  Framers believed that the state’s citizens—local men—would be the best guarantors of peace.  Those men were “the people” the Amendment references, which further suggests that this phrase has structural significance.

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Feminist Legal Theorizing about the Second Amendment: Gun Violence is a Women’s Issue

Thanks so much, Naomi, for inviting me to blog this month.  It’s really an honor and pleasure to participate in the lively discussion on this forum.

Starting today, concealed weapons will be allowed on college campuses in Texas.  Ironically, this new law goes into effect on the solemn anniversary of the state’s largest mass shooting at none other than its flagship institution, the University of Texas.

More guns.  Just what we need.

After all, there haven’t been enough headlines about Black lives lost at the hands of police, or stunning murders of white police officers as they protected Black Lives Matter protesters.

Please forgive my sarcasm. I’m frustrated.  Before this year is out, I’m sure there will be more tragic slayings, more outpourings of grief and recrimination, but still no movement toward sensible reform of gun laws.

And, amidst the din, there is little to nothing coming from feminist legal circles.

Two summers ago, Nation commentator Dani McClain argued that “the murder of Black youth is a reproductive justice issue.”  Her call to action came to mind when I saw the “Mothers of the Movement” during the Democratic National Convention.  The mother of Jordan Davis, who was shot for playing his music too loud, openly hoped for a time when membership in this “club of heartbroken mothers” would shrink.

I had been puzzling over this issue for a while, struck by the no-regulation-no-time stance of the National Rifle Association.  In the context of reproductive justice, many have argued with success that the state’s interest in potential life trumps women’s fundamental interest in bodily integrity (thankfully, with Whole Woman’s Health v. Hellerstedt, the Court finally has drawn a line over which states cannot cross).  Imagine if potential gun buyers had to jump through the same hoops as women seeking abortions. As district court judge Myron Thompson stated in Planned Parenthood v. Strange, the legislature would have “a heck of a lot of explaining” to do.

Hypotheticals aside, it doesn’t take much digging to see the gendered and raced aspects of gun violence.  An August 2015 survey by the Ms. Foundation for Women showed that violence is a top concern for women.  Firearms figure prominently in the domestic violence context.  According to the Pew Research Center, gun owners are predominantly male and white—they are 82 % of firearm owners.

So, in the next three blog posts, I accept McClain’s challenge and apply a feminist analysis to the issue of guns in the nation.  Given the medium, the exploration will be brief; but, I discuss it more fully in a forthcoming article upon which my posts are drawn, “Guns, Sex, and Race:  The Second Amendment through a Feminist Lens,” which will be published in the Tennessee Law Review.

The feminist lens that I’m using is one that is intersectional and rooted in feminist legal practice:  social justice feminism (SJF). SJF emerged from practitioners responding to the calls from women of color and other marginalized women to recalibrate the women’s movement with a focus on their needs.  As my colleague Kristin Kalsem and I have explained, SJF is about uncovering and dismantling social and political structures that support patriarchy, while “recognizing and addressing multiple oppressions.” SJF methodologies focus on historical context, structural inequities, intersecting oppressions and underserved populations.  In so doing, they reveal issues liberal feminism might fail to recognize as having gender implications.

SJF’s historical method looks to the past in order identify the roots of structural inequalities and dismantle them.  In this sense, SJF follows in the footsteps of feminist and critical race theory in seeking to uncover lost histories, elevate the experiences of marginalized people, and reveal how traditional historical narratives mask and perpetuate subordination.

In the posts that follow, I will apply this methodology to the Court’s decisions in Heller v. District of Columbia and McDonald v. Chicago, cases that relied heavily on a so-called originalist telling of history.  However, SJF reveals the context omitted by the majorities in both cases—one that helped lay the foundation for a race-and gender-based social hierarchy.

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Divergent Paths to Same-sex Marriage: What We Can Learn from South Africa

Last Sunday marked the one year anniversary of Obergefell v. Hodges, in which the Supreme Court ruled that excluding same-sex couples from marriage was unconstitutional. Obergefell was a huge development not only for the United States, but also for the world. Boris Dittrich, Advocacy Director of the LGBT Rights Program at Human Rights Watch, has predicted that Obergefell “will reverberate in many countries that still deny people the right to marry the person they love.”

As countries around the world draw inspiration from Obergefell, I hope Obergefell will not overshadow Fourie v. Minister of Home Affairs, another important case in the international arena. In 2005—nearly a decade before Obergefell—South Africa’s Constitutional Court ruled in Fourie that depriving same-sex couples of the ability to marry violated constitutional protections of dignity and equality. South Africa’s Constitutional Court became the first national apex court to decide that barring same-sex couples from marriage is unconstitutional. 

Many aspects of Fourie fascinate me, but in the confined space of this blog post, I will focus on just two. First, in comparison with Obergefell, Fourie offers a competing—and more compelling—conceptualization of the relationship between marriage and dignity. In Obergefell, Justice Kennedy endorsed a highly romanticized view of marriage as an institution that confers dignity upon those who enter it. “Marriage dignifies couples,” he said. “Marriage responds to the universal fear that a lonely person might call out only to find no one there.” He talks in grandiose terms about how “[n]o union is more profound than marriage,” and how being denied marriage is “being condemned to live in loneliness, excluded from one of civilization’s oldest institutions.”

Many commentators have criticized Obergefell for implying that people must get married to be fully dignified. (See, e.g., here, here, and here.) What about people who don’t want to get married, or people who simply haven’t found the right partner to marry? Obergefell’s over-the-top romanticization of marriage marginalizes these segments of society.

For the record: I’m married, I love being married, and I love being married to a spouse of the same sex! But I also think marriage is not for everyone, and that’s one reason why I admire the Fourie opinion. No other judicial opinion on same-sex marriage has done as good a job as Fourie at explaining the relationship between same-sex marriage and dignity. Fourie makes clear that marriage doesn’t dignify couples. Rather, it’s giving people the decision whether to marry—and whether to marry someone of the same sex—that is most important to dignity.

To the best of my knowledge, Fourie is the only judicial opinion on same-sex marriage that has explicitly engaged queer and feminist critiques of marriage. The Court acknowledged that many same-sex couples might well choose not to marry if given the opportunity. Instead of denigrating that choice, the Court explained that “what is in issue is not the decision to be taken, but the choice that is available. If heterosexual couples have the option of deciding whether to marry or not, so should same-sex couples have the choice . . .”

The South African Constitutional Court also avoided over-romanticizing marriage by emphasizing that marriage rights are important precisely because marriages often fail. If a couple is married, the government will help the couple sort things out if and when they break up. “[T]he law of marriage is invoked both at moments of blissful creation and at times of sad cessation.” If you are not married, you cannot claim the legal protections of divorce.

I am currently writing a law review essay that elaborates on the difference between Obergefell’s and Fourie’s competing visions of marriage, and the ramifications of each view. Stay tuned! In the meantime, I’d like to turn our attention to yet another fascinating aspect of Fourie: the Constitutional Court’s decision to delay providing a remedy to same-sex couples.

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Dads Change Diapers Too

This is my third and final post about fathers as caregivers, drawing from some of my own experiences as a dad. (Earlier posts are available here and here.)

Father’s Day this year was really special because my husband, two-year-old daughter, and I celebrated on vacation in New York. We had a really lovely time overall. The trip was, however, also memorable because of this—have a look at this photo.

LaGuardia Airport, Terminal B, Concourse C

LaGuardia Airport, Terminal B, Concourse C

This is the United Airlines counter at LaGuardia Airport, Terminal B, Concourse C. I warily crouched down in the narrow space behind this counter to change my daughter’s diaper on the floor. I did it as fast as I could, feeling awkward about being there. I tried not to get in the way of the airline agents who were working behind the counter, and I shuddered at the thought of how dirty the floor might be.

My daughter and I were traveling home alone because my husband returned earlier for work. The agents at the ticket counter confirmed that there were no diaper changing facilities for fathers—no changing table in the men’s restroom, and no family restroom. The only diaper changing table was in the women’s room.

I suggested that I place my daughter’s changing pad on the table behind the ticket counter and change her there, but the airline agents said, understandably, that I needed to find someplace more discreet. The airport was bustling with people at every corner. After looking around, the agents offered to let me squeeze behind their ticket counter and use the cramped floor space there.

That was the best option we could think of. I didn’t want to subject my fellow travelers to the sight (and possible smell) of a diaper change, especially the folks who were enjoying their meals nearby. I also didn’t want my daughter and me to have to deal with the glare of onlookers. So, behind the counter we retreated.

Lack of men’s access to diaper changing facilities always makes me wonder what year we’re living in. Isn’t it about time we got behind the idea that men change diapers too?

Placing diaper changing tables exclusively in women’s restrooms is a problem because, as I discussed earlier, men’s access to diaper changing facilities is important to the health and well-being of the children we love and care for. Excluding men from diaper changing facilities also troubles me because it reflects and reinforces the outdated cultural assumption that taking care of young children is strictly a woman’s role.

Access to diaper changing facilities is particularly important at airports because waiting to change the diaper on the plane presents challenges. Not all airplanes have diaper changing tables. Moreover, parents are not permitted to get out of their seats to change a diaper during take-off, landing, and periods of turbulence in between.

Cities like Honolulu, Miami, and San Francisco have laws that give men and women a right of equal access to diaper changing facilities. State Senator Brad Hoylman has proposed legislation that would make New York the first state to require new and newly renovated buildings to give men and women equal access to diaper changing stations. I hope his bill will become law. Unfortunately, Governor Brown of California vetoed similar measures in 2014.

At the federal level, Congresswoman Tammy Duckworth of Illinois has introduced the Friendly Airports for Mothers Act, which would require airports to provide lactation rooms. I think it would be great to pass an even broader law that addresses diaper changing facilities in addition to lactation rooms. This could make airports friendlier not only to mothers, but also to fathers. In the meantime, I have contacted LaGuardia Airport to request that they install changing tables in all of their men’s rooms.

To be clear, the agents at the ticket counter were really kind to my daughter and me. The main woman whom I spoke with expressed her own disappointment with what she called the airport’s “double standard.” Let’s fix this double standard.

The good news for the immediate future is that my daughter has made great strides with potty training. I’m so proud of her! Our days of having to hide behind an airline ticket counter are numbered. Still, this is a bigger issue that needs to be addressed.

For more of my writing about fatherhood, please check out my forthcoming law review essay entitled “Shaping Expectations about Dads as Caregivers: Toward an Ecological Approach.”

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Pour Myself a Cup of Ambition

It feels indulgent to have the chance to respond to reviews of my book, Nine to Five: How Gender, Sex, and Sexuality Continue to Define the American Workplace (Cambridge 2016)—all the more so given that the back-and-forth is almost instantaneous. I so appreciate Concurring Opinions for providing a forum to hear what readers have to say, and for giving me the last—or at least the next—word.

Nancy Dowd posted first with an important and provocative set of questions. She makes the accurate observation that the book is “unabashedly” focused on women. Indeed, it is. She encourages that we ask the “other questions,” invoking the advice of Mari Matsuda to look at objectionable patterns and practices and ask whether there isn’t something other than the obvious thing going on. In other words, when you identify a practice that is harmful to women, ask whether it might also involve race or class. And even when looking at problems from a strictly gender perspective—think about men. Where are they in the equation? Dowd is the perfect person to encourage this broadening of perspectives, as she has been a pioneer in the emerging field of masculinities theory (her 2010 book The Man Question is a staple in the field) and has done a brilliant job in her more recent work of unmasking the racial biases in the juvenile justice system. So why didn’t I ask more complex questions about race, class, gender identity, and the intersectional effects of these characteristics? The cheeky answer is that a book that managed to ask all those questions would be long enough to be slapped with a cover price that would deter all potential readers. But the real answer is that my focus on women as individuals and as a category was purposeful. It was an effort to refute a complacency that has developed specifically around gender.   People tend to think that because the law embraces gender equality, we have achieved it. References to a post-gender millennium and headlines saying “We did it!” (with a picture of Rosie the Riveter) make me crazy. What I see when I look at the experience of women at work is that gender is everywhere and it operates largely to the disadvantage of women. Read More

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Nine to Five and the Limits of Litigation

Joanna Grossman has written a wonderful, mid-level guide to the law that protects women in the workplace.  As a comprehensive account of recent employment cases, it is more engaging than law treatises or law review articles.  She tells the stories of the plaintiffs who have brought precedent setting cases, and explains the significance of the rulings with a minimum of legalese.  Yet, the chapters still provide a much more in-depth account than journalistic reports.  She brings a law professor’s careful analysis to the recent decisions and scenarios she selects, describing the way that they expand or restrict the legal protections available to working women.   Lawyers and law students will find not only succinct summaries of the substantive law, but suggestions about what will be necessary to establish the required elements in future cases, and attention to the procedural implications of the decisions.   Grossman also does not hesitate to rate the outcomes, telling her readers when the courts go astray and when they get things right.  Indeed, one of the intriguing tidbits is her commentary on Supreme Court Justice Clarence Thomas’s opinions.   The former Chair of the Equal Employment Opportunity Commission, he tends to be a doctrinaire conservative on most issues, and was, of course, the subject of a sexual harassment charge that threatened to derail his nomination to the Court.  Grossman nonetheless suggests that his positions on the issues that arose while he was at the EEOC are more nuanced than those arising thereafter.

Grossman’s critiques the judicial decisions that have come down the pike in terms of their implications for individual litigants (and their lawyers).   She tends (though not invariably) to cheer those rulings that make it easier for plaintiffs to prevail, and dissent from those that create more obstacles, leavening these judgments with commentary on whether the new decisions can be reconciled with earlier precedents and workplace realities.  She links her analysis of the allegations in individual cases to the systematic factors that make it difficult for women to achieve true equality in the workplace: unequal pay, sex stereotyping, sexual harassment, maternity discrimination, and the maternal wall that limits the positions open to involved parents (most typically mothers with substantial childcare responsibilities).

Nine to Five further includes extended commentary on newly enacted and pending legislation, and it pays considerable attention to the circumstances that make it difficult for women to take advantage of the protections the law provides.  It thus offers a thorough account of the existing state of the law told through the lens of unfolding developments; standing by itself it could serve as a text for the right law school course or as a primer on women’s employment rights.  The one issue it does not address, however, is the role of litigation itself; indeed, the book’s focus on individual cases often makes it seem as though the primary effect of employment law is to provide a means for individual employees to realize vindication.  While Grossman often does incorporate the social science research that shows women’s overall progress and the shortcomings that remain, and while she acknowledges the limitations of grievance and other administrative procedures (pp. 128, 142, noting that while 40% of working women continue to experience sexual harassment, they rarely file complaints of any kind), she only occasionally acknowledges the question that underlies a volume like this: what role does litigation play?  In particular, to what degree do individual cases contribute to a change in workplace conditions and when they do, to what extent are there unacknowledged costs?

In examining these issues in the context of this review, I begin with my own experiences litigating cases like these.  I started my legal career as a trial attorney with the Department of Justice (DOJ) in Washington, D.C., and handled the defense of a number of employment discrimination cases while I was there.  The experience left me with two firm conclusions.  The first was that discrimination certainly existed.  On the wall of the office in which I served there was a picture of the office attorneys in 1977, a year before I joined DOJ.  The attorneys were all white and all male, with the exception of one white woman in a short skirt.  By the time I left five years later, the office was almost half women and approximately a quarter minorities.  Moreover, in that five year period, office culture changed with the new generation of attorneys.  Lunch time banter became less of an assumed measure of effectiveness in the courtroom and women began to assume supervisory positions, in part because, while the best of the men often left for higher paying law firm jobs, the best of the women often stayed because of the more reasonable hours, with family needs pushing both trends.  Our clients in discrimination cases were typically other federal agencies who lagged behind.

The second lesson I took from those years was that employment discrimination plaintiffs, like the woman described above, were rarely ideal employees.  Even in cases where we defense attorneys had our suspicions about an office’s efforts to include women or minorities, the individual plaintiff was rarely the person who had suffered the greatest wrong.  In one case, for example, a woman at the Department of the Interior’s Bureau of Land Management had applied for a higher paying job as a title examiner and did not get it because the office preferred candidates with law degrees and had no trouble attracting them.  The agency’s Equal Employment Opportunity office concluded that to require a law degree where the position description said one was “preferred” (but not mandatory) had a disparate impact on women, who in that era were significantly less likely than men to attend law school.  In investigating the case, however, I learned that even without the law degree requirement, the office would have viewed the particular plaintiff as a weak candidate.  It would have preferred another woman, with significantly better qualifications, who had since taken another job.  The people who pursue the expense and inconvenience of litigation often do so either because they are incensed or because their relationship with a particular employer had already been destroyed.  Those with other options take them.

Taken together, I concluded that litigation had its greatest impact in changing the experience of the next generation of employees.  The better qualified women and minorities who applied for subsequent openings in these agencies benefitted from the changing law and the changing employment ethos – without ever going near a courtroom.

How do these experiences from the long ago eighties relate to the cases of today that Grossman documents?  I believe that the lessons from these early days of women’s inclusion in the workplace continue to frame the questions that determine when litigation can be an effective tool.  First, these lessons are important in underscoring the fact that litigation is a blunt instrument.  It is expensive, time-consuming and cumbersome, even for those who eventually win.  Complete vindication either for plaintiffs who have suffered a serious wrong or for defendants who have been wrongly accused is rare.   Second, litigation had the greatest effect when it changed office practices in a systematic way; a challenge to the government civil service exam, for example, which occurred while I was at DOJ, led to a negotiated settlement that encouraged much greater employee diversity.  Third, litigation is sometimes the only way to challenge bad actors, who are unlikely to change without outside intervention.  Some supervisors needed to be replaced.  Finally, litigation imposes costs even when the net effects are worthwhile.  I suspect, for example, that some of the supervisors whose decisions I defended would never again fire another civil servant, however poor their performance.

Reading Nine to Five with these insights in mind changes the perspective, though perhaps not many of the final conclusions.  Many of Grossman’s commentaries focus on the ability of individual employees to receive redress, often for reasons rooted in the procedural obstacles the courts place in the way.  Yet, her broad categories address systemic practices, such as access to pregnancy leave or contraception, that affect women’s full workplace inclusion.  The book thus captures the changing nature of the challenges women face.

Grossman’s discussion of sexual harassment, which occupies a major section of the book, illustrates these issues.  As Grossman explains, the courts initially viewed the idea of sexual harassment as a form of employment discrimination with skepticism, treating it instead as a “personal proclivity, peculiarity or mannerism . . .” (p. 72).  Survey data indicates that sexual harassment in the eighties was pervasive.   Many workplaces had a locker room atmosphere, with the men viewing women as appropriate subjects of sexual humor or sexual advances.  Catherine MacKinnon persuasively argued in The Sexual Harassment of Working Women: A Case of Sex Discrimination (1979) that such behavior re-enforced sex-segregated jobs, and drove out or relegated women to inferior positions when they worked alongside men.  The courts and the EEOC quickly accepted MacKinnon’s analysis, and recognized sexual harassment as a form of sex discrimination either when sexual favors become a condition of employment or sexual advances, comments and conduct create a hostile work environment (p. 74).  The Supreme Court ultimately found that when supervisors sexually harass their employees, the company is automatically liable for their behavior, even if the individual behavior violated company policy (p. 75).

Grossman picks up with the issue before the courts today, starting with the question of whether the reformation of the workplace to insure greater gender equality will continue.  A single case, one that Grossman believes gets it right, illustrates almost all of the issues that underlie an assessment of litigation’s role.  Orton-Bell v. Indiana (p. 98) involved a prison counselor, who complained that night shift employees were having sex on her desk.  An investigator confirmed her allegations, but dismissed them as trivial, and advised her to “wash off your desk every day” (p. 97).  Soon thereafter, however, the Prison Superintendent ordered an investigation into Orton-Bell’s relationship with another employee in violation of prison rules and had them both fired.  Orton-Bell alleged that the termination was brought in retaliation for her complaints about the desk, the male employee was discharged in accordance with more favorable terms than she, and the work environment was rife with sexual comments and conduct.   The district court dismissed the entire complaint on the basis of a summary judgment motion, but the Seventh Circuit reversed and remanded for a hearing on the allegations of a hostile work environment and unequal treatment.

The district court seemed to treat this case as one of an employee who made a minor complaint (about the sex on the desk) and was then dismissed for a clear violation of prison rules.  And the Seventh Circuit did affirm that part of the lower court ruling.  Having other employees conduct their liaisons on a fellow employees’ desk (which of course became the subject of derision from other colleagues) is annoying, but not, the court concluded sex discrimination because there was no evidence she had been singled out on the basis of gender.  And to the extent that her supervisors retaliated against her because of the complaint, she enjoyed no protection because the complaint itself did not address protected activity.  This type of behavior (the sex on the desk) may be more likely to bother women than men, and women whose desks are used in this way may be more likely to become the butt of office jokes or to suffer more from the ribbing.  Orton-Bell did not offer any evidence that her desk had been singled out for impermissible reasons, however, and if the alleged retaliation itself constituted a separate cause of action, then every employee complaint could give rise to a lawsuit.  The courts have little interest in policing office conduct generally and Grossman concurs that the court correctly granted summary judgment on this part of the case.

The rest of the complaint received a more sympathetic hearing on appeal.  Whether or not it had anything to do with her dismissal, Orton-Bell’s complaint alleged that the workplace included a constant barrage of sexual comments and conduct.  The most dramatic included the former superintendent’s insistence that attractive women unnecessarily attend meetings so that he “could look down the table” at them, and extended public pat-downs of the female employees conducted for the entertainment of male staff (p. 97).  In addition, she argued that the more lenient treatment accorded her male paramour was sex-discrimination.  The Court of Appeals agreed that the complaint should have survived the summary judgment motion and it reversed and remanded the case for trial (p. 99).

This case demonstrates what sexual harassment litigation can do.  The allegations in the complaint, taken at face value as they should be in the context of a motion for summary judgment, constitute a hostile work environment in which women are treated as sexual objects.  Taken as a whole, they clearly constitute a violation of the law, which once made visible becomes difficult to ignore or justify.  In addition, the dismissal offered a seemingly straightforward discrimination case: a man and a women engaged in the same alleged misconduct, but with substantially different consequences for each.  Yet, the case arose only because of Orton-Bell’s dismissal and the fact that it seriously affected her future job prospects.  She had little to lose by suing, and once she did, a seemingly weak case contesting her dismissal became a much stronger one because of the misogynist work environment and the direct comparison with a male co-worker.  While the Seventh Circuit decision did not guarantee that Orton-Bell would prevail on remand, it dramatically increased the settlement value of the case.  As a practical matter, therefore, the existence of such a work environment makes it easier for dissatisfied employees to sue, and those most likely to do so are women like Orton-Bell who face what might otherwise be seen as a justified dismissal.  The result creates an incentive to clean up a toxic workplaces that has less to do with the merits of Orton-Bell’s individual circumstances than the risk of continuing future liability and the negative scrutiny it generates.

While the Orton-Bell decision largely addressed settled law, many of the cases Grossman discusses are important because they challenge established practices, particularly those addressing pregnancy and child care needs, that limit women’s full inclusion in the workforce.  As Grossman presents them, many of these cases involve punitive responses to pregnancy that seem inexplicable.  In a case that went to the U.S. Supreme Court, for example, UPS forced a pregnant delivery driver out of her job until after she gave birth because she could not lift heavy packages, even though it offered temporary accommodations to other employees who could not lift such packages and even though she rarely needed to lift packages that exceeded the weights allowed during the pregnancy (Young v. United Parcel Service, Inc., pp. 208-209).  Much of the analysis in the case had to do with finding the right comparators: the question was whether pregnant women had to be offered the same accommodations as any other employees who suffered from temporary disabilities or from a policy that discriminated in the provision of accommodations based on the source of the disability (e.g., pregnancy versus an automobile accident or back injury).  The case illustrates the role – and limits – of litigation in this area.

As Joan Williams has long argued, companies that value their workers should be able to accommodate family and pregnancy needs in the same way that they deal with employee illnesses and other workforce interruptions.  Yet, pregnancies differ from back injuries in that the timing can be planned.  If a company has a reputation for generous (or in some cases even minimally adequate) pregnancy benefits, it might find itself with a workforce more likely to become pregnant.  In my DOJ office of 90 attorneys, for example, once the number of female attorneys increased, nine gave birth in the same year, seven between July and September.  The office, which had accepted occasional requests for part-time returns to work, stopped approving them.  UPS could find itself in a similar situation.  Accommodations that do not seem that onerous for a single employee could become substantially more burdensome if a substantial number of employees ask for them at the same time.

The much more effective solution, therefore, would be a general norm shift, requiring all employers to accommodate the effects of pregnancy and caretaking.  Yet, as Grossman points out, this is unlikely to happen.  The law, rather than mandate pregnancy or child care benefits, only requires that employers not discriminate in the provision of benefits that they do provide.  This does little to promote family supportive workplace norms.  Grossman notes the limited protections of the Family and Medical Leave Act do not cover all workers, and many covered workers cannot afford to take the guaranteed unpaid leaves the act provides (p. 263).  The anti-discrimination provisions at issue in individual cases such as that involving UPS could lead to a cutback in accommodations for all workers rather than expanded provisions for the pregnant.  As Grossman observes, the United States has a long way to go in catching up with other developed nations in guaranteed paid medical and caretaking leave (p. 259).

Moreover, one of the changes over time has been the ideological opposition to greater protections for employees.  Although Grossman does her best to provide evenhanded commentary on the legal developments, it is virtually impossible to ignore the impact of increased partisanship in, as Grossman puts it, “making a mess of pay discrimination law” (p. 285).  That partisanship was particularly evident in the Supreme Court’s 5-4 decision in Ledbetter v. Goodyear Tire & Rubber Co (p. 277).  Grossman argues persuasively that Justice Alito’s majority opinion cannot be convincingly reconciled with earlier precedents, and as a practical matter, it dramatically cut back on the ability to seek redress for equal pay violations.  With Democratic control of both houses of Congress, President Obama signed the Lilly Ledbetter Fair Pay Act, reversing the decision, as one of the first acts of his presidency in January, 2009 (p. 291).  Grossman provides a thorough account of the case, the legislation and its implementation.

At the end, Grossman takes stock of the progress that women have made in the workforce and the distance still to go.  Yet, she does not fully acknowledge the forces that have not only undermined political support for more effective legal remedies, but have exacerbated gender inequality more generally.  In discussing Wisconsin’s repeal of that state’s Equal Pay Act, for example, she quotes a state senator who insisted that the men and women have difference goals in life and money “is more important for men” while women take more time off and refuse to work 50 or 60 hours a week because of their greater involvement in childrearing (p. 299).  Grossman responds that the gendered wage gap remains even after controlling for factors such as labor force interruptions and hours worked (p. 300).  Grossman’s data, however, is more than a decade old.  Since the late nineties, pay has become more steeply hierarchical in the United States with the greatest rewards going to those who work the longest hours.  And both the greatest increases in pay and the greatest gender disparities tend to be in positions such as the top executive ranks and the financial sector that place disproportionate emphasis on financial rewards tied to reductionist measures such as short term earnings.  The AAUP has concluded that gender disparities have grown with greater emphasis on the values of competition and individualism.  Individual litigation cannot and should not be expected to address these disparities.   Thus, while Grossman provides a superb account of the state of employment law, truly addressing women’s role in the marketplace requires a commitment not just to combat sex discrimination, but to create a more just and equal society.  The fight for gender equality will be a lengthy one.

 

 

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Just a Step on the Boss Man’s Ladder

There is no greater privilege as a writer than to have a group of people you deeply respect take the time to read your work and respond to it. Thanks to Naomi Cahn, who organized this symposium and launched it with a wonderful introduction, I have been granted this privilege for my new book, Nine to Five: How Gender, Sex, and Sexuality Continue to Define the American Workplace (Cambridge 2016).

This book was a labor of love. As many of the commentators have noted, it is based on a column I have been writing every other week for over fifteen years (the first ten for FindLaw’s Writ and the last five for Justia’s Verdict).   It blows my mind that what started as a one-off essay on whether a woman should be able to annul a marriage to a man she was auctioned off to on the reality television show “Who Wants to Marry a Millionaire?” would have turned into one of the most important pieces of my professional life. Because of this column, I have gotten to chronicle legal and social developments in my areas of interest and expertise in real time—a refreshing change from the world of academic publishing—and to be part of an ongoing conversation with an audience of litigants, lawyers, judges, policymakers, journalists, and the general public.

When I began writing my column, I was at the beginning my academic career, and I had just given birth to the first of my three sons. As this book was published, I was teaching that son how to drive in the middle of a significant professional transition from Hofstra Law School, after a 17-year run, to SMU Dedman School of Law, where I will serve as the inaugural holder of the Ellen K. Solender Endowed Chair in Women and Law. This book, which collects columns on women and work and ties them together with introductory essays, gave me the opportunity to reflect at this time of transition not only on my own life and career, but also on the developments in sex equality law—where we were, where we are now, and where we are headed. The book, although packaged in a lighthearted style (with some of my favorite sex discrimination cartoons!), ends on a somewhat depressing note: despite a complicated and robust set of laws mandating women’s workplace equality, the terrain remains uneven at best, slanted firmly towards inequality at worst.  In all too many respects, today’s workplace is similar to the one farcically depicted in the movie 9 to 5, which hit the big screen almost forty years ago.  Why haven’t we as a society made more progress? From this vantage point, I feel a kind of solidarity with Ellen Solender, who spoke of her mother’s hope that women’s suffrage would bring about broad-based equality for women, but her own disappointment that even her granddaughters may not live to see it. That we aren’t there yet just means we have to continue the fight. Nine to Five is one tiny piece of the effort to promote equality for all women, and my new position will be the perfect platform from which to work.

In a forthcoming post, I will respond to the provocative and interesting points raised by the reviewers, to whom I am grateful for their generosity of time and spirit, as well as their individual and collective expertise.

 

 

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Working 9 to 5: What a Way to Make a Living

Joanna Grossman’s Nine to Five:  How Gender, Sex, and Sexuality Continue to Define the American Workplace is an invaluable contribution to the popular understanding of how gender works – or doesn’t – at work.  With wry humor and a clarity that’s all-too-rare among those who write about the law, Grossman provides a comprehensive, must-read primer for the lay reader.  But Nine to Five also is a bracing corrective to the notion that the issues raised by the popular 1980 movie of the same name are remotely as anachronistic as the bad fashion sported onscreen by Dabney Coleman, Jane Fonda, Dolly Parton, and Lily Tomlin. Read More

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The Limits of Anti-Discrimination Law

Joanna Grossman’s Nine to Five is a masterfully assembled set of commentary on sex discrimination cases. Joanna’s deft explanations and critiques of doctrine would make it great for the classroom, sort of like a volume from the “Law Stories” series but with a lot more law. Bringing the commentaries together also allows the collection to highlight some limits of discrimination law as it is now constituted. Nancy Dowd has already raised the challenge of intersectionality; another classic constraint in discrimination law is that equality can be achieved either by leveling up or by leveling down. On the issue of accommodating family responsibilities, for example, American law’s narrow conception of equality has a hard time justifying a level-up, despite the extensive body of feminist scholarship on the gendered nature of the neoliberal marketplace and its “ideal worker.” (See chapter 35, on Young v. UPS.) The demands of “the market” serve as conversation-stoppers in discrimination law, which is understood as regulation of the market, even though aspirations for sex equality include non-market goals. In light of emerging movements demanding that markets serve people instead of the other way around, the next phase in the development of discrimination law will be defined by whether it can move past the ideology of the market.

As I read through Nine to Five—especially the chapters on accommodating pregnancy, work/life balance, and the masculinity of the ideal worker—I kept coming back to the title. Joanna uses the movie 9 to 5 as a jumping off point for talking about gender in the workplace. I have long been curious about the phrase “9 to 5” and its relationship to the labor movement’s hard-won eight-hour workday. “9 to 5” has at times been a pejorative term for a corporate drone, but today it carries the aspirational tone of the past—the wish for a work day that really ends at 5, an office job that stays at the office.

An early expression of the demand for the eight-hour workday came from Robert Owen, who proposed an even division of the day: “8 hours labour, 8 hours recreation, 8 hours rest.” Today, we refer to the eight-hour workday as standard. After all, the Fair Labor Standards Act requires overtime for hourly workers above forty hours a week, and the archetypal, salaried office worker is “on the job from 9 to 5.”

Except that almost nobody is actually on the job from 9 to 5. I discovered this for myself when I started my first office job, working for the federal government. As Joanna discusses (chapter 54), the federal government is the nation’s largest employer and is therefore not only the enforcer of laws but also a standard-setter in practice. With Dolly Parton echoing in the back of my naïve mind, I learned that as a salaried employee I was expected to work a minimum of eight hours per day, with a half-hour unpaid lunch break, a 15-minute unpaid break in the morning, and a 15-minute unpaid break in the afternoon. My workday could be 8 to 5, 8:30 to 5:30, or 9 to 6, but definitely not 9 to 5. Today, the vast majority of office workers work the federal day or longer. Workers subject to FLSA rules not only get their breaks unpaid but have had to go to court over whether hours spent donning protective gear or descending into coal mines are part of their work day.

From the employer’s perspective, of course, it isn’t eight hours of work if the employee disappears for an hour at lunch. What is notable, however, is that law and culture adopted the employer’s perspective and thereby shifted from the “eight-hour work day” to “eight hours of work.” When eight hours is understood not as the portion of one’s life to be devoted to employment but as the quantity of production to which the employer is entitled, the “work day” expands, stealing time from recreation and rest because the work day has been excused from recognizing the humanity of the worker.

The work day could, instead, be “one-third of the day of a human being,” who will necessarily have to deal with some aspects of her humanity during that period. After all, no one is getting any reimbursement or comp time for having to spend some of their “8 hours for recreation” on eating or going to the bathroom, nor do we get to come in late for work when our “8 hours for rest” are interrupted by any number of human realities. “Eight hours of work” instead of an “eight-hour work day” converts time, a human experience, into a commodity defined by its alienation.

This same shift from human-centered goals to market-centered rules, which ultimately place the values of the market above all else, operates in the difficult corners of discrimination law. For example, Nine to Five tackles several problems that arise in the context of school-affiliated sports: pay disparities between the coaches of boys’ and girls’ teams (chapter 3); unequal treatment of the teams themselves (chapter 9); and the toxic masculinity of sports culture, which bleeds into politics, business, and education (chapters 55 and 56). One reason discrimination law often fails to advance equality in these contexts is that it allows market ideology to trump not only non-discrimination principles but also the purported values of sports and educational institutions themselves.

In the case of coaches’ salaries, Joanna dissects the “market defense” that the EEOC has made available to schools: to justify discriminatory salaries, a school need only refute that coaching its girls’ team requires as much skill, effort, or responsibility as coaching its boys’ team. Schools routinely argue that male coaches are responsible for more money and more media management, and that male coaches arrive at the school with higher prior salaries and more experience coaching and playing sports. (p. 20) Joanna points out that these factors allow the school to “buil[d] on past discrimination against female coaches” and that the school itself creates the expectation that boys’ teams will play for higher stakes in both prestige and money. Here, not only the logic of the market but also the explicit sexism of the market is invoked to constrain discrimination law, even when the market defense is offered by non-profit institutions who claim that they sponsor athletic contests not to make money but to support “the higher education mission” and create “an inclusive culture” with “career opportunities for coaches and administrators from diverse backgrounds.”

Players from the U.S. women’s national soccer team (of which Joanna is clearly a fan!) have filed a pay equity suit that will raise these issues, albeit without a school affiliation: the soccer federation’s main defense is that the women’s game doesn’t make as much money as the men’s because it isn’t as popular with fans. There are factual questions about whether this is true and the extent to which, if true, it is the result rather than the cause of discrimination. But a larger question is whether that should matter. Assuming the market defense to be factually true, it should not end the conversation but begin it. Joanna demonstrates how this conversation should proceed in a different context: Discussing employer liability for “sudden, severe [sexual] harassment” (chapter 25), she notes that, sometimes, severe harassment will occur that no reporting system could have prevented. The question, then, is who should bear that cost? Nothing in the logic of sex discrimination law, or greater aspirations for an equal and just society, suggests that the victim rather than the employer should bear 100% of the cost. Similarly, it is not written in stone that women rather than soccer federations should bear the costs of sexist sports culture.

Other workplaces have their own versions of this market defense. In academia, it is a commonplace at many institutions that the only way to increase one’s salary is to get a job offer elsewhere. It is also a commonplace that this is a terrible policy and that it has a disproportionately negative impact on women. It persists because of the market defense.

In public debates about the gender wage gap, various factions talk past each other about whether the gap reflects “real discrimination” or “women’s choices,” which include things like taking “time off” for children or subordinating one’s own career to a spouse’s. This dichotomy is largely beside the point. Some portion of the wage gap is due to flat-out pay discrimination; some is due to discrimination in hiring; some to discrimination in the “pipeline”; some to job segregation that is linked to historical pay inequities between men’s work and women’s work; and some is due to women continuing to perform the bulk of unpaid family labor (details in chapter 51). Why does any of those things justify a skewed distribution of economic security and wealth? The market defense, writ large, puts artificial limits on aspirations for equality.

Speaking of family labor: Readers of this symposium were likely amused by Robert Owen’s facile division of the day into “8 hours labour, 8 hours recreation, 8 hours rest.” When, pray tell, was dinner to be cooked, the house cleaned, and the children’s noses wiped? Those tasks, in Owens’s mind, presumably belonged in someone else’s work day, but today we know them as the second shift, performed by people who “talk about sleep the way a hungry person talks about food.” It’s time to revisit not just minimum wages but maximum hours so we can earn our bread and bake it too, and still have time to tend our roses.

 

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4 Wishes for Father’s Day

My post on Thursday expressed concerns about the cultural assumption that taking care of young children is a woman’s role. Today, I present a four-part wish list of public policy interventions. With Father’s Day coming up, these proposals seek to recognize dads as able caregivers.

Image from iStock.com/OlgaLebedeva

Image from iStock.com/OlgaLebedeva

1. Mandate dad-inclusive paid parental leave

The United States is notorious for being the only high-income country that doesn’t require employers to provide paid parental leave. Among employers that do offer some form of paid leave to new parents, many provide leave to new mothers (often framed as disability leave) but not to fathers. A report from 2014 estimated that 58 percent of employers offered paid leave to new mothers, but only 14 percent offered it to new fathers. Another study from 2012 reported that only 13 percent of fathers who took parental leave were paid, compared with 21 percent of mothers.

The first item on my wish list is a law requiring paid parental leave and, importantly, the law should grant leave rights to both moms and dads. A handful of states already have such legislation, but we need the whole country covered. Proposals for paid parental leave have already garnered a lot of attention, and that’s great. I think it’s important, however, not to focus too narrowly on this issue. For reasons that I discuss in a forthcoming essay, we also need to address other aspects of our social environment that affect dads as caregivers, including the following wish list items.

2. Require equal access to diaper changing facilities

Cities like Honolulu, Miami, and San Francisco have laws that give men and women a right of equal access to diaper changing facilities. I wish this right existed across the country. In 2014, California’s legislature passed two laws that would have required new and newly renovated buildings to grant men equal access to diaper changing tables by placing changing tables in men’s restrooms or family restrooms. It’s a shame that Governor Brown vetoed the measures. All too often, diaper changing tables are located exclusively in women’s restrooms. This is troubling because of the difficulty it creates for dads who need to change diapers. Moreover, lack of equal access sends the troubling message that only women should be expected to care for young children.

Restrooms have long been sites of regulation because they are so central to health and well-being. OSHA rules, the Americans with Disabilities Act, and state-level Restroom Access Acts all aim to make restrooms accessible. There is also pending litigation about the extent to which federal civil rights laws protect transgender individuals’ ability to use restrooms that correspond with their gender identity. Further regulating restrooms to ensure that men have equal access to diaper changing tables is long overdue.

3. Reframe state-supported “Mommy & Me” classes

When my daughter was a few months old, I began exploring community events for infants and parents. Friends told me how fun it would be to take her to “Mommy and Me” classes. “They’re called Mommy and Me classes, but I’m sure they’d let a dad in too,” one friend tried to reassure me. Mommy and Me classes abound—for example “Mommy and Me Yoga,” “Mommy and Me Music,” and “Mommy and Me Tender Twos.” While these classes may technically be open to fathers, the Mommy and Me moniker sends the message that fathers do not belong. This framing reinforces cultural expectations that caregiving should be left to mothers.

To be clear, these classes are not biological in nature. They are not breastfeeding classes. For example, Huntington Hospital in Pasadena offers a “Mommy and Me” class that it describes as “song time, parachute play, and bubbles with baby.”  All of these activities could surely involve fathers. Some places have begun to offer Daddy and Me classes, but these options are rare and I see no reason why moms and dads need to be segregated for song time and bubble play. Moreover, I’ve found that Daddy and Me Classes take place outside of the usual work schedule—on weeknights and weekends—thus reinforcing the outdated assumption that dads are breadwinners and moms are caregivers.

While we should lobby companies to rename their Mommy and Me classes, public policy also has a role to play. Many, if not most, Mommy and Me classes are offered by government-funded entities such as hospitals and public libraries. As a public policy intervention, the government should condition its funding on the reframing of Mommy and Me classes. Some places have already begun to call their classes “Baby and Me” instead, a name that is much more inclusive of dads and other caregivers. The government should require this change of any state-funded entity that offers a Mommy and Me class.

4. Recast the image of dads in the federal government’s Fatherhood & Mentoring Initiative

The federal government runs a public education campaign that encourages fathers to be more engaged with parenting. While this is certainly a laudable goal, the program has set a very low bar, focusing on preventing fathers from being completely absent. As a result, the campaign’s media clips risk reinforcing the belief that dads ought to leave the bulk of hands-on caregiving to women. For my fourth wish list item, I wish the government would revamp its media campaign.

Consider, for example, the first video clip at the bottom of this post. It features three television personalities from the MLB (Major League Baseball) Network.  The men are in their offices, taking a moment out of the day to call their children by phone or videoconference to say hello.  The clip closes with one of the men telling viewers: “Remember: You’re never too far away from your kids to be a dad. Reach out and take a second to check in—because sometimes, the smallest moments can have the biggest impact on a child’s life.”

This clip might have the unfortunate effect of reproducing the idea that a model father is, first and foremost, a breadwinner. And being an engaged father simply means picking up the phone to call the kids from work. I wish the federal government would replace videos like this from its campaign with clips that showcase multiple sides of fatherhood, including images of fathers as hands-on caregivers.

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