Category: Feminism and Gender

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Family Law After Obergefell

 

The Supreme Court’s 2015 decision in Obergefell v. Hodges marked a sea change in family law.  While the immediate impact of the decision is clear – same-sex couples now have the right to marry in every state – the implications of the decision for family law and for practicing family lawyers are considerably broader.  Recognition of marriage equality has created new issues for courts deciding divorce and parenting cases, and for lawyers advising clients about issues related to family formation and family break-up. This post will highlight the family law implications of Obergefell  and explore some of the issues that are likely to arise in future cases involving the rights and obligations of same-sex couples.

Same-sex divorce, American style

According to the Williams Institute, close to 400,000 same-sex couples were already married at the time Obergefell was decided. A recent Gallup poll estimates that more than 120,000 additional same-sex couples have married since that time. But not all marriages endure.  About 40% of heterosexual marriages now end in divorce, and it is reasonable to anticipate that the divorce rate for same-sex couples will be roughly comparable.  Indeed, access to the financial and parenting remedies associated with divorce is one of the important benefits of marriage.   But same sex divorces are likely to raise some challenging legal issues.

Parenthood and the impact of the marital presumption

When an opposite sex couple divorces, legal parentage generally is not disputed. In part, this is due to the operation of the “marital presumption” — the legal rule that identifies the husband of a married woman as the legal father of any children born (or conceived) during the marriage.  At one time, the presumption was nearly irrebutable.  More recently, courts in a number of states have allowed divorcing parties to rebut the presumption based on genetic evidence of non-paternity.

Courts and legislatures have already begun to grapple with the application of the marital presumption to same-sex couples. Although the language of the presumption is usually gendered — specifying both a husband and a married woman — some courts have interpreted the statutory reference to husband to apply as well to a female spouse.  Other courts have declined to interpret their statutes broadly, but have invoked equal protection principles to extend the marital presumption to same-sex partners. See, e.g., Gartner v Iowa Department of Public Health, 830 N.W.2d 335 (Iowa 2013).  Still others have refused to apply the presumption to same-sex relationships, citing its biological underpinnings or opining that such a step is a matter for the legislature, not the judiciary.

Even if courts apply the marital presumption to same-sex couples, questions remain about its impact. In most states, the presumption is now rebuttable, and genetic evidence of non-paternity is often (albeit not always) sufficient grounds to rebut the presumption. But should genetic evidence be relevant to parentage in a same-sex marriage, where both spouses know from the outset that one parent will not be genetically related to the child.  And how, if at all, should the presumption apply to gay male marriages, in which neither spouse is a “married woman” and where the woman who gives birth is generally not an intended parent?  These questions, of course, raise the broader issue of whether parentage should be understood as a biological fact, or (primarily) as a legal and social construct.  And, if parentage is primarily a legal construct, what role (if any) should marriage play?

Moreover, as its name indicates, the marital presumption applies only to children born (or conceived) during a marriage. But many same-sex couples today are co-parenting children who were born to one spouse before their marriage, perhaps during a prior heterosexual union.  The marital presumption is of no use here, just as it provides no basis for step-parents to assert legal parentage in the absence of an adoption.  Other doctrines such as de facto parenthood, discussed in Professor Murphy’s last post, may be available to establish parental rights, but establishing parenthood under those doctrines in fact-specific and uncertain, and the doctrine has been criticized as insufficiently protective of the autonomy of biological parents.

Moreover, while many states now recognize some form of de facto parenthood, others do not, and, in the absence of a judicial decree, states are not required to respect each other’s parentage rules.  Thus, a same-sex partner who is recognized as a legal parent in one state may not be recognized in another.  For this reason, many family lawyers continue to advise same-sex spouses to secure parental rights through adoption, even where a couple is married at the time their child is born.  But adoption can be both expensive and intrusive, and many same-sex couples understandably assume that their marriage renders adoption unnecessary, only to find upon dissolution that the law is far less settled than they imagined.  Judicial declarations of parentage, obtained at the time a child is born, could provide an alternative means of interstate recognition, but existing state procedures are not designed for same-sex couples, whether married or not.

Divorce-related financial remedies

The dissolution of same-sex marriages presents other challenges as well. Current standards for both property distribution and post-divorce spousal support depend significantly on the length of the marriage in question; the longer the financial interdependence associated with marriage, the more robust the post-divorce sharing rules.  But many of today’s same-sex marriages were preceded by lengthy periods of non-marital cohabitation, particularly in states that refused to allow same-sex marriage prior to Obergefell.  If such a couple divorces after a relatively short marriage, can a court base a property or a support award on the lengthy period of pre-marital cohabitation?   Many courts have refused to do so in cases involving opposite-sex couples who cohabited prior to marriage, noting that the applicable statutory language refers specifically to the length of the marriage, not to the length of the relationship.  Should these decisions apply to same-sex couples?  Other courts have relied on their on their equitable powers to consider non-marital cohabitation as a factor in fixing the financial consequences of divorce.  Some commentators have suggested using common law marriage as a solution to this problem.  But common law marriage has traditionally required that individuals have the legal capacity to marry each other at the time the relevant conduct took place and that the parties held themselves out as married in one of the handful of states that allow couples to contract a common law marriage.  Both of these requirements are likely to post problems for most same-sex couples.

And how should Obergefell affect the treatment of cohabitation relationships that break up without a marriage?  Prior to Obergefell, a number of states had begun to apply principles of equity or implied contract to redistribute assets accumulated in one partner’s name at the end of a long-term cohabitation relationship.  Many of these cases involved same-sex couples, and the couple’s inability to marry may well have influenced the court’s decision.  The American Law Institute’s Principles of Family Dissolution took these developments a step further by extending status-based property and support remedies to unmarried partners who “for a significant period of time share a primary residence and a life together as a couple.”  How should Obergefell’s recognition of marriage equality affect the viability of these doctrines?  Does the availability of same-sex marriage weaken claims based on non-marital cohabitation on the theory that a couple’s decision not to marry is an indication that they (or at least one of them) prefer not to be bound by marital sharing principles? Is this a preference that the law should respect, even if, in hindsight, it turns out to be a bad deal for one of the parties?  Or should courts continue to apply functional, as well as formal criteria, to determine the appropriateness of post-relationship financial sharing?

Wither Civil Unions and Domestic Partnerships

More generally, how should the availability of same-sex marriage affect other legal statuses, such as domestic partnerships and civil unions? Should states that previously recognized such unions automatically convert them to marriages unless a couple explicitly “opts out?”  Or should states require that domestic partners affirmatively “opt in” to marriage?  What should be the legal default?  Will private companies that previously provided benefits to same-sex domestic partners now restrict such benefits to married couples?  And, if so, has the “right” to marry celebrated in Obergefell become an obligation to do so – a possibility that Professor Kathrine Franke cautioned against in her 2015 book, Wedlocked: The Perils of Marriage Equality.

More broadly, should states retain these alternative legal statuses as a form of “marriage lite” or have they outlived their utility now that both same-sex and opposite-sex couples have access to marriage? And if states choose to retain these alternatives, do constitutional equality principles require that they be made available to opposite-sex as well as same-sex couples? To non-romantic partners such as siblings or other relatives?  Now that marriage is available to same-sex as well as opposite sex, couples, how much should it matter?

Beyond Marriage and Divorce

Marriage equality is also likely to affect legal developments in contexts beyond divorce and parenting disputes. In her recent article, Inheritance Law and the Marital Presumption After Obergefell, my colleague, Paula Monopoli, examines the impact of Obergefell on inheritance law; she argues that important policy goals support extending a conclusive marital presumption to all nonbirth/nongenetic spouses for purposes of inheritance law, and suggests that the presumption be unmoored from its biological roots and re-conceptualized as resting on the presumed consent of the nonbirth/nongenetic spouse to be the parent of any child born during a marriage.  In a broader frame, Douglas NeJaime, argues in his recent Harvard Law Review article, Marriage Equality and the New Parenthood, that marriage equality was both enabled by – and, in turn, enables — significant shifts in the law’s understanding of parenthood and in its ongoing construction of families.  Without a doubt, this is a construction project that should capture the imagination and engage the efforts of both legal scholars and practicing family lawyers for many years to come.

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Call for Papers: The Feminist Legal Theory Collaborative Research Network

Call for Papers – Friday September 16th Deadline

The Feminist Legal Theory Collaborative Research Network

Seeks submissions for the

Law and Society Association Annual Meeting

Mexico City, Mexico, at the Sheraton Maria Isabel, June 20 – 23, 2017

Dear friends and colleagues,

We invite you to participate in the panels sponsored by the Feminist Legal Theory Collaborative Research Network at the Law and Society Annual Meeting in 2017. The Feminist Legal Theory CRN seeks to bring together law and society scholars across a range of fields who are interested in feminist legal theory. Information about the Law and Society meeting is available at http://www.lawandsociety.org.

This year’s meeting is unique in that it brings us to the Global South, and invites us to explore the theme Walls, Borders, and Bridges: Law and Society in an Inter-Connected World. We are especially interested in proposals that explore the application of feminist legal theory to this theme, broadly construed. This might include papers that explore feminist legal theory in comparative or transnational contexts, as well as in relation to the impacts of globalism and other intersections within particular locations, relationships, institutions, and identities. We are also interested in papers that will permit us to collaborate with other CRNs, such as the Critical Research on Race and the Law CRN, and welcome multidisciplinary proposals.

Our goal is to stimulate focused discussion of papers on which scholars are currently working. Thus, while you may submit papers that are closer to publication, we are particularly eager to receive proposals for works-in-progress that are at an earlier stage and will benefit from the discussion that the panels will provide.

The Planning Committee will assign individual papers to panels based on subject. Panels will use the LSA format, which requires four papers. We will also assign a chair, and one or two commentators/discussants for each panel, to provide feedback on the papers and promote discussion. For panels with two commentators/discussants, one may be asked to also chair.

As a condition of participating as a panelist, you must also agree to serve as a chair and/or commentator/discussant for another panel or participant. We will of course take into account expertise and topic preferences to the degree possible.

The duties of chairs are to organize the panel logistically; including registering it online with the LSA, and moderating the panel. Chairs will develop a 100-250 word description for the session and submit the session proposal to LSA before their anticipated deadline of October 19. This will ensure that each panelist can submit their proposal, using the panel number assigned.

The duties of commentator/discussants are to read the papers assigned to them and to prepare a short commentary about the papers that discusses them individually and (to the extent relevant) collectively, identifying ways that they relate to one another.

If you would like to present a paper as part of a CRN panel, please email:

  • An 1000 word abstract or summary,
  • Your name and a title, and
  • A list of your areas of interest and expertise within feminist legal theory

to the CRN Planning Committee at 2017lsacrn@gmail.com. (Please do not send submissions to individual committee members.)

Note that LSA is imposing a requirement that your summary be at least 1,000 words long.  Although a shorter summary will suffice for our purposes, you will be required to upload a 1,000 word summary in advance of LSA’s anticipated deadline of October 19. If you are already planning a LSA session with at least four panelists (and papers) that you would like to see included in the Feminist Legal Theory CRN, please let the Committee know.

In addition to these panels, we may try to use some of the other formats that the LSA provides: the “author meets readers” format, salon, or roundtable discussion. If you have an idea that you think would work well in one of these formats, please let us know. Please note that for roundtables, organizers are now required to provide a 500-word summary of the topic and the contributions they expect the proposed participants to make. Please also note that LSA rules limit you to participating only once as a paper panelist or roundtable participant.

Please submit all proposals by Friday, September 16 to the email provided above. This will permit us to organize panels and submit them prior to the LSA’s anticipated deadline of October 19. In the past, we have accommodated as many panelists as possible, but have been unable to accept all proposals. If we are unable to accept your proposal for the CRN, we will notify you by early October so that you can submit an independent proposal to LSA.

We hope you’ll join us in Mexico City to share and discuss the scholarship in which we are all engaged and connect with others doing work on feminist legal theory.

2017 LSA Feminist Legal Theory CRN Planning Committee

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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