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From Queen Bees And Wannabes To Worker Bees: Why Gender Considerations Should Inform The Emerging Law Of Workplace Bullying, Kerri Lynn Stone

Kerri Stone

This Article submits that the documented phenomenon of workplace bullying operates to stymie the retention and advancement of women in the workplace Research documented in books like Queen Bees and Wannabes shows that as early as the schoolyard, males and females tend to socialize differently, engage in and resolve conflict with peers differently, and absorb bullying behavior differently. Girls often believe or are taught to believe that direct conflict or confrontation is unpalatable and tend to employ more passive aggressive means of engagement with foes. They often internalize and repress feelings that boys are more likely to express. Viewing the …

Wage Gender Disparities: Challenging Prevailing Assumptions, Theoretical Approache, Shlomit Yanisky-Ravid Professor Of Law

Shlomit Yanisky-Ravid Professor of Law

Women in the United States are, on average and consistently, earning less than their male peers. Sometimes, they are even paid less than the men they supervise. A common response concerns about the 23 cent gender wage gap for full-time year-round workers across occupations, is that it is simply a byproduct of the choices women make: choices to prefer family life and needs, work fewer hours, take on lower-paying jobs, or opt out of the workforce for longer periods of time than men. Under this view, the gender pay gap is not a result of sex discrimination but of women's …

Caregivers In The Courtroom: The Growing Trend Of Family Responsibilities Discrimination, Joan C. Williams, Stephanie Bornstein

Stephanie Bornstein

When people think of sex discrimination, they tend to think of glass-ceiling discrimination and sexual harassment. This article describes and documents a rapidly expanding area of employment discrimination law: family responsibilities discrimination, or "FRD." FRD is employment discrimination against people based on their caregiving responsibilities, whether for children, elderly parents, or ill partners. FRD includes both "maternal wall" discrimination -- the equivalent of the glass ceiling for mothers -- and discrimination against men who participate in childcare or provide care for other family members.

Liberty Vs. Equality: In Defense Of Privileged White Males, Nancy E. Dowd

Nancy Dowd

In this book review, Professor Dowd reviews Forbidden Grounds: The Case Against Employment Discrimination Laws, by Richard A. Epstein (1992). First, Professor Dowd sets forth the thesis and arguments of Epstein’s book and explores her general criticisms in more detail. Next, she explores Epstein’s core argument pitting liberty against equality from two perspectives: that of the privileged white male and that of minorities and women. Finally, Professor Dowd argues that Epstein’s position cannot be viewed as an argument that most minorities or women would make, as it fails to take account of their stories.

Preventative Legislation Ensures Intended Parents Of Gestational Surrogacy Benefits Under The California Family Rights Act, Jennifer Jackson

Jennifer Jackson

We live in a rapidly evolving technological age, which now allows parents to enter surrogacy contracts. In such a world, the law often lags in catching up to technology and the ramifications that may ensue. This paper focuses on the California Family Rights Act (CFRA) and the consequences it has on surrogacy agreements and the rights intended parents. While the CFRA includes broad language as to the definition of a “child,” case law shows that surrogate born children may be unintentionally excluded. As a result, this paper analyzes the arguments both for and against revision to the CFRA and concludes …

Veiled Discrimination, Sahar F. Aziz

Sahar F. Aziz

Should employees have the legal right to “be themselves” at work? Most Americans would answer in the negative because work is a privilege, not an entitlement. An employer’s workplace rules that define professionalism, therefore, are his prerogative and defined by the demands of the marketplace. Underlying this conclusion is the false premise that objective and neutral factors shape modern notions of professionalism. To the contrary, professionalism is a subjective concept dependent on the decision makers’ worldview, norms, values, and definitions of propriety. Employees who belong to the employer’s social group or fall within society’s majority are advantaged as minimal effort …

Surrogacy Leave And Eu Law: Case C 167/12, C.D. V S.T. And Case C 363/12, Z. V A Government Department, Judgements (Grand Chamber) Of 18 March 2014, Mel Cousins

Mel Cousins

Advances in reproductive technology have tended to outpace the capacity of legislators to respond to these changes, leading to difficult legal questions for the courts. Surrogacy is one particular area where advances in technology have led to many legal challenges and have highlighted the failure (in several jurisdictions) to enact appropriate legislation in response to technological developments and/or differing views about what is ‘appropriate’. Two recent cases before the European Court of Justice (CJEU) have raised the issues as to whether either EU secondary legislation (in particular the Pregnant Workers Directive 92/85/EEC and/or the Equal Treatment Directives 2006/54/EC and 2000/78/EC) …

Wal-Mart Stores V. Dukes: Lessons For The Legal Quest For Equal Pay, Deborah Thompson Eisenberg

Deborah Thompson Eisenberg

The Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes provides a unique opportunity to reflect on whether and how the legal system should address unjustified pay disparities between men and women who perform similar jobs. This Article describes the Court’s decision and analyzes the insights it offers about the legal quest for equal pay. First, Wal-Mart demonstrates the tension between Title VII’s focus on the employer’s intent and the economic realities of how pay discrimination happens in the modern workplace. As the women at Wal-Mart experienced and research confirms, pay disparities tend to be the greatest when employers delegate …

Consensual Amorous Relationships Between Faculty And Students: The Constitutional Right To Privacy, Elisabeth A. Keller

Elisabeth Keller

Surveys of college students in the United States revealed that a significant number of students thought they had been victims of some form of sexual harassment. Growing awareness of the magnitude, dimensions, and effects of sexual harassment at educational institutions and the potential for institutional liability have prompted educators to adopt policies to avert such problems. The policies typically prohibit sexual harassment of employees and students and alert the university community to the serious effects of sexual harassment and the potential for student exploitation. Some universities have gone beyond establishing regulations directed at widely litigated problems of sexual harassment and …

Consensual Amorous Relationships Between Faculty And Students: The Constitutional Right To Privacy, Elisabeth A. Keller

Elisabeth Keller

Surveys of college students in the United States revealed that a significant number of students thought they had been victims of some form of sexual harassment. Growing awareness of the magnitude, dimensions, and effects of sexual harassment at educational institutions and the potential for institutional liability have prompted educators to adopt policies to avert such problems. The policies typically prohibit sexual harassment of employees and students and alert the university community to the serious effects of sexual harassment and the potential for student exploitation. Some universities have gone beyond establishing regulations directed at widely litigated problems of sexual harassment and …

Hidden In Plain Sight: Achieving More Just Results In Hostile Work Environment Sexual Harassment Cases By Re-Examining Supreme Court Precedent, Elisabeth A. Keller, Judith B. Tracy

Elisabeth Keller

Lower federal courts often fail to provide plaintiffs in sexual harassment cases the relief intended by Title VII of the Civil Rights of 1964 and mandated by the Supreme Court when it recognized the cause of action twenty years ago. There is little doubt that sexual harassment in the workplace persists. However, lower courts misapply or ignore Supreme Court reasoning that would result in fairer and more consistent dispositions in hostile work environment sexual harassment cases. This article draws directly on reasoning from the Supreme Court cases to explain the sources of the confusion in the lower courts and offers …

Hidden In Plain Sight: Achieving More Just Results In Hostile Work Environment Sexual Harassment Cases By Re-Examining Supreme Court Precedent, Elisabeth A. Keller, Judith B. Tracy

Elisabeth Keller

Lower federal courts often fail to provide plaintiffs in sexual harassment cases the relief intended by Title VII of the Civil Rights of 1964 and mandated by the Supreme Court when it recognized the cause of action twenty years ago. There is little doubt that sexual harassment in the workplace persists. However, lower courts misapply or ignore Supreme Court reasoning that would result in fairer and more consistent dispositions in hostile work environment sexual harassment cases. This article draws directly on reasoning from the Supreme Court cases to explain the sources of the confusion in the lower courts and offers …

Money, Sex, And Sunshine: A Market-Based Approach To Pay Discrimination, Deborah Thompson Eisenberg

Deborah Thompson Eisenberg

The Equal Pay Act had a distinct market purpose. Congress made a policy choice to modify the existing compensation market so that employees who perform jobs requiring substantially “equal skill, effort, and responsibility” earn equal wages, regardless of sex. The Act aimed not simply to promote individual fairness, but to foster a more efficient, equitable wage market on a systemic level. Congress recognized that paying lower wages to women constituted “an unfair method of competition,” burdened “commerce and the free flow of goods in commerce,” and prevented the “maximum utilization of available labor resources.” Over time, however, the “market” in …

What Dignity Demands: The Challenges Of Creating Sexual Harassment Protections For Non-Workplace Settings, Camille Gear Rich

Camille Gear Rich

In the more than twenty years since the Supreme Court created Title VII’s sexual harassment protections, judges and feminist legal scholars have struggled to create a clear conceptual account of the harm sexual harassment inflicts. Many courts and scholars were content to justify sexual harassment law by arguing that it vindicates women’s interest in workplace equality; however, several feminist legal scholars revealed the inadequacy of this account by the late 1990s, suggesting instead that harassment should be understood as inflicting dignitary harm. The failure to reach consensus about sexual harassment law’s purpose appeared without significant consequence until courts began developing …

Shattering The Equal Pay Act's Glass Ceiling, Deborah Thompson Eisenberg

Deborah Thompson Eisenberg

This Article provides the first empirical and rhetorical analysis of all reported Equal Pay Act (EPA) federal appellate cases since the Act’s passage. This analysis shows that as women climb the occupational ladder, the manner in which many federal courts interpret the EPA imposes a wage glass ceiling, shutting out women in non-standardized jobs from its protection. This barrier is particularly troubling in light of data that shows that the gender wage gap increases for women as they achieve higher levels of professional status. The Article begins by examining data regarding the greater pay gap for women in upper-level jobs. …

A Tale Of Two Amendments: The Reasons Congress Added Sex To Title Vii And Their Implication For The Issue Of Comparable Worth, Michael Evan Gold

Michael Evan Gold

No abstract provided.

Female Immigrant Workers And The Law: Limits And Opportunities, Maria Ontiveros

Maria L. Ontiveros

This paper explains the reasons that traditional United States labor and employment laws are incapable of effectively addressing the types of workplace problems confronting female immigrant workers. It critiques the protections supposedly offered by the free market, labor standards, antidiscrimination laws and collective bargaining. It argues that statutory exclusion, immigration issues, nonrecognition of injury, and cultural limitations thwart the effectiveness of traditional approaches. It then describes a variety of initiatives and approaches being taken at the domestic and international level that more effectively address these problems. These initiatives include the use of the Thirteenth Amendment and antitrafficking legislation, as well …

Gender, Genes, And Choice: A Comparative Look At Feminism, Evolution, And Economics, Katharine K. Baker

Katharine K. Baker