Law Commons^™

Title Ix And "Menstruation Or Related Conditions", Marcy L. Karin, Naomi Cahn, Elizabeth B. Cooper, Bridget J. Crawford, Margaret E. Johnson, Emily Gold Waldman

Faculty Scholarship

Title IX protects against sex-based discrimination and harassment in covered education programs and activities. The Biden Administration's recently proposed Title IX regulations do not, however, include discrimination on the basis of menstruation or related conditions as a form of discrimination based on sex. This comment on the proposed regulations explains why the regulations should include conditions related to menstruation and recommends changes for how to do so.

#Metoo & The Courts: The Impact Of Social Movements On Federal Judicial Decisionmaking, Carol T. Li, Matthew E.K. Hall, Veronica Root Martinez

Faculty Scholarship

In late 2017, the #MeToo movement swept through the United States as individuals from all backgrounds and walks of life revealed their experiences with sexual abuse and sexual harassment. After the #MeToo movement, many scholars, advocates, and policymakers posited that the watershed moment would prompt changes in the ways in which sexual harassment cases were handled. This Article examines the impact the #MeToo movement has had on judicial decisionmaking. Our hypothesis is that the #MeToo movement’s increase in public awareness and political attention to experiences of sexual misconduct should lead to more pro-claimant voting in federal courts at the district …

Eyes Wide Shut: Using Accreditation Regulation To Address The “Pass-The-Harasser” Problem In Higher Education, Susan Saab Fortney, Theresa Morris

Faculty Scholarship

The #MeToo Movement cast a spotlight on sexual harassment in various sectors, including higher education. Studies reveal alarming percentages of students reporting that they have been sexually harassed by faculty and administrators. Despite annually devoting hundreds of millions of dollars to addressing sexual harassment and misconduct, nationwide university officials largely take an ostrich approach when hiring faculty and administrators with little or no scrutiny related to their past misconduct. Critics use the term “pass the harasser” or more pejoratively, “pass the trash” to capture the role that institutions play in allowing individuals to change institutions without the new employer learning …

Disgorging Harvey Weinstein's Salary, Jessica K. Fink

Faculty Scholarship

Harvey Weinstein dramatically altered the way that people view sexual harassment in the workplace. While workplace sexual harassment is far from a new phenomenon – with many perpetrators of such harassment (including Weinstein himself) having gotten away with this misbehavior for decades – the exposure of Weinstein’s misdeeds opened the floodgates, leading countless women from a variety of work environments to share their own experiences with sexual harassment at work. As the #MeToo movement has continued to occupy the headlines, workplace harassment has begun to seem as ubiquitous as it is distressing.

This intensified spotlight on sexual harassment has exposed …

What About #Ustoo?: The Invisibility Of Race In The #Metoo Movement, Angela Onwuachi-Willig

Faculty Scholarship

Women involved in the most recent wave of the #MeToo movement have rightly received praise for breaking long-held silences about harassment in the workplace. The movement, however, has also rightly received criticism for both initially ignoring the role that a woman of color played in founding the movement ten years earlier and in failing to recognize the unique forms of harassment and the heightened vulnerability to harassment that women of color frequently face in the workplace. This Essay highlights and analyzes critical points at which the contributions and experiences of women of color, particularly black women, were ignored in the …

Preparing Law Students In The Wake Of #Metoo, Paula A. Monopoli

Faculty Scholarship

No abstract provided.

Sex Harassment Training Must Change: The Case For Legal Incentives For Transformative Education And Prevention, Susan Bisom-Rapp

Faculty Scholarship

In the wake of the #MeToo moment, employers, legislators, and human resources professionals have defaulted to a familiar solution to what seems like an epidemic of workplace harassment: mandatory sex harassment training. The chosen antidote, however, begs an important question that this author posed over 15 years ago: Does sex harassment training actually prevent harassment? My review of the social science research in 2001 revealed no convincing evidence that sex harassment training curbs harassment. In fact, the scant research available indicated that training, as typically conducted in American workplaces, may backfire, triggering stereotypes about women and people of color, and …

Our Fair City: A Comprehensive Blueprint For Gender And Sexual Justice In New York City, Cindy Gao, Katherine M. Franke

Faculty Scholarship

Columbia Law School’s Center for Gender & Sexuality Law offers this report to aid the de Blasio administration in evaluating the steps it can and should take to eliminate all forms of gender and sexual discrimination, and to assure gender and sexual justice in City policy and programs. After consultation with numerous groups advocating for gender and sexual justice across New York City, the Center for Gender & Sexuality Law at Columbia Law School has synthesized in this report a set of key recommendations to the de Blasio administration, all designed to eliminate a wide range of disadvantages, invisibility, violence, …

Judicial Innovation And Sexual Harassment Doctrine In The U.S. Court Of Appeals., Laura P. Moyer, Holley Takersley

Faculty Scholarship

The determination that sexual harassment constituted “discrimination based on sex” under Title VII was first made by the lower federal courts, not Congress. Drawing from the literature on policy diffusion, this article examines the adoption of hostile work environment standards across the U.S. Courts of Appeals in the absence of controlling Supreme Court precedent. The results bolster recent findings about the influence of female judges on their male colleagues and suggest that in addition to siding with female plaintiffs, female judges also helped to shape legal rules that promoted gender equality in the workplace.

Regulatory Fictions: On Marriage And Countermarriage, Elizabeth F. Emens

Faculty Scholarship

Debates about marriage currently capture much public attention. Scholars have pushed beyond the question of whether gays are worthy of marriage to ask whether marriage is worthy of gays. The present moment of questioning marriage in its current form may be brief Thus, we should take this opportunity to imagine the widest possible range of alternatives to our current marriage regime – what I call countermarriage regimes. This Essay draws on two unlikely sources of legal innovation to expand our thinking about marriage alternatives: literature and anti-gay law. Literature offers an array of countermarriage regimes, including exploding marriage, three-strikes marriage, …

Law's Expressive Value In Combating Cyber Gender Harassment, Danielle K. Citron

Faculty Scholarship

The online harassment of women exemplifies twenty-first century behavior that profoundly harms women yet too often remains overlooked and even trivialized. This harassment includes rape threats, doctored photographs portraying women being strangled, postings of women’s home addresses alongside suggestions that they should be sexually assaulted and technological attacks that shut down blogs and websites. It impedes women’s full participation in online life, often driving them offline, and undermines their autonomy, identity, dignity, and well-being. But the public and law enforcement routinely marginalize women’s experience, deeming it harmless teasing that women should expect, and tolerate, given the Internet’s Wild West norms …

Sexy Dressing Revisited: Does Target Dress Play A Part In Sexual Harassment Cases?, Theresa M. Beiner

Faculty Scholarship

No abstract provided.

Critical Race Feminism Empirical Research Project: Sexual Harassment & (And) The Internal Complaints Black Box, A Defining The Voices Of Critical Race Feminism, Tanya K. Hernandez

Faculty Scholarship

In this Article, I present a Critial Race Feminism (CRF) empirical sexual harassment project I recently conducted as a case study of how empirical research can be valuable to the future of CRF. Part I introduces the sexual harassment study and discusses the empirical questions it sought to explore. Part II then presents the empirical research design and the general trends that the data provided. Part III analyzes the key findings of the study and how it contributes to an understanding of how the application of sexual harassment law implicates race. The statistical analysis of survey responses from a group …

Let The Jury Decide: The Gap Between What Judges And Reasonable People Believe Is Sexually Harassing, Theresa M. Beiner

Faculty Scholarship

No abstract provided.

Next Challenge In Sexual Harassment Reform: Racial Disparity, The Panel One: Gender, Race, And Sexuality: Historical Themes And Emerging Issues In Women's Rights Law, Tanya K. Hernandez

Faculty Scholarship

In order to do my homework in discussing both a tribute to women's lawyering and activism and also discuss emerging issues, I am going to focus on sexual harassment.

Theorizing Yes: An Essay On Feminism, Law, And Desire, Katherine M. Franke

Faculty Scholarship

In this Essay, Professor Franke observes that, unlike feminists from other disciplines, feminist legal theorists have neglected to formulate a positive theory of female sexuality. Instead, discussions of female sexuality have been framed as either a matter of dependency or danger. Professor Franke begins her challenge to this scheme by asking why legal feminism has accepted unquestionably the fact that most women reproduce in their lifetimes. Why have not social forces that incentivize motherhood – a dynamic she terms repronormativity – been exposed to as exacting a feminist critique as have heteronormative forces that normalize heterosexuality? Furthermore, she continues by …

Sexual Harassment And Racial Disparity: The Mutual Construction Of Gender And Race, Tanya K. Hernandez

Faculty Scholarship

For a number of years, commentators have proffered anecdotal evidence to suggest that women of color figure prominently as sexual harassment plaintiffs. Until recently, a systematic statistical analysis of women's experiences of sexual harassment by race was largely unavailable. For the first time, this Article comprehensively analyzes Equal Employment Opportunity Commission (EEOC) sexual harassment charge statistics, by looking at data from the last seven years along with Lexis-Nexis and Westlaw electronic reports of sexual harassment complaints for the last twenty years. What immediately becomes apparent in this statistical analysis of sexual harassment charges in the United States is the overrepresentation …

Gender Sex Agency And Discrimination: A Reply To Professor Abrams, Katherine M. Franke

Faculty Scholarship

According to the Equal Employment Opportunity Commission, sexual harassment is the fastest-growing area of employment discrimination. In fact, the annual number of sexual harassment complaints filed with the EEOC has more than doubled in the last six years. No one, or at least no one who has given this problem her serious attention, can deny that workplace sexual harassment is a grave problem and that it significantly impedes women's entrance into many sectors of the wage labor market.

Notwithstanding these impressive numbers, sexual harassment legal doctrine remains remarkably undertheorized – particularly by the Supreme Court. For these and other reasons, …

What's Wrong With Sexual Harassment, Katherine M. Franke

Faculty Scholarship

In this article, Professor Franke asks and answers a seemingly simple question: why is sexual harassment a form of sex discrimination under Title VII of the Civil Rights Act of 1964? She argues that the link between sexual harassment and sex discrimination has been undertheorized by the Supreme Court. In the absence of a principled theory of the wrong of sexual harassment, Professor Franke argues that lower courts have developed a body of sexual harassment law that trivializes the legal norm against sex discrimination. After illustrating how the Supreme Court has not provided an adequate theory of sexual harassment as …

The Reasonable Woman And The Ordinary Man, Carol Sanger

Faculty Scholarship

Nineteen ninety-one was a seismic year for sexual harassment. The first localized shift occurred in January, when the Ninth Circuit established that the standard by which sexual harassment in the workplace would be judged was no longer the reasonable man or even the reasonable person but rather the reasonable woman. In October a larger audience felt a much stronger jolt when Anita Hill spoke before the Senate Judiciary Committee.

Hill testified that Supreme Court nominee Clarence Thomas had sexually harassed her while she worked for him at the Department of Education and at the Equal Employment Opportunity Commission. Her testimony …

Race, Gender, And Sexual Harassment, Kimberlé W. Crenshaw

Faculty Scholarship

I would like to thank Anita Hill and express my deep respect to her for having the courage to shatter the silence on sexual harassment. I am certain that I speak for millions of women in saying that I have been inspired and renewed by her strength and integrity.

I have looked forward to addressing you tonight on a critical issue at this very important juncture in our political history. Sexual harassment has captured our attention over the last several weeks and has of course galvanized women in a way that scarcely could have been imagined only a few short …