Law Commons^™

Baby Steps: Why The Florida Supreme Court’S New Parental Leave Continuance Rule Reinvigorates The Fmla’S Underlying Gender Equity Goals Within The Legal Profession And Why More States Should Follow Suit, Katie B. Miesner

FIU Law Review

Although women are enrolling in law school and joining the legal profession in significant numbers, law firms are struggling to retain female lawyers. This poses a significant challenge to achieving gender equity at the highest levels of the legal profession, prompting several important questions: Why are women leaving the profession early; what policies or changes should be implemented to address this problem; and who is best suited to lead these efforts? One of the main reasons women leave the profession early is due to their disproportionate caregiving responsibilities. In response, both public and private measures have been introduced to address …

Unilateral Burdens And Third-Party Harms: Abortion Conscience Laws As Policy Outliers, Nadia Sawicki

Indiana Law Journal

Most conscience laws establish nearly absolute protections for health care providers unwilling to participate in abortion. Providers’ rights to refuse—and relatedly, their immunity from civil liability, employment discrimination, and other adverse consequences—are often unqualified, even in situations where patients are likely to be harmed. These laws impose unilateral burdens on third parties in an effort to protect the rights of conscientious refusers. As such, they are outliers in the universe of federal and state anti-discrimination and religious freedom statutes, all of which strike a more even balance between individual rights and the prevention of harm to third parties. This Article …

Sex-Segregation, Economic Opportunity, And Roberts V. U.S. Jaycees, Elizabeth Sepper

William & Mary Bill of Rights Journal

No abstract provided.

Aging On Air: Sex, Age, And Television News, Rebecca H. White

Scholarly Works

The best piece of advice I received when I began teaching law was to adopt Charlie Sullivan's and Mike Zimmer's casebook for my Employment Discrimination class. Before I became a law professor, I had no clue how important choosing the right textbook is, not only for the students but for the teacher. I also was unaware of how much I had to learn about a subject I thought I knew well. I had been litigating employment discrimination cases for several years, but when I began teaching, I quickly learned how much I did not know. Charlie's and Mike's casebook, through …

Privacy Of Information And Dna Testing Kits, Shanna Raye Mason

Catholic University Journal of Law and Technology

In modern times, consumers desire for more control over their own health and healthcare. With this growing interest of control, direct to consumer DNA testing kits have never been more popular. However, many consumers are unaware of the potential privacy concerns associated with such use. This comment examines the popularity and privacy risks that are likely unknown to the individual consumer. This comment also addresses the shortcomings of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), as well as the Genetic Information Nondiscrimination Act of 2008 (GINA) in regard to protecting individual’s genetic information from misuse. This comment …

The Shifting Sands Of Employment Discrimination: From Unjustified Impact To Disparate Treatment In Pregnancy And Pay, Deborah L. Brake

Articles

In 2015, the Supreme Court decided its first major pregnancy discrimination case in nearly a quarter century. The Court’s decision in Young v. United Parcel Service, Inc., made a startling move: despite over four decades of Supreme Court case law roping off disparate treatment and disparate impact into discrete and separate categories, the Court crafted a pregnancy discrimination claim that permits an unjustified impact on pregnant workers to support the inference of discriminatory intent necessary to prevail on a disparate treatment claim. The decision cuts against the grain of established employment discrimination law by blurring the impact/treatment boundary and …

An Overture To Equality: Preventing Subconscious Sex And Gender Biases From Influencing Hiring Decisions, Christy Krawietz

Seattle University Law Review

In many industries, women are less likely than men to be hired, and research suggests that this is due to subconscious gender bias rather than meritorious difference. To combat this bias, some orchestras use gender-blind auditions to hire their musicians. Orchestral hopefuls sit behind a screen to play their pieces, and directors listen to determine whom they want to hire. Some orchestras require applicants to remove their shoes before walking onstage, as even the perceived sound of high heels can affect a director’s decision. Before instituting gender-blind auditions, the top five American orchestras had fewer than five percent women players. …

Coercing Assimilation: The Case Of Muslim Women Of Color, Sahar F. Aziz

Faculty Scholarship

Today, I have been asked to address the domestic context of civil rights issues facing Muslim women in the United States. Admittedly, examining the experiences of Muslim American women is a risky endeavor because they are such a diverse group of women ethnically, racially, socio-economically, and religiously in terms of their levels of religiosity. Hence, I acknowledge the risk of essentializing, despite my best efforts to recognize the individual agency of each Muslim woman.

This lecture is based on a larger project that examines the myriad ways Muslim women are adversely affected by their intersectional identities, and how it impacts …

The Law Of Gender Stereotyping And The Work-Family Conflicts Of Men, Stephanie Bornstein

Stephanie Bornstein

This Article looks back to the early equal protection jurisprudence of the 1970s and Ruth Bader Ginsburg's litigation strategy of using men as plaintiffs in sex discrimination cases to cast a renewed focus on antidiscrimination law as a means to redress the work-family conflicts of men. From the beginning of her litigation strategy as the head of the ACLU Women's Rights Project, Ginsburg defined sex discrimination as the detrimental effects of gender stereotypes that constrained both men and women from living their lives as they wished-not solely the minority status of women. The same sex-based stereotypes that kept women out …

Implicit Bias In Employment Litigation, Melissa R. Hart

Melissa R Hart

Judges exercise enormous discretion in civil litigation, and nowhere more than in employment discrimination litigation, where the trial court’s “common sense” view of what is or is not “plausible” has significant impact on the likelihood that a case will survive summary judgment. As a general matter, doctrinal developments in the past two decades have quite consistently made it more difficult for plaintiffs to assert their claims of discrimination. In addition, many of these doctrines have increased the role of judicial judgment – and the possibility of the court’s implicit bias – in the life cycle of an employment discrimination case. …

The Right To Be Fat, Yofi Tirosh

Yofi Tirosh

Policy discussions on the increasing weight of Americans, portrayed as a problem of monumental and grim outlook, preoccupy public health experts, scientists, economists, and the popular media. In the legal field, however, discussions have tended to focus on whether weight should be a protected category under antidiscrimination law and on cost-benefit models for creating incentives to lose weight. This Article takes a novel approach to thinking about weight in the legal context. First, it maps the diverse ways in which the law is recruited to “the war against obesity,” thus providing an unprecedented account of what it means to be …

From Wards Cove To Ricci: Struggling Against The “Built In Headwinds” Of A Skeptical Court, Melissa R. Hart

Melissa R Hart

No abstract provided.

Some Thoughts On The State Of Women Lawyers And Why Title Vii Has Not Worked For Them, Theresa M. Beiner

Faculty Scholarship

This essay discusses why women lawyers have not been as successful in large firms in spite of graduating from law school in large numbers over the last twenty years. It begins by giving a snapshot of the state of women lawyers, including women lawyers of color. It includes stories and studies of women’s struggles at these firms. It also describes why Title VII has not worked to solve the problems associated with being a successful woman in a law firm. Finally, it suggests some potential solutions that may help women be more successful in these environments.

Employment Discrimination Against Lgbt Utahns, Clifford Rosky, Christy Mallory, Jenni Smith, M.V Lee Badgett

Utah Law Faculty Scholarship

Utah does not have a statewide law that prohibits discrimination based on sexual orientation and gender identity in employment. This report gathers together all existing data on the prevalence of discrimination in Utah to examine how frequently lesbian, gay, bisexual, and transgender Utahns experience employment discrimination based on sexual orientation and gender identity and assess the likely impact of passing a statewide nondiscrimination law.

The report begins by analyzing the data collected through a 2010 survey conducted by Equality Utah, which is the state’s first survey on discrimination based on sexual orientation and gender identity in employment. The data show …

Lawyers Suing Law Firms: The Limits On Attorney Employment Discrimination Claims And The Prospects For Creating Happy Lawyers, Nancy Levit

Faculty Works

It is more than a mild irony that anti-discrimination law fails lawyers in particular. This article addresses doctrinal and pragmatic limits on employment discrimination lawsuits by lawyers against their law firms. It considers the failures of the Title VII template to remedy the sorts of discrimination and dissatisfactions lawyers face in the practice of law, and concludes that many of the things that make lawyers unhappy are simply not reachable through employment discrimination lawsuits. The latter portion of the article turns to the recently emerging science of happiness literature. It suggests that the interests of lawyers and their firms may …

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. …

Social Justice Feminism, Kristin (Brandser) Kalsem, Verna L. Williams

Faculty Articles and Other Publications

For the past three years, women leaders from national groups, grassroots organizations, academia and beyond have gathered to address dissonance in the women's movement, particularly dissatisfaction with the movement's emphasis on women privileged on account of their race, class, or sexuality. At these meetings of the New Women's Movement Initiative (NWMI), advocates who no longer want to do feminism have articulated a desire for social justice feminism. This article analyzes what such a shift might mean for feminist practice and legal theory.

Drawing on history, specifically the work of the women behind the Brandeis brief in the Muller v. Oregon …

Race, Sex And Genes At Work: Uncovering The Lessons Of Norman-Bloodsaw, Elizabeth Pendo

All Faculty Scholarship

The Genetic Information Nondiscrimination Act of 2008 (“GINA”) is the first federal, uniform protection against the use of genetic information in both the workplace and health insurance. Signed into law on May 21, 2008, GINA prohibits an employer or health insurer from acquiring or using an individual’s genetic information, with some exceptions. One of the goals of GINA is to eradicate actual, or perceived, discrimination based on genetic information in the workplace and in health insurance. Although the threat of genetic discrimination is often discussed in universal terms - as something that could happen to any of us - the …

Not All Lawyers Are Equal: Difficulties That Plague Women And Women Of Color, Theresa M. Beiner

Faculty Scholarship

No abstract provided.

Mega-Cases, Diversity, And The Elusive Goal Of Workplace Reform, Nancy Levit

Nancy Levit

Employment discrimination class action suits are part of a new wave of structural reform litigation. Like their predecessors - the school desegregation cases in the 1950s, the housing and voting inequalities cases in the 1960s, prison conditions suits in the 1970s, and environmental lawsuits since then - these are systemic challenges to major institutions affecting large segments of the public. This article explores the effectiveness of various employment discrimination remedies in reforming workplace cultures, promoting corporate accountability, and implementing real diversity.

Reviewing the architecture and aftermath of consent decrees in five major employment discrimination cases - the cases against Shoney's, …