Sexuality and the Law Commons^™

Hair Me Out: Why Discrimination Against Black Hair Is Race Discrimination Under Title Vii, Alexis Boyd

American University Journal of Gender, Social Policy & the Law

In May 2010, Chastity Jones sought employment as a customer service representative at Catastrophe Management Solutions (“CMS”), a claims processing company located in Mobile, Alabama. When asked for an inperson interview, Jones, a Black woman, arrived in a suit and her hair in “short dreadlocks,” or locs, a type of natural hairstyle common in the Black community. Despite being qualified for the position, Jones would later have her offer rescinded because of her hair. CMS claimed that locs “tend to get messy” and violated the “neutral” dress code and hair policy requiring employees to be “professional and business-like.” Therefore, CMS …

Unlocking The Beauty From Within Title Vii: Arguing For An Expansive Interpretation Of Title Vii To Protect Against Attractiveness Discrimination, Michael Conklin

American University Journal of Gender, Social Policy & the Law

Beauty may only be skin deep, but discrimination against the unattractive runs far deeper. Research emphatically demonstrates that attractiveness discrimination affects nearly every aspect of life, including hiring and promotion decisions. For example, personal injury attorneys utilize economists as expert witnesses for how their clients’ reduced attractiveness will negatively affect their future earnings. Attractiveness discrimination is just as prevalent as discrimination based on ethnicity. Unfortunately, current interpretations of federal antidiscrimination legislation do not offer protections from attractiveness discrimination. This Article offers a comprehensive framework for providing such protections under an expansive interpretation of Title VII.

Indiana In The Midst Of #Metoo: The Argument For Enforcing Arbitration In Sexual Harassment Claims, Jonathan Cisneros

Pepperdine Dispute Resolution Law Journal

This note argues that it is in the best interest of sexual harassment victims and the state of Indiana to not follow suit in passing legislation that prohibits employers from requiring mandatory arbitration in sexual harassment cases. This is based on an analysis of the potential factors underlying Indiana’s current lack of legislative movement, the weight of the arguments for and against mandatory arbitration, and consideration of the preemption issues surrounding state laws banning mandatory arbitration. Part II sets the foundation for this note by laying out the most pertinent parts of the FAA and analyzing how the U.S. Supreme …

Deliberately Indifferent: Institutional Liability For Further Harassment In Student-On-Student Title Ix Cases, Jacob R. Goodman

Vanderbilt Law Review

Sexual harassment is an unfortunate problem far too many have experienced. Universities and other educational institutions owe a duty, both legal and moral, to protect students from sexual harassment, and in turn to allow students to receive the full benefits of their education. But a circuit split has limited students' ability to hold educational institutions liable. This circuit split results in the absurd scenario where an individual must experience sexual harassment more than one time to hold their educational institution liable. This Note attempts to fix that by proposing Title IX (the law governing sexual harassment at educational institutions) adopt …

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 …

The Bumble Bill: A Critical Analysis On Texas’S New Law Taking Indecent Exposure Regulations Online, Ashley B. Huron

St. Mary's Law Journal

Abstract forthcoming.

Male Same-Sex "Horseplay": The Epicenter Of All Sexual Harassment?, Kimberly Bailey

All Faculty Scholarship

In Oncale v. Sundowner Offshore Services, Inc., the U.S. SupremeCourt recognized same-sex sexual harassment as a cognizable claim of sex discrimination under Title VII of the Civil Rights Act of 1964. At the time, many scholars found this recognition to be significant andimportant, but some also argued that the Court provided an incomplete analysis regarding the meaning of discrimination “because of sex.” Specifically, some scholars argue that the Court’s opinion reinforces the sexual desire paradigm in the analysis of sexual harassment cases. Building upon this critique, this Article focuses specifically on the harassment of men who generally are perceived as …

Talking About Black Lives Matter And #Metoo, Bridget J. Crawford, Linda S. Greene, Lolita Buckner Inniss, Mehrsa Baradaran, Noa Ben-Asher, I. Bennett Capers, Osamudia R. James, Keisha Lindsay

Elisabeth Haub School of Law Faculty Publications

This essay explores the apparent differences and similarities between the Black Lives Matter and the #MeToo movements. In April 2019, the Wisconsin Journal of Gender, Law and Society hosted a symposium entitled “Race-Ing Justice, En-Gendering Power: Black Lives Matter and the Role of Intersectional Legal Analysis in the Twenty-First Century.” That program facilitated examination of the historical antecedents, cultural contexts, methods, and goals of these linked equality movements. Conversations continued among the symposium participants long after the end of the official program. In this essay, the symposium’s speakers memorialize their robust conversations and also dive more deeply into the phenomena, …

Efficient Deterrence Of Workplace Sexual Harassment, Joni Hersch

Vanderbilt Law School Faculty Publications

Although sexual harassment imposes costs on both victims and organizations, it is also costly for organizations to reduce sexual harassment. Legislation, education, training, and litigation have all been unsuccessful in eradicating workplace sexual harassment. My proposal is to establish financial incentives of sufficient magnitude to incentivize organizations to eliminate sexual harassment. The key challenge is in monetizing the harm caused by sexual harassment. I propose a new approach that draws on my research, which calculated the risk of sexual harassment by gender, industry, and age based on charges filed with the Equal Employment Opportunity Commission. Using these risk measures, I …

The Rules Of #Metoo, Jessica A. Clarke

Vanderbilt Law School Faculty Publications

In their article Unsexing Pregnancy, David Fontana and Naomi Schoenbaum undertake the important project of disentangling the social aspects of pregnancy from those that relate to a pregnant woman’s body. They argue that the law should stop treating the types of work either parent can do—such as purchasing a car seat, finding a pediatrician, or choosing a daycare—as exclusively the domain of the pregnant woman. The project’s primary aim is to undermine legal rules that assume a gendered division of labor in which men are breadwinners and women are caretakers. But Fontana and Schoenbaum argue their project will also have …

Talking About Black Lives Matter And #Metoo, Linda S. Greene, Lolita Buckner Inniss, Bridget J. Crawford, Mehrsa Baradaran, Noa Ben-Asher, I. Bennett Capers, Osamudia R. James, Keisha Lindsay

Publications

This essay explores the apparent differences and similarities between the Black Lives Matter and the #MeToo movements. In April 2019, the Wisconsin Journal of Gender, Law and Society hosted a symposium entitled “Race-Ing Justice, En-Gendering Power: Black Lives Matter and the Role of Intersectional Legal Analysis in the Twenty-First Century.” That program facilitated examination of the historical antecedents, cultural contexts, methods, and goals of these linked equality movements. Conversations continued among the symposium participants long after the end of the official program. In this essay, the symposium’s speakers memorialize their robust conversations and also dive more deeply into the phenomena, …

Hushing Contracts, David A. Hoffman, Erik Lampmann

All Faculty Scholarship

The last few years have brought a renewed appreciation of the costs of nondisclosure agreements that suppress information about sexual wrongdoing. Recently passed bills in a number of states, including New York and California, has attempted to deal with such hush contracts. But such legislation is often incomplete, and many courts and commentators continue to ask if victims of harassment can sign enforceable settlements that conceal serious, potentially metastasizing, social harms. In this Article, we argue that employing the public policy doctrine, courts ought to generally refuse to enforce hush agreements, especially those created by organizations. We restate public policy …

Breaking The Silence: Holding Texas Lawyers Accountable For Sexual Harassment, Savannah Files

St. Mary's Journal on Legal Malpractice & Ethics

Following the 2017 exposure of Harvey Weinstein, the #MeToo movement spread rapidly across social media platforms calling for increased awareness of the prevalence of sexual harassment and assault and demanding change. The widespread use of the hashtag brought attention to the issue and successfully facilitated a much-needed discussion in today’s society. However, this is not the first incident prompting a demand for change.

Efforts to bring awareness and exact change in regards to sexual harassment in the legal profession date back to the 1990s. This demonstrates that the legal profession is not immune from these issues. In fact, at least …

Inextricably Bound: Strip Clubs, Prostitution, And Sex Trafficking, Dan O'Bryant

Dignity: A Journal of Analysis of Exploitation and Violence

No abstract provided.

Campus Misconduct, Sexual Harm And Appropriate Process: The Essential Sexuality Of It All, Katharine Baker

All Faculty Scholarship

No abstract provided.

Back To Basics: Excavating The Sex Discrimination Roots Of Campus Sexual Assault, Deborah Brake

Articles

This article, written for a symposium devoted to the legacy of celebrated Lady Vols coach, Pat Summit, connects the dots between Title IX’s regulation of campus sexual assault and the law’s overarching goal of expanding women’s access to leadership. Beginning with a discussion of how sexual objectification and harassment obstruct women’s paths to leadership, the article situates campus sexual assault as an important part of Title IX’s overarching agenda to promote equal educational opportunity. Although liberal feminism and dominance feminism are often discussed as competing theoretical frames for understanding and challenging gender inequality, they are best seen as complementary and …

Campus Misconduct, Sexual Harm And Appropriate Process: The Essential Sexuality Of It All, Katharine K. Baker

Katharine K. Baker

No abstract provided.

Tolerance Of Sexual Harassment: A Laboratory Paradigm, David J. Angelone, Damon Mitchell, Kara Carola

D.J. Angelone

The present study attempted to develop a laboratory analogue for the study of tolerance for sexual harassment by using an online speed-dating paradigm. In that context, the relation between participants’ sexual harassment attitudes, perpetrator attractiveness, perpetrator status, and perceived dating potential of the perpetrator were examined as factors influencing participants’ tolerance of sexually harassing behavior. Participants were 128 female college students from a small northeastern public university. Results indicated that attractiveness, high social status, and attitudinal beliefs about sexual harassment were all predictive of tolerance for sexual harassment, providing preliminary support for the validity of this paradigm. In addition, participants’ …

Coitus And Consequences In The Legal System: An Experimental Study, Joni Hersch, Beverly Moran

Vanderbilt Law School Faculty Publications

Scholars have found that men who physically harm their intimate partners receive less punishment than men who harm strangers. In other words, in the criminal setting, coitus has consequences. In particular, for female victims, the consequence is often a legal system that offers little or no protection. Until the experimental study presented here, no one has asked whether the same is true in civil actions. This original experimental survey, fielded on eight hundred participants, provides the first-ever evidence on whether legal decision makers hold sexual activity against females in civil settings. Participants received four scenarios- a homicide, a workplace sexual …

Real Men, Luke A. Boso

Luke A. Boso

Men experience discrimination every day at work and at school because they fail to look or behave like real men. Most courts now hold that men can prove sex discrimination by presenting evidence that the defendant harassed or bullied the plaintiff because he fails to conform to sex stereotypes. But judges in these cases are reluctant to find that defendants intended to discriminate “because of sex,” which is required to state a valid claim under statutory anti-discrimination law. Instead, judges routinely grant defendants’ motions for summary judgment and to dismiss based on little more than their own ideas about what …

Legal Limbo Of The Student Intern: The Responsibility Of Colleges And Universities To Protect Student Interns Against Sexual Harassment, Cynthia Bowman, Marybeth Lipp

Cynthia Grant Bowman

No abstract provided.

Masculinity And Title Ix: Bullying And Sexual Harassment Of Boys In The American Liberal State, Nancy C. Cantalupo

Nancy C Cantalupo

This article examines two recent “hot topics” related to Title IX of the Educational Amendments of 1972 (“Title IX”): sex-segregated schooling and gender-based violence including sexual harassment and bullying. First, in 2006, the Department of Education suspended Title IX’s prohibition of sex-segregated education in K-12 public schools amidst some sex segregation advocates’ claims that a “feminized” educational system causes sex discrimination against boys. Second, over the last decade an increasing number of boys have sued or complained against their schools for sex discrimination in the form of gender-based violence (including same-sex bullying, sexual harassment, hazing, and sexual violence).

This article …

Compulsory Sexuality, Elizabeth F. Emens

Faculty Scholarship

Asexuality is an emerging identity category that challenges the assumption that everyone is defined by some type of sexual attraction. Asexuals – those who report feeling no sexual attraction to others – constitute one percent of the population, according to one prominent study. In recent years, some individuals have begun to identify as asexual and to connect around their experiences interacting with a sexual society. Asexuality has also become a protected classification under the antidiscrimination law of one state and several localities, but legal scholarship has thus far neglected the subject.

This Article introduces asexuality to the legal literature as …

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, …

Policing Masculinity In Small-Town America, Luke A. Boso

Luke A. Boso

This Article explores masculinity in rural areas, and it addresses bullying and harassment of gay, bisexual, transgender, and otherwise gender non-conforming boys and men. While all men are under constant pressure to perform masculinity correctly and act like a "real" man, rural boys and men experience unique forms and degrees of gender policing and victimization. The confluence of geographic, social, religious, and economic characteristics common in many rural areas results in few available options for exhibiting acceptable masculinity; even benign and seemingly gender neutral traits quickly become proxies for effeminacy. Moreover, the cultural salience of rurality in the construction of …

Turning Back The Clock: The California Supreme Court's Decision In Mcclung V. Employment Development Department And The Difficulty Of Determining Legislative Intent In Retroactive Rulemaking , Jeffrey R. Groendal

Journal of the National Association of Administrative Law Judiciary

Against the backdrop of McClung, this note will explore the principle of retroactivity, tracing its development at the national level in the U.S. Supreme Court and at the state level with respect to California courts. Part II of this note addresses the history and development of jurisprudence on retroactivity, focusing on the traditional roles of the Judicial and Legislative Branches and the major cases of both the U.S. Supreme Court and California courts on retroactivity. Part III sets out the facts of McClung. Part IV analyzes and critiques the court's opinions in McClung, with a separate analysis of the history …

Inferring Desire, Jessica A. Clarke

Vanderbilt Law School Faculty Publications

In the course of debates over same-sex marriage, many scholars have proposed new legal definitions of sexual orientation to better account for the role of relationships in constituting identities. But these discussions have overlooked a large body of case law in which courts are already applying this model of sexual orientation, with inequitable results.

This Article examines a set of fifteen years of sexual harassment decisions in which courts have endeavored to determine the sexual orientations of alleged harassers. Under federal law, sexual harassment is actionable because it is a subspecies of sex discrimination. A man who makes unwanted sexual …

Severe Or Pervasive: An Analysis Of Who, What, And Where Matters When Determining Sexual Harassment, V. Blair Druhan

Vanderbilt Law Review

In the middle of Herman Cain's campaign for the 2012 U.S. Republican Party presidential nomination, multiple women who were once Cain's coworkers came forward with allegations of sexual harassment. Cain immediately deemed the allegations "totally baseless and totally false."' However, after continued questioning about whether his previous actions were inappropriate, Cain responded, "In my opinion no, but as you would imagine, it's in the eye of the person who thinks that maybe I crossed the line." Unfortunately, Cain's vague and evasive response is evocative of current sexual harassment law, which generally lacks clarity and is often dependent on individual perceptions. …

Burlington Industries, Inc. V. Ellerth: “Whole-Cloth Creation” Or Manifestation Of Congressional Intent?, John Corrington

Pepperdine Law Review

No abstract provided.

The Cult Of Hostile Gender Climate: A Male Voice Preaches Diversity To The Choir, Dan Subotnik

Dan Subotnik

No abstract provided.