Law Commons^™

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.

"That Gear Stick Is Not Your Husband's P----." Why The Dissent In Vance V. Ball State University Got It Right, And A Comparison Of The Law Of Employer Vicarious Liability For Sexual Harassment In The United States And South Africa, Justin A. Behravesh

Justin A. Behravesh

This article provides unique critical analysis of the United States Supreme Court's June 2013 decision of Vance v. Ball State University, by comparing that decision to recent South African common law and statutory developments. I argue that Vance's redefinition of what constitutes a "supervisor" for purposes of vicarious liability will have devastating effect on working women in the United States. Ultimately using South African law as a model framework, I conclude that the factors that should trigger vicarious liability should be based on policy concerns, not arbitrary definitions of what constitutes a "supervisor."

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) …

Social Framework Studies Such As “Women Don’T Ask” And “It Does Hurt To Ask” Show Us The Next Step Toward Achieving Gender Equality—Eliminating The Long Term Effects Of Implicit Bias—But Are Not Likely To Get Cases Past Summary Judgment, Andrea Doneff

Andrea Doneff

Social Framework evidence has been used for many years to explain how statements or actions indicate discriminatory motive. For example, social framework evidence helps us understand how statements that a woman should dress more femininely or attend charm school near the time of a decision not to offer her partnership demonstrate stereotyped behavior and therefore indicate discriminatory motives for the employment decision. Recent social framework studies show that women often do not negotiate on their own behalf and, when they do, they are perceived negatively by both men and women. Complementary studies show that negative perceptions play out over the …

The Family Responsibilities Convention Reconsidered: The Work-Family Intersection In International Law Thirty Years On, Lee Adams

Lee Adams

This year marks the thirtieth anniversary of the International Labour Organization’s (ILO) Workers with Family Responsibilities Convention, 1981, No. 156 coming into force. Family responsibilities in the context of paid work and its implications for gender equality have been the subject of international regulation most specifically in ILO 156, although it remains a marginalized convention. Since then, the interaction of work and family and the conflict between them have exploded as a subject of scholarly importance. This article examines ILO 156 in the context of chronological development of other major international legal instruments which address the intersection of work and …

Daddy Warriors: The Battle To Equalize Paternity Leave In The United States By Breaking Gender Stereotypes; A Fourteenth Amendment Equal Protection Analysis, Abraham Z. Melamed

Abraham Z Melamed

No abstract provided.

Mirror, Mirror On The Wall, Who Are You To Say Who Is Fairest Of Them All?, Ashley R. Brown

Ashley R Brown

No abstract provided.

Snopa And The Ppa: Do You Know What It Means For You? If Snopa (Social Networking Online Protection Act) Or Ppa (Password Protection Act) Do Not Pass, The Snooping Could Cause You Trouble, Angela Goodrum

Angela Goodrum

No abstract provided.

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 Name Of One's Own: Gender And Symbolic Legal Personhood In The European Court Of Human Rights, Yofi Tirosh

Yofi Tirosh

Legal regulation of surnames provides a fascinating venue for examining how women negotiate their interests of autonomy and of stable personhood vis a vis a patriarchal naming structure. This is a study of 25 years of adjudication of surnames and personal status at the European Court of Human Rights. It explores the intricate ways in which legal norms governing surnames (and their judicial interpretation) sustain, shape, and reify social institutions such as gender, family, and citizenship.

As a pan European court, the adjudication of the ECHR operates within the framework of human rights. The universal characteristics of human rights principles …

Artfully Discriminating: How Hall V. Nalco Co. Applies Title Vii To Adverse Employment Actions Based On Assisted Reproduction Technologies, Patrick F. Madden

Patrick F. Madden

No abstract provided.

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 …

Weighty Speech: Addressing Body Size In The Classroom, Yofi Tirosh

Yofi Tirosh

The politics of body size has been the topic of intriguing feminist work. Although in my view this issue is still undertheorized, I have long sought for a way to bring what does exist in the literature into my academic activities. The opportunity arose when, as a graduate student at the University of Michigan in 2001, I taught an undergraduate mini-course in the women's studies program, which I named Weight as a Cultural Question.

This essay discusses two pedagogical challenges I faced while teaching a class. Both questions deal with the extent to which it is productive to talk about …

The Political Economy Of Violence: Toward An Understanding Of The Gender-Based Murders Of Ciudad Juarez, Deborah M. Weissman

Deborah M. Weissman

This article provides an interpretive account of the political economy of violence localized in Cd. Juarez, Mexico. It examines the socioeconomic conditions attending decades during a period of rapid transformation to an export economy as the environment in which violence against women has assumed endemic proportions. The serial murders of women have been alternately problematized as deeds of criminal deviants, as a reactionary gendered responses to women replacing men in the wage labor force, and as the failure of the state to exercise local authority. This article argues for a more comprehensive analysis that includes the above theories without bracketing …

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

Katharine K. Baker

Rights Of Inequality: Rawlsian Justice, Equal Opportunity, And The Status Of The Family, Justin Schwartz

Justin Schwartz

Is the family subject to principles of justice? In A Theory of Justice, John Rawls includes the (monogamous) family along with the market and the government as among the "basic institutions of society" to which principles of justice apply. Justice, he famously insists, is primary in politics as truth is in science: the only excuse for tolerating injustice is that no lesser injustice is possible. The point of the present paper is that Rawls doesn't actually mean this. When it comes to the family, and in particular its impact on fair equal opportunity (the first part of the the Difference …