Law Commons^™

Reasonableness In Hostile Work Environment Cases After #Metoo, Danielle A. Bernstein

Michigan Journal of Gender & Law

The #MeToo movement, a global social response to sexual harassment in the workplace, has turned the traditional approach to sexual harassment on its head. Instead of shielding perpetrators and discrediting survivors, employers, the media, and the public have begun to shift from presuming the credibility of the perpetrator to presuming the credibility of the survivor. But this upending of the status quo has occurred almost entirely in the social sphere—and the legal system, where survivors of workplace sexual harassment can seek remedies for the abuse they have suffered, is proving much slower to adapt.

While our social presumptions are flipping …

Women And Men Graduates Of The University Of Michigan Law School: Career Patterns And Adjustments For Children, David L. Chambers

Bibliography of Research Using UMLS Alumni Survey Data

The University of Michigan Law School conducted mail surveys of classes of its alumni each year from 1966 and 2006. This memorandum builds upon the mail surveys conducted through 2006 and in particular survey questions asked about the sex of the respondent, the settings in which they have worked since law school, the hours they work and their earnings in their current settings, whether they have children and the various adjustments they have made in order to care for children, such as working part-time or leaving the work force altogether for periods of time. The memorandum has two principal focuses: …

Born Free: Toward An Expansive Definition Of Sex, Laura Palk, Shelly Grunsted

Michigan Journal of Gender & Law

The State of New York recently issued its first physician-certified “intersex” birth certificate, correcting a 55-year-old’s original birth certificate. This is a positive step towards eliminating the traditional binary approach to a person’s birth sex, but it creates potential uncertainties in the employment discrimination context. Over the past several years, the definition of what constitutes “discrimination on the basis of sex” has both expanded (with the legalization of same-sex marriage) and narrowed (restricting the use of gender specific bathrooms). Until recently it appeared that a broader definition of the term “sex” would become the judicial—and possibly legislative—norm in a variety …

Customer Domination At Work: A New Paradigm For The Sexual Harassment Of Employees By Customers, Einat Albin

Michigan Journal of Gender & Law

This Article introduces a novel legal paradigm—customer domination at work—to address the sexual harassment of employees by customers. This new approach challenges the prevailing paradigm, which focuses on the employer-employee binary relationship. I show how, under current Title VII law, the prevailing paradigm leads to a weaker form of employer liability than other instances where employers are liable for the sexual harassment of their employees. The protection for workers is also limited. The same is true of two other legal regimes discussed in the Article: Germany and Britain. More importantly, I argue that the prevailing paradigm precludes a true understanding …

Centering The Teenage "Siren": Adolescent Workers, Sexual Harassment, And The Legal Construction Of Race And Gender, Anastasia M. Boles

Michigan Journal of Gender & Law

Recent scholarship and media attention has focused on the prevalence of sexually harassing behavior directed at working teenagers, and the emergence of sexual harassment lawsuits by these minors against their employers. Although many of the legal issues concerning workplace sexual harassment and adult workers (and the various state and federal jurisprudence prohibiting it) have been widely discussed, there is surprisingly little discourse, research, and precedent addressing the problem of workplace sexual harassment and teen workers. Currently, most sexual harassment cases brought by adolescent workers are litigated using the doctrinal framework for adult workers. Only the Seventh Circuit has developed an …

Coercive Assimilationism: The Perils Of Muslim Women's Identity Performance In The Workplace, Sahar F. Aziz

Michigan Journal of Race and Law

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. But what if being oneself entails behaviors, mannerisms, and values integrally linked to the employee’s gender, race, or religion? And what if the basis for the employer’s workplace rules and professionalism standards rely on negative racial, ethnic or gender stereotypes that disparately impact some employees over others? Currently, Title VII fails to take into account such forms of second-generation discrimination, thereby limiting statutory protections to phenotypical or morphological bases. Drawing on social psychology and …

The Fourth Trimester, Saru M. Matambanadzo

University of Michigan Journal of Law Reform

This Article introduces a new conceptual framework to the legal literature on pregnancy and pregnancy discrimination: the fourth trimester. The concept of a fourth trimester, drawn from maternal nursing and midwifery, refers to the crucial three to six month period after birth when many of the physical, psychological, emotional, and social effects of pregnancy continue. Giving this concept legal relevance extends the scope of pregnancy beyond the narrow period defined by conception, gestation, and birth and acknowledges that pregnancy is a relational process, not an individual event. In the United States, however, antidiscrimination law has failed to acknowledge the demands …

The Role Of Networks, Mentors, And The Law In Overcoming Barriers To Organizational Leadership For Women With Children, Terry Morehead Dworkin, Aarti Ramaswami, Cindy A. Schipani

Michigan Journal of Gender & Law

The 2012 election brought headlines such as "Another 'Year of Women' in Congress." Although the number of women in the highest legislative offices increased, their numbers are still significantly lower than those of men. Fewer than 100 women hold office in both houses of Congress. Corporate America similarly reflects significantly low female leadership numbers. For example, "fewer than 20% of finance industry directors and executives are women, and [there are] no women leading the 20 biggest U.S. banks and securities firms." Women make up nearly half the workforce and hold 60% of bachelor degrees, yet they hold only 14% of …

Bathroom Bias: Making The Case For Trans Rights Under Disability Law, Daniella A. Schmidt

Michigan Journal of Gender & Law

Disability law is one of the more successful tools currently being used to protect trans people fom discrimination. While the use of disability law as a framework for affirming or creating trans rights has come with some success, many in the community remain reluctant to use disability law for fear of the policy implications and stigma associated with medicalization of trans identity. After exploring the current state of the law on both the federal and state level, this Note will argue how disability law both could and should be used more often to further trans protections. In particular, this Note …

Flexible Scheduling And Gender Equiality: The Working Families Flexibility Act Under The Fourteenth Amendment, Lane C. Powell

Michigan Journal of Gender & Law

The Working Families Flexibility Act (“WFFA”) as proposed in 2012 would create a federal right for employees to request flexible work arrangements. However, the bill contains no private right of action for employees to enforce this new right. By reframing the WFFA as an anti-discrimination statute targeting unconstitutional sex discrimination on the part of the States, the WFFA could be upheld under Section 5 of the Fourteenth Amendment, allowing Congress to provide a private right of action for both private and state employees. This Note uses the Supreme Court’s decisions on the Family Medical Leave Act in Hibbs and Coleman …

Sex Equality's Unnamed Nemesis, Veronica Percia

Michigan Journal of Gender & Law

Sex inequality still exists. However, its manifestations have evolved since the early sex inequality cases were heard in courts and legislatures first began structuring statutory regimes to combat it. In particular, so-called "facial" discrimination against men and women on the basis of sex has no doubt decreased since the advent of this legal assault on sex inequality. Yet the gendered assumptions that structure our institutions and interactions have proven resilient. With sex discrimination now operating more covertly, the problem of sex inequality looks considerably different than it once did. Courts, however, have failed to successfully respond to the changing contours …

Removing Categorical Constraints On Equal Employment Opportunities And Anti-Discrimination Protections, Anastasia Niedrich

Michigan Journal of Gender & Law

It has been the "historical tendency of anti-discrimination law to use categories to define protected classes of people." This Article challenges the categorical approach and seeks to change that limited framework. This Article focuses on the flaws with Title VII's categorical approach and discusses why there is a desperate need for change to combat the different types and targets of workplace discrimination today, focusing on the transgender community as one example. After discussing the current framework and operation of Title VII, this Article analyzes the insurmountable flaws inherent in the categorical approach to anti-discrimination law, and specifically considers Title VII's …

Erasing Boundaries: Masculinities, Sexual Minorities, And Employment Discrimination, Ann C. Mcginley

University of Michigan Journal of Law Reform

This Article analyzes the application of employment discrimination law to sexual minorities-lesbians, gays, bisexuals, transgender and intersex individuals. It evaluates Title VII and state anti-discrimination laws' treatment of these individuals, and is the first article to use masculinities research, theoretical and empirical, to explain employment discrimination against sexual minorities.

While the Article concludes that new legislation would further the interests of sexual minorities, it posits that it is neither necessary nor sufficient to solving the employment discrimination problems of sexual minorities. A major problem lies in the courts' binary view of sex and gender, a view that identifies men and …

Finding The Sex In Sexual Harassment: How Title Vii And Tort Schemes Miss The Point Of Same-Sex Hostile Environment Harassment, Yvonne Zylan

University of Michigan Journal of Law Reform

It has been nearly a quarter century since the United States Supreme Court first recognized the cause of action for a sexually hostile work environment under Title VII of the Civil Rights Act of 1964. In Meritor Savings Bank v. Vinson, the Court essentially adopted the view offered by legal academician Catharine MacKinnon that harassment taking the form of a sexually hostile work environment is a manifestation of gender-based power. In so doing, the Court created a remedy for many aggrieved employees, permitting redress in the federal courts for a problem that makes many workplaces unbearable. At the same …

Victimizing The Abused?: Is Termination The Solution When Domestic Violence Comes To Work?, Nicole Buonocore Porter

Michigan Journal of Gender & Law

Part I of this article will discuss domestic violence, explaining the dynamics of domestic violence in an effort to shed light on why it is so difficult for a battered woman to leave the abusive relationship. This understanding is necessary for a sensitive and informed decision-making process. This Part will also discuss the magnitude of the effect that domestic violence has on the workplace. Part II will discuss a company's potential legal liability for: (a) wrongfully terminating the employee-victim and (b) failing to protect other employees (including, perhaps, the employee-victim herself) if the company does not terminate the employee-victim and …

Sexual Harassment: Limiting The Affirmative Defense In The Digital Workplace, Donald P. Harris, Daniel B. Garrie, Matthew J. Armstrong

University of Michigan Journal of Law Reform

Digital communications sexual harassment is on the rise. Such harassment occurs through sexually offensive and unwarranted e-mails, placing harassing messages on electronic bulletin boards, and other forms of harassment that occur through the Internet. To date, courts have remained silent on the issue of sexual harassment by digital communications. Should this type of harassment be treated any differently than harassment that occurs in the physical space? The somewhat surprising answer is yes.

This Article advocates applying a new judicial framework for addressing digital communications sexual harassment. This new framework accounts for the real-world technology in the digital workplace and the …

"Has The Millennium Yet Dawned?": A History Of Attitudes Toward Pregnant Workers In America, Courtni E. Molnar

Michigan Journal of Gender & Law

This Article will focus on what might be considered the "prehistory" of the PDA in an attempt to shed new light on the equality/difference debate. Beginning as early as the nineteenth century, pregnant workers have been forced into either the equality approach or the difference approach depending mostly on race and class. This Article will show that, at times, both approaches restrained the autonomy of women and even caused harm to individual women and society by contributing to the development of the stereotypes and social attitudes that continue to permit pregnancy discrimination today.

After Ellerth: The Tangible Employment Action In Sexual Harassment Analysis, Susan Grover

University of Michigan Journal of Law Reform

In this Article, Professor Grover argues that courts too readily allow employers to avoid vicarious liability for supervisors' unlawful sexual harassment of subordinates. The Article explores the breadth of the affirmative defense first introduced in the Supreme Court's 1998 cases of Faragher v. Boca Raton and Burlington Indus., Inc. v. Ellerth. That defense clears an employer of liability for a supervisor's unlawful sexual harassment if (a) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the …

Parental-Status Employment Discrimination: A Wrong In Need Of A Right?, Peggie R. Smith

University of Michigan Journal of Law Reform

This Article evaluates strategies to challenge employment discrimination based on parental status. Specifically, it examines proposals put forth by some commentators to establish parental status as a protected class. While such a suggestion is attractive, the Article argues that it ultimately offers few practical advantages and remains wedded to a limited conception of equality, requiring only that employment decisions not reflect differences based on parenthood. Consequently, such a strategy would satisfy anti-discrimination legislation so long as both men and women with parental obligations are equally ill-treated. The Article concludes that a shift in perspective from gender to parental status will …

"Just Like One Of The Family": Domestic Violence Paradigms And Combating On-The-Job Violence Against Household Workers In The United States, Kristi L. Graunke

Michigan Journal of Gender & Law

This Article argues that the immense problem of on-the-job abuse experienced by domestic workers demands a multifaceted plan of attack. The proposed responses specifically draw upon the capacities, strengths, and resources of women, particularly comparatively privileged women, as both activists and employers of domestic workers. By describing the circumstances of domestic work in the United States from the nation's inception to the present, Part I demonstrates the prevalence and intractability of on-the-job physical and sexual abuse and argues that other women, as employers of domestic workers, have historically played a complex role in participating in, condoning, or failing to acknowledge …

The Customer Is Always Right… Not! Employer Liability For Third Party Sexual Harassment, Lea B. Vaughn

Michigan Journal of Gender & Law

This article will ask a series of questions. What is third party sexual harassment? Under what conditions does it occur? Does it differ in any significant respects from traditional notions of sexual harassment? Should those differences, if any, make a difference in the way that the legal system addresses third party harassment? And indeed, should the problem be addressed solely through the legal system? What might an employer do to alleviate sexual harassment of this type?

The Attachment Gap: Employment Discrimination Law, Women's Cultural Caregiving, And The Limits Of Economic And Liberal Legal Theory, Laura T. Kessler

University of Michigan Journal of Law Reform

Title VII has prohibited employment discrimination on the basis of pregnancy since 1978, when Congress passed the Pregnancy Discrimination Act ("PDA"), but it does not require employers to recognize women's caregiving obligations beyond the immediate, physical events of pregnancy and childbirth. The Family and Medical Leave Act of 1993 ("FMLA ") also does little more than provide job security to some relatively privileged women in the case of childbirth. Neither of these statutes, which constitute the bulk of the United States' maternity and parental leave policies, provides for the most common employment leave needs of caregivers, who by all measures …

Law As A Tool For A Sexual Revolution: Israel's Prevention Of Sexual Harassment Law- 1998, Tzili Mor

Michigan Journal of Gender & Law

Discussion of the newly enacted law will outline the theoretical underpinnings and their effect on the resultant version (Part III), followed by the legislative history, including the Knesset and the public debate surrounding the bill (Part IV), and the impact of that debate on the final outcome of the law (Part V). Part VI will pay particular attention to the innovative approach of the law as a whole and some of the revolutionary specific provisions within. In particular, the legislative framework will be considered in the context of a nation founded and conducted on traditional religious tenets of Judaism. Finally, …

What Will Diversity On The Bench Mean For Justice?, Theresa M. Beiner

Michigan Journal of Gender & Law

This article is aimed at the general question: whether having a woman judge would make a difference in sexual harassment cases. This article is aimed at this general question, the response to which has been elusive: Does the race, gender, or other background characteristics of a judge make a difference in the outcome of cases? The effects of diversity on the bench are just becoming measurable. Many legal scholars have assumed diversity will make a difference. While this conclusion may seem commonsensical, it is important to be able to support such assertions with actual data. The supposition has been that …

The Triumph Of Hate Speech Regulation: Why Gender Wins But Race Loses In America, Jon Gould

Michigan Journal of Gender & Law

On March 30, 1995, newspaper headlines declared that hate speech regulations were dead. After six years of litigating over university hate speech codes, Stanford University's rule, one of the most modest and cautiously drafted, had been declared unconstitutional by a California Superior Court. Hate speech regulation is far from over. To the contrary, hate speech rules not only continue to exist, but the courts regularly enforce their provisions. The difference is that these cases are largely restricted to a single category-sexual harassment. Under Title VII of the Civil Rights Act of 1964, and with the regulatory support of the Equal …

"Supervisor" Hostile Environment Sexual Harassment Claims, Liability Insurance, And The Trend Towards Negligence, Amanda D. Smith

University of Michigan Journal of Law Reform

A lack of settled standards for determining liability in supervisor hostile environment sexual harassment lawsuits combined with similar uncertainty in the context of employer liability insurance coverage has resulted in increased litigation in this area. This Note argues that the current predominant standard in the employer liability context, which is based on negligence principle should be rejected in favor of an apparent authority standard, which more appropriately strikes a balance between encouraging employers to identify harassing behaviors and exonerating them from liability when they do so and take appropriate remedial action. It further argues that in order to develop effective …

A Case For Pregnancy-Based Unemployment Insurance, Mark R. Brown

University of Michigan Journal of Law Reform

Professor Brown argues that unemployment insurance laws should be amended to provide coverage to otherwise eligible, pregnant claimants. Under current law, women who quit because of pregnancy are either disqualified from receiving unemployment benefits altogether or qualify only after childbirth. Those who are fired, meanwhile, often either cannot prove the motivation for their discharge or discover that they are disqualified because of their unavailability for work. Professor Brown uses a case study to illustrate the problems posed by pregnancy and unemployment insurance. He proposes model legislation that extends coverage to all pregnant claimants who temporarily separate from their employment.

Pregnancy And Unemployment: Problems And Solutions?, Mark R. Brown

University of Michigan Journal of Law Reform

Abstract for a piece in the 1995 Unemployment Compensation: Continuity and Change symposium presented by the Advisory Council on Unemployment Compensation and the University of Michigan Journal of Law Reform.

Employment Discrimination Testing: Theories Of Standing And A Reply To Professor Yelnosky, Leroy D. Clark

University of Michigan Journal of Law Reform

In this Article, Professor Clark addresses the legal issues surrounding the use of testers-individuals who deliberately apply for employment to detect sex and race discrimination. He surveys three theoretical justifications for granting standing to organizations that run testing programs. Professor Clark then responds to a previous article by Professor Yelnosky, disputing some of his conclusions. Professor Clark indicates that testing is just as necessary in higher-level employment as lower-level employment; shows that testers can obtain meaningful relief from the courts; analyzes the impact of the 1991 Civil Rights Act amendments; and encourages Congress to authorize the EEOC to run tester …

Employment Discrimination Law In Perspective: Three Concepts Of Equality, John J. Donohue Iii

Michigan Law Review

The essay begins with a discussion of which groups deserve the protection of employment discrimination law. With the protected categories of Title VII of the 1964 Civil Rights Act etched into the American consciousness, many might consider the appropriate categories to be fully self-evident. But of course, they are not, and many jurisdictions continue to struggle over whether certain dispreferred groups merit the law's solicitude.