Law and Gender Commons^™

Gender Sidelining And The Problem Of Unactionable Discrimination, Jessica K. Fink

Faculty Scholarship

Gender dynamics suffuse virtually every workplace. Indeed, the way that employees interact with one another turns not only on their individual backgrounds, skills and personalities, but also frequently on their gender. While many employees embrace gender diversity at work and appreciate the benefits of incorporating both male and female perspectives into workplace programs and projects, this ideal does not translate into every work environment. In many workplaces, female workers continue to experience unfair (and often unlawful) treatment based upon their gender. The law has done much to outlaw overt gender discrimination at work, providing a legal framework within which female …

Feminism And The Tournament, Jessica A. Clarke

Vanderbilt Law School Faculty Publications

Naomi Bishop, the protagonist of the 2016 film "Equity," is the rare "she-wolf of Wall Street."' At the beginning of the film, Bishop appears on a panel at an alumni event. She explains her career choices to the young women in the audience as follows: I like money. I do. I like numbers. I like negotiating. I love a challenge. Turning a no into a yes. But I really do like money. I like knowing that I have it. I grew up in a house where there was never enough. I was raised by a single mom with four kids. …

Lessons From Labor Feminists: Using Collective Action To Improve Conditions For Women Lawyers, Marion Burke

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Gender Typing In Stereo: The Transgender Dilemma In Employment Discrimination, Richard F. Storrow

Maine Law Review

Title VII of the Civil Rights Act of 1964 (Title VII) prohibits discrimination against men because they are men and against women because they are women. This familiar characterization of the Act has been quoted in dozens of sex discrimination cases to support a narrow view of who is protected against sex discrimination in this country. When transsexuals file suit, “[e]mployment discrimination jurisprudence at both the federal and state levels ... captures transsexuals in a discourse of exclusion from social participation. This wide net, using a remarkably refined system of semantic manipulations, snags all claims launched by transsexuals and reveals …

Running From The Gender Police: Reconceptualizing Gender To Ensure Protection For Non-Binary People, Katie Reineck

Michigan Journal of Gender & Law

Non-binary people who are discriminated against at work or school are in a unique and demoralizing position. Not only have some courts expressed reluctance to use existing antidiscrimination law to protect plaintiffs who are discriminated against based on their gender identity and not simply because they are men or women, in most states non-binary genders are not legally recognized. I argue that a fundamental right to self-identification grounded in the Due Process Clause of the Fourteenth Amendment would provide non-binary plaintiffs with the ability to assert their gender in court and have that assertion carry legal weight, regardless of how …

Jespersen V. Harrah's Operating Co.: Employer Appearance Standards And The Promotion Of Gender Stereotypes, Hillary J. Bouchard

Maine Law Review

In Jespersen v. Harrah’s Operating Co., Harrah’s Casino (Harrah’s) gave Darlene Jespersen (Jespersen), a female employee, thirty days to comply with the new mandatory makeup requirement the business imposed on its female beverage service employees. Jespersen refused, thirty days passed, and Harrah’s immediately terminated her. After unsuccessfully seeking administrative relief with the Equal Employment Opportunity Commission (EEOC), Jespersen filed a lawsuit against Harrah’s in federal district court. The claim alleged “disparate treatment sex discrimination” by Harrah’s in violation of Title VII. Subsequently, Harrah’s moved for summary judgment, and the district court granted the motion. The court found that Harrah’s employee …

Masterpiece Cakeshop, Ltd. V. Colorado Civil Rights Commission: Brief Of Amici Curiae Public Accommodation Law Scholars In Support Of Respondents, Samuel Bagenstos

Appellate Briefs

Amici are legal scholars with expertise in the historical and contemporary applications of the public accommodation laws. This brief argues that the First Amendment exemption Masterpiece claims would subvert the historic purpose of these laws: to promote equal dignity in the marketplace.

For more than half a century, state public accommodation laws across the country have protected against denials of dignity and equal treatment in the public marketplace. Throughout that period, this Court has consistently rejected arguments that businesses open to the general public have a constitutional right to provide less than the full and equal services required by such …

Justice Blackmun And Individual Rights, Diane P. Wood

Dickinson Law Review (2017-Present)

Of the many contributions Justice Blackmun has made to American jurisprudence, surely his record in the area of individual rights stands out for its importance. Throughout his career on the Supreme Court, he has displayed concern for a wide variety of individual and civil rights. He has rendered decisions on matters ranging from the most personal interests in autonomy and freedom from interference from government in life’s private realms, to the increasingly complex problems posed by discrimination based upon race, sex, national origin, alienage, illegitimacy, sexual orientation, and other characteristics. As his views have become well known to the public, …

Rwu First Amendment Blog: Jared A. Goldstein's Blog: Ri's Conversion Therapy Ban Protects Lgbtq Youth And It's Constitutional 08-09-2017, Jared A. Goldstein

Law School Blogs

No abstract provided.

Workin’ 9:00–5:00 For Nine Months: Assessing Pregnancy Discrimination Laws In Georgia, Kaitlyn Pettet

Georgia State University Law Review

As demonstrated in this Note, there is still a considerable way to go before women are no longer forced to choose between pregnancy and keeping their career. Allegations of pregnancy discrimination in the workplace are also on the rise.

In 1997, 4,000 plaintiffs filed complaints with the Equal Employment Opportunity Commission (EEOC). By 2011, that number rose to 5,800. The EEOC won significant damages in pregnancy discrimination cases, demonstrating a greater tendency towards discrimination in the workplace. Additionally, this rise in claims and awards caught the attention of the nation’s media, placing new emphasis on the treatment of pregnant women …

Immigrating While Trans: The Disproportionate Impact Of The Prostitution Ground Of Inadmissibility And Other Provisions Of The Immigration And Nationality Act On Transgender Women, Luis Medina

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

The Tension Between Equal Protection And Religious Freedom, John M. Greabe

Law Faculty Scholarship

[Excerpt] "The Constitution did not become our basic law at a single point in time. We ratified its first seven articles in 1788 but have since amended it 27 times. Many of these amendments memorialize fundamental shifts in values. Thus, it should come as no surprise to learn that the Constitution is not an internally consistent document."

…

"Other constitutional provisions -- even provisions that were simultaneously enacted -- protect freedoms that can come into conflict with one another. The First Amendment, for example, promises both freedom from governmental endorsement of religion and freedom from governmental interference with religious practice. …

Gloucester County School Board V. G. G.: Brief For Professors Samuel Bagenstos, Michael C. Dorf, Martin S. Lederman And Leah M. Litman As Amici Curiae In Support Of Respondent, Samuel Bagenstos, Leah Litman

Appellate Briefs

Amici are legal scholars who teach and write on constitutional law and civil rights law. They submit this brief to call attention to a means of resolving this case not presented by the parties or other amici.

Title IX of the Education Amendments of 1972 provides that in a school district receiving federal financial assistance, "[n]o person in the United States shall, on the basis of sex, . . . be subjected to discrimination." 20 U.S.C. § 1681(a).

As applied to transgender students, however, such segregation on the basis of sex-on the basis of anatomical differences in external reproductive organs-does …

Mapping The Title Ix Iceberg: Sexual Harassment (Mostly) In Graduate School By College Faculty, Nancy Chi Cantalupo, William C. Kidder

Law Faculty Research Publications

No abstract provided.

Unduly Burdening Women’S Health: How Lower Courts Are Undermining Whole Woman’S Health V. Hellerstedt, Leah M. Litman

Michigan Law Review Online

At the end of the Supreme Court’s 2016 Term, the Court issued its decision in Whole Woman’s Health v. Hellerstedt. One of the more closely watched cases of that Term, Hellerstedt asked whether the Supreme Court would adhere to its prior decision in Planned Parenthood v. Casey, which reaffirmed that women have a constitutionally protected right to decide to end a pregnancy.

The state of Texas had not formally requested that the Court revisit Casey or the earlier decision Casey had affirmed, Roe v. Wade, in Hellerstedt. But that was what Texas was, in effect, asking …

A Different Class Of Care: The Benefits Crisis And Low-Wage Workers, Trina Jones

Faculty Scholarship

When compared to other developed nations, the United States fares poorly with regard to benefits for workers. While the situation is grim for most U.S. workers, it is worse for low-wage workers. Data show a significant benefits gap between low-wage and high-wage in terms of flexible work arrangements (FWAs), paid leave, pensions, and employer-sponsored health-care insurance, among other things. This gap exists notwithstanding the fact that FWAs and employment benefits produce positive returns for employees, employers, and society in general. Despite these returns, this Article contends that employers will be loath to extend FWAs and greater employment benefits to low-wage …

Telling Stories In The Supreme Court: Voices Briefs And The Role Of Democracy In Constitutional Deliberation, Linda H. Edwards

Scholarly Works

On January 4, 2016, over 112 women lawyers, law professors, and former judges told the world that they had had an abortion. In a daring amicus brief that captured national media attention, the women “came out” to their clients; to the lawyers with or against whom they practice; to the judges before whom they appear; and to the Justices of the Supreme Court.

The past three years have seen an explosion of such “voices briefs,” 16 in Obergefell and 17 in Whole Woman’s Health. The briefs can be powerful, but their use is controversial. They tell the stories of non-parties—strangers …

Uniform Rules: Addressing The Disparate Rules That Deny Student-Athletes The Opportunity To Participate In Sports According To Gender Identity, Chelsea Shrader

University of Richmond Law Review

No abstract provided.

Book Review: Absent Aviators: Gender Issues In Aviation, Janet K. Tinoco, Genderie S. Rivera

Publications

This document is Dr. Tincoco's review of Absent Aviators: Gender Issues in Aviation edited by Donna Bridges, Jane Neal-Smith, and Albert J. Mills. Ashgate Publishing Limited, Farnham, 2014. 233 pp. $129.95.

Gender Discrimination And Statelessness In The Gulf Cooperation Council States, Betsy L. Fisher

Michigan Journal of Gender & Law

Using the Gulf Cooperation Council countries as a case study, this Article outlines the ways in which gender and birth status discrimination create new cases of statelessness. These occur when women are legally unable to convey their nationality to their children. This Article studies gender and birth status discrimination in nationality laws and in civil registration, family, and criminal law in each GCC state: Bahrain, Kuwait, Oman, Qatar, Saudi Arabia, and the United Arab Emirates. Ending statelessness will require these states to end discrimination against women and non-marital children in all of its forms in law and practice.

A Free Speech Response To The Gay Rights/Religious Liberty Conflict, Andrew Koppelman

Northwestern University Law Review

The most sensible reconciliation of the tension between religious liberty and public accommodations law, in the recent cases involving merchants with religious objections to same-sex marriage, would permit business owners to present their views to the world, but forbid them either to threaten to discriminate or to treat any individual customer worse than others. Even if such businesses have no statutory right to refuse to facilitate ceremonies they regard as immoral, they are unlikely to be asked to participate in those ceremonies. This solution may, however, be forbidden by the law of hostile environment harassment. That raises a severe free …

Trending @ Rwu Law: Judge Netti Vogel's Post: Women, The Legal Profession, And How Far We've Come 7-19-16, Netti Vogel

Law School Blogs

No abstract provided.

Sexualization, Sex Discrimination, And Public School Dress Codes, Meredith Johnson Harbach

University of Richmond Law Review

This essay joins the conversation about sexualization, sex discrimination, and public school dress codes to situate current debates within in the broader cultural and legal landscapes in which they exist. My aim is not to answer definitively the questions I pose above. Rather, I ground the controversy in these broader contexts in order to better understand the stakes and to glean insights into how schools, students, and communities might better navigate dress code debates.

Perceiving Orientation: Defining Sexuality After Obergefell, Mary Ziegler

Scholarly Publications

In the aftermath of the Supreme Court’s recent decision in Obergefell v. Hodges, constitutional jurisprudence will have to more clearly define sexual orientation itself. The Obergefell majority describes sexuality as binary and suggests that any sexual orientation is immutable, normal, and constitutive of individual identity. Other scholars have shown how the kind of binary created by Obergefell excludes those with more fluid sexual identities and experiences from legal protection.

This Article illuminates new problems with Obergefell’s approach to sexuality by putting that definition in historical context. While describing sexuality as a matter of orientation may now seem inevitable, …

Nurturing Wings Or Clipping Them Off: The Philippine Approach To Female Labor Migration And A Potentially Redeeming Role For The Commission On Human Rights, Emily Sanchez Salcedo

Center for Business Research and Development

The large-scale migration of Filipino workers started in the 1970’s as inadequate local employment and livelihood opportunities pointed to overseas opportunities in the booming economy of oil-rich countries in the Middle East. Though initially dominated by male construction workers and seafarers, female migrant workers, mostly in the health care professions, in domestic services and in the entertainment industry, followed suit and, in the most recent available statistical report, have even slightly outnumbered the men. As of the end of 2014, 50.43% of the 2.32 million overseas Filipino workers are women. Collectively, these overseas workers sent about 27 billion dollars in …

Towards Reasonable: The Rise Of State Pregnancy Accommodation Laws, Stephanie A. Pisko

Michigan Journal of Gender & Law

In light of the recent Supreme Court decision Young v. UPS, pregnancy accommodation in the workplace is once again at the forefront of employment law. Pregnancy is not considered a disability under the ADA, nor is it within the scope of Title VII protections, but states are passing their own pregnancy accommodation laws. These laws will affect employers and employees alike, but exactly how is uncertain. Perhaps the most natural (and obvious) result of the explosion of state pregnancy accommodation laws will be a federal law, or an amendment to the ADA categorizing pregnancy as a disability. But there …

Inattentional Blindness: Psychological Barriers Between Legal Mandates And Progress Toward Workplace Gender Equality, Rachel J. Anderson

Scholarly Works

This Article uses a law and psychology approach to identify ways to strengthen the administration of justice in the corporate workplace. Essentially, a better understanding of human behavior provides insights that are useful in crafting effective laws and improving the implementation of existing laws. The analysis of perception gaps due to inattentional blindness uncovers an under-theorized factor contributing to an enduring problem. Part I sets out the workforce crisis at the individual, company, national, and international levels and the role of gender inequality in this crisis and the pace of change. Part II discusses perception gaps among demographic groups as …

Madonnas And Whores In The Workplace, Jessica K. Fink

Faculty Scholarship

Much has been written about “lookism” – the preferential treatment given to those who conform to societal standards of beauty. But in a recent case before the Iowa Supreme Court, a gender discrimination plaintiff alleged a sort of “reverse-lookism,” claiming that her male employer terminated her long-term employment because the employee was too physically attractive, thus tempting the employer to think about entering into an extramarital affair. To the great surprise of many who followed this case, the Iowa Supreme Court sided with the employer, declining to find him liable for gender discrimination. As one might expect, uproar ensued, with …

The Case For Lgbt Equality: Reviving The Political Process Doctrine And Repurposing The Dormant Commerce Clause, Terri R. Day, Danielle Weatherby

Brooklyn Law Review

As a reaction to the Supreme Court’s historic marriage equality decision earlier this summer, many Southern state legislators opposing the trend toward LGBT-protective laws have proposed legislation that would essentially prohibit municipalities from carving out new antidiscrimination protections for the LGBT community. Conservative Senator Bart Hester spearheaded the passing of one of these “anti” antidiscrimination laws in Arkansas, and states like Texas, West Virginia, Michigan, and Oklahoma are not far behind. These “Hester-type laws” are strikingly similar to the Colorado amendment struck down by the Romer v. Evans Court 20 years ago. Both the Colorado amendment and the new wave …

Beyond Marriage Equality Symposium, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.