Sexuality and the Law Commons^™

Unwelcomeness Reconsidered: Adapting Sexual Harassment Law In The Long Wake Of #Metoo, Collin Christner

Michigan Law Review

The federal cause of action for sexual harassment in employment grew out of Title VII’s prohibition of workplace sex discrimination. In many circuits, for sexual harassment claims to be actionable, the plaintiff must show they found the referenced conduct “unwelcome.” Commentators have criticized that requirement since its inception; nonetheless, it has been wielded by courts that are either resistant or reluctant to abandon it. “Unwelcomeness” (or lack of evidence thereof) has been used to permit swaths of inappropriate workplace conduct— enshrining old, sexist stereotypes into America’s employment regulations. This Note evaluates the current approach to the unwelcomeness requirement and proposes …

Pornographic Deepfakes And Ugly Social Facts: The Costs Of A Normative Approach To Defamation, Kathleen Ross

Michigan Law Review

Around the world, women and girls are being victimized by pornographic deepfakes— alarmingly convincing, sexually exploitative images and videos generated using artificial intelligence (AI). Facing statutory gaps, victims may turn to traditional tort law claims to recover for the injuries inflicted by pornographic deepfakes. Defamation law, which protects against reputational injuries caused by false statements, is a particularly compelling arena for vindicating the interests invaded by a pornographic deepfake—interests which are, at their heart, social and reputational. Fortunately for deepfake victims, a pornographic deepfake will often satisfy defamation’s basic elements: A false and defamatory communication that concerns the victim and …

The Sexual Harassment Silo, Deborah Widiss

Articles by Maurer Faculty

The #MeToo movement exposed the pervasiveness of sexual harassment in employment and made clear that legal remedies were sorely lacking. Federal and state lawmakers responded by passing laws broadening access to court and enhancing remedies; requiring training, policies, and data collection; and modifying substantive harassment law, most commonly by rejecting the requirement that victims prove they were subject to “severe or pervasive” conduct. Although some of these reforms apply to harassment or discrimination on the basis of any protected trait, many create special rights for victims of sexual harassment. Collectively these laws establish what I term “the sexual harassment silo.” …

Reporting Sexual Violence: The Victim's Right To Protection And Justice, Nada Shehata

Theses and Dissertations

Incidents of sexual violence are still under-reported to legal institutions in Egypt despite the recent legal amendments. The reasons for under-reporting SV incidents to police stations appear to be the same that justifies victim’s non-reporting or resorting to various social media accounts on Facebook and Instagram as “Daftr Hekayat” and “AssaultPolice” which provided a safe space for them to reveal the assault incidents and warn potential victims from the shamed assailants. As successful as these accounts are, they have their drawbacks. It is not accessible to economically and educationally disadvantaged victims, and lately, the perpetrators started to file defamation lawsuits …

Fight Like A Girl: Holding Schools Accountable For Punishing Female Students' Sexuality In Violation Of Title Ix, Angela Garcia

University of San Francisco Law Review

No abstract provided.

Trying To Fit In To Get In: Women Working In A Masculinities World, Kimberly D. Bailey

Faculty Articles and Other Publications

In predominately male workplaces, sexualized “horseplay” is common. While this type of conduct can be a tool of gender subordination, it also is a tool for fostering camaraderie and collegiality among co-workers. In other words, some workers, including women, find that engaging in sexual horseplay is necessary in order to “fit in.” This Article critiques the failure of courts to appreciate the peer pressure to “fit in” when they analyze Title VII sexual harassment cases. This oversight is especially evident when courts try to determine whether a plaintiff found particular sexual conduct to be “unwelcome.” If a plaintiff voluntarily engages …

Escaping Arbitration And Class Action Waivers For Harassment Because Of Pregnancy, Sexual Orientation Or Gender Identity, Sandra F. Sperino

Faculty Publications

In 2022, Congress amended the Federal Arbitration Act (FAA) through the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. This amendment is being abbreviated to a rather clumsy acronym: EFASASHA. EFASASHA allows a person alleging sexual harassment or sexual assault to invalidate certain arbitration agreements and joint-action waivers. Congress passed the Act in response to testimony in which workers alleged that serial sexual harassment and assault continued because workers' claims were forced into private arbitration and could not be publicly adjudicated.

This Essay argues that the language that Congress used in EFASASHA is much broader than its title …

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.

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 …

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 …

#Metoo: Music Industry Edition, Nazarene Anderson

University of San Francisco Law Review

No abstract provided.

#Metoo And The Process That's Due: Sexual Misconduct Where We Live, Work, And Learn, Nicole Buonocore Porter

Faculty Publications

The #MeToo movement has been instrumental in bringing attention to the pervasiveness of sexual harassment and sexual assault (collectively, sexual misconduct) in all walks of life and in all environments, including at work, school, home, and out in public. But the movement has also brought with it a great deal of confusion about how we define sexual misconduct and whether and when legal liability attaches. Part of the confusion can be blamed on the fact that at least three discrete areas of law can possibly apply to sexual misconduct—criminal law, Title VII (when the sexual misconduct takes place in the …

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 …

Relationships And Retaliation In The #Metoo Era, Nicole Buonocore Porter

Faculty Publications

In this #MeToo era, so much important work is being done (and so many stories are being told and listened to), but very little of the work focuses on retaliation. And none of the work focuses on situations where the fear of retaliation is not necessarily job loss (although that certainly happens) but rather, it is the fear of harming workplace relationships. This Article will use a real-life story of harassment to demonstrate how much workplace relationships matter-especially to women-and how the fear of harming those relationships often affects an employee's willingness to report harassment. Thus, this Article argues for …

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, …

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, …

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 …

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.

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 …

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, …

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 …

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. …

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 …