• Selected
• Entire List

Abstract:
This Article takes a comprehensive look at the failure of Title VII as a system for claiming nondiscrimination rights. The Supreme Court's recent decision in Ledbetter v. Goodyear Tire & Rubber Company, 127 S. Ct. 2162 (2007), requiring an employee to assert a Title VII pay discrimination claim within 180 days of when the discriminatory pay decision was first made, marks the tip of the iceberg in this flawed system. In the past decade, Title VII doctrines at both ends of the rights-claiming process have become increasing hostile to employees. At the front end, Title VII imposes strict requirements on employees to promptly report and assert claims of discrimination. These requirements leave little room for gaps in knowledge, hesitation in responding, or fears of retaliation to delay rights-claiming. The model of rights-claiming behavior at the heart of this doctrine contrasts starkly with extensive social science research on how people perceive and respond to discrimination in the real world. The juxtaposition of Title VII doctrine with this social science literature reveals a fundamentally flawed framework for asserting discrimination rights. Employees make out poorly at the other end of the rights-claiming process too. Those employees who do step forward to complain of discrimination are left with grossly inadequate protection from retaliation for doing so. Recent developments in retaliation law have weakened protections for employees, reinforcing the very reasons employees are unlikely to assert nondiscrimination rights in the first place. Together, Title VII's timely complaint and retaliation doctrines create an untenable framework for employees in need of the law's substantive protections. Rather than salvage this system, the recent trend toward employer-sponsored internal processes for resolving discrimination complaints exacerbates these flaws in ways that have yet to be acknowledged in the push for greater reliance on such internal processes. This Article marks an important contribution to the literature on Title VII and discrimination law, as the first major examination of how Title VII functions as a rights-claiming system.

discrimination, Title VII, gender, retaliation

Abstract:
When Massachusetts became the first and only state in the union to issue legal marriage licenses to same-sex couples last May, the state's Governor, Mitt Romney, warned that "Massachusetts should not become the Las Vegas of same-sex marriage." Romney's warning makes sense only as a reference to Las Vegas' reputation for the "quickie" divorce - a heavily disparaged historical practice in which residents of other states would seek a divorce in Nevada because their home states would not grant them one, at least not on the terms or at the pace they desired. This essay retraces the history of divorce in the United States, with a particular focus on the persistent non-uniformity of divorce laws and the resulting concerns about migratory divorce. It then considers the parallel but understudied counterpart in the marriage context - the evasive marriage. The essay draws on these parallel histories of migratory divorce and evasive marriage to reconsider the contemporary battle over same-sex marriage, which reinvokes historical tensions between the desire for uniformity of state laws and the right of states to regulate domestic relations at the local level. It concludes with a different cautionary tale than the governor's: states can peaceably co-exist with non-uniform marriage laws, and historical attempts to coerce or demand uniformity of state laws on marriage and divorce have been unsuccessful.

marriage, divorce, same-sex marriage

Abstract:
This article considers the gaps and obstacles in current law faced by the pregnant woman whose job duties may conflict with pregnancy's physical effects. While there is no inherent conflict between pregnancy and work, women in physically strenuous or hazardous occupations, from nursing to law enforcement, routinely confront situations in which they are physically unable to perform aspects of their job or, though physically able, they seek to avoid certain tasks or situations because of the potential risks to maternal or fetal health. The Pregnancy Discrimination Act of 1978 (PDA) broadly protects against "pregnancy discrimination," but it provides absolute rights only to the extent a pregnant woman is able to work at full capacity, uninterrupted by pregnancy's physical effects. To the extent that the law grants the pregnant worker with temporary physical limitations "affirmative" rights, such as the right to workplace accommodation, it is only on a comparative basis - that is, only to the extent those rights already are provided to "similarly situated" temporarily disabled employees. In this way, pregnancy continues to inhibit equal employment opportunity for millions of women, three decades after the PDA's passage.

After briefly examining the medical literature documenting the conflicts between pregnancy and certain kinds of work, as well as the law as applied to pregnant workers who are fully capable or fully incapable due to the effects of pregnancy or childbirth, we consider the predicament of women in physically demanding fields whose work capacity is partially diminished by pregnancy. We focus here on the problem of access to "light-duty" work - temporary alternative job assignments that accommodate the pregnant worker's limitations. Without such accommodation, the pregnant firefighter or home health care aide whose doctor directs her to avoid heavy lifting or other tasks is faced with a Hobson's choice: ignore medical advice and continue to perform all job duties, or stop working altogether, usually sacrificing wages and other benefits for several months. We describe the limits of the existing PDA framework for protecting these pregnant workers, and suggest litigation strategies for maximizing pregnant workers' rights under current law. These include re-framing the "similarly situated" analysis for disparate treatment challenges to light-duty policies, and exploring the untapped potential of the disparate impact theory in the light-duty context.

pregnancy discrimination, pregnancy, Title VII, light-duty

Abstract:
This piece reevaluates the passage and implementation of the Family and Medical Leave Act (FMLA) against the egalitarian ideal described by the Supreme Court in its recent decision in Nevada Department of Human Resources v. Hibbs. The Court in Hibbs upheld the FMLA against an Eleventh Amendment challenge, concluding that Congress enacted the law as a congruent and proportional remedy to the longstanding history of state-sponsored discrimination against working women. According to the Court, Congress enacted the FMLA to remedy a longstanding history of discrimination against working women by forcing employers to offer caretaking leave on gender-neutral terms. At least in theory, this mandate would mean that men and women would then take leave and share the burden of caring for children on equal terms, employers would perceive male and female employees as equally (un)attractive, and women would achieve equality both as parents and as workers. In fact, as the article demonstrates, the assumptions underlying this vision of equality do not accurately reflect the reality of either caretaking or leavetaking. Members of Congress were concerned very little with equality when they debated the FMLA over the course of eight years, and the motivation for its passage was the protection of "motherhood" - giving childbearing women greater job security. Neither supporters nor opponents envisioned that men would assume greater caretaking responsibilities because of the law, and, in fact, they have not. Leave-taking patterns, and the caretaking patterns that underlie them, continue to be quite gendered. Women tend to take leave whether they have job security or not; men tend not to take leave even if they do; and employers continue to perceive women as less reliable and more costly workers. The article thus concludes, drawing on anti-subordination theory, that the FMLA did almost nothing to advance true equality for women as workers or as parents.

equality, family leave, feminism

Abstract:
The Supreme Court sounded the death knell for anti-miscegenation laws in Loving v. Virginia in 1967. This essay, published in honor of Loving's fortieth anniversary, considers the personal, cultural, and legal legacy of the decision, which brought an abrupt end to the practice of outlawing interracial marriage. But since those laws were already on the way out at the time Loving was decided, its legacy must be constructed by looking more broadly at its impact on American law and society. That exploration reveals first a powerful personal legacy for Mildred and Richard Loving, who were permitted to return to Virginia after having been forced to abandon their home, family, and friends. And couples like the Lovings were immediately able to celebrate their own marriages, even in states that still had laws prohibiting them from doing so. But it is not clear that the decision in Loving did much to promote greater marital integration between races. States ceased being able to ban interracial marriage, but removal of that obstacle did little to spur more of it. Even today, tremendous social and cultural barriers to interracial marriage exist, particularly between whites and African-Americans. The cultural legacy of Loving was thus, like the law's power to transform societal norms more generally, limited. Loving did have a meaningful impact on American law, however. Loving was neither just about marriage, nor just about race. It was, instead, a case that left a three-fold doctrinal legacy. Loving was crucial to the development of due process protection for marriage and related privacy rights, the enforcement of federal constitutional limits on state regulation of domestic relations, and the insistence that the equal protection clause be used as a sword to eliminate racial classifications and other practices that perpetuate racial subordination. Loving, which shaped two substantive constitutional doctrines and recalibrated the balance of federal-state power over domestic relations, thus deserves the "landmark case" status it is so often given.

Loving, miscegenation, and same-sex marriage

Abstract:
This paper addresses the age-old problem of interstate marriage recognition, raised anew by the legalization of same-sex marriage in Massachusetts. The problem, in a nutshell, is whether and when a state should recognize a marriage validly celebrated elsewhere when its own laws would have prohibited the marriage from taking place.

Non-uniform marriage laws and the conflicts they engender are not new. To the contrary, states historically disagreed about many aspects of domestic relations laws, and in particular about marriage prohibitions. Conflicts arose when couples married in one state and then sought recognition of their union in a state that would have prohibited them from marrying - whether because they moved to a new state, had contracted an "evasive" marriage in another state in violation of their home state's laws, or had some transient contact with a state to which validity of their marriage was relevant. Those conflicts were resolved, by and large, according to principles of comity, which were reflected in the established rules governing conflict of laws. Those rules dictated that states should generally recognize marriages that were valid where celebrated unless doing so interfered with an important public policy or interest of the destination state.

This "place of celebration" rule was subject to both categorical and semi-categorical exceptions. Fifteen years ago, one might have applied this rule and its exceptions to a hypothetical situation involving same-sex marriage in Massachusetts and made the following predictions: a same-sex marriage from one state would certainly be recognized if it was celebrated by a couple who legitimately resided in Massachusetts and later moved to another state; an evasive same-sex marriage might also be recognized in some states, though not as predictably so; and particular "incidents" of such a marriage might be recognized for limited purposes like inheritance rights in many states, even if the right to cohabit within the state as a married couple was not.

The landscape, however, has completely changed. In response to a fear that Hawaii might legalize same-sex marriage in the mid-1990s, Congress enacted the Defense of Marriage Act defining marriage for federal purposes to exclude same-sex marriage and giving states the power to deny recognition to same-sex marriages. More than forty states expressly exercised it by adopting statutes or constitutional amendments to preclude courts from authorizing or recognizing same-sex marriages. These enactments were all based on the assumption that the Full Faith and Credit Clause compels one state to recognize marriages from other states regardless of their own laws or policies. The Full Faith and Credit Clause, however, has never been understood to have that effect. To the contrary, states have always had the right to refuse recognition to out-of-state marriages. Thus, while states were busy "protecting" themselves from compelled recognition, they lost the right of voluntary recognition, a right exercised considerably more often, historically, than the right to deny recognition. Principles of comity and the portability of marriage have been sacrificed in this process, and the complexity of the analysis that courts have traditionally undertaken has been short-circuited in favor of an unflinching rule of blanket non-recognition.

The paper reconsiders the traditional approach to marriage recognition against the current same-sex marriage landscape. It examines whether, under conventional principles of interstate marriage recognition, states that have enacted barriers to recognition have done so successfully. It also examines the question of recognition in the states without any affirmative barrier.

same-sex marriage, comity, DOMA

Abstract:
Citizenship is the common language for expressing aspirations to democratic and egalitarian ideals of inclusion, participation, and civic membership. However, there continues to be a significant gap between formal commitments to gender equality and equal citizenship – in the laws and constitutions of many countries as well as in international human rights documents − and the reality of women’s lives. This volume presents a collection of original works that examine this persisting inequality through the lens of citizenship. Distinguished scholars in law, political science, and women’s studies investigate the many dimensions of women’s equal citizenship, including constitutional citizenship, democratic citizenship, social citizenship, sexual and reproductive citizenship, and global citizenship. Gender Equality takes stock of the progress toward – and remaining impediments to – securing equal citizenship for women, develops strategies for pursuing that goal, and identifies new questions that will shape further inquiries.

The downloaded paper consists of the book's abstract and table of contents.

gender equality, constitutional citizenship,m political citizenship, social citizenship, sexual and reproductive citizenship, global citizenship, gender