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Abstract:
Contemporary sex discrimination is generally thought to have changed significantly in the last two decades, becoming more subtle and often having to do with achieving a balance between the demands of work and home life. This paper presents case studies of class action lawsuits alleging sex discrimination that have been filed in the last decade. Those lawsuits have targeted specific industries, grocery stores and brokerage firms, and practices, sexual harassment, and these cases challenge the common perception that discrimination has become more subtle and less pervasive. These cases typically involve overt discriminatory practices based on sexual stereotypes, and can also be explained as efforts by male employees and management to preserve male norms. The paper describes the cases and also seeks to explain the cases as a form of harassment designed to preserve male advantages in the workplace.

sex discrimination, harassment, workplace

Abstract:
This paper, prepared for a symposium held at the University of St. Thomas Law School, explores an issue that has been largely neglected in the work-family debate, namely why the burden should be on employers to change their practices rather than on men to change theirs. Many of the policy proposals designed to facilitate the balancing of work and family demands require employers to alter their practices by creating part-time work, providing paid leave, or devising ways to limit the penalties women face for taking extended leave. At the same time, the reluctance of men to change their behavior, which could go a significant way to altering the dynamics of work-family issues, has been largely ignored. This essay first explores the rationales for focusing on employers, including what is now defined as the business case for work-life benefits. The paper then critiques the various excuses that are typically raised for why men do not take more responsibility for work-family balance issues, including that (1) they are penalized to a greater extent than woman, that (2) it is economically rational for the burden to fall on women and that (3) men's behavior has changed significantly, none of which is empirically supported in the literature. Finally, I suggest that it is important to have a more theoretically targeted policy focus that is premised on workplace equality rather than trying to support all choices for all women.

employment law, labor economics, gender

Abstract:
This article analyzes the recent wave of large class action employment discrimination suits to determine their effects on the firms that are sued and the members of the plaintiff class. The first part of the paper includes an event study that measures the effect the lawsuits and their settlements have on stock prices of the companies that are sued, and the second part of the paper involves three case studies (Texaco, Home Depot and Denny's) to explore how the lawsuits actually change corporate practices. The study finds that the lawsuits do not generally affect stock prices, and rarely provide meaningful benefits to the plaintiff class. Although the damages obtained in the cases are substantial, they are generally not sufficient to affect large corporations, which also means that the lawsuits are unlikely to provide a sufficient deterrent against discrimination. An important subsidiary finding of the study is that employment discrimination class actions have lost their public nature and have evolved into private tort claim where there is little public oversight. The last part of the article proposes several reform measures, including increasing damages available in employment discrimination suits, and imposing a public monitoring function on the settlement.

Abstract:
In this article, I argue that the key to achieving greater gender equality in the workplace is finding a way to change the behavior of men with respect to the care of children. Until now, most suggestions have focused on changing the behavior of women or employers, but women continue to face significant disadvantages in the workplace despite substantial changes in their labor force behavior. In the first part of the article, I analyze the latest data and conclude that the gender pay gap reflects both women's actual labor market behavior, which still differs from men's, and employers' exaggerated responses to the expectation that women will leave the workforce to have and to raise children. Through a short empirical analysis, I then demonstrate that the Family and Medical Leave Act (FMLA) falls far short of providing the kind of relief that might improve gender inequality, and in the last section I propose that the leave law be amended with an eye on equality. In particular, I propose that we create a contract set-aside program tied to employers establishing generous and successful leave policies.

Abstract:
In this article, I argue that the key to achieving greater gender equality in the workplace is finding a way to change the behavior of men with respect to the care of children. Until now, most suggestions have focused on changing the behavior of women or employers, but women continue to face significant disadvantages in the workplace despite substantial changes in their labor force behavior. In the first part of the article, I analyze the latest data and conclude that the gender pay gap reflects both women's actual labor market behavior, which still differs from men's, and employers' exaggerated responses to the expectation that women will leave the workforce to have and to raise children. Through a short empirical analysis, I then demonstrate that the Family and Medical Leave Act (FMLA) falls far short of providing the kind of relief that might improve gender inequality, and in the last section I propose that the leave law be amended with an eye on equality. In particular, I propose that we create a contract set-aside program tied to employers establishing generous and successful leave policies.

Abstract:
The disparate impact theory has long been viewed as one of the most important and controversial developments in antidiscrimination law. In this article, Professor Selmi assesses the theory's legacy and challenges much of the conventional wisdom. Professor Selmi initially charts the development of the theory, including a close look at Griggs v. Duke Power Co. and Washington v. Davis, to demonstrate that the theory arose to deal with specific instances of past discrimination rather than as a broad theory of equality. In the next section, Professor Selmi reviews the success of the theory in the courts through an empirical analysis and concludes that the theory has had a strikingly limited impact outside of the context of written employment tests and is, in fact, an extremely difficult theory on which to succeed. In the final section, Professor Selmi contends that whatever gains the disparate impact theory has produced could likely have been obtained through other means, particularly in large urban cities, and that the theory may have had the unintended effect of limiting our conception of intentional discrimination. Disparate impact theory has always been seen as beginning where intentional discrimination ends, and by pushing an expansive theory of impact we were left with a truncated theory of intentional discrimination, one that continues to turn on animus and motive. Rather than a new legal theory of discrimination, what was needed, Professor Selmi concludes, was a greater societal commitment to remedying inequities and the ultimate mistake behind the theory was a belief that legal theory could do the work that politics could not.

Abstract:
This article challenges the prevailing academic consensus regarding the Supreme Court's interpretation of the Americans With Disabilities Act ("ADA"). In a series of cases over the last decade, the Supreme Court has sharply limited the scope of the statute by narrowly defining what constitutes a disability, and most commentators have attributed the cases to a judicial backlash or a lack of empathy for the disabled. This article offers a counter narrative. Although the Supreme Court's interpretations have plainly narrowed the scope of the statute, and without regard to congressional intent, I suggest that the decisions are largely consistent with congressional expectations, as well as social norms regarding who ought to be defined as disabled. The ADA was passed under unusual circumstances. Despite overwhelming congressional support, there was broad indifference to the substance of the legislation, and the absence of a substantial social movement led to a broadly worded statute that lacked a strong commitment to expanding the definition of disability. The Supreme Court has subsequently rewritten the statute to protect its own institutional interests and to bring the statute in line with public expectations. In the last part of the paper, I analyze the cases in the context of various theories of statutory interpretation, including positive political theory which identifies the Supreme Court as a strategic player seeking to impose its own preferences whenever it can. In the context of the ADA, these preferences were primarily institutional rather than political, although they also have furthered the interests of the business community, and the absence of a strong disability rights social movement has allowed the Court's decisions to avoid a congressional override.

Disabilities, Employment Discrimination, Positive Political Theory, Statutory Interpretation

Abstract:
The prevailing sentiment today is that overt intentional sex discrimination in the workplace has receded substantially and has been replaced by more complicated practices of subtle or structural discrimination often tied to women's family commitments. This article challenges that consensus by exploring the rise of class action sex discrimination cases that have uncovered what ought to be defined as overt intentional discrimination with a design to preserve existing male norms in the workplace. The article analyzes cases that have arisen in the securities and grocery industries, as well as a spate of class action sexual harassment cases, all of which reveal entrenched patterns of institutional discrimination.

Abstract:
Much of the work family literature that has blossomed over the last decade has focused on professional women and has emphasized policy changes that would be of less utility to many other working women and men. In this symposium contribution, we explore the recent data on working time to demonstrate that in today's economy more women are underemployed rather than overemployed. We also demonstrate that although professional women tend to work the longest hours, they also tend to have the greatest means, both in income and workplace benefits, to support them in achieving a workable balance between their work and family demands. We discuss the most prominent policy proposals for helping attain this balance, including a greater emphasis on part-time work and shorter workweeks, and critique them for their failure to address the needs of most working women. Finally, we suggest several alternative proposals, including lengthening school days, addressing domestic violence, and challenging the stubborn gender norms that prevent further progress for equality in both the workplace and the home.

Abstract:
The Supreme Court has long held that the government cannot use affirmative action to remedy societal discrimination, and this restriction has severely limited the efficacy of governmental affirmative action programs. Indeed, it is not too much to suggest that most affirmative action programs that have been invalidated over the last decade would have been upheld if the government were permitted to remedy societal discrimination. This article develops an argument for how the court can - and in fact does - use its spending power to remedy societal discrimination. The argument is based largely on a series of cases involving government funding, where the Court has provided broad discretion for the government to use its financial resources to pursue various political policies that would otherwise not be permitted if federal funds were not involved. These cases should be applied in the affirmative action area, and if applied, would lead to upholding racially motivated affirmative action programs so long as those programs did not involve racial quotas. This article also discusses ways in which contract set-aside programs can be restructured to satisfy the constitutional test articulated in the funding cases, and how the funding cases might legitimate disparate impact claims under Title VI of the Civil Rights Act of 1964.

Abstract:
This essay was written for a symposium on the case Jespersen v. Harrah's Operating Co., in which Darlene Jespersen challenged Harrah's policy that required its female employees to wear makeup. In this essay, I explore the applicable case law, focusing specifically on the emerging law of sexual stereotyping to explain why the law was unwilling to recognize Jespersen's claim. In addition, I suggest that Jespersen's case is symptomatic of the way in which we have come to expect too much both from work and from courts. The workplace is typically not a place to express our identities and the fact that we often look to work as a place for authenticity, speech, democracy, or sex, simply confirms that we place too much importance on the workplace for our lives. Relatedly, it seems unrealistic to expect that courts would find a policy requiring makeup to be demeaning to women, or stereotypical in some way, as Jespersen argued, given that our existing social norms embrace makeup rather than condemn it. Finally, I conclude that this case is really more about power and status - the limited power and status of someone like Darlene Jespersen who worked as a bartender - rather than about the failings of antidiscrimination law.

sexual stereotyping , social norms, employment law, workplace, antidiscrimination law, gender, women, status, employment discrimination, Jespersen v. Harrah's Operating Co.

Abstract:
Privacy has become the law's chameleon, simultaneously everywhere and nowhere. This is particularly true of the workplace where employees often seek some private space but where the law, particularly the formidable employment-at-will rule, typically frustrates that search. As the workplace has expanded both in its scope and importance, additional concerns have been raised about an employer's potential reach outside of the workplace. In this symposium contribution, I explore the privacy issue by asking a fundamental question: what do employees deserve? My answer is that, as a matter of policy, we ought to concede privacy issues as the employer's domain at the specific workplace. This is, in part, because for most employees workplace privacy is not a central concern and the justifications for broad protections of workplace privacy are often quite weak. While conceding the workplace as the employer's domain, I also advocate creating a strict barrier to employer encroachments outside of the workplace so that employers would not be able to interfere with the off-work activity of their employees absent some compelling justification. This would include circumstances in which employers provide employees with computers or other gadgets that employees are permitted to use outside of the workplace.

privacy, employment law, workplace

Abstract:
This symposium piece explores the current state of our cities with a particular emphasis on political power, education and housing, and examines whether our move away from integration and towards diversity has been a trade worth making. Despite the transformation of most of the largest cities to majority-minority status, the latest data indicate that our housing remains deeply segregated, and urban schools deeply troubled, and in many instances, whites have been able to retain political power. The increased emphasis on diversity has not translated into the expected multicultural renaissance. The essay also explores the emerging issues relating to the ascendancy of Latinos in urban cities, what that might mean for the schools and integrated housing, as well as the prospects for building coalitions between Latinos and African Americans to bring meaningful change to the cities.

Abstract:
Low-wage workers have never had privileged access to desirable labor market opportunities but their position has significantly deteriorated over the last two decades, as union representation has decreased and the demand for higher skilled labor increased. This essay explores the future for low-wage workers and begins by defining what we mean by low-wage work, and also who low-wage workers are. I next explore the two most common advocated paths for improving the lives of low-wage workers: reviving unions and a human capital focus. I suggest that reviving unions, even in the context of the Employee Free Choice Act, offers at best a limited hope for improving the labor market opportunities for most low-wage workers. For a variety of complicated reasons, there is no basis for expecting a substantial resurgence of union representation, even if the law is changed to make union organizing more effective. Instead, I emphasize a human capital path, noting in particular, that far too many young individuals attend college without attaining any degree, and I discuss the important role community colleges can play in enhancing the human capital of low-wage workers. In the final part of the paper, I discuss educational reforms at the high school level that target at-risk populations, including a return to vocational education and the rise in charter schools, both of which might offer important opportunities for students to excel in school.

Abstract:
This symposium article critiques the emerging literature on caretaking, a literature that concentrates on the need to create policies that would facilitate women's carework, from two distinct perspectives. The first part of the article compares the emphasis on caretaking with the recent proposals from the right that promote marriage as an adjunct to the welfare system. The second part of the article critiques the carework proposals that have arisen principally among feminist legal scholars because it is premised on an inaccurate perception of women's labor force attachment and reifies women's roles as mothers. We also critique the recent interest in French social welfare policies, and ultimately we suggest additional policies, such as restructuring school days, as a superior alternative to finding balance between the demands of labor market work and carework.

labor market