Newsy Thoughts

Instead of quoting the current Entertainment Weekly (as has been done in the past), I went a little more highbrow and found some relevant thoughts from recent Newsweeks.

First: The "New" Sexual Harassment. No longer do we see the blatant overtures during business hours--it has been pretty clearly communicated, and pretty ingrained, that such actions are illegal. Don Draper would have a tough time in today's world (probably).

Today's harassment comes much more often in the form of "flirtation, subtle power plays, retaliation and, of course, text messages." The article talks about how new technologies allow people to make comments without being truly accountable for what they could mean. Or at least allow people to believe they might not be accountable.

Second: Women on What Matters Most. This online feature has pictures and articles written by 10 successful women, in order to give advice to the next generation of empowered and successful females. There are a few celebrity interviews of which I have to question their usefulness (Not really sure how much more advice I need from Tyra Banks). But the feature branches out to CEOs and medical school deans whom we don't hear from often.

For example, from Sheryl Sandberg, CEO, Facebook:

When I am asked about career strategies, I respond that you need two things: a long-term dream and one- to two-year plan. A long-term dream allows you to work with purpose to achieve real fulfillment. A short-term plan makes sure you are learning and growing from the work you do each day.

Advocates, Dorsey present talk on 'war against women'

The Advocates for Human Rights, Dorsey & Whitney, and the Center for Holocause and Genocide Studies will present a lecture on Violence Against Women and War in the Congo and Asylum in the U.S. at Dorsey on Friday, Oct. 16 at noon. To RSVP for this lecture, contact Colleen Beebe at cbeebe@advrights.org 612-341-3302, ext. 114.

The Advocates' Web site states:

One of the deadliest wars in the last half-century, the ongoing conflict in the Democratic Republic of Congo is considered by many a "war against women." In an effort to destroy families and communities, rape is used as a weapon of war. Some women have been able to escape such persecution and find themselves in refugee camps or seeking asylum in Europe or the United States. Experts in the field will discuss country conditions, in particular with respect to violence against women, its traumatic effects on refugees and asylum seekers, and how to develop an asylum case based on politically motivated violence against women.

Divided We Fall: Americans in the Aftermath

The Minneapolis YWCA's upcoming Forum on Race features a fascinating film on race and religion in America and the remarkable woman, and Yale Law Student, behind that film.

On Monday, November 9, at 7 p.m., the Southern Theater will show Divided We Fall: Americans in the Aftermath. The film is a feature-length documentary film on hate violence in America post-September 11, 2001. The film follows the journey of 20 year-old college student Valarie Kaur as she records crimes against Sikhs and Muslims in the immediate aftermath of the World Trade Center attacks and examines the larger question of who is truly allowed to be American.

Then, on Tuesday, November 10, at 11:30 to 1:30, Valarie Kaur will be the keynote speaker at a luncheon presentation. In addition to her work on the film, as a third generation Sikh American, she is a writer, public speaker, and lecturer in religion and ethics. Valarie presently studies the intersections between religion and law at Yale Law School and serves as founding director of the Discrimination and National Security Initiative at the Harvard Pluralism Project.

Earlier that day, from 8 a.m to 10 a.m., Valarie will present a two hour CLE interdisciplinary workshop for attorneys and law students on legal responses to race and religion in post-9/11 America. The title is: Law as Sword and Shield: A Progressive Approach to Race in Post-9/11 America.

Registration for all the events can be found on the YWCA's website.

Chapter 14 of Equal: Mechelle Vinson goes to trial

Vinson's case landed in the lap of a new lawyer named Patricia Barry, who had a fledgling law practice in D.C., when her lawyer decided to move to Florida. Barry read MacKinnon's book, “Sexual Harassment of Working Women,” which had just been published that year, 1979. The book provided a blueprint for harassment litigation, based on a three crucial victories in district courts, two in D.C. In Williams v. Saxbe, Judge Charles Richel held that sexual advances coupled with retaliation for their refusal constituted actionable sex discrimination.

Meanwhile, Barnes was on its 19-month journey. Robinson was for Barnes but Judge MacKinnon and Chief Judge David Bazelon weren't. But Judge MacKinnon said he might change his mind if a better job of legislative and statutory analysis could be done than was done by the litigants. But Judge MacKinnon was concerned about employers' vicarious liability. He laid out steps for employers to follow and then concluded that Barnes' case could proceed, in the end concurring with Bazelon and Robinson. Robinson was apparently affected by Catharine MacKinnon's paper, although that cannot be confirmed.

After Barnes, other courts began ruling for women on the issue of quid pro quo sexual harassment.

Barry could not get the evidence admitted in Vinson that she thought would show a pattern of harassment in the bank's working environment. The District Court opinion would eventually define sexual harassment as a quid pro quo but not a hostile environment. However, the judge did include a footnote referencing his refusal to allow evidence of a pattern and practice of harassment, which would be crucial in coming years. He also made two other key findings of fact concerning notice to the bank and voluntariness. Barry and Vinson decided to appeal.

Antiquated Adultery Law

While writing an article for the upcoming issue of MWL's With Equal Right publication, Hennepin County Judge Ann Alton (a source) mentioned that Minnesota's adultery statute still limited the crime to when a married woman has intercourse outside of marriage.

Although not relevant to my article, I was intrigued. After an in-depth google search, I discovered it was true. Minnesota Statute section 609.36 reads as follows:

Subd. 1: Acts constituting

When a married woman has sexual intercourse with a man other than her husband, whether married or not, both are guilty of adultery and may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both.

Subd. 2: Limitations

No prosecution shall be commenced under this section except on complaint of the husband or the wife, except when such husband or wife is insane, nor after one year from the commission of the offense.

Subd. 3: Defenses

It is a defense to violation of this section if the marital status of the woman was not known to the defendant at the time of the act of adultery.

Finding the ramifications of such a statute is my next priority--I'm not sure how many cases are brought under this section, or whether women have been imprisoned or fined in the past decades. But for such a distinction drawn on gender lines to still exist within the law appears to make little sense.

Women on Boards

Women currently represent only 15.2% of the membership of Fortune 500 company boards. To correct that depressing statistic, an events and marketing firm, SHARP UpSwing, hosts an event in major cities called Women On Boards.

The event is coming to the Twin Cities on Tuesday, December 1. A panel is scheduled from 4 p.m. until 6 p.m., with a social hour to follow. The event will be at the Hyatt Regency Hotel in downtown Minneapolis.

Topics of the panel include being an effective board member, how to position yourself to get on a board, and how to transition from serving on a non-profit board to a for-profit board.

Cost is $95 for individuals, or $950 for a table of 10, and registrations can be done online. The Panel includes:

Barb Allen
Retired President, Proactive Partners

Alice Richter
Retired Partner, KPMG

Sandra L. Davis, Ph.D
Founder & CEO, MDA Leadership Consulting

Beth Leonard
Managing Partner, Lurie Besikof Lapidus & Company, LLP

Kudos to Infinity Project

The Infinity Project's efforts to spread the word about its excellent work and the Court of Appeals terrible gender imbalance are the subject of a great editorial in the Star Tribune. Congrats and well-done to Sally Kenney, Lisa Brabbit, Mary Vasaly and Marie Failinger.

Chapter 16 of 'Equal' -- the Barnes case

How would the "disadvantagement" approach affect the Ohio Supreme Court's ruling see (Laura's post below) about breast pumping?


16. Women and the Law

A group called Working Women United gathered for a speak-out on sexual harassment on May 4, 1975 in Ithaca, New York. A New York Times reporter, Enid Nemy, became interested in the topic after a New York City human rights commission hearing organized by Eleanor Holmes Norton. However, the Times ran her article in the family/style section.

As a law student, MacKinnon developed a theory of sexual harassment as sex discrimination. She compared racism to sexism. Why did courts allow sexism and repudiate racism? Why did judges not apply the same level of scrutiny to sex discrimination? She argued that the question should not be whether the discrimination against women was arbitrary, which would almost never be true because women and men were not similary situated, as in the pregnancy cases. Instead, she argued for a “disadvantagement approach,” based on whether a practice or rule disadvantaged one sex and not the other. Then the question would be, for example, if men are ever disadvantaged by the denial of pregnancy benefits. Obviously not, and thus the denial would be discriminatory.

MacKinnon had the opportunity to use a new tool called Lexis in her father's chambers. She was trying to find information when a young women appeared who worked for Judge Spottswood Robinson and asked MacKinnon about her research. MacKinnon gave her a copy of her paper—her only copy—and it was returned via her father.

In the meantime, Paulette Barnes, an administrative assistant for the director of equal employment opportunity for the Environmental Protection Agency, had been told by a District Court judge that when her job was eliminated she was discriminated against for refusing to have an affair with her supervisor but that was not sex discrimination because it was not an arbitrary barrier to continued employment based on sex.

A three-judge panel, including Judge MacKinnon and Judge Robinson (whose clerk had not mentioned Barnes), was assigned to the appeal in Barnes. Robinson was the first black judge on the D.C. District court and the first black judge in any federal appellate court, the D.C. Circuit. “So when Catharine MacKinnon handed over her draft, full of linkages of legal racism to legal sexism, to someone she understood worked with Judge Robinson, she was apparently sending it to the judicial chambers of one of the most brilliant advocates in the history of the American battle against race discrimination.”

Blogger Buzz "Pumped" Up

Quite a few blogs and websites are affronted by a ruling by the Ohio Supreme Court on a case where a woman was fired for taking unauthorized breaks to pump milk. As reported by a Wall Street Journal blog, the court ruled that the woman's attorneys did not offer enough proof that the employer's actions were motivated by discrimination.

But people are taking exception to the question that the court dodged: whether breast-feeding mothers and their actions in pumping milk are protected by pregnancy-discrimination laws.

The woman was fired after taking unscheduled breaks from work to pump milk. She fed her five-month-old baby before reporting to work for her 6 a.m. shift, but found waiting until her scheduled 11 a.m. break to pump milk was too difficult. She asked her bosses either to let her take an extended break at 10 a.m., or to extend a brief 10-minute break she was allowed at 8 a.m., but neither request was granted. The woman began taking an unscheduled restroom break around 10 a.m. every day to use her breast pump. A supervisor told her she was violating work rules by not waiting until her 11 a.m. break, and she was later fired.

Her employer contends that her firing wasn’t related to her need to pump milk, but to the simple fact that she failed to follow directions and violated workplace rules by taking unauthorized breaks during her work shift. The court did not reach whether this action violated pregnancy-discrimination laws.

The objecting blogs point out that the Ohio Supreme Court didn't exactly dodge the question, as it basically said that the woman's admittance of insubordination shows the firing was not discriminatory--even though that insubordination was caused by a pregnancy-related reason.

Dancing with the (Troubled) Stars

Although I don't often find a lot of relevant legal fodder from my Entertainment Weekly (hey, we all de-stress in our own ways), I had to laugh at this blurb:

Seven of the new Dancing with the Stars contestants have rap sheets. Live audience will consist solely of lawyers, parole officers, and Sonia Sotomayor.

On a (slightly) more serious note, more information about the many charges brought against the new round of celebrities can be found here. Pictured above is Tom DeLay, the former Republican Majority Leader who was indicted by a Texas grand jury on criminal charges that he had conspired to violate campaign finance laws. DeLay pleaded not guilty, but Republicans Conference rules forced him to resign from his position as Majority Leader in the U.S. House of Representatives.

Perhaps DeLay's troubled past was actually fate--now he can realize his lifelong dream of winning a televised ballroom dance competition.

'Equal' turns to sexual harassment

PART FOUR
HARASSMENT (1974-1986)

14. No Law

Mechelle Vinson had risen quickly at Capital City Federal Bank in the District of Columbia and had received outstanding reviews.Her manager, Sidney Taylor, had risen from janitor to first assistant vice president. But Taylor was behaving sexually toward Mechelle's co-worker, Christina. Christina eventually got fired and Taylor, according to Vinson, turned his attentions toward her. Taylor has denied most of it. According to Vinson, Taylor forced her to have sex many times in the bank, even locked in a vault, frequently remarking, “I give you a paycheck.”

Many other women were giving similar accounts in court, only to find that they were completely unprotected by the law.

15. Naming Sexual Harassment

It wasn't until 1975 that the term sexual harassment was coined in a letter from the Human Affairs Program of Cornell University. In a “Dear Sisters” letter, sent to lawyers around the country, a group of women referred to “sexual harassment” as a pervasive problem in the workplace and asked for information to assist them in organizing. One of the recipients was Ruth Bader Ginsburg and another was Catharine MacKinnon.

MacKinnon was the daughter of a Minnesota state legislator and congressman who would be named to the D.C. Circuit Court of Appeals by Richard Nixon, with whom he passed the Taft-Hartley Act and investigated Alger Hiss. Her applications to Yale Law School received short shrift but she was eventually admitted after six years of trying. Her 1987 doctoral dissertation in political science for Yale and her 1989 book for Harvard University Press would be titled “Toward a Feminist Theory of the State.”

Another Lady Justice?

The blawg-o-sphere is ripe with speculation over whether U.S. Supreme Court Justice John Paul Stevens is contemplating retirement next year.

According to Law.com, Justice Stevens has only hired one law clerk for the term that begins in October 2010. He is among those justices who typically have hired all four clerks for the following year by now, according to legal blogs.

Admittedly, this is far from an official announcement. Perhaps Justice Stevens is just assuming that the down economy will leave him plenty of applicants no matter when he decides to hire. Or maybe the one clerk he's hired is a real go-getter that can take care of everything.

But if it is a sign that President Obama will get to pick another Supreme Court justice soon, we can hope (and perhaps begin to lobby) that we will witness a record-setting three women on the Supreme Court.

Bad to the Bone?

The ABA Journal recently started its "Legal Rebels" project. Noting that the recession has forced many lawyers to change the way they practice law, the ABA Journal will profile 50 legal mavericks who are altering the face of the legal industry. It will tell their stories in the ABA Journal and on their website.

The first of these profiles appeared on August 25. Several will be added weekly through the end of November. So far there have been 9 people profiled--only 2 of whom are women.

The ABA Journal is still taking nominations--so start brainstorming woman lawyers from Minnesota who are remaking their corner of the legal profession. Nominations can be done here.

You can also sign the manifesto, promising to work for innovation and committing to being a rebel.