Speaking of gender gaps (see Laura's post) and coinciding with the anniversary celebration of the Minnesota gender fairness task force report, the National Association of Women Lawyers has issued its 2009 Report on the Status of Women in Law Firms. It shows that on average, a female equity partner earns $66,000 a year less than a male equity partner.
Also, women lawyers continue to lag significantly behind men as rainmakers in their firms with nearly half of major law firms indicating they have no women among their top 10 rainmakers. This does not bode well and will likely manifest itself in continued salary discrepancies between men and women.
“[W]omen lawyers are terribly underrepresented in the ranks of major rainmakers in large U.S. firms. Our data cannot tell us whether this underrepresentation is a function of less aggressive rainmaking activities among women, or the result of ‘inherited’ clients of the firm flowing to men, whether women are given opportunities to participate in business development on an equal footing with men, whether women are receiving credit for business development at the same rate as men, or if there is some other explanation for the observed differences,” the survey states.
In addition, the survey examined the affect that the economic downturn had on female lawyers, revealing that women have been disproportionately affected by the layoffs. Women constituted almost all of the terminated attorneys who practiced on a part-time basis. Among full-time lawyers, men and women were laid off proportionally.
Other results:
o About 14 percent of the nation’s largest law firms have no women on their governing committees;
o Women account for about 16 percent of equity partners;
o Women make up only about 15 percent of recent equity laterals, compared to 85 percent for men.
The survey results suggests women lawyers need to take a hard look at whether they are making the rain happen or whether there is an institutional umbrella over their practices.
Tuesday, October 27, 2009
Monday, October 26, 2009
Reflections on the Current Gender Gap
Lisa Belkin had a recent piece in The New York Times Magazine titled The New Gender Gap. The piece compares the historic and current trend where women's status in the workplace is a reflection of men's situations.
The article notes that women will soon be the majority of workers because some are opting back in, and many others who never left are more likely to find and keep jobs than men. But Belkin theorizes that the reasons for this are not a function of the clout of women, but of the predicament of men. Gains by women actually display how far women have to go:
Primarily, women are still cheaper. They earn 77 cents to every dollar earned by a man, and in a flailing economy employers see that as an attractive quality. Women who are returning to the work force after several years at home raising children are particularly cheap. Sylvia Ann Hewlett, an economist and the founder of the Center for Work-Life Policy, has estimated that the penalty is 10 percent of income for every two years out of the job market, a loss that is never recouped. From the hiring side of the table, that may be a good bargain.
In addition, women are concentrated in lower-paying industries, like health care and education, where there have been fewer layoffs, rather than in higher-paying realms, like finance, construction and manufacturing, which have contracted. Why this is true has long been an economic chicken-and-egg question — are these professions less lucrative and prestigious because they are predominantly held by women, or are they predominantly held by women because men are less likely to take them given their lower pay and status? But whatever the cause, the end result is that the “female” professions have not suffered as much this past year.
Makes one wonder if we'll ever be able to truly gauge when women are making grounds in the workforce. Even when things seem to be going well, this article reminds us of all the factors at play.
The article notes that women will soon be the majority of workers because some are opting back in, and many others who never left are more likely to find and keep jobs than men. But Belkin theorizes that the reasons for this are not a function of the clout of women, but of the predicament of men. Gains by women actually display how far women have to go:
Primarily, women are still cheaper. They earn 77 cents to every dollar earned by a man, and in a flailing economy employers see that as an attractive quality. Women who are returning to the work force after several years at home raising children are particularly cheap. Sylvia Ann Hewlett, an economist and the founder of the Center for Work-Life Policy, has estimated that the penalty is 10 percent of income for every two years out of the job market, a loss that is never recouped. From the hiring side of the table, that may be a good bargain.
In addition, women are concentrated in lower-paying industries, like health care and education, where there have been fewer layoffs, rather than in higher-paying realms, like finance, construction and manufacturing, which have contracted. Why this is true has long been an economic chicken-and-egg question — are these professions less lucrative and prestigious because they are predominantly held by women, or are they predominantly held by women because men are less likely to take them given their lower pay and status? But whatever the cause, the end result is that the “female” professions have not suffered as much this past year.
Makes one wonder if we'll ever be able to truly gauge when women are making grounds in the workforce. Even when things seem to be going well, this article reminds us of all the factors at play.
Thursday, October 22, 2009
Equal: Mechelle Vinson heading to high court
19. To the Supreme Court
Barry began to solicit help, including from MacKinnon, who was unemployed at the time. Lawyers at the Sex Discrimination Clinic at the Georgetown University Law Center drew in amici, But it appeared she would not get the support of the EEOC, which was afraid that if Vinson lost, the EEOC would lose its guidelines.
The chair of the EEOC was Clarence Thomas, who would join the Supreme Court in 1991.Thomas opposed the sexual harassment guidelines and the Vinson case, saying that it would be impossible to eliminate personal slights and sexual advances. A lawyer working for the EEOC, Anita Hill, whose strained “relationship” with Thomas would become well known, urged him to accept the guidelines even though talking to him about it make her feel as though she had been dipped in a vat of scalding water. Eventually the EEOC voted 3-2 to oppose Vinson.
The government's brief aligned closely with Bork's dissent. MacKinnon drafted Vinson's brief, hampered by the fact that they could only pay for bits of a transcript at a time. Barry appeared for the first moot courts unprepared and replacing her with Professor Laurence Tribe was discussed. But Barry pulled herself together and stayed on the case.
Barry began to solicit help, including from MacKinnon, who was unemployed at the time. Lawyers at the Sex Discrimination Clinic at the Georgetown University Law Center drew in amici, But it appeared she would not get the support of the EEOC, which was afraid that if Vinson lost, the EEOC would lose its guidelines.
The chair of the EEOC was Clarence Thomas, who would join the Supreme Court in 1991.Thomas opposed the sexual harassment guidelines and the Vinson case, saying that it would be impossible to eliminate personal slights and sexual advances. A lawyer working for the EEOC, Anita Hill, whose strained “relationship” with Thomas would become well known, urged him to accept the guidelines even though talking to him about it make her feel as though she had been dipped in a vat of scalding water. Eventually the EEOC voted 3-2 to oppose Vinson.
The government's brief aligned closely with Bork's dissent. MacKinnon drafted Vinson's brief, hampered by the fact that they could only pay for bits of a transcript at a time. Barry appeared for the first moot courts unprepared and replacing her with Professor Laurence Tribe was discussed. But Barry pulled herself together and stayed on the case.
Actually, there is a formula for predicting domestic violence
Click here for The Advocates for Human Rights director of women's rights, Cheryl Thomas', reply to the local coverage about the murder of Pam Taschuk by her husband.She argues that the prosecutor and judge who released Allen Taschuk did not follow proper procedures when dealing with such a violent person.
Wednesday, October 21, 2009
Pro Bono Week
Next week, October 25 through October 31, is the ABA's 2009 Pro Bono Celebration.
Several local groups are highlighting the week with events:
I'm exhausted just reporting on all the events for next week--but think of all the great opportunities to get out and recommit to improving the legal profession. That's worth a little juggling of the schedule and perhaps a little less free time. It's supposed to be chilly, anyway.
Several local groups are highlighting the week with events:
- The MSBA has a whole week of events planned, starting with a day-long CLE and following celebration. Many of the events are low cost, and the MSBA has also incorporated several pro bono activities that week. Information on the week can be found here.
- The University of St. Thomas Law School is hosting an event titled "Pro Bono in a Down Economy: Challenges and Rewards" on Thursday, October 29. Information and registration can be done here.
- The Minnesota Justice Foundation has their law school public interest expo on Thursday, with its 27th annual celebration that evening. Information can be found here.
I'm exhausted just reporting on all the events for next week--but think of all the great opportunities to get out and recommit to improving the legal profession. That's worth a little juggling of the schedule and perhaps a little less free time. It's supposed to be chilly, anyway.
Tuesday, October 20, 2009
Does 'a woman's nation' change everything?
Here's a link to a post of mine at Minnesota Lawyer about The Shriver Report and next week's gender fairness CLE. If you go to the Minnesota Lawyer blog, be sure and check out the comment by Dave Ziemer of the Wisconsin Law Journal. Your comments are welcome on either blog.
Friday, October 16, 2009
Domestic Violence Awareness Month
October is Domestic Violence Awareness Month. According to the Domestic Violence Awareness Project, it is meant to be a time where "we recommit ourselves to ending violence within our homes, our communities, and our country."
We are reminded of the importance of committing ourselves to this issues when reading stories like the one written by Abby Simmons this week in the Star Tribune. The story describes the murder of Pam Taschuk, a social worker from Lino Lakes. The perpetrator committed suicide--and was also Pam's husband of 22 years.
The disturbing thing about Pam's death was the many times that police had investigated calls at her home. The many times police had responded to calls about her husband bullying people all over the community. But he was never caught committing a serious crime, and those he bullied were never willing to testify.
The story--one that happened in our own city--reminds us of the complicated cycle that characterizes relationships involving domestic violence. We are reminded that how even when the violence is clear, it is difficult to stop. So perhaps our first commitment should be to ensuring those around us who may be experiencing violence know of our personal and communal support.
We are reminded of the importance of committing ourselves to this issues when reading stories like the one written by Abby Simmons this week in the Star Tribune. The story describes the murder of Pam Taschuk, a social worker from Lino Lakes. The perpetrator committed suicide--and was also Pam's husband of 22 years.
The disturbing thing about Pam's death was the many times that police had investigated calls at her home. The many times police had responded to calls about her husband bullying people all over the community. But he was never caught committing a serious crime, and those he bullied were never willing to testify.
The story--one that happened in our own city--reminds us of the complicated cycle that characterizes relationships involving domestic violence. We are reminded that how even when the violence is clear, it is difficult to stop. So perhaps our first commitment should be to ensuring those around us who may be experiencing violence know of our personal and communal support.
Thursday, October 15, 2009
More from Equal on Mechelle Vinson
18. Appeal to a Higher Court
Broke, Barry got help from the Women's Legal Defense Fund and attorney Ronald Schechter helped with the brief and the argument. The case went before a three-judge panel that included Robinson. Robinson became ill, and the case took three years to decide. Eventually Vinson heard from a journalist that she had won.
During the pendency of Vinson's appeal, the EEOC had promulgated new sexual harassment guidelines that included a hostile environment within the definition. They were applied by the D.C. Circuit in a case against the D.C. Department of Corrections and that case thus was available to Robinson in Vinson. The appellate court sent the case back down for evidence about hostile environment harassment and explicitly stated that a victim's capitulation to sexual advances did not foreclose redress.
Judge Robert Bork, who would later be nominated to the U.S. Supreme Court but not confirmed, dissented when the bank unsuccessfully moved for an en banc hearing. He was joined by Judge Antonin Scalia and Judge Kenneth Starr. The U.S. Supreme Court took the case.
Broke, Barry got help from the Women's Legal Defense Fund and attorney Ronald Schechter helped with the brief and the argument. The case went before a three-judge panel that included Robinson. Robinson became ill, and the case took three years to decide. Eventually Vinson heard from a journalist that she had won.
During the pendency of Vinson's appeal, the EEOC had promulgated new sexual harassment guidelines that included a hostile environment within the definition. They were applied by the D.C. Circuit in a case against the D.C. Department of Corrections and that case thus was available to Robinson in Vinson. The appellate court sent the case back down for evidence about hostile environment harassment and explicitly stated that a victim's capitulation to sexual advances did not foreclose redress.
Judge Robert Bork, who would later be nominated to the U.S. Supreme Court but not confirmed, dissented when the bank unsuccessfully moved for an en banc hearing. He was joined by Judge Antonin Scalia and Judge Kenneth Starr. The U.S. Supreme Court took the case.
Sunday, October 11, 2009
MWL and Public Policy
Information was recently submitted by an MWL member about an amendment by Senator Franken to a Defense Department appropriations bill. That amendment, S.A. 2588--sponsored by Senator Al Franken and co-sponsored by Senator Mary Landrieu--to H.R. 3326 (the Department of Defense Appropriations Act), was supported by MWL.
Senator Franken's amendment to the Defense Appropriations Bill will restrict funding to Department of Defense contractors that continue to use mandatory arbitration clauses, which require employees to arbitrate claims of sexual assault and related torts, as well as claims arising under Title VII of the Civil Rights Act of 1964. Senator Franken's amendment will prmote the right of a victim of violence to have access to due process and an effective and adequate remedy.
The bill, including Franken's Amendment, went up for a vote in the U.S. Senate on October 6, and passed 68-30. Amy Klobuchar also voted for the amendment. An online article on the bill's provisions can be found here.
Senator Franken's amendment to the Defense Appropriations Bill will restrict funding to Department of Defense contractors that continue to use mandatory arbitration clauses, which require employees to arbitrate claims of sexual assault and related torts, as well as claims arising under Title VII of the Civil Rights Act of 1964. Senator Franken's amendment will prmote the right of a victim of violence to have access to due process and an effective and adequate remedy.
The bill, including Franken's Amendment, went up for a vote in the U.S. Senate on October 6, and passed 68-30. Amy Klobuchar also voted for the amendment. An online article on the bill's provisions can be found here.
Friday, October 9, 2009
Sexual Violence and Inequality
To jump off a recent "Equal" post, Catharine MacKinnon, University of Michigan law school professor (and former University of Minnesota professor), gave a lecture at an annual Dartmouth event yesterday. MacKinnon's lecture on greater equality for women centered on "overcoming the denial of atrocities" that is sexual violence.
About 44 percent of women have experienced rape or attempted sexual assault, MacKinnon said in her speech, adding that 37 percent of teenagers and young girls are sexually assaulted.
And institutional structures are not in place to lower these numbers. For example, MacKinnon argued that the perceived male domination of the legal system continues to further inequality. Women victims of sexual violence hesitate to use the legal system, because they are afraid of having to rely mostly on men in order to get justice against their attacker.
More about her lecture can be found here.
About 44 percent of women have experienced rape or attempted sexual assault, MacKinnon said in her speech, adding that 37 percent of teenagers and young girls are sexually assaulted.
And institutional structures are not in place to lower these numbers. For example, MacKinnon argued that the perceived male domination of the legal system continues to further inequality. Women victims of sexual violence hesitate to use the legal system, because they are afraid of having to rely mostly on men in order to get justice against their attacker.
More about her lecture can be found here.
Thursday, October 8, 2009
8th circuit (just barely) says shackles during labor violate 8th amendment
Last week, the 8th Circuit handed down Nelson v. Norris, which found that a woman's constitutional rights were violated when her legs were shackled to her bed during labor. True. In a six-to-five en banc decision, the Eighth Circuit held that this was a constitutional violation and that the guard was not entitled to qualified immunity. Click here for a post at the American Constitution Society blog.
More on Equal: Chapter 17, 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.
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.
Tuesday, October 6, 2009
The Good Wife
Last Tuesday night, around 9:00 p.m., I was fortunate enough to find myself with some free time and in total charge of the remote control. A couple of new television series were in their second week, and so I decided take a chance on one. The risks were clear to me: I might not like it, or, worse, I might like it and then be committed to trying to catch yet another show I usually don't, or at least shouldn't, have time for.I settled on The Good Wife, a new CBS drama on at 9 p.m. Julianna Margulies plays the wife of a prominent state attorney who is imprisoned. Margulies has to go back to work as a lawyer in a big firm after taking 13 years off to help her husband and raise two children.
There are several of the expected characters: the male partner who tries to be sympathetic at times, but also makes comments to show some insensitivity to gender issues. The female partner who wants to force Margulies to earn her own way to the top. The fellow associate who competes with her at every step, and makes snide comments along the way.
There is the possibility for at least two different opinions on the series. One could be that the show plays a little too much into stereotypes of the big firm and women's roles in those firms. But, there is also the argument that the show puts women in large firms, and some of the trials they may face, squarely in the public eye. Any discussion about those issues, even in the form of discussing a television show, seems like a good thing.
Additionally, the show so far has delivered in entertainment value. I guess I'll have to tune in again tonight....I was afraid that would happen....
Friday, October 2, 2009
20th Anniversary Celebration & MWL Wahl Lecture
Save the Date: Tuesday, October 27, 2009. The whole date.
Two important events fill the day: The 20th Anniversary Commemoration of the Minnesota Supreme Court Gender Fairness in the Court Report, and the MWL Rosalie Wahl Leadership Lecture. Both events happen at the Crowne Plaza in St. Paul.
20th Anniversary Commemoration
This Commemoration is in recognition of the Minnesota Supreme Court's establishment of a Task Force to explore gender bias in the court system, and the 1989 report where the Task Force presented its findings and recommendations.
The Commemoration is an opportunity for the gender fairness task force to show its improvements and continue the dialog on what still needs discussion and improvement. The event starts with lunch and a keynote address at 12 p.m., followed by three panel discussions, ending the event at 5 p.m.
CLE credits are being applied for--both more information and registration is here.
Rosalie Wahl Lecture
Next, MWL welcomes Eleanor D. Acheson as keynote speaker for the 2009 Wahl Lecture. Acheson is Vice-President, General Counsel, and Corporate Secretary for Amtrak. The event will begin with registration and a reception at 5:30 p.m., the keynote lecture at 6 p.m., and a reception to follow. Registration can be done here.
Two important events fill the day: The 20th Anniversary Commemoration of the Minnesota Supreme Court Gender Fairness in the Court Report, and the MWL Rosalie Wahl Leadership Lecture. Both events happen at the Crowne Plaza in St. Paul.
20th Anniversary Commemoration
This Commemoration is in recognition of the Minnesota Supreme Court's establishment of a Task Force to explore gender bias in the court system, and the 1989 report where the Task Force presented its findings and recommendations.
The Commemoration is an opportunity for the gender fairness task force to show its improvements and continue the dialog on what still needs discussion and improvement. The event starts with lunch and a keynote address at 12 p.m., followed by three panel discussions, ending the event at 5 p.m.
CLE credits are being applied for--both more information and registration is here.
Rosalie Wahl Lecture
Next, MWL welcomes Eleanor D. Acheson as keynote speaker for the 2009 Wahl Lecture. Acheson is Vice-President, General Counsel, and Corporate Secretary for Amtrak. The event will begin with registration and a reception at 5:30 p.m., the keynote lecture at 6 p.m., and a reception to follow. Registration can be done here.
Thursday, October 1, 2009
Chapters 15 and 16 of 'Equal': featuring Catherine MacKinnon
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.”
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.”
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.”
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.”
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