After a remarkably swift development in law and popular consciousness, the concept of sexual hara... more After a remarkably swift development in law and popular consciousness, the concept of sexual harassment has become the subject of controversy and debate. Sexual harassment is a legal concept that originated in the United States in the 1970s, when feminists succeeded in establishing it as a form of sex discrimination prohibited by national employment discrimination laws. The law defines harassment in sexual terms: Harassment consists of powerful men directing unwanted sexual advances toward less powerful women. By the late 1980s and early 1990s, this sexual view of harassment had been consolidated in law, media representation, social science research, organizational practice, and everyday thought. Recently, however, this view has come under challenge in the US among civil libertarians, feminists, and gay/lesbian theorists, many of whom have voiced concerns that the emphasis on curbing sexual conduct may penalize less mainstream workers who are viewed as sexually deviant such as sexual minorities, people of color, and working class men and women. Some feminists have also warned that the focus on sexuality neglects equally pernicious, non-sexual forms of gender-based harassment and discrimination designed to exclude and marginalize women (and many men) from the work they want to pursue. At the same time, as feminists and policymakers around the globe have begun to regulate harassment, many have imported into their own legal traditions a version of the US model now being reexamined. It is to be hoped that such new international efforts will pay heed to recent debates about workplace harassment in the US, and that US reformers will seek to learn from broader traditions of worker empowerment upon which other nations draw.
This panel discussion features Law Professors Vicki Schultz, Tanya Hernandez, and David Yamada, S... more This panel discussion features Law Professors Vicki Schultz, Tanya Hernandez, and David Yamada, Sociology Professor Abigail Saguy and Yale Law School graduate Gabrielle Friedman discussing sexual harassment law in global, comparative terms. Different conceptions of harassment - including sexual advances, gender harassment, racial intimidation, mobbing, bullying and ostracization - are elaborated in the context of discussing how harassment is understood and deal with in the United States, Latin America, Germany, France, and continentual Europe, and Northern Europe, Canada and the United Kingdom. This work should be of interest to scholars of discrimination and harassment and comparative law.
This piece is a tribute to Professor James E. Jones, Jr., the Nathan P. Feinsinger Professor of L... more This piece is a tribute to Professor James E. Jones, Jr., the Nathan P. Feinsinger Professor of Labor Law at the University of Wisconsin Law School and School of Industrial Relations. Professor Jones was one of the principal architects of the field of employment discrimination law. His career, spanning several decades of important developments in American labor and employment law and civil rights law, should be of great interest to legal historians and to everyone who wants to make a difference in the law.
Hoffman argued that, in order to achieve gender equality at work and at home, scholars and policy... more Hoffman argued that, in order to achieve gender equality at work and at home, scholars and policy makers should consider adopting measures to bring the weekly working hours for both employees who work very long hours at one full-time job and employees who work fewer than full-time hours at one or more jobs into closer convergence toward a more reasonable, family-friendly mean. Today, changed economic conditions have made the idea of a reduced, or reorganized, work week a rational, pragmatic solution to a pressing problem, rather than the politically impractical idea it seemed to be just a few years ago. Yet, few feminists have embraced the idea; most seem committed to a campaign for workplace flexibility that opts for enhancing individual choice for employees, mainly women, as opposed to instantiating a new set of universal norms that could benefit everyone. In this Article, Professor Schultz considers the key differences between the recent flexibility agenda and a broader program to restructure working time. She concludes that the flexibility agenda is not inevitably at odds with the larger goal of achieving gender equality but, absent vigilance, flexibility has the potential to undermine equality in both the short and the long run.
nia, Davis School of Law. My thinking on these issues always benefits from conversations with Vic... more nia, Davis School of Law. My thinking on these issues always benefits from conversations with Vicki Schultz, Courtney Joslin, Jessica Clarke, and Tristin Green. Many thanks also to everyone at the 2018 University of Chicago Legal Forum Symposium, to the editors of The University of Chicago Legal Forum for their patient and skillful editing, to Meghan Brooks at Yale Law School, and to Dean Kevin Johnson and the UC Davis School of Law for supporting this project through the Martin Luther King, Jr. Hall Research Fund. † † Ford Foundation Professor of Law and Social Sciences, Yale Law School. I would like to thank the University of Chicago Legal Forum 2018 Symposium attendees for helpful feedback on the ideas expressed here. I am grateful to my co-author Brian Soucek, my research assistant Meghan Brooks, and the Symposium editors for their insight and work on this Essay.
International Employment & Labor Law eJournal, 2006
This piece was first presented as Professor Schultz's comments on a panel on prostitution hel... more This piece was first presented as Professor Schultz's comments on a panel on prostitution held at a conference at Yale Law School entitled "Sex for Sale." Commenting and drawing on papers presented by Kathleen A. Bergin, Melissa Farley, Norma Hotaling, Ann C. McGinley, and Rhacel Salazar Parrenas, the piece considers whether and when it is appropriate to refer to such sex as "work."
The fiftieth anniversary of Title VII’s ban on sex discrimination provides an occasion to reflect... more The fiftieth anniversary of Title VII’s ban on sex discrimination provides an occasion to reflect on its successes and failures in achieving workplace sex equality. Although considerable progress has occurred, advances have been both uneven and unsteady. This Article shows that a primary limit on legal reform has been attitudinal. Before and after Title VII’s enactment, private and public officials have defended sex discrimination and inequality by appealing to naturalized conceptions of sex difference. Persistent stereotypes portray women as more devoted to family roles than work roles and, consequently, less committed to their jobs than men. Similar stereotypes portray women as primarily interested in female-typed jobs said to reward feminine traits and values. Viewed through the lens of such assumptions, sex-based disparities in employment are not inequalities: They are the inevitable expression of innate and cultural sex differences.How, then, has progress occurred under Title V...
, and especially Bill Eskridge, whose insight and enthusiasm for the project have been invaluable... more , and especially Bill Eskridge, whose insight and enthusiasm for the project have been invaluable. I also received helpful feedback from many lively participants at the Yale Law School faculty workshop; the Harvard Law School faculty workshop; the USC Law School Center for Law, Culture and the Humanities workshop; and the University of Toronto Law School Feminist Theory workshop. I would like to extend special thanks to my research assistant Ramit Mizrahi, my lead editor Amy Kapczynski, and librarian Gene Coakley for going above and beyond the call of duty in helping me complete this Article. Many thanks go also to Lindsay Barenz, Amanda Cowley, and Jennifer Sung at Yale, and Jacob Elberg, Jamie Kohen, Paul Lekas, and Steig Olson at Harvard, for providing excellent research assistance. I would also like to express my appreciation to the Radcliffe Institute for Advanced Study, which provided me with time for research and reflection on these issues, and to Tony Kronman and Yale for making it possible for me to take the Radcliffe fellowship. My deepest gratitude goes to Craig Henry, whose patience, good humor, and sheer belief in me have been indispensable at every step of this project and all the others. Despite help from so many quarters, any errors are mine alone.
More than twenty-five years after the enactment of Title VII of the Civil Rights Act of 1964,1 th... more More than twenty-five years after the enactment of Title VII of the Civil Rights Act of 1964,1 the American workforce remains remarkably segregated by race and sex. 2 Job segregation is not a ' Title VII of the Civil Rights Act of 1964, 42 USC § § 2000 et seq (1988), is the major federal statute prohibiting discrimination in employment. It prohibits employers with fifteen or more employees from discriminating on the basis of race, color, religion, sex or national origin. 2 Throughout the 1980s, approximately 60% of all male and female workers would have been required to switch to occupations atypical for their sex in order to achieve integration.
Twenty-five years after title VII prohibited sex discrimination in employment, most women continu... more Twenty-five years after title VII prohibited sex discrimination in employment, most women continue to work in low-paying, low-status, traditionally female jobs. Employers have avoided liability for sex segregation by arguing that women lack interest in more highly rewarded nontraditional jobs. In this analysis of title VII decisions addressing the lack of interest argument, Professor Schultz contends that courts have failed to recognize the role of employers in shaping women's work aspirations. Courts attribute sex segregation either to women's choice or to employer coercion. Both these explanations, however, incorrectly assume that women form stable preferences for traditional or nontraditional jobs before they begin working. Sociological research confirms that women develop their job preferences instead in response to changing structural and cultural features of work organizations. Professor Schultz draws on this research to propose a new way of understanding sex segregation that will enable courts to fulfill title VII's unrealized promise to working women. * Assistant Professor of Law, University of Wisconsin. Although it is not traditional to do so in a scholarly article, I wish to express my gratitude to my mother and father, who have worked hard in sometimes unrewarding jobs to give me opportunities they never had. In keeping with my argument in this Article, I acknowledge also the powerful influence of the women and men with whom I have had the good fortune of working in my formative years as a scholar and lawyer. My appreciation goes to my colleagues at the University of Wisconsin, where a culture of support for intellectually ambitious scholarship still thrives. I am particularly indebted to Dirk Hartog, David Trubek, Martha Fineman, Neil Komesar, Carin Clauss, Jim Jones, and Bill Clune, whose unfailing faith, constructive commentary, and inspiring example have sustained me throughout this project. I have been blessed also with talented research assistants from the
In this Essay, Professor Schultz develops a vision of social justice grounded in the redistributi... more In this Essay, Professor Schultz develops a vision of social justice grounded in the redistribution and restructuring of paid work. Work is a site of deep self-formation offering rich opportunities for human flourishing or devastation. Although society has been slow to understand the significance of paid work to women, research suggests that women who work for a living are better off than other women in many ways. Currently, however, transformations in the structure of work are increasing insecurity and deepening inequality for all but those at the top; many once privileged workers now face conditions akin to those that women and disadvantaged men have long confronted. These trends demand political attention. Professor Schultz urges that we remake law and culture to create a world in which everyone has the right to participate meaningfully in life-sustaining work, with the social support necessary to do so. She calls upon feminists to forego narrow identity politics in favor of joining with a broad array of other groups to fashion a social order in which work provides a foundation for egalitarian conceptions of citizenship and care.
Good afternoon, and welcome! I'm Vicki Schultz, and I am this year's chair of the Labor and Emplo... more Good afternoon, and welcome! I'm Vicki Schultz, and I am this year's chair of the Labor and Employment Relations Section. I'm very pleased to see that so many of you have turned out for the terrific panel our section is sponsoring this year. Our panel is entitled, 11 Global Perspectives on Workplace Harassment Law. 11 As most of you know, the idea that workplace harassment is a form of discrimination is a concept that was invented by American feminists and civil rights lawyers and inscribed by federal judges into Title VII law. Although the courts first recognized the harm of harassment in the context of race discrimination, it is the concept of sexual harassment that has received the greatest attention, and not only in the United States. Over the past two decades, activism around sexual harassment has sparked developments around the globe, with differing results as each nation has drawn on its own legal and cultural traditions to fashion its own approach to regulating harassment. This panel will discuss developments in the United States, Europe, Latin America, and Australia from an interdisciplinary perspective. We will hear from four scholars who are doing truly significant, cutting-edge work in this important field. Let me introduce them to you, in the order in which they will be speaking. First we will hear from Gabrielle Friedman, a recent graduate of the Yale Law School who is now serving as a Law Clerk to the Honorable Gerald E. Lynch, United States District Judge for the Southern District of New York, in New York City. Ms. Friedman received an M.A. in European history from Brown University and, later, a Bosch Foundation Fellowship to conduct research in Berlin. She recently published an article, The European Transformation of Harassment Law: Discrimination or Dignity,1 co-authored with James
Recently Professors Schultz and Hoffman argued that, in order to achieve gender equality at work ... more Recently Professors Schultz and Hoffman argued that, in order to achieve gender equality at work and at home, scholars and policy makers should consider adopting measures to bring the weekly working hours for both employees who work very long hours at one full-time job and employees who work fewer than full-time hours at one or more jobs into closer convergence toward a more reasonable, family-friendly mean. Today, changed economic conditions have made the idea of a reduced, or reorganized, work week a rational, pragmatic solution to a pressing problem, rather than the politically impractical idea it seemed to be just a few years ago. Yet, few feminists have embraced the idea; most seem committed to a campaign for workplace flexibility that opts for enhancing individual choice for employees, mainly women, as opposed to instantiating a new set of universal norms that could benefit everyone. In this Article, Professor Schultz considers the key differences between the recent flexibilit...
After a remarkably swift development in law and popular consciousness, the concept of sexual hara... more After a remarkably swift development in law and popular consciousness, the concept of sexual harassment has become the subject of controversy and debate. Sexual harassment is a legal concept that originated in the United States in the 1970s, when feminists succeeded in establishing it as a form of sex discrimination prohibited by national employment discrimination laws. The law defines harassment in sexual terms: Harassment consists of powerful men directing unwanted sexual advances toward less powerful women. By the late 1980s and early 1990s, this sexual view of harassment had been consolidated in law, media representation, social science research, organizational practice, and everyday thought. Recently, however, this view has come under challenge in the US among civil libertarians, feminists, and gay/lesbian theorists, many of whom have voiced concerns that the emphasis on curbing sexual conduct may penalize less mainstream workers who are viewed as sexually deviant such as sexual minorities, people of color, and working class men and women. Some feminists have also warned that the focus on sexuality neglects equally pernicious, non-sexual forms of gender-based harassment and discrimination designed to exclude and marginalize women (and many men) from the work they want to pursue. At the same time, as feminists and policymakers around the globe have begun to regulate harassment, many have imported into their own legal traditions a version of the US model now being reexamined. It is to be hoped that such new international efforts will pay heed to recent debates about workplace harassment in the US, and that US reformers will seek to learn from broader traditions of worker empowerment upon which other nations draw.
This panel discussion features Law Professors Vicki Schultz, Tanya Hernandez, and David Yamada, S... more This panel discussion features Law Professors Vicki Schultz, Tanya Hernandez, and David Yamada, Sociology Professor Abigail Saguy and Yale Law School graduate Gabrielle Friedman discussing sexual harassment law in global, comparative terms. Different conceptions of harassment - including sexual advances, gender harassment, racial intimidation, mobbing, bullying and ostracization - are elaborated in the context of discussing how harassment is understood and deal with in the United States, Latin America, Germany, France, and continentual Europe, and Northern Europe, Canada and the United Kingdom. This work should be of interest to scholars of discrimination and harassment and comparative law.
This piece is a tribute to Professor James E. Jones, Jr., the Nathan P. Feinsinger Professor of L... more This piece is a tribute to Professor James E. Jones, Jr., the Nathan P. Feinsinger Professor of Labor Law at the University of Wisconsin Law School and School of Industrial Relations. Professor Jones was one of the principal architects of the field of employment discrimination law. His career, spanning several decades of important developments in American labor and employment law and civil rights law, should be of great interest to legal historians and to everyone who wants to make a difference in the law.
Hoffman argued that, in order to achieve gender equality at work and at home, scholars and policy... more Hoffman argued that, in order to achieve gender equality at work and at home, scholars and policy makers should consider adopting measures to bring the weekly working hours for both employees who work very long hours at one full-time job and employees who work fewer than full-time hours at one or more jobs into closer convergence toward a more reasonable, family-friendly mean. Today, changed economic conditions have made the idea of a reduced, or reorganized, work week a rational, pragmatic solution to a pressing problem, rather than the politically impractical idea it seemed to be just a few years ago. Yet, few feminists have embraced the idea; most seem committed to a campaign for workplace flexibility that opts for enhancing individual choice for employees, mainly women, as opposed to instantiating a new set of universal norms that could benefit everyone. In this Article, Professor Schultz considers the key differences between the recent flexibility agenda and a broader program to restructure working time. She concludes that the flexibility agenda is not inevitably at odds with the larger goal of achieving gender equality but, absent vigilance, flexibility has the potential to undermine equality in both the short and the long run.
nia, Davis School of Law. My thinking on these issues always benefits from conversations with Vic... more nia, Davis School of Law. My thinking on these issues always benefits from conversations with Vicki Schultz, Courtney Joslin, Jessica Clarke, and Tristin Green. Many thanks also to everyone at the 2018 University of Chicago Legal Forum Symposium, to the editors of The University of Chicago Legal Forum for their patient and skillful editing, to Meghan Brooks at Yale Law School, and to Dean Kevin Johnson and the UC Davis School of Law for supporting this project through the Martin Luther King, Jr. Hall Research Fund. † † Ford Foundation Professor of Law and Social Sciences, Yale Law School. I would like to thank the University of Chicago Legal Forum 2018 Symposium attendees for helpful feedback on the ideas expressed here. I am grateful to my co-author Brian Soucek, my research assistant Meghan Brooks, and the Symposium editors for their insight and work on this Essay.
International Employment & Labor Law eJournal, 2006
This piece was first presented as Professor Schultz's comments on a panel on prostitution hel... more This piece was first presented as Professor Schultz's comments on a panel on prostitution held at a conference at Yale Law School entitled "Sex for Sale." Commenting and drawing on papers presented by Kathleen A. Bergin, Melissa Farley, Norma Hotaling, Ann C. McGinley, and Rhacel Salazar Parrenas, the piece considers whether and when it is appropriate to refer to such sex as "work."
The fiftieth anniversary of Title VII’s ban on sex discrimination provides an occasion to reflect... more The fiftieth anniversary of Title VII’s ban on sex discrimination provides an occasion to reflect on its successes and failures in achieving workplace sex equality. Although considerable progress has occurred, advances have been both uneven and unsteady. This Article shows that a primary limit on legal reform has been attitudinal. Before and after Title VII’s enactment, private and public officials have defended sex discrimination and inequality by appealing to naturalized conceptions of sex difference. Persistent stereotypes portray women as more devoted to family roles than work roles and, consequently, less committed to their jobs than men. Similar stereotypes portray women as primarily interested in female-typed jobs said to reward feminine traits and values. Viewed through the lens of such assumptions, sex-based disparities in employment are not inequalities: They are the inevitable expression of innate and cultural sex differences.How, then, has progress occurred under Title V...
, and especially Bill Eskridge, whose insight and enthusiasm for the project have been invaluable... more , and especially Bill Eskridge, whose insight and enthusiasm for the project have been invaluable. I also received helpful feedback from many lively participants at the Yale Law School faculty workshop; the Harvard Law School faculty workshop; the USC Law School Center for Law, Culture and the Humanities workshop; and the University of Toronto Law School Feminist Theory workshop. I would like to extend special thanks to my research assistant Ramit Mizrahi, my lead editor Amy Kapczynski, and librarian Gene Coakley for going above and beyond the call of duty in helping me complete this Article. Many thanks go also to Lindsay Barenz, Amanda Cowley, and Jennifer Sung at Yale, and Jacob Elberg, Jamie Kohen, Paul Lekas, and Steig Olson at Harvard, for providing excellent research assistance. I would also like to express my appreciation to the Radcliffe Institute for Advanced Study, which provided me with time for research and reflection on these issues, and to Tony Kronman and Yale for making it possible for me to take the Radcliffe fellowship. My deepest gratitude goes to Craig Henry, whose patience, good humor, and sheer belief in me have been indispensable at every step of this project and all the others. Despite help from so many quarters, any errors are mine alone.
More than twenty-five years after the enactment of Title VII of the Civil Rights Act of 1964,1 th... more More than twenty-five years after the enactment of Title VII of the Civil Rights Act of 1964,1 the American workforce remains remarkably segregated by race and sex. 2 Job segregation is not a ' Title VII of the Civil Rights Act of 1964, 42 USC § § 2000 et seq (1988), is the major federal statute prohibiting discrimination in employment. It prohibits employers with fifteen or more employees from discriminating on the basis of race, color, religion, sex or national origin. 2 Throughout the 1980s, approximately 60% of all male and female workers would have been required to switch to occupations atypical for their sex in order to achieve integration.
Twenty-five years after title VII prohibited sex discrimination in employment, most women continu... more Twenty-five years after title VII prohibited sex discrimination in employment, most women continue to work in low-paying, low-status, traditionally female jobs. Employers have avoided liability for sex segregation by arguing that women lack interest in more highly rewarded nontraditional jobs. In this analysis of title VII decisions addressing the lack of interest argument, Professor Schultz contends that courts have failed to recognize the role of employers in shaping women's work aspirations. Courts attribute sex segregation either to women's choice or to employer coercion. Both these explanations, however, incorrectly assume that women form stable preferences for traditional or nontraditional jobs before they begin working. Sociological research confirms that women develop their job preferences instead in response to changing structural and cultural features of work organizations. Professor Schultz draws on this research to propose a new way of understanding sex segregation that will enable courts to fulfill title VII's unrealized promise to working women. * Assistant Professor of Law, University of Wisconsin. Although it is not traditional to do so in a scholarly article, I wish to express my gratitude to my mother and father, who have worked hard in sometimes unrewarding jobs to give me opportunities they never had. In keeping with my argument in this Article, I acknowledge also the powerful influence of the women and men with whom I have had the good fortune of working in my formative years as a scholar and lawyer. My appreciation goes to my colleagues at the University of Wisconsin, where a culture of support for intellectually ambitious scholarship still thrives. I am particularly indebted to Dirk Hartog, David Trubek, Martha Fineman, Neil Komesar, Carin Clauss, Jim Jones, and Bill Clune, whose unfailing faith, constructive commentary, and inspiring example have sustained me throughout this project. I have been blessed also with talented research assistants from the
In this Essay, Professor Schultz develops a vision of social justice grounded in the redistributi... more In this Essay, Professor Schultz develops a vision of social justice grounded in the redistribution and restructuring of paid work. Work is a site of deep self-formation offering rich opportunities for human flourishing or devastation. Although society has been slow to understand the significance of paid work to women, research suggests that women who work for a living are better off than other women in many ways. Currently, however, transformations in the structure of work are increasing insecurity and deepening inequality for all but those at the top; many once privileged workers now face conditions akin to those that women and disadvantaged men have long confronted. These trends demand political attention. Professor Schultz urges that we remake law and culture to create a world in which everyone has the right to participate meaningfully in life-sustaining work, with the social support necessary to do so. She calls upon feminists to forego narrow identity politics in favor of joining with a broad array of other groups to fashion a social order in which work provides a foundation for egalitarian conceptions of citizenship and care.
Good afternoon, and welcome! I'm Vicki Schultz, and I am this year's chair of the Labor and Emplo... more Good afternoon, and welcome! I'm Vicki Schultz, and I am this year's chair of the Labor and Employment Relations Section. I'm very pleased to see that so many of you have turned out for the terrific panel our section is sponsoring this year. Our panel is entitled, 11 Global Perspectives on Workplace Harassment Law. 11 As most of you know, the idea that workplace harassment is a form of discrimination is a concept that was invented by American feminists and civil rights lawyers and inscribed by federal judges into Title VII law. Although the courts first recognized the harm of harassment in the context of race discrimination, it is the concept of sexual harassment that has received the greatest attention, and not only in the United States. Over the past two decades, activism around sexual harassment has sparked developments around the globe, with differing results as each nation has drawn on its own legal and cultural traditions to fashion its own approach to regulating harassment. This panel will discuss developments in the United States, Europe, Latin America, and Australia from an interdisciplinary perspective. We will hear from four scholars who are doing truly significant, cutting-edge work in this important field. Let me introduce them to you, in the order in which they will be speaking. First we will hear from Gabrielle Friedman, a recent graduate of the Yale Law School who is now serving as a Law Clerk to the Honorable Gerald E. Lynch, United States District Judge for the Southern District of New York, in New York City. Ms. Friedman received an M.A. in European history from Brown University and, later, a Bosch Foundation Fellowship to conduct research in Berlin. She recently published an article, The European Transformation of Harassment Law: Discrimination or Dignity,1 co-authored with James
Recently Professors Schultz and Hoffman argued that, in order to achieve gender equality at work ... more Recently Professors Schultz and Hoffman argued that, in order to achieve gender equality at work and at home, scholars and policy makers should consider adopting measures to bring the weekly working hours for both employees who work very long hours at one full-time job and employees who work fewer than full-time hours at one or more jobs into closer convergence toward a more reasonable, family-friendly mean. Today, changed economic conditions have made the idea of a reduced, or reorganized, work week a rational, pragmatic solution to a pressing problem, rather than the politically impractical idea it seemed to be just a few years ago. Yet, few feminists have embraced the idea; most seem committed to a campaign for workplace flexibility that opts for enhancing individual choice for employees, mainly women, as opposed to instantiating a new set of universal norms that could benefit everyone. In this Article, Professor Schultz considers the key differences between the recent flexibilit...
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