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Scholars have long sought to resolve whether and to what degree political actor diversity influences the outputs of political institutions like legislatures, administrative agencies, and courts. When it comes to the judiciary, diverse judges may greatly affect outcomes. Despite this potential, no consensus exists for whether judicial diversity affects behavior in trial courts—that is, the stage where the vast majority of litigants interact with the judicial branch. After addressing the research design limitations in previous trial court-diversity studies, the results here indicate that a trial judge's sex and race have very large effects on his or her decision making. These results have important implications for how we view diversity throughout the judiciary and are particularly timely given the Obama Administration's over 200 female and minority appointments to the federal trial courts.

Scholars have recognized the role that legal intermediaries can play in shaping the law through their interpretations of legal ambiguity and guidance to rule-takers on legal compliance. Although legal intermediaries thus have the potential to effect social change, most research in the area of employment discrimination has focused on the way they facilitate only symbolic compliance with the law. In this article, we examine how the Equal Employment Opportunity Commission (“EEOC”) took steps that legitimized a new area of claiming, classifying sexual orientation and gender identity (“SOGI”) discrimination as prohibited sex discrimination. Drawing on 2012–2016 confidential charge data, we analyze which alleged issues had a greater likelihood of being identified by EEOC actors as strong cases of discrimination. We use quantitative administrative data and a unique dataset generated from the coding of charge narratives to develop our description of the EEOC’s categorization of SOGI charges. Our findings indicate that first by accepting SOGI charges and then by assigning 34% – much higher than other discrimination charge bases – with the highest processing category, the EEOC made new law, expanding Title VII protection. At the same time, our findings reflect that the EEOC exhibited restraint in this expansion through prioritizing charges that were closely aligned to prior gender stereotyping cases, rather than more directly signaling an SOGI identity-based protection. These findings illustrate the exercise of initiative within prior legal constraint, defining a new area of legal claiming.

Employment law - Title VII - antiretaliation - Eleventh Circuit holds that human resource employee's encouragement of coworker to file EEOC charge was not protected activity.

This Essay explores the evolution, implications, and potential of #MeToo. It begins by reviewing the inadequacies of sexual harassment law and policies that have permitted continuing abuse and that prompted the outrage that erupted in 2017. Discussion then turns to the origins of the #MeToo movement and assesses the changes that it has propelled. Analysis centers on which changes are likely to last and the concerns of fairness and inclusion that they raise. A final section considers strategies for sustaining the positive momentum of the movement and directing its efforts toward fundamental reform.

Lower courts have consistently held that agencies may not issue guidance that purports to bind the public. In their parlance, guidance cannot create a \"binding norm\" on regulated parties. The courts have been far less clear, however, on the extent to which guidance can appropriately bind the issuing agency or its staff. Courts have approached this issue in widely divergent ways, and some have held that guidance cannot even bind low-level agency officials. In the shadow of this uncertainty, agencies continue to use guidance as an important tool for internal administration. Guidance facilitates bureaucratic supervision of frontline officials, enables agency administrators to exercise the agency's discretion transparently, and communicates the agency's interpretations of the law to both internal and external actors. To serve these functions, guidance must impose some binding norms on agency staff Despite the importance of guidance to the internal operations of the administrative state, little empirical work exists to shed light on how agencies design and deploy these policies and whether their practices comport with the assumptions of the binding-norm doctrine. To fill this gap, this Note conducts a comparative assessment of the guidance practices at three agencies: the Equal Employment Opportunity Commission, the Occupational Safety and Health Administration, and U.S. Citizenship and Immigration Services. Drawing on employee manuals, briefings in response to litigation, and interviews with agency insiders, I evaluate how these agencies use guidance to manage the discretion and work of agency staff I find that officials at each agency believe that guidance must necessarily be capable of binding internal agency actors, particularly frontline officials, to effectuate consistent and transparent internal administration. These findings reveal a disconnect between the actual practices at these agencies and recent judicial decisions invalidating agency guidance. To resolve this discrepancy, I propose a new contextual approach to judicial review of guidance that encourages courts to distinguish between the internal and external binding effects of guidance. This approach weighs the underlying authority of the agency to act absent the guidance, the power of the agency generally to create indirect binding effects on regulated parties, the agency's internal procedures for contesting guidance, and the audience for the guidance to determine whether the guidance is appropriate or simply a substitute for a legislative rule.

In recent years, the Supreme Court has put up roadblocks for workers who seek relief in court for wrongs committed by their employers. This development is a consequence of the Court's arbitration jurisprudence. Epic Systems Corp. v. Lewis, a 2018 decision, was par for the course. The Supreme Court held that employers could prevent group wage-and-hour claims by enforcing individual arbitration agreements. It rejected the plaintiffs' argument that their litigation activity was protected by labor law. In dissent, Justice Ruth Bader Ginsburg questioned the application of the decision to Title VII pattern-or-practice cases. Indeed, Epic Systems puts potential Title VII plaintiffs in a bind. Class waivers in arbitration agreements prevent employees from banding together in group actions. But every circuit court to consider the question has determined that only a class—not an individual plaintiff—can litigate a claim of a pattern or practice of discrimination under Title VII. Taken together, the Supreme Court's arbitration cases and the circuit courts' Title VII jurisprudence would seem to eviscerate the pattern-or-practice suit. In this Comment, I argue that Epic Systems does not reach all Title VII plaintiffs. First, I contend that some Title VII litigation is protected by the National Labor Relations Act (NLRA), notwithstanding Epic Systems. Congress gave Title VII plaintiffs the ability to obtain broad remedial relief to address discriminatory conditions, unlike in the wage-and-hour context. Like strikes or collective bargaining, litigation is one way that employees can reform the workplace. Then, I suggest that courts should borrow a test from securities law to evaluate whether a group of employees is sufficiently independent and cohesive to bring a pattern-or-practice case. Courts can give effect to the NLRA and Title VII without scrapping arbitration agreements entirely.

Equal opportunity in the workplace is thought to be the direct legacy of the civil rights and feminist movements and the landmark Civil Rights Act of 1964. Yet, as Frank Dobbin demonstrates, corporate personnel experts--not Congress or the courts--were the ones who determined what equal opportunity meant in practice, designing changes in how employers hire, promote, and fire workers, and ultimately defining what discrimination is, and is not, in the American imagination. Dobbin shows how Congress and the courts merely endorsed programs devised by corporate personnel. He traces how the first measures were adopted by military contractors worried that the Kennedy administration would cancel their contracts if they didn't take \"affirmative action\" to end discrimination. These measures built on existing personnel programs, many designed to prevent bias against unionists. Dobbin follows the changes in the law as personnel experts invented one wave after another of equal opportunity programs. He examines how corporate personnel formalized hiring and promotion practices in the 1970s to eradicate bias by managers; how in the 1980s they answered Ronald Reagan's threat to end affirmative action by recasting their efforts as diversity-management programs; and how the growing presence of women in the newly named human resources profession has contributed to a focus on sexual harassment and work/life issues. Inventing Equal Opportunityreveals how the personnel profession devised--and ultimately transformed--our understanding of discrimination.

Here Christina Wolbrecht boldly demonstrates how the Republican and Democratic parties have helped transform, and have been transformed by, American public debate and policy on women's rights. She begins by showing the evolution of the positions of both parties on women's rights over the past five decades. In the 1950s and early 1960s, Republicans were slightly more favorable than Democrats, but by the early 1980s, the parties had polarized sharply, with Democrats supporting, and Republicans opposing, such policies as the Equal Rights Amendment and abortion rights. Wolbrecht not only traces the development of this shift in the parties' relative positions--focusing on party platforms, the words and actions of presidents and presidential candidates, and the behavior of the parties' delegations in Congress--but also seeks to explain the realignment. The author considers the politically charged developments that have contributed to a redefinition and expansion of the women's rights agenda since the 1960s--including legal changes, the emergence of the modern women's movement, and changes in patterns of employment, fertility, and marriage. Wolbrecht explores how party leaders reacted to these developments and adopted positions in ways that would help expand their party's coalition. Combined with changes in those coalitions--particularly the rise of social conservatism within the GOP and the affiliation of social movement groups with the Democratic party--the result was the polarization characterizing the parties' stances on women's rights today.

Women lag men in their representation in management jobs, which negatively affects women’s careers and company performance. Using data from 81 publicly traded firms with more than 2,000 establishments, the authors examine the impact of two management structures that may influence gender diversity in management positions. The authors find no association between the presence of an HR executive on the top management team—a structure envisioned in practice as enhancing diversity but which could, instead, operate merely symbolically—and the proportion of women in management. By contrast, the authors show a strong, positive association between a previously unexamined measure of commitment to diversity—the hierarchical rank of the individual certifying the company’s required, confidential federal EEO-1 report—and women’s representation in management. These findings counter the common perception that the Equal Employment Opportunity Commission (EEOC) regulations are too weak to affect gender diversity. The authors discuss the implications for diversity scholarship, as well as for management practice and public policy.

To avoid the appearance of sex discrimination that would violate Title VII of the Civil Rights Act, Equal Employment Opportunity Commission (EEOC) guidance coupled with a common misunderstanding of the law have resulted in little or no information about family status being provided in pre-employment interviews. To investigate whether concealing family information actually improves women's employment prospects, we conducted an original experimental study fielded on more than 3000 subjects. Our study provides the first ever evidence that concealing personal information lowers female applicants' hiring prospects. Subjects overwhelmingly preferred to hire candidates who provided personal or family information, regardless of content—any explanation improved employment prospects relative to no explanation for an otherwise identical job candidate. Our results are consistent with the behavioral economics theory of ambiguity aversion, which finds that individuals prefer known risks over unknown risks. These findings have broader implications regarding permissible pre-employment questions, as they suggest that restrictions on questions about matters such as criminal history and credit history, both of which are currently targeted by legislatures and by the EEOC for prohibition, may likewise have adverse effects on the classes of workers such restrictions are intended to protect. Finally, our findings suggest that the interactive process model of reasonable accommodation, embodied in the enforcement guidance for the Americans with Disabilities Act, may provide a better model for accommodation of work—family balance.