Sexual harassment jurisprudence is predicated on heteronormative constructions of desire and power in the workplace. Harassment claims brought by gay and lesbian workers explode this binary gender paradigm by challenging the premise that desire can only flow between workers of different biological sexes. While courts have striven to integrate LGBT workers into existing anti-harassment legal regimes, the contortions made to achieve such integration expose the under-inclusiveness of sexual harassment doctrine in its current form. Workplace harassment on the basis of gender non-conformity, whether manifested as discrimination against gay workers, or against employees who refuse to adhere to norms of gender identity and performance, is largely unprotected under Title VII. Legislators have recognized that Title VII leaves these groups unprotected and have proposed new legislation, the Employment Non-Discrimination Act (ENDA), as a means to protect these groups. Legislators––and academics––have argued that ENDA will adequately address discrimination experienced by LGBT workers.
This paper provides a critique of the proposed Employment Non-Discrimination Act as a catch-all solution to curbing workplace discrimination against gender outlaws. It compares the similar analytical deficiencies of Title VII and ENDA, arguing that both laws strive to protect discrete classes of workers, rather than to dismantle discriminatory strategies employers deploy to maintain gender rigidity, and ultimately gender hierarchy, in the workplace. By excising sexual orientation from Title VII’s prohibition on gender discrimination, ENDA proponents risk eliding the important point that LGBT identity is a manifestation of gender non-conformity. This paper argues that the enactment of ENDA is not enough; Title VII must expand and evolve to cover discrimination waged against all forms of gender non-conformity. A two-pronged Title VII and ENDA approach would preserve the critical connections between discrimination, discipline, and violence targeted towards workers who fail to adhere to the gender norms of the workplace.
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Civil actions for rape and sexual assault have recently been undergoing significant changes in both quantity and quality. Quantitatively, the number of these kinds of cases has increased dramatically since the 1970s. Qualitatively, the litigation has shifted from a woman versus man paradigm to a triangulated tort claim involving a female plaintiff, a male defendant, and a corporate or institutional third party entity that either facilitated or somehow failed to prevent the sexual harm. While it may seem odd to think of sexual assault as involving three parties, the legal forms of rape have traditionally been triangulated. Historically, rape was a legal wrong between two men regarding one’s proprietary interest in a woman: one man’s rape of another man’s wife, daughter, or servant would be legally constructed as a wrong done to him. Then, as this triangulation faded and the criminal justice system became the main forum for rape redress, the criminal triangulation of state versus male defendant, regarding the wrong to a woman, became the dominant structure of rape law.
Despite the fact that the criminal regime has been demonstrably unsuccessful in addressing or deterring sexual harms, it remains the primary forum for their adjudication, and many cultural, legal, and political pressures encourage women to rely solely on this system. This article argues against those pressures, and asserts that triangulated claims in private law represent a potentially promising avenue of redress for sexual harms. These civil suits can function as “crimtorts” (private civil actions which target public harms). Although they must overcome some significant obstacles, triangulated civil suits can serve as an important tool in targeting the social realities that contribute to sexual assault.
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Jill Laurie Goodman
On April, 5, 2011, the New York State Judicial Committee on Women in the Courts celebrated its twenty-fifth anniversary with a symposium, co-sponsored by the New York University Review of Law and Social Change. The Symposium was a gala event. It was attended by a long list of distinguished judges, lawyers, court administrators, advocates, and activists.
Anniversaries, though are times not only for celebration, but for reflection. In keeping with the reflective tradition, the April 5th Symposium looked both backwards and forwards as it took stock of progress, stasis, and unfinished agendas twenty-five years after the New York Task Force on Women in the Courts issued its report and the New York State Committee on Women in the Courts was first appointed.
This introduction will set the stage for the rest of the volume by providing a brief history of the Committee and a summary of the Symposium events.
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Hon. Toko Serita
In a relatively short period of time, New York State has put itself at the vanguard of the battle against human trafficking. New York has passed several laws criminalizing sex and labor trafficking, recognized that anyone younger than eighteen years of age arrested on prostitution charges is a “sexually exploited child” and a “victim of a severe form of trafficking,” and, most recently, provided a way for sex trafficking victims to vacate their prostitution convictions.
In the years since these laws took effect, I have observed that our understanding of the dynamics of domestic and foreign sex trafficking, both locally and domestically, has improved. The trafficking cases that are seen in the Human Trafficking Intervention Court (HTIC),over which I preside provide a glimpse of this expanded understanding. These cases discredit the popular notion that modern day slavery and the sexual enslavement of girls, women, and foreign undocumented persons do not occur “in our own backyards.” And yet, despite this improved understanding, defendants arrested on prostitution charges are not generally recognized as victims, but are charged as criminals. The criminal justice system has been unable to adequately identify those defendants that might be victims of trafficking. To date, there has been very little scholarship analyzing either New York’s human trafficking laws or the role prostitution diversion courts play in identifying trafficking victims and providing alternatives to incarceration. This article addresses the different types of trafficking cases that are intercepted through the criminal justice system, the current state of sex trafficking law in New York, and, finally, the role of the HTIC in identifying and providing solutions for trafficking victims. It also addresses the necessity of creating a coordinated judicial response to this human rights problem, and recommends ways that this can be accomplished.
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Melissa L. Breger
Issues of bias in Family Court in the context of race and overrepresentation of people of poverty have been extensively explored in academic literature. There is arguably a parallel overrepresentation of women, and particularly mothers, in our Family Courts. I question whether the Family Court would function as it currently does without mothers as its core litigants. Specifically, I delve into the implicit gender biases inherent in societal expectations of mothers as all-knowing, ever-nurturing, and ever-protective of their children––expectations that often ignore the complexities and nuances of motherhood. To illustrate my thesis, I focus on a case that I was involved in over a decade ago, which was subsequently featured in Professor Dorothy Roberts’ book: Shattered Bonds: The Color of the Child Welfare System. Through this narrative, the Article raises critical questions regarding the influence of implicit gender bias and the construct of motherhood in Family Court proceedings. As a result of its predominance, has the gender of Family Court litigants become virtually invisible? How might we identify, confront, and address this (in)visibility in our family justice system?
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