Tag Archives: discrimination

Equality vs. Fairness: Intention & Discrimination (and juries) (and…)

Ruthann Robson reviews Nina Chernoff‘s  Wrong About the Right: How Courts Undermine the Fair Cross-Section Guarantee by Imposing Equal Protection Standards (March 15, 2012).  Hastings Law Journal, Forthcoming (here on SSRN) at Jotwell Equality under the heading Equality vs. Fairness.
Chernoff’s paper is about US Courts wrongly applying US 14th Amendment (Equal Protection) standards to claims under the Sixth Amendment’s guarantee of a jury composed of a fair cross section.  The critical difference is that, famously, the 14th Amendment requires intent to discriminate, but (explains Robson):

[t]he Sixth Amendment… guarantees an “impartial jury.”  In common parlance, this is a “jury one one’s peers.”  In constitutional doctrine, it requires that the jury members be “drawn from a fair cross-section of the community.

Chernoff describes a rash of cases in which claims under the 6th amendment have been denied on the basis of lack of intent to discrimination.  She argues this is simply, doctrinally wrong.

Robson uses Chernoff’s exposé to encourage readers (mainly, probably, Americans) to start questioning the intent requirement itself and the many injustices that are placed beyond the reach of American Equal Protection law because of that requirement.

Section 15 jurisprudence (Canadian Charter equality protection) of course, lacks an intent requirement.  Robson reminds us that the US Supreme Court was concerned about an impact rule, saying:

in Washington v. Davis [426 US 229 (1976)] [it] would raise “serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white.”

Well.  Maybe.  Somehow we have avoided all those transformational claims here in Canada, despite clear statistical indications that race and gender salient in this country.

On the other issue, the jury issue, some will be aware that former Supreme Court Justice Frank Iacobucci has been appointed by the government of Ontario (Terms of Reference of his appointment here) to head an Independent Review of the representation of First Nations people on juries in Ontario.

In 2008, it was first revealed during an inquest that the jury roll in the Kenora district in northern Ontario only contained names from 14 of the 49 Nishnawbe Aski First Nations.

A court-operations supervisor said in an affidavit that only 44 natives were being considered for jury selection in the district even though aboriginals make up a large proportion of the population.

The affidavit said Ottawa had not provided the jury centre with band electoral lists in years.

From:  Ont. calls inquiry into aboriginal participation on juries The Canadian Press
Posted: Aug 11, 2011 8:12 PM ET. Here.

Department of Life's not Fair: When looks matter (and not necessarily in a good way) [via Slaw]

When looks matter (and not necessarily in a good way) — Slaw

I was intrigued by the above piece in Slaw commenting on a study in Israel which appeared to show that female jealousy resulted in fewer job prospects for attractive women when photos are included with resumes.  The study itself is: Ruffle, Bradley J. (incidentally, a YorkU undergrad, class of 1991) & Shtudiner, Ze’ev, Are Good-Looking People More Employable? (October 2011). Available at SSRN here.

I don’t love the female jealousy hypothesis so I know I’m working to disprove it, but I do have some questions that I think are legitimate and not just argumentative:

1. What does attractive mean?  The study used a panel of raters, but when I think about books like Rhodes’ The Beauty Bias: The Injustice of Appearance in Life and Law (see IFLS review here) I think about how much about beauty/plainness is really (for women!) about grooming – makeup, hairstyling, clothing – things that are alterable at a cost – including, I suppose, the shape of your face.  So, where attractiveness corresponds with “highly groomed”, might there be an element of judgment (“trying too hard”) which is not quite the same as jealousy (is it?).  Also, as soon as we’re looking at grooming, we’re certainly looking at class (consider Ruthann Robson’s awesome To Market, To Market: Considering Class in the Context of Lesbian Legal Theories and Reforms, 5 U.S.C. J.L. & Women’s Stud. 173 (1995) esp 174-8).   The study did  control  for ethnicity (in the Israeli context – interesting to read about what they considered and how) to deal with known discrimination effects.

2. Is it common practice to attach photos to resumes in Israel?  The authors say that it is “optional”.  They also say:

More explicitly, suppose there existed a cultural norm that frowned upon women including a photograph on their CV. A woman who nonetheless chose to embed a picture in her CV would be less likely to receive a callback. However, our telephone survey reveals that no such norm exists. On the contrary, in response to our question about which sex more frequently sends a CV with a self-photograph, 12 companies (48%) answered that women do, while only two companies (8%) indicated that men do.Another 11 companies (44%) responded that the two sexes do so equally often.

(I found this curious, since it does not answer the question of what the cultural norm is but rather solicits and describes a set of claims about practices. These are not quite the same thing.  The results are interesting, but not empirical on the question of what people do – and it may well be that people looking to get hired are unsure of what the expectations are amongst people who do the hiring and are just getting it wrong).  The authors discuss what they call a “negative signalling effect” of including a picture:

Thirty-six percent of the respondents reacted positively to males’ inclusion of a picture, invoking terms such as “presentable” and “con dent”. Only 28% of the respondents expressed negative associations for male photographs. By contrast, negative sentiments were the predominant response (56%) to females CVs with pictures. Not serious” and an attempt to market herself via her appearance” were among the reactions. A mere 12% of respondents expressed a positive association. These fi ndings suggest that we cannot rule out the negative signaling story as a partial explanation for our observed punishment of attractive women.” (22)

One of the study findings was “…, women with no picture have a significantly higher rate of callbacks than attractive or plain-looking women.”  The authors call “negative signalling” a partial explanation.

There was no way to look at the pictures (which were solicited from students) to check on my questions about “grooming”.  Too bad.

Lesson for women? I would assume stay away from pictures, regardless of all other considerations.  But what do you do in a situation where a prospective employer is going to immediately google you and find your picture?  Is that different? The authors’ include a relatively complete solution (which reminds me of the bit in Malcolm Gladwell’s Blink about the hiring of trombonist Abbie Conant when the Munich Philharmonic began using a screen during auditions so that the decision makers could not see who she was – more specifically, that she was a woman):

several European countries have recently begun to experiment with anonymous CVs whereby candidates are forbidden to include their picture, name, age, sex, date and place of birth, nationality and marital status anywhere in their application.

They can’t see you, they can’t google you….  There are a few studies which specifically deal with attractiveness premiums in law.  One I discussed here (questioning how it ignores gender).  Another is Biddle, Je E. and Daniel S. Hamermesh (1998) “Beauty, Productivity, and Discrimination: Lawyers’ Looks and Lucre,” Journal of Labor Economics, 16:1, 172-201. which does talk about gender, and about grooming.



UTexas Law Dean Resigns/Pay Equity in the Law School Professoriate

UT President Asks Law School Dean to Resign Immediately — University of Texas System | The Texas Tribune.

I am always looking for data to prove my mo money and mo problems, hypotheses. Enter the UTexas situation.  The issues are salary stipends and “forgivable loans” to attract and retain faculty, leading to growing faculty unrest.  See? Income inequality = instability.  For this blog though, I was interested to see, though, that part of the problem here was gender related:

There are also several sexual discrimination complaints filed by women at the law school in the 75-page long open records document that point to a gender pay gap. In a letter to Sager included in the documents, Professor Lynn Blais expresses concern that women are underrepresented on all the major governing committees at UT Law, including the budget committee responsible for setting faculty compensation. (source: Texas Tribune article linked above)

(Prof. Blais faculty page)

Are women underrepresented on your Fac Committees?

My twitter and RSS feeds are filled up with articles about why women face a pay gap and what we can do about it.  A substantial number of these articles indicate that what we need to do, essentially, is be more hardass about it – negotiate more fiercely (read: more like male colleagues), demand what we are “worth”, and similar kinds of approaches (perhaps, the Sheryl Sandberg model?  It’s not them – it’s us!)  But these suggestions have a variety of problems.  One of the problem zones is that the implication that gender pay gap problems in management and/or the professoriate ought to be solved by adjusting the bottom up – a solution which will clearly exacerbate other forms of income inequality that we might care about (as feminists), and are the subject of debate in other parts of our non-compartmentalized lives.

I know i’m not the only one who wonders how to ensure that my female colleagues get what they “deserve” without participating in compensation structures which ratchet upwards relentlessly, sometimes taking tuition fees with them.  Likewise how to avoid the pull of a “star system” in academia, which brings with it salary pressure and a focus on the individual rather than the collective institutional strengths.  Anyway, the Texas situation is interesting on a variety of levels and I hope that there is further discussion of the gender component here.  The (now former) Dean’s letter in response is available here and on page 4 he turns to the gender issues (a task force!).  The Dean’s partner is a feminist who teaches the subject at UT law.  This should surprise no-one, since  even”being” a feminist is not enough to stop me from making stupid, gender oppressive comments, decisions, and plans.  Really, only active thinking on each point can hope to prevent such problems (see, e.g., the recent post on “gender mainstreaming”).

If you are interested, check out these documents provided by the Texas Tribune through an “Open Records” request.  At pp30 is a settlement document involving a female faculty member and at 74 is a lovely letter from Prof. Blais (quoted above) to the Dean.  There are also pages and pages of numbers which no doubt speak volumes if you know the lingo.

Here’s another thought: interest convergence.  Reliably dirt-digging and rankings focused blog above the law has this from the law student angle (“why is this happening during finals?!”).  Ah, ATL.  Reliable.  As in, “While the administration and professors seem wholly unconcerned with the timing of their faculty hissy fit, …”.  No, no, you’re not missing anything.  My go to Urban Dictionary online defines hissy fit as “A sudden outburst of temper, often used to describe female anger at something trivial”.

Yet at the same time, there seems to be another lurking issue, one which appears more likely (call me a cynic) to have actually created the conditions under which a dean could be removed:

There have long been rumors of friction between Sager and the “good ol’ boys” network at UT. But many students who have benefited from Sager’s policies — in the form of better employment options at a wider range of firms and geographic locations — have acknowledged that Sager is doing what it takes to get ahead in the law school world.

For Sager, who would probably have a statue erected for him at Emory, or USC, or any school looking to break out of regional typecasting, it seems like his relationship with the president has been difficult. From the Tribun

There’s a plausible hypothesis! Gaps in pay (gender and otherwise) are what it takes!

In other not completely unrelated news,  U Texas law has a Center for Women and the Law which produced “The Austin Manifesto” in 2009.  The Center says it is “…the premier educational institution devoted to the success of the entire spectrum of women in law, from first-year law students to the most experienced and accomplished attorneys.” (source).  An interesting model.  Here’s an article describing the founding of the Center (from an alum magazine).

Sr. UK judge: Women should be given priority for top law jobs

Women should be given priority for top law jobs, says one of Britain’s most senior judges | Mail Online.


Master of the Rolls Lord Neuberger wants to use new legislation to favour female and minority candidates over white men if they are equally qualified for a role.

But the view is likely to be seen by critics as supporting illegal positive discrimination.

Meanwhile, here in Canada, we’re wigless, but more importantly, numbers of federal appointments of women are plummeting.  The Globe had a nice article, here and a  lovely infographic here,.

“If anything there is a larger pool of brilliant and exceptionally qualified women lawyers to draw upon since 2005,” Prof. Sheehy said. “If the current process of selection cannot deliver anything approaching a representative bench … then it is clear that something is broken.”

I’ve written about representation on the bench, (Reflections: On Judicial Diversity and Judicial Independence in this book) and I think it’s pretty clear that we have serious problems with judicial appointments which reflect the forms of discrimination which pervade our society.  The news that things are getting worse comes on top of the fact that things were not that great to begin with.

H/t IFLS member and Osgoode colleague Sara Slinn