The Honorable Nancy Gertner (U.S. District Court of Massachusetts, retired) is delivering the luncheon address at the MSU Symposium on “Gender and the Legal Profession.”
Here are a few of her highlights from her talk:
Judge Gertner explains that the “leaky pipeline” is a product of four factors.
First, there is an ideology about discrimination that treats discrimination an aberration from a perfect market. In fact, discrimination has been driven underground, made opaque, more complex.
Second, there is a perception that women “have all they need.” There is a perception that women who drop out of the legal profession do so by “choice.” The “choice” to stay home is influenced by a cultural ideology that motherhood is women’s highest and best vocation, according to Judge Gertner.
Third, women’s expectations have changed on account of the first two factors. Women coming out of law school today consider a firm with 15% female partners to be “family-friendly.”
Fourth, discrimination law is not remotely adequate to the task of combating bias. The courts have de facto reversed Title VII.
Judge Gertner says that discrimination cases are now dominated by “losers’ rules,” which she critiques. Here are the trends she notices (drawing in part of Liz Schneider’s work).
- “Mere stray remarks” – courts are rejecting evidence of explicit bias, such as ageist or sexist comments. Judge Gertner says this is used as a rule to exclude evidence as irrelevant, when in fact that is inappropriate when discrimination is plain on its face.
- “Honest belief” – employers defend selves against summary judgment based on “honest belief” that particular record was poor.
- “Single decision-maker” – if the employer hired you, then he cannot be discriminatory in firing you.
- “Slicing and dicing” – describing discrimination in terms of puzzle pieces, not a complex scenario. Judge Gertner site to Seventh Circuit case in which woman lost case alleging employment discrimination when men made harassing comments to her. Because some of the incidents occurred outside the statute of limitations, you don’t see the pattern.
Judge Gertner explains that she nevertheless remains an optimist about law’s ability to affect social change.
What to do? Here’s Judge Gertner’s advice.
- Study these problems.
- Try new ideas (such as new theories of discrimination against family caregivers).
- Speak the truth. Of course the values of decision-makers impact the outcomes they reach. It’s obvious that Title VII isn’t working.