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Posts Tagged ‘gender’

Lactation is not a medical condition related to pregnancy, says Houston federal judge

Manual Breast Pump 2005 SeanMcCleanTexas once again distinguishes itself in the legal field. I sure do wish Texas would stop doing that.

U.S. District Judge Lynn N. Hughes of the Southern District of Texas recently granted summary judgment to a defendant in an employment discrimination suit brought by the Equal Employment Opportunity Commission on behalf of  Donnicia Venters. In a nutshell, Venters had worked at Houston Funding for about two years when she took maternity leave on December 1, 2008. While on leave, she says that she communicated regularly with her direct supervisor, asking if she would be allowed to use a back room of the office to use a breast pump while on breaks. She specifically wanted to use a back room that afforded privacy. She claims that the vice president in charge of such a decision reacted rather negatively, and that she learned she had been laid off when she attempted to go back to work in February 2009.

The EEOC filed suit against Houston Funding on her behalf, claiming that the company fired her in violation of Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination in employment based on a number of grounds including gender. Discriminating against an employee due to pregnancy or a related condition is considered a form of gender discrimination prohibited by Title VII.

Houston Funding countered that it fired Venters because she “abandoned” her job. The company claimed that she did not stay in contact with the relevant supervisors, and that after several months, a meeting was held and the decision was made to fire her. She learned of this on or about February 17 when she tried to return to work.

Judge Hughes, in granting summary judgment to Houston Funding, seemed to agree with their account of events. Nevertheless, the judge ruled that Houston Funding’s actions would not constitute discrimination whether they actually occurred or not. The statute only covers discrimination based on “pregnancy, childbirth, or a related medical condition,” he wrote in his opinion. A “related medical condition” could include “cramping, dizziness, and nausea while pregnant” (emphasis added). Since Venters “gave birth on December 11, 2009 [sic]…she was no longer pregnant and her pregnancy-related conditions ended.”

This is a rather strict reading of the statute. He seems to think that “or related medical conditions” only applies to “pregnancy” and not “childbirth,” which seems overly restrictive. My federal civil procedure is rusty, but it seems like there is a genuine issue of fact as to why the company fired her. He skips right over that and makes a blanket ruling that lactation is not a “medical condition” “related to” pregnancy or childbirth. I have a distinct feeling that many, many people who have directly experienced both pregnancy and childbirth will take issue with this characterization.

Of course, in a world where a significant number of lawmakers seem to think a medically-unnecessary invasive procedure that has put the word “transvaginal” into the national lexicon is hunky-dory, maybe I should not be surprised that a judge thinks he can redefine the medical processes of pregnancy.

Photo credit: SeanMack at the English language Wikipedia [GFDL], from Wikimedia Commons


It was fun while it lasted, Dr. Pepper

I learned two things today about what it apparently means to be a man:

1. I should try to cut down on my calories.

2. Diet soft drinks will make my weenie shrivel up, or something like that.

Since our society seems to think that we are waging an epic, daily battle to prove our manly qualities to everyone around us, but prohibits us from walking around pantsless with a tape measure for comparison purposes, we have to be creative in how we spew our testosterone.

From Packaging Digest. Fair use appliesEnter Dr. Pepper TEN (note the very MANLY use of all-caps), which, according to Packaging Digest, promises all of the following:

Designed specifically for men who prefer the full-flavor experience of regular Dr Pepper but want a lower-calorie option without the diet imagery, Dr Pepper TEN will feature a distinctly masculine package design, complete with a gunmetal gray color scheme, industrial rivets and bold new font.

“As one of America’s favorite and oldest soft drinks, Dr Pepper has been a beverage innovator for more than 125 years,” says Dave Fleming, director of marketing for Dr Pepper. “Men told us that they wanted a low-calorie option with the full flavor of regular Dr Pepper—and that’s exactly what we’re delivering with Dr Pepper TEN. I’d say these are the 10 hardest-working calories in the beverage business.”

“Diet imagery”? Gunmetal gray with rivets? “The 10 hardest-working calories”? Do the marketing guys at Dr. Pepper actually know any men?

You know what? Screw this. I don’t like football all that much. In 1998-99, I went to Lilith Fair twice. I cry at the end of Serenity, every single time I watch it. I could give two craps what the rest of America thinks of how I rank on some imaginary scale of manliness. I also like Diet Dr. Pepper, but I’m not so sure I want to drink something so closely associated with a beverage that, regardless of how it actually tastes, has been rendered into swill through the power of marketing.


Challenge accepted, Mr. Cochran: Thoughts on a poorly-conceived college op-ed about reproductive health

I tend to assume there are multiple sides to every story, i.e. more than just one or even two. For every episode of outrage on the web, there is often an at-least-remotely-plausibly-mundane alternate explanation to the outrage.

That does not seem to be the case with one young Mr. Ben Cochran, a nursing student at East Carolina University.

If there is a counter-narrative to this tale, I have yet to find it. And I looked.

Mr. Cochran had the sniffles. Possibly really bad sniffles. Possibly soul-crushing, mucus-hacking, life-ending-in-an-earlier-era sniffles. So he went to the student health center. And there he experienced the horror of his incurable but not fatal viral infection taking a back seat to the frivolity of women’s reproductive health. So he took to the student paper to complain. Interestingly, the paper apparently first published the “unedited” first draft. I’m not going to bother quoting at length, but just stop reading if you get offended by anatomical terms most of us stopped using in junior high:

What girl have you ever heard of that goes to a doc in the box for birth control? None of them. They go to their gyno. It’s a matter of efficiency. If you have a lung problem, you see a pulmonologist. If you have a heart problem, you see a cardiologist. If you have a cunt problem, you see a gynecologist.

This was subsequently edited as follows:

What girl have you ever heard of that goes to a doc-in-the-box or walk-in clinic for birth control? None of them. They go to their “gyno.” It’s a matter of efficiency, as well as personal safety. If you have a lung problem, you see a pulmonologist. If you have a heart problem, you see a cardiologist. If you have a lady problem, you see pest control or a gynecologist.

The student paper apologized, citing “a staff member’s mistake” as the reason for the original edit surfacing, but also standing by “the publishing of the article due to our firm belief in free expression.”

I wholeheartedly agree that the paper has the absolute right to allow Mr. Cochran a forum to out himself as an entitled, narrow-minded dimwit (IMHO). In fact, if Mr. Cochran is willing to offer evidence of his glaring lack of qualifications for the job of human being so readily, the paper practically has an obligation to publish it.

Clearly he lacks a basic understanding of female anatomy, female sexual autonomy, and the many health benefits of birth control for women above and beyond the ability to bone with wild abandon. He also raises certain questions as to his qualifications to serve in the nursing profession (a female-dominated profession, one might add), although he is still in school, so there’s time. I was going to just let it go, figuring haters gotta hate, but then I noticed this:

If you insist, sir.

This is an educational opportunity for Ben Cochran. The internet is a big place. But it remembers. It remembers everything.

I decided to write about this because just yesterday I read an article entitled “When it comes to online reputation, ‘life’s not fair, and companies aren’t either’” about companies that perform detailed online searches for companies reviewing job applicants. It cited an earlier Gizmodo article about a company called Social Intelligence, which screens the following for prospective employers: “aggressive or violent acts or assertions, unlawful activity, discriminatory activity (for example, making racist statements), and sexually explicit activity.”

I view this as a public service to the nursing profession and, in the shorter term, the students of East Carolina University. Ben Cochran is a nursing student at East Carolina University who thinks that the convenience of male cold sufferers trumps the reproductive health of female college students, and who might not know the difference between Pabst Blue Ribbon and a pap smear. The Google search algorithms are going to love him.

On the plus side, The East Carolinian had this poll up at 11 a.m. CDT on October 3, 2011, favoring the availability of birth control on campus 99 to 1.

For a final chuckle, observe this exchange:


Harassment and ugliness

Classy legal argument of the week: a female employee of a real estate firm claiming sexual harassment could not have been harassed, because she is ugly (h/t Trippe Fried):

A 23-year-old lesbian says the Brooklyn real estate office she once worked in is a den of deviants where raunchy sexcapades were the norm.

But the bosses she’s suing say she’s too ugly to harass.

Priscilla Agosto ran a gauntlet of sexual humilition – verbal and physical – in her 14 miserable months at People’s Choice Realty, her suit against its three bosses says.

No less than seven male employees made lewd advances at her – even after she complained to the bosses, she said in papers filed in Brooklyn Supreme Court.

Her male co-workers exposed themselves, rubbed up against her and even asked for oral sex, she alleges.

And they even offered $500 to watch her have sex with her girlfriend, she said.

“I hope and pray that by sharing my story, anyone who finds themselves in a similar situation will have the courage to speak up,” said Agosto.

Odelia Berlianshik, the owner of the Williamsburg firm, denied the charges – and launched a shocking attack on Agosto’s appearance.

“Who would touch her? She’s an ugly girl anyway,” she said of the former secretary. “She made up a story because she didn’t want to work.”

As defense arguments go, it’s not the worst one ever. It’s close, though. It does not appear that an lawyer made these arguments on behalf of the employer. This is just the owner spouting off a defense.
Photo by Stephen Pierzchala

I'll see your ugly and raise you Sam (Photo by Stephen Pierzchala, used under a Creative Commons license)

The prevailing theory of defense in a sexual harassment case is to go on the offensive and attack the plaintiff/accuser’s character in one way or another: the plaintiff is crazy, over-emotional, slutty, mean, and so on. At the same time, I imagine it would be difficult to defend such accusations without turning it back on the accuser in some way. The only other way to defend the case would be to challenge the specific circumstances of the alleged incidents of harassment or demonstrate the good character of the accused. The burden of proof is on the plaintiff, though, so it is not necessarily the responsibility of the defendant to disprove the allegations, but rather to show that it is more likely than not that it did not happen the way the plaintiff says it did. Demonstrating reasons why the plaintiff is wrong (i.e. somehow bad), as opposed to why the defendant is right (i.e. good), is more likely to resonate with the finder of fact in a case (a judge or jury). Plus, it’s probably easier to do. The accusers puts her/himself out there for scrutiny by bringing a suit. Right or wrong (I go with wrong), it is easier to attack the character and narrative that has already been put out than to offer a completely new one by focusing on the defendant.
That of course, is a technical and legalistic way of explaining a rather jackass-ish argument in the case described above. There must be better arguments against her allegations than that.

Is alimony sexist?

Photo by Stephen Coles

Photo by Stephen Coles

A client once came to my office in a panic. He wanted a divorce, and he wanted one as soon as possible. It turned out that he and his spouse had separated years earlier, and that after the separation she had settled in California while he had moved around the country. He had lived in Texas for a few years at the time. There were all sorts of jurisdictional and venue issues, as it was not at all clear where the two of them had last cohabited as husband and wife. The issue for him, though, was that he wanted the divorce granted in Texas, because she wanted a divorce in California and she wanted alimony.

It struck me as odd that, after years of living apart with little to no contact, she might be able to claim alimony under California law. My understanding of alimony is that it is intended to help one spouse get on their feet after years of being supported by the other spouse. It was possible, though, that this person could be stuck with an alimony bill from someone who had been supporting herself in a different state for the better part of a decade. Is that fair to him? Also, is that fair to her? Because to award alimony to her would be to assume that, despite her years of presumed self-sufficiency, she really still needs the support of her husband. I realize she may not have seen it that way, and that as the attorney for the husband, I am not the best person to argue for her interests. Still, it troubles me that this could happen.

Alimony was recently in the news in the Arnold Schwarzenegger/Maria Shriver divorce, with the rumor mill buzzing about Arnold initially refusing to pay what was described as “alimony,” then changing his mind. This sounds to me more like a $400 million property division between two absurdly wealthy people, but the word “alimony” is being used extensively. Another way to look at it, at least hypothetically, is some form of compensation to Shriver for her husband’s infidelity. It does not make for much of an object lesson on alimony for anybody else, unfortunately.

Texas has generally held alimony to be against the state’s public policy, but has allowed for “spousal maintenance” in the event that:

  1. The parties have been married more than ten years, and one spouse either (a) has significantly lower earning capacity and cannot meet basic needs, (b) has an incapacitating physical or mental condition, or (c) has custody of a child requiring substantial care due to an incapacitating physical or mental condition; or
  2. One spouse has a conviction or deferral of adjudication for  criminal offense involving family violence.

The two rationales for spousal maintenance in Texas would be either to support a spouse who cannot support themselves or needs extra support for a child at the time of the divorce, or to compensate a spouse for abuse during the marriage. Unless the spouse requesting maintenance can prove an ongoing disability, spousal maintenance in Texas cannot be ordered for a period exceeding three years.

California provides a long list of criteria for determining alimony or spousal support, and it appears to have the same overall rationales as Texas. Some states, such as Massachusetts, have broader criteria, but are considering scaling back. There is a movement afoot to reform so-called “permanent alimony” in favor of a system ostensibly like Texas’, which allows the payee spouse time to get on their feet, but only so much time.

So my question is this: is a system that compels one spouse to pay for the support of the other spouse after divorce for the rest of that spouse’s life in any way sexist? While the history of alimony is undoubtedly one of men paying it to women, that is not always the case anymore. As women comprise roughly half the workforce, it is not uncommon anymore for a wife to be the breadwinner of the family and to find herself owing alimony after a divorce. And women are apparently not at all happy about this:

The idea that men can receive spousal support from their wives may feel like a freakish concept, but as women have become higher earners, it’s increasingly common.

And as men set their sights on women’s earnings, women have become more protective of those dollars. In fact, according to the American Academy of Matrimonial Lawyers, 44% of attorneys included in a recent survey said they’ve seen an increase in women asking for prenuptial agreements over the last five years, where in previous decades, prenuptial agreements were almost always sought by men.

A lot of women are indignant now that the shoe is increasingly on the other foot, says Carol Ann Wilson, a certified financial divorce practitioner in Boulder, Colo. “There’s this sense of, ‘What’s yours is ours, but what’s mine is mine,’” Wilson says. “My first response to that is, ‘All these years we have been looking for equality; well, this is what it looks like.’ I think women get angrier about having to pay than men do.”

Why does an ex-wife paying alimony “feel like a freakish concept”? Because no one expects a woman to be more successful than a man–the concept of men always being the ones to pay alimony is a cultural artifact from the era of working husbands and housewives. While there are undoubtedly many cases where spousal maintenance is appropriate, e.g. a highly-paid professional married to a stay-at-home parent with a high school diploma, or an incapacitated spouse dependent on the other spouse who is the respondent in a divorce case. See also victims of domestic violence who should be entitled to some form of compensation. The statutes themselves make no mention of gender at all. Still, we assume that men are the ones to pay alimony, and it seems odd for a woman to be ordered to pay. These assumptions can harm men by forcing them to make payments long after they seem necessary or fair. They also harm women by perpetuating the false notion that women ultimately cannot take care of themselves and need a partner. Many alimony laws provide for termination of alimony payments once the recipient remarries or cohabitates with someone, since presumably now there is a new person to support the recipient. While payment of alimony may be becoming more “equal” in the sense that more women are being ordered to pay it t0 men, the whole system is still based on a rotten foundation of old-timey sexism towards women.

There are two ways to bring equality among the genders in this system. One is to start making more women pay alimony, thus spreading the misery as evenly as possible. The other is to reform the laws to limit alimony to situations where a spouse truly cannot support her/himself without support, and conditioning that support on the recipient making reasonable efforts to become self-supporting with a reasonable time limit on alimony appropriate to the specific situation. Of course, that requires thoughtful, nuanced consideration of each individual case by attorneys, mediators, judges, and spouses. Will the pain of staying in our current system of bellyaching lead us to a better, fairer solution?

Okay, that last bit was a rhetorical question.


Tips on avoiding sexual assault

On the theme of an earlier post, I came across a useful guide for avoiding sexual assault in daily life.

Sexual assault prevention tips

My personal favorite:

If you are in an elevator and someone else gets in, DON’T ASSAULT THEM!

I know this was probably originally intended to be funny (and it is, in a way), but it’s also pretty dang sad that this even needs to be said out loud. Alas. Now go forth and behave yourself.


My thoughts on Elevatorgate: it’s all about rape

I’m going to talk a bit about sex in this post. If that’s not your thing, click here.

The main period of furor regarding the exchange now known as Elevatorgate seems to have died down, and it seems clear that almost no one involved has learned anything from the experience. Since I am usually several weeks behind on major issues and news items, now seems like a good time to opine.

For those not familiar with Elevatorgate, it was a debate/shouting match arising out of comments made in the atheist blogosphere, but it has relevance and ramifications far beyond that particular community. Much digital ink has been spilled already, but the basic facts are these: Rebecca Watson, a young female blogger attending a conference gave a talk about the role of women in the atheist community and about the difficulties faced by women in the largely male atheist intellectual community. Later on, she was with friends at the hotel bar at around 4:00 a.m., when she announced she was tired and was going to her room to go to sleep. In the elevator, a man who was also attending the conference stated that he would like to get to know her better and invited her to his room for coffee. She later recounted this story in a YouTube video and noted, in essence, that this wasn’t very cool and guys shouldn’t do this. In reponse to this comment, massive furor erupted.

I don’t much care to evaluate the responses to Watson’s video or the droves of commentary that have ensued, except to say that apparently Watson’s comment has made many men feel that their right to get laid is being threatened. To this, I say that these gentlemen doth protest too much. This probably isn’t the most colossal overreaction in the history of the internet, but it must be on the list. To be clear, Rebecca Watson did not make this a big deal – the guys who responded did.

Relevant comments begin around 4:30
It did not strike me as a particularly provocative comment. In effect, Watson said a guy spoke to her in a way that made her uncomfortable (i.e. in an elevator at 4 a.m. in a foreign country), and that is not cool. That’s all. After thinking about this whole incident and the firestorm it has provoked, I am finally beginning to understand the concepts of male privilege and why it might be difficult for women in a male-dominated community. I am finally beginning to get it.

More precisely, I get that I don’t get it.

I will not be getting catcalls from these guys (Photo by Jens Rydén)

As a man, I am generally not judged too harshly on my appearance. Any mistakes or missteps I make in life reflect only on me, not all men. Construction workers leave me alone.

The same is not necessarily true for women. Women potentially get hit on anywhere they go, be it a nightclub, the frozen food aisle, or an elevator in the middle of the night. And it can be scary.

Why is it scary? Because a woman has no idea how the man hitting on her might react. A popular meme among both men and women is that women control the sexual purse strings, so to speak. Since men are presumed to always want sex and women are presumed to be “gatekeepers,” the power dynamic in the scenario of a woman being hit on in an elevator is that the woman has all the power because she can say no.

Here’s the thing: how does she know that the man will take no for an answer? That is the elephant in the room. This is ultimately not a discussion about the right to hit on someone, or who holds the power to grant or withhold sex. This is a discussion about rape, plain and simple.

When a woman is approached and hit on by a strange man (and sometimes a familiar one), she has no idea how he will react if she says no. Will he shrug it off and move on? Will he slink away in embarrassment? Or will he ignore her, either out of a desire to do violence or a stupid belief that “no” means “yes”? She does not know.

This became clear to me from a pre-Elevatorgate article entitled “Schrödinger’s Rapist” by Phaedra Starling. (If you’re not familiar with Schrödinger’s Cat, go read about it. I’ll wait.)

Starling writes as though writing to a typical Nice Guy:

Now, you want to become acquainted with a woman you see in public. The first thing you need to understand is that women are dealing with a set of challenges and concerns that are strange to you, a man. To begin with, we would rather not be killed or otherwise violently assaulted.

“But wait! I don’t want that, either!”

Well, no. But do you think about it all the time? Is preventing violent assault or murder part of your daily routine, rather than merely something you do when you venture into war zones? Because, for women, it is. When I go on a date, I always leave the man’s full name and contact information written next to my computer monitor. This is so the cops can find my body if I go missing. My best friend will call or e-mail me the next morning, and I must answer that call or e-mail before noon-ish, or she begins to worry. If she doesn’t hear from me by three or so, she’ll call the police. My activities after dark are curtailed. Unless I am in a densely-occupied, well-lit space, I won’t go out alone. Even then, I prefer to have a friend or two, or my dogs, with me. Do you follow rules like these?

So when you, a stranger, approach me, I have to ask myself: Will this man rape me?

Do you think I’m overreacting? One in every six American women will be sexually assaulted in her lifetime. I bet you don’t think you know any rapists, but consider the sheer number of rapes that must occur. These rapes are not all committed by Phillip Garrido, Brian David Mitchell, or other members of the Brotherhood of Scary Hair and Homemade Religion. While you may assume that none of the men you know are rapists, I can assure you that at least one is. Consider: if every rapist commits an average of ten rapes (a horrifying number, isn’t it?) then the concentration of rapists in the population is still a little over one in sixty. That means four in my graduating class in high school. One among my coworkers. One in the subway car at rush hour. Eleven who work out at my gym. How do I know that you, the nice guy who wants nothing more than companionship and True Love, are not this rapist?

I don’t.

When you approach me in public, you are Schrödinger’s Rapist. You may or may not be a man who would commit rape. I won’t know for sure unless you start sexually assaulting me. I can’t see inside your head, and I don’t know your intentions. If you expect me to trust you—to accept you at face value as a nice sort of guy—you are not only failing to respect my reasonable caution, you are being cavalier about my personal safety.

Now then, obviously most men are not rapists, or at least most men do not think they are rapists. Most men want to meet someone they like with whom they can spend time, or they at least want to get laid. Our culture has created a duality in which men are always striving towards sex and women are always pulling away from it (that’s a gross oversimplification, but fundamentally accurate). In its most extreme forms, men are taught to use whatever subterfuge they can to get a woman to submit, and women are taught to always be coy and slightly out of reach. The whole notion of the “battle of the sexes,” in my humble opinion, is crap and a recipe for centuries more of unhappy marriages and unsatisfying sex lives. More to the point, my opinion is that sex that is completely mutually desired and honest is inifintely better than sex that you had to talk someone into, or that you view as some sort of transaction or power dynamic.



I suspect that many men saw Watson’s comments and immediately thought they were being accused of being rapists. Read Starling’s article again. It’s one thing to call someone a rapist. It’s another thing to not automatically trust that someone is not a rapist. Perhaps it’s a subtle, nuanced difference, but it is important. Is it fair to men? Not really. Is it somehow discriminatory? Maybe. Is it necessary in order for a woman to protect herself? Quite possibly. Does this herald the end of men getting to have sex with women. No, and you’re kind of an idiot if you think that it does.

No one is trying to stop men from hitting on women, or from trying to get laid. The point is to communicate, and to respect people’s feelings and boundaries. If you don’t, trouble could ensue—since this is supposed to be a law blog, now is a good time to look at how “rape” is actually defined. The Texas Penal Code defines “sexual assault” as follows:

Sec. 22.011.  SEXUAL ASSAULT.  (a)  A person commits an offense if the person:

(1)  intentionally or knowingly:
(A)  causes the penetration of the anus or sexual organ of another person by any means, without that person’s consent;

(B)  causes the penetration of the mouth of another person by the sexual organ of the actor, without that person’s consent;  or

(C)  causes the sexual organ of another person, without that person’s consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;  or

(b)  A sexual assault under Subsection (a)(1) is without the consent of the other person if:

(1)  the actor compels the other person to submit or participate by the use of physical force or violence;

(2)  the actor compels the other person to submit or participate by threatening to use force or violence against the other person, and the other person believes that the actor has the present ability to execute the threat;

(3)  the other person has not consented and the actor knows the other person is unconscious or physically unable to resist;


(6)  the actor has intentionally impaired the other person’s power to appraise or control the other person’s conduct by administering any substance without the other person’s knowledge;

(7)  the actor compels the other person to submit or participate by threatening to use force or violence against any person, and the other person believes that the actor has the ability to execute the threat;


(Emphasis added)

Everyone is still allowed to flirt. Just don't be a d!ck about it. (Photo by o5com)

Consent, force, threats, ability to execute a threat, impairment, etc. Generally speaking, a man only has to worry about whether or not a woman will say yes. A secondary concern might be issues of embarrassment, status, etc. I have no idea what it is to go through life having to worry about issues of force, impairment, and so on, but I have no reason to doubt that these are very real concerns for about one-half of the population.

Elevatorgate threw the door open on issues I had never even considered. The actions of elevator guy would never be my style, but I would hope that most people would realize that there is a time and place to try to get laid (and that there are more concerns in life than just getting laid, like having conversations or watching movies.) An elevator is not one of those places.


UPDATE: I have to include this comment, which put things even more in perspective:

A question for the men who think it’s an insult for a woman not to trust them:

If Rebecca had been raped by elevator guy, would you be saying “Well she shouldn’t have gone to his room in the first place.”