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Articles 1 - 30 of 141

Full-Text Articles in Law and Gender

Extending The Sex-Plus Discrimination Doctrine To Age Discrimination Claims Involving Multiple Discriminatory Motives, Marc Chase Mcallister Feb 2019

Extending The Sex-Plus Discrimination Doctrine To Age Discrimination Claims Involving Multiple Discriminatory Motives, Marc Chase Mcallister

Boston College Law Review

Federal employment discrimination statutes make it unlawful to discriminate against employees on the basis of certain protected characteristics, including race, color, religion, national origin, sex, disability, and age. Under Title VII of the Civil Rights Act of 1964, an employer may not discriminate against an employee based on a combination of two protected traits, such as race and sex. Nevertheless, these claims—which this Article refers to as multiple-motive claims—tend to fail when one of the protected traits is age. Whether brought under Title VII or under the Age Discrimination in Employment Act of 1967 (ADEA), this Article argues ...


If Anyone Is Listening, #Metoo: Breaking The Culture Of Silence Around Sexual Abuse Through Regulating Non-Disclosure Agreements And Secret Settlements, Vasundhara Prasad Oct 2018

If Anyone Is Listening, #Metoo: Breaking The Culture Of Silence Around Sexual Abuse Through Regulating Non-Disclosure Agreements And Secret Settlements, Vasundhara Prasad

Boston College Law Review

Secrecy is an ally of sexual violence. For decades, victims of sexual abuse have remained silent about their experiences. The recent emergence of the #MeToo movement in the aftermath of the scandals surrounding movie mogul Harvey Weinstein and television personalities Roger Ailes and Bill O’Reilly raises larger questions about whether employers are partly to blame because of the widespread use of non-disclosure agreements in settlements. The movement, while exposing the magnitude of the problem, also makes it clear that silencing victims’ speech means that sexual violence will never truly be settled. This Note argues that non-disclosure agreements in cases ...


Circumventing Congress's Comprehensive Schemes: The Third Circuit Allows Employees Of Educational Institutions To Bypass Title Vii And Bring Claims Under Title Ix In Doe V. Mercy Catholic Medical Center, Lauren Stewart Mar 2018

Circumventing Congress's Comprehensive Schemes: The Third Circuit Allows Employees Of Educational Institutions To Bypass Title Vii And Bring Claims Under Title Ix In Doe V. Mercy Catholic Medical Center, Lauren Stewart

Boston College Law Review

Five of the U.S. Courts of Appeals are currently split as to whether employees bringing claims of sex-based employment discrimination are able to use either Title VII or Title IX of the Civil Rights Act as avenues of relief where both statutes are concurrently applicable. On March 3, 2017, the U.S. Court of Appeals for the Third Circuit, in Doe v. Mercy Catholic Medical Center, became the most recent circuit to address this issue. Joining the First and Fourth Circuits, the Third Circuit held that the concurrent applicability of Title VII and Title IX did not preclude the ...


Title Vii Is Not The Only Cure For Employment Discrimination: The Implications Of Doe V. Mercy Catholic Medical Center In Expanding Claims For Medical Residents Under Title Ix, Amy-Lee Goodman Mar 2018

Title Vii Is Not The Only Cure For Employment Discrimination: The Implications Of Doe V. Mercy Catholic Medical Center In Expanding Claims For Medical Residents Under Title Ix, Amy-Lee Goodman

Boston College Law Review

In March 2017, in Doe v. Mercy Catholic Medical Center, the United States Court of Appeals for the Third Circuit established that medical residents, who function as both students and as employees of a hospital, could bring private causes of action for sex discrimination under Title IX of the Education Amendments of 1972. This ruling revived a long-standing split amongst the Circuits, with the Third Circuit parting company from the Fifth and Seventh Circuits and aligning with the First and Fourth Circuits, which hold Title VII’s carefully crafted administrative remedial procedure does not pre-empt claims under Title IX. This ...


A Feminist Framing Of Non-Consensual Pornography, Claire P. Donohue Feb 2018

A Feminist Framing Of Non-Consensual Pornography, Claire P. Donohue

Boston College Law School Faculty Papers

No abstract provided.


The Symmetry Principle, Bradley A. Areheart Sep 2017

The Symmetry Principle, Bradley A. Areheart

Boston College Law Review

Title VII provides symmetrical protection against discrimination in that both blacks and whites, and men and women may avail themselves of the law’s protections. In contrast, the Age Discrimination in Employment Act operates asymmetrically, shielding workers over the age of forty from discrimination yet offering no reciprocal protection for younger workers. Why do some antidiscrimination laws protect symmetrically while others do not? More importantly, why does this design choice matter? These are questions that scholars, courts, and legislators have generally ignored. This Article proceeds in two parts. First, it identifies symmetry as an important, yet frequently overlooked, way in ...


Sovereignty And Social Change In The Wake Of India’S Recent Sodomy Cases, Deepa Das Acevedo Apr 2017

Sovereignty And Social Change In The Wake Of India’S Recent Sodomy Cases, Deepa Das Acevedo

Boston College International and Comparative Law Review

American constitutional law scholars have long questioned whether courts can truly drive social reform, and this uncertainty remains even in the wake of recent landmark decisions affecting the LGBT community. In contrast, court watchers in India—spurred by developments in a special type of legal action developed in the late 1970s known as public interest litigation (PIL)—have only recently begun to question the judiciary’s ability to promote progressive social change. Indian scholarship on this point has veered between despair that PIL cases no longer reliably produce good outcomes for India’s most disadvantaged and optimism that public interest ...


The Crisis Inside Crisis Pregnancy Centers: How To Stop These Facilities From Depriving Women Of Their Reproductive Freedom, Brittany A. Campbell Apr 2017

The Crisis Inside Crisis Pregnancy Centers: How To Stop These Facilities From Depriving Women Of Their Reproductive Freedom, Brittany A. Campbell

Boston College Journal of Law & Social Justice

Since the late 1960s, pro-life activists have been flooding the United States with crisis pregnancy centers (CPCs), facilities disguised as legitimate reproductive health clinics but, in reality, are mostly unlicensed centers that do not provide contraception or abortion services. These facilities deprive women of their reproductive freedom when they engage in deceptive practices to coerce women out of terminating their pregnancies. This Note examines recent unsuccessful attempts to curb CPC practices and highlights the destructive impacts of CPCs, particularly on young, low-income, and minority women. Misleading CPC tactics bar women from exercising their constitutional right to command their reproductive decisions ...


“Hurdling” Gender Identity Discrimination: The Implications Of State Participation Policies On Transgender Youth Athletes’ Ability To Thrive, Kayla L. Acklin Apr 2017

“Hurdling” Gender Identity Discrimination: The Implications Of State Participation Policies On Transgender Youth Athletes’ Ability To Thrive, Kayla L. Acklin

Boston College Journal of Law & Social Justice

The number of students, in grades kindergarten through high school, who identify as transgender has steadily increased during the last decade. These students seek the same opportunities as their cisgender peers, but are often denied participation in athletic activities because of their non-conforming gender-behavior. Currently, there is no federal law governing transgender participation in sports, which has resulted in an inconsistency among state athletic associations’ participation policies; the vast majority of states restricts participation. These states are limiting transgender students’ ability to receive the benefits that sports provide. To solve this inconsistency and provide equal opportunity for transgender students, this ...


The Law Of Nonmarriage, Albertina Antognini Jan 2017

The Law Of Nonmarriage, Albertina Antognini

Boston College Law Review

The meaning of marriage, and how it regulates intimate relationships, has been at the forefront of recent scholarly and public debates. Yet despite the attention paid to marriage—especially in the wake of Obergefell v. Hodges—a record number of people are not marrying. Legal scholarship has mostly neglected how the law regulates these nonmarital relationships. This Article begins to fill the gap. It does so by examining how courts distribute property at the end of a relationship that was nonmarital at some point. This inquiry provides a descriptive account to a poorly understood and largely under-theorized area of the ...


Rape Law Gatekeeping, Corey Rayburn Yung Jan 2017

Rape Law Gatekeeping, Corey Rayburn Yung

Boston College Law Review

Police across the United States regularly act as hostile gatekeepers who prevent rape complaints from advancing through the criminal justice system by fervently policing the culturally disputed concept of “rape.” Victims are regularly disbelieved, rape kits are discarded without investigation, and, as a result, rapists remain free. The substantial empirical evidence and stories from victims across the United States demonstrate that any success in decreasing sexual violence hinges on removing the numerous police-imposed obstacles inhibiting investigation and adjudication in rape cases, beginning with substantial reform of police practices. An examination of modern cases and the historical record indicates that the ...


Beyond Rehabilitation: Constitutional Violations Associated With The Isolation And Discrimination Of Transgender Youth In The Juvenile Justice System, Sonja Marrett Jan 2017

Beyond Rehabilitation: Constitutional Violations Associated With The Isolation And Discrimination Of Transgender Youth In The Juvenile Justice System, Sonja Marrett

Boston College Law Review

The juvenile justice system is predicated on a theory of rehabilitation with concern for protecting juveniles and society. For lesbian, gay, bisexual, and transgender (“LGBT”) youth, however, the system has developed into a punitive arrangement. LGBT youth face higher rates of criminalization and incarceration for non-violent crimes than any other group of youth. They also face unique threats, including sexual, physical, and emotional harassment; isolation; and a lack of medical care. Transgender youth are especially impacted. In response, victims have increasingly brought constitutional claims against federal prison officials for unconstitutional conditions of confinement. The courts are inconsistent on whether the ...


Rape By Malice, Kari E. Hong Jan 2017

Rape By Malice, Kari E. Hong

Boston College Law School Faculty Papers

When people seek to reform rape law, the focus is on changing the actus reus—either abandoning the force element or redefining consent. This article argues that both approaches overlook a critical opportunity for reform, which is the crime’s mens rea. Knowledge, or general intent, is the most common mens rea in rape offenses. The problem with this mental state is that proving what a defendant knew is one of the hardest parts of any criminal prosecution. Although scholars have explored reckless or negligent standards, this article proposes that states adopt the mens rea of malice—a callous indifference ...


The Two Laws Of Sex Stereotyping, Noa Ben-Asher Sep 2016

The Two Laws Of Sex Stereotyping, Noa Ben-Asher

Boston College Law Review

This Article offers two main contributions to the study of sex stereotyping. First, it identifies an organizing principle that explains why some forms of sex stereotyping are today legally prohibited while others are not. Second, it argues for a shift in the current rights framework—from equal opportunity to individual liberty—that could assist courts and other legal actors to appreciate the harms of currently permissible forms of sex stereotyping. Commentators and courts have long observed that the law of sex stereotyping has many inconsistencies. For instance, it is lawful today for the state to require that unwed biological fathers ...


Underenforcement As Unequal Protection, Deborah Tuerkheimer Sep 2016

Underenforcement As Unequal Protection, Deborah Tuerkheimer

Boston College Law Review

Rape law is largely underenforced. Yet criticism of policing practices has myopically focused on enforcement excesses, thus overlooking the problem of the state withholding protective resources. This neglect is particularly troubling where sexual violence is at issue. Empirical evidence demonstrates the operation of pervasive biases in police officers’ decisions not to pursue an investigation. Over time, law enforcement officers have discriminated against rape victims with immunity. Recently, however, this has changed. This Article is the first to describe a new effort by the United States Department of Justice to hold law enforcement officers accountable for failing to protect victims of ...


Unintended Consequences: Addressing The Impact Of Domestic Violence Mandatory And Pro-Arrest Policies And Practices On Girls And Young Women, Francine Sherman Jun 2016

Unintended Consequences: Addressing The Impact Of Domestic Violence Mandatory And Pro-Arrest Policies And Practices On Girls And Young Women, Francine Sherman

Boston College Law School Faculty Papers

The OJJDP-funded National Girls Initiative and the Office on Violence Against Women (OVW) convened a roundtable of advocates to discuss the unintended consequences of mandatory and pro-arrest policies for domestic violence on girls and young women. Out of that convening arose this summary report, Unintended Consequences: Addressing the Impact of Domestic Violence Mandatory and Pro-Arrest Policies and Practices on Girls and Young Women. Our hope is that this summary report fuels a conversation about the unintended consequences and impact of mandatory and pro-arrest domestic violence policies on girls, young women, and women, as well as the disproportionate impact on communities ...


A Bare Desire To Harm: Transgender People And The Equal Protection Clause, Kevin M. Barry, Brian Farrell, Jennifer L. Levi, Neelima Vanguri Mar 2016

A Bare Desire To Harm: Transgender People And The Equal Protection Clause, Kevin M. Barry, Brian Farrell, Jennifer L. Levi, Neelima Vanguri

Boston College Law Review

The U.S. Supreme Court’s decision in Obergefell v. Hodges establishing marriage equality for same-sex couples marks a major shift in recognizing gay, lesbian, and bisexual people as a central part of the fabric of American society. Obergefell also marks the passing of the torch from “LGB” to “T”; the next civil rights frontier belongs to transgender people, for whom key barriers still remain. In January 2015, a transgender woman filed an equal protection challenge to a provision of the Americans with Disabilities Act (“ADA”), which explicitly excludes several medical conditions closely associated with transgender people. In support of ...


Victim Protection Or Revictimization: Should College Disciplinary Boards Handle Sexual Assault Claims?, Erica Coray Mar 2016

Victim Protection Or Revictimization: Should College Disciplinary Boards Handle Sexual Assault Claims?, Erica Coray

Boston College Journal of Law & Social Justice

Colleges and universities that receive federal funding are legally required to respond to all sexual assault complaints on their campuses. Numerous laws and guidance documents address the specific obligations of higher education institutions in their responses to complaints; however, many colleges and universities have failed to meet these obligations. This Note examines the requirements colleges and universities must comply with when responding to sexual assault complaints. It then highlights three high-profile mishandlings of sexual assault cases by colleges and universities and analyzes the benefits and drawbacks of allowing campus disciplinary committees to independently respond to sexual assaults. This Note then ...


Prisoner Denied Sex Reassignment Surgery: The First Circuit Ignores Medical Consensus In Kosilek V. Spencer, Hana Church Feb 2016

Prisoner Denied Sex Reassignment Surgery: The First Circuit Ignores Medical Consensus In Kosilek V. Spencer, Hana Church

Boston College Law Review

On December 16, 2014, in Kosilek v. Spencer, the U.S. Court of Appeals for the First Circuit held that refusing to provide a transgender prisoner sex reassignment surgery did not violate the Eighth Amendment. The court reasoned that the prisoner’s claim did not amount to an Eighth Amendment violation because she received adequate treatment for gender dysphoria and prison officials were not deliberately indifferent to her medical needs. This Comment argues that the First Circuit erred by ignoring medical consensus and relying on an outlier medical opinion when determining that sex reassignment surgery was not constitutionally required. Further ...


Gender Injustice: System-Level Juvenile Justice Reforms For Girls, Francine Sherman, Annie Balck Sep 2015

Gender Injustice: System-Level Juvenile Justice Reforms For Girls, Francine Sherman, Annie Balck

Boston College Law School Faculty Papers

Despite decades of attention, the proportion of girls in the juvenile justice system has increased and their challenges have remained remarkably consistent, resulting in deeply rooted systemic gender injustice. The literature is clear that girls in the justice system have experienced abuse, violence, adversity, and deprivation across many of the domains of their lives—family, peers, intimate partners, and community. There is also increasing understanding of the sorts of programs helpful to these girls. What is missing is a focus on how systems—and particularly juvenile justice systems—can be redesigned to protect public safety and support the healing and ...


What To Expect When You’Re Expecting: Fetal Protection Laws That Strip Away The Constitutional Rights Of Pregnant Women, Jennifer Henricks Apr 2015

What To Expect When You’Re Expecting: Fetal Protection Laws That Strip Away The Constitutional Rights Of Pregnant Women, Jennifer Henricks

Boston College Journal of Law & Social Justice

Many states have enacted fetal protection laws as a way of promoting fetal health and combatting the problem of in utero fetal drug abuse. These laws, however, unduly compromise the constitutional rights of pregnant women, implicating a woman’s rights to privacy, due process, and equal protection under the laws. Additionally, such laws compromise both maternal health and fetal health by discouraging at-risk pregnant women from seeking medical attention. Requiring procedural protections before the enforcement of fetal protection laws may mitigate the laws’ extensive constitutional problems. Additionally, enacting programs that provide pregnant women with positive incentives to promote fetal health ...


Judging Gender Norms In Eeoc V. Boh Bros. Construction Co.: Why The Subjective Approach Is Necessary When Evaluating Claims Of Sex Discrimination Based On Gender Stereotyping, Erica Coray Mar 2015

Judging Gender Norms In Eeoc V. Boh Bros. Construction Co.: Why The Subjective Approach Is Necessary When Evaluating Claims Of Sex Discrimination Based On Gender Stereotyping, Erica Coray

Boston College Journal of Law & Social Justice

On September 27, 2013, the U.S. Court of Appeals for the Fifth Circuit, sitting en banc, held in favor of Kerry Woods, a heterosexual male construction worker who claimed sex discrimination based on gender stereotyping by Chuck Wolfe, his heterosexual male supervisor. In EEOC v. Boh Bros. Construction Co., the majority based its analysis on Wolfe’s subjective view of Woods’ non-conformance with gender stereotyping in holding there was discrimination. The use of a subjective test ensures that victims of severe or pervasive sex discrimination have a remedy even if they visibly conform to gender stereotypes. Additionally, the majority ...


The Issue Class, Joseph A. Seiner Jan 2015

The Issue Class, Joseph A. Seiner

Boston College Law Review

In 2011, in Wal-Mart Stores, Inc. v. Dukes, the Supreme Court refused to certify a proposed class of one and a half million female workers who had alleged that the nation’s largest private employer had discriminated against them on the basis of their sex. The academic response to the case has been highly critical of the Court’s decision. This Article does not weigh in on the debate of whether the Court missed the mark. Instead, this Article addresses a more fundamental question that has gone completely unexplored: what is the best tool currently available for workers to pursue ...


A “More Searching Judicial Inquiry”: The Justiciability Of Intra-Military Sexual Assault Claims, Ann-Marie Woods Sep 2014

A “More Searching Judicial Inquiry”: The Justiciability Of Intra-Military Sexual Assault Claims, Ann-Marie Woods

Boston College Law Review

More than seventy members of the U.S. military face abusive sexual contact, aggravated sexual assault, or rape every day, equating to three victims every hour. Congress and the Department of Defense have proposed reforms that focus on changes to the criminal justice system under the Uniform Code of Military Justice (UCMJ) in addition to tactical safety and informational efforts for prevention and response. Although deterrent measures and a transparent criminal justice system are both necessary components for meaningful reform, this Note argues that lasting institutional change and true individual justice can only be achieved by providing a civil remedy ...


Deadbeat Dads & Welfare Queens: How Metaphor Shapes Poverty Law, Ann Cammett May 2014

Deadbeat Dads & Welfare Queens: How Metaphor Shapes Poverty Law, Ann Cammett

Boston College Journal of Law & Social Justice

Since the 1960s, racialized metaphors describing dysfunctional parents have been deployed by conservative policymakers to shape the way that the public views anti-poverty programs. The merging of race and welfare has eroded support for a robust social safety net, despite growing poverty and economic inequality throughout the land. This Article begins by describing the influence that metaphors have on the way people unconsciously perceive reality. It proceeds by examining historical racial tropes for Black families and how they were repurposed to create the Welfare Queen and Deadbeat Dad, the metaphorical villains of welfare programs. It also tracks the demise of ...


Adversarial Justice's Casualties: Defending Victim-Witness Protection, Mary Fan May 2014

Adversarial Justice's Casualties: Defending Victim-Witness Protection, Mary Fan

Boston College Law Review

The U.S. Supreme Court and some state courts have constitutionalized an increasingly rigid and broad vision of adversarial adjudication’s requirements. Commentators often celebrate this adversarial revolution as expanding defendants’ rights of confrontation, cross-examination, and self-representation. Yet the adversarial revolution also has created an arsenal of tactics to retraumatize victims of sexual assault and general violent crime. The courts and legislatures are in disarray about what to do to protect vulnerable victim-witnesses. This Article is about adversarial adjudication’s casualties and how to reduce the risk of harm. The Article defends a subset of protective measures that avert further ...


Command Responsibility—A Legal Obligation To Deter Sexual Violence In The Military, Lindsay Hoyle May 2014

Command Responsibility—A Legal Obligation To Deter Sexual Violence In The Military, Lindsay Hoyle

Boston College International and Comparative Law Review

The United States should adopt the international doctrine of command responsibility within the Uniform Code of Military Justice (UCMJ) as a solution to widespread reports of intra-military rape and sexual assault. Applying command responsibility to serious violations of the UCMJ, like rape, would establish a clear mandate for the military to prosecute any commander who fails to reasonably prevent, investigate, or punish serious UCMJ violations that he or she knew about, either via constructive or actual knowledge. Congress should limit the doctrine’s scope to serious UCMJ violations that commanders are aware of and recklessly choose to ignore in order ...


An Equal Playing Field: The Potential Conflict Between Title Ix & The Massachusetts Equal Rights Amendment, Christopher Marquis Apr 2014

An Equal Playing Field: The Potential Conflict Between Title Ix & The Massachusetts Equal Rights Amendment, Christopher Marquis

Boston College Journal of Law & Social Justice

In 2012 the Department of Education received a complaint claiming that the Massachusetts Interscholastic Athletic Association’s (“MIAA”) policy of allowing boys to try out for girls’ field hockey constituted a violation of Title IX. This federal statute prohibits discrimination in educational institutions on the basis of sex. This Note looks at the common roots of Title IX and the decision of the Massachusetts Supreme Judicial Court that allowed boys’ participation in field hockey. It then examines Title IX as it applies to the MIAA field hockey policy and determines that the Massachusetts Policy does not, in and of itself ...


Bracelets And The Scope Of Student Speech Rights In B.H. Ex Rel. Hawk V. Easton Area School District, Jacquelyn Burke Apr 2014

Bracelets And The Scope Of Student Speech Rights In B.H. Ex Rel. Hawk V. Easton Area School District, Jacquelyn Burke

Boston College Journal of Law & Social Justice

The U.S. Court of Appeals for the Third Circuit held that a district wide ban of bracelets containing the word “boobies” was an impermissible restriction of students’ First Amendment speech rights. The majority’s focus on the bracelets’ social message is critical for the preservation of students’ rights to discuss social issues, particularly health issues. Alternatively, Judge Hardiman’s dissent focused on the bracelets’ alleged sexual innuendo and did not give credence to the bracelets’ purpose. Judge Hardiman advocated upholding the ban due to the bracelets’ supposed sexual nature. Had Judge Hardiman prevailed, knowledge and awareness of a vital ...


Root Canal Of The Problem: The Iowa Supreme Court's Protection Of Male Impulses Over Female Traits, Catherine E. Mendola Mar 2014

Root Canal Of The Problem: The Iowa Supreme Court's Protection Of Male Impulses Over Female Traits, Catherine E. Mendola

Boston College Journal of Law & Social Justice

In 2010, Dr. James H. Knight DDS fired his employee, Melissa Nelson, explaining that his wife had become jealous of their consensual but nonsexual relationship. Nelson, in turn, filed a sex discrimination claim, alleging that her termination would not have occurred, but-for her sex. The Iowa Supreme Court sided with Knight, ruling that Nelson’s termination was due to Knight’s wife’s jealousy, irrespective of Nelson’s sex. This Comment argues that: (1) in the absence of sexual conduct, the court’s reliance on precedent involving consensual sexual relationships was misplaced; (2) in relying on the wrong precedent, the ...