In Principled Labor Law: U.S. Labor Law through a Latin American Method, authors Sergio Gamonal C. & Cesar F. Rosado Marzán argue that U.S. courts should follow the Latin American method of applying long-held jurisprudential principles to interpret labor law. The authors’ baseline is clear: applying these principles to U.S. employment law will better the employment opportunities and stability of workers who suffer from unequal bargaining power and the ever-present employer-oriented employment-at-will doctrine. Focusing on Title VII of the 1964 Civil Rights Act, and other civil rights provisions, this article imagines how applying the principles described by Gamonal and Rosado to U.S. anti-discrimination law could provide further protection to U.S. employees. It concludes that Latin American principles could effectively give U.S. judges interpretive tools that would make application of the law more consistent and protective of individual civil rights.

“Masculinities studies” refers to a body of theory and scholarship by gender experts in various fields of social science that has enriched the feminist analysis of law. In drawing on and incorporating masculinities theories into their work, feminist legal scholars have defined “masculinities” as a structure that gives men as a group power over women as a group, a set of “masculine” practices designed to maintain group power, and the engagement in or “doing” of these masculine practices. Although masculinities studies originated in fields outside law, legal scholars have adopted insights raised by masculinities scholars, combined with those of feminist theory, queer theory, and critical race theory, to develop a legal theory of masculinities that proposes new legal interpretations and policies that better correspond to the lived experiences of persons of different genders, races, and classes. This chapter explores how masculinities research has influenced legal feminism in the United States.

This Essay occupies the junction of dis/abilities studies and critical race theory. It joins the growing commentary analyzing the groundbreaking lawsuit by Compton, California students and teachers against the Compton school district under federal disability law and seeking class certification and injunctive relief in the form of teacher training, provision of counselors, and changed disciplinary practices. The federal district court denied the defendants’ motion to dismiss but also denied the plaintiffs’ motion for a preliminary injunction and class certification, resulting in prolonged settlement talks. The suit is controversial because it seeks to address the trauma suffered by Black and Latinx students in poor, violence-torn inner-city communities by characterizing the students as disabled. The Essay disagrees with legal scholarship thus far, which posits that using disability law to help these students both stigmatizes them and ignores current disability law’s focus on individual claims. It asserts that concerns about stigma are outweighed by the potential to assist distressed students. Doctrinally, it contends the concern for individual claims is overstated because one major goal of disability law is to remove social barriers to the flourishing of people with dis/abilities. By analyzing the social construction model of dis/abilities implicit within current law, this essay shows that group-based claims like those of the Compton students are a valid use of the class certification power. This Essay’s key contribution to the dis/abilities studies and critical race literatures is the creation of a theory of “intersectional cohorts.” The members of intersectional cohorts share similar self-identities, attributed identities, and identity performances to such extent that it is appropriate to think of them as a discrete and cohesive group in relation to a particular issue. This is a way to explore the meso-level of discrete and cohesive social groups who share multiple identities without devolving into a micro-level theory of each individual or essentializing identities through a macro-level theory of broad social groups. Understanding poor Black and Latinx students in violence-torn neighborhoods as an intersectional cohort shows they have sufficiently shared experiences and responses to their environment to presume they constitute a class that should be certified in the Compton suit and in other similar lawsuits. This approach is supported by the scientific research on Adverse Childhood Experiences (ACEs) and their relationship to complex trauma and disability. We hope this analysis will serve as a model for future theoretical and applied analysis of intersectional cohorts, especially with respect to dis/abilities.

This article discusses the issue of sex- and gender-based harassment in the gaming industry and proposes potential solutions to the problem. Part II examines the different varieties of sex- and gender-based harassment that occur in casinos, potential causes of the harassment, research on harassment of employees in the casino/hospitality industry, and general research on preventing and remedying harassment. Part III discusses the Amended Gaming Regulations that the GCB proposed in light of the Wynn case, and analyzes the potential effectiveness of these regulations in light of the social science research concerning what works to end harassment and discrimination in workplaces. It also considers the unique characteristics of the gaming industry and calls for specialized, industry- and organization-specific research. It proposes a research plan that would permit researchers to understand exactly what causes harassment in the casinos and other gaming establishments, how effective the current policies are, and how to move forward with a model to defeat sex- and gender-based harassment and discrimination in the gaming industry. Finally, Part IV concludes that the casino industry would benefit from directed, specific, ethnographic research in order to create models to test their usefulness. Once models are found to be effective, change will occur only if industry leaders demonstrate how seriously they take harassment and require that harassing employees and customers be held accountable for their behaviors.

This article deals with the schools’ role in permitting and encouraging peer sex- and gender-based harassment of children and the law’s role in failing to hold schools accountable for their negligent and intentional behavior in sanctioning it. Part I discusses the evidence of rampant sex- and gender-based harassment in schools. Part II analyzes the problem through the lens of masculinities theory and explains how cultural notions of masculinity create incentives for boys (and some girls) to engage in peer sex- and gender-based harassment. Part III analyzes court cases and OCR decisions and explains the serious disconnect between the two; it demonstrates the proof difficulties that victims experience when filing suit under Title IX and the resulting lack of incentives for schools to correct the problems. It also shows that, while the OCR has traditionally held schools to more exacting scrutiny than courts, the new Secretary of Education has proposed new regulations that would align its standards with those of the courts. Ironically, if the proposed regulations are promulgated, the result in the era of #MeToo will be to promote even more sex- and gender-based harassment in our schools. Part IV proposes new legal standards and interpretations of existing standards for the courts that would hold schools more accountable for allowing and condoning peer harassment and argues that the courts’ standards should be more similar to those applied by those historically applied by the OCR. To accomplish prevention, educators must understand the role that toxic masculinity plays in peer sex- and gender-based harassment while at the same time be aware of the potential unequal application of school rules to children of different races and classes. Finally, this article concludes that the law should create incentives for schools to fulfill their responsibility to educate themselves and their students to prevent and remedy peer sex- and gender-based harassment. When schools ignore their responsibilities in this area, they become important training grounds for future harassers, a role that the #MeToo movement should not tolerate.

The fall 2019 Senate Judiciary Committee hearings involving Dr. Christine Blasey Ford’s testimony about then-Judge Brett Kavanaugh’s alleged behavior at a high school party gone awry and his emotional testimony in response will be etched in American minds for the foreseeable future. Dr. Blasey Ford accused then-teenager Brett Kavanaugh of sexually assaulting her in an upstairs bedroom as his friend, Mark Judge, egged him on. At the hearing, Blasey Ford’s trembling voice and respectful demeanor softened the bite of the substance conveyed: she was 100 percent sure that she had been sexually assaulted and that Brett Kavanaugh was the attacker. Blasey Ford’s occasional lapse into technical explanations using psychological terms established her competence. The combination of vulnerability and competence led to the widespread belief that Blasey Ford’s testimony was credible. After Blasey Ford testified, Kavanaugh came out swinging, accusing the Democrats of corrupting the process and categorically denying that he had sexually assaulted anyone. For the second time in three decades, the country was left with many questions about fairness, process, and sexual assault/harassment, and the role they should and do play in the nomination of a Supreme Court Justice. This essay uses identity performance and multidimensional masculinities theories to analyze the hearings, specifically to consider the gender, race, and class performances of the participants, and how partisans and non-partisans interpreted those performances. This examination demonstrates that the judgment concerning masculinity and femininity performances and their appropriateness is, to a certain extent, in the eye of the beholder. By the same token, public interpretations are not arbitrary. Rather, at least in this context, power differentials based on gender, race, and class appear to have influenced the public reaction to these performances and the interpretation of what constitutes appropriate masculine and feminine behavior. Moreover, the perceived appropriateness of these behaviors governs who the winners and losers will be. In this case, upper-middle class white males won while women of all races and classes lost. Although it was not immediately obvious how class and race influenced the process because both main participants are of a similar class and race, deeper analysis demonstrates that white, upper-middle class, male power affects how the participants were perceived and judged. Class, race, and gender were certainly present in the calculation of winners and losers. Part II of this essay establishes the theoretical basis for my analysis, explaining masculinities, identity performance, and multidimensional theories. Part III uses these theories to analyze the various performances as well as the public reactions to those performances. Finally, this essay concludes that gender, race, and class affect judgments in this context, and the Senate should write rules to assure that a fairer and more accurate process takes place in the future in the hopes of breaking the strangleholds of traditional gendered, raced, and classed power.

“Venture bearding,” a term that we coin in this article, describes processes of obscuring and covering socially stigmatized identities in business environments. This Article introduces distinctive identity performance strategies from the technology, startup, and venture capital context into the legal literature and discusses what their existence explains about business environments and capital formation. “Venture bearding,” as we use the term, describes behaviors that persons with contextually stigmatized identities adopt to access social status and capital. In some instances, women, who are stigmatized in this context, may employ men as front persons to conceal that the venture is an exclusively women-owned business. Venture bearding is a common, complex, and problematic strategy and is driven by stigma and bias in the business environment. The Article focuses on how the current startup, technology, and venture capital landscape causes persons with stigmatized identities to strategically conceal facets of their female identities in favor of presenting masculinized identities to conduct business and raise capital. The Article charts a continuum of venture bearding practices ranging from techniques to downplay a founder’s identity to the actual employment of men for the purpose of deriving economic value from their identities. The existence of venture bearding raises critical capital allocation concerns. While venture bearding strategies may mitigate some capital allocation biases and benefit some entrepreneurs, employing these strategies risks reifying discriminatory norms. These norms increase the cost of capital and inhibit economic growth.