Negotiation Will Not Fix Sexism

Negotiation Will Not Fix Sexism

Let’s start with the obvious — it pains me to realize that negotiation can’t fix everything.  As someone who loves to teach negotiation — and has long believed in the power of positive asking — I also need to recognize when individual action will not — and cannot — fix the ingrained biases and structural sexism that exists in the workplace.  A slew of recent studies back up this point in variety of ways that also point to a more nuanced understanding of what does need to be fixed.

To give a little history — many read Lean In and/or Women Don’t Ask and took these books as a call to focus on women’s deficiencies in negotiation.   This was despite that the fact that I and others had found no differences in perceived assertiveness among lawyers or other leaders.  (More from me in TEDx talk version here and research article here.)

Caveat — this is not to deny that differences in levels of assertiveness are found among young women in competitive, one-shot negotiations with limited knowledge, nor to discount the fact that failure to negotiate a higher starting salary leads to less money down the road.  It IS to say that these younger, less confident women should not be the template for advice to mature women in the workplace.  Numerous workplace studies have since confirmed that women and men ask for raises and promotions at the same rate — the problem is who receives them.

Moreover, study after study in Harvard Business Review have now shown that women are perceived as better leaders by their peers in 360 degree reviews — scoring higher than men on 17 of 19 measures before the pandemic and — in the face of a crisis — outperforming men even more.

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Legal Challenges to Race-Based Scholarships in Wisconsin

Since the early 2000s, the validity of the use of race in many scholarship applications has been questioned. States have been left rolling in a deep pool of uncertainty regarding what to do. Race-based scholarship programs have provided invaluable aid to minority students seeking to obtain a higher education. Without these programs, many qualified minority students would be unable to attend higher-learning institutions. As a result, the institution would be denied a diverse learning community and many valuable students would have to prematurely abandon their education goals.

Each scholarship serves its own purpose. There are scholarships that are offered to people of certain religious background. Others focus on providing economic aid to students who are pursuing certain degrees – such as engineering, medicine, or law. The purpose of race-based grants or scholarships is to increase the number of diverse students for the benefit of each institution. This purpose has been challenged by complaints alleging that race-based scholarships only further race discrimination.

The Supreme Court has established precedent regarding this debate. The Court held that when applying rights found in the Equal Protection Clause of the Fourteenth Amendment regarding this matter, a society is a collection of “knowing individuals” who are seen as autonomous and independent, and thus should be treated as individuals without regard to race. The Court further stated that when a program acknowledges individuals as being part of a group or classification, the program should be strictly scrutinized. Gratz v. Bollinger, 539 U.S. 244 (2003); Grutter v. Bollinger, 539 U.S. 306 (2003).

As one commentator has noted, “[t]o pass strict scrutiny review, a race-conscious program must first have a compelling state interest. Diversity is the compelling interest most often used to defend affirmative action.” Andrija Samardzich, Note, Protecting Race-Exclusive Scholarships from Extinction with an Alternative Compelling State Interest, 81 Ind. L.J. 1121, 1124 (2006). In Grutter v. Bollinger, 539 U.S. 306 (2003), Justice O’Connor stated:

The Law School’s interest is not simply ‘to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin.’ That would amount to outright racial balancing, which is patently unconstitutional. Rather, the Law School’s concept of critical mass is defined by reference to the educational benefits that diversity is designed to produce.

Grutter, 539 U.S. at 330.

In recent months, this debate has hit close to home.

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Battle over Venue Defines First Phase of Litigation on Wisconsin Redistricting 

This blog post continues the focus of the Law School’s Lubar Center on redistricting.

In the litigation over Wisconsin legislative and congressional redistricting, both sides say they’re not on a venue-shopping spree.

But however it’s characterized, virtually all of the legal action to date has been directed toward deciding which court will hear the case—and perhaps ultimately draw the maps for Wisconsin’s Assembly, state Senate and U.S. House districts—and when.

Officially, the job of redrawing those lines after each decennial census belongs to the Legislature, subject to veto by the governor. But both sides—and even a federal judge—have cast doubt on the chances that Republican legislative leaders and Democratic Gov. Tony Evers will agree on maps. Both sides argue that their preferred courts must be ready to step in swiftly if the legislative process breaks down.

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