Joanna L. Grossman

Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of Law.  She is an expert in sex discrimination law. Her most recent book, Nine to Five: How Gender, Sex, and Sexuality Continue to Define the American Workplace (Cambridge University Press 2016), is a lively and accessible introduction to the laws, policies, and practices that shape women’s lives at work. She also writes extensively on family law, especially on state regulation of marriage and parentage. She chronicles contemporary developments in parentage law in her blog, Are You My Mother?. She is also an author of Inside the Castle: Law and the Family in 20th Century America (Princeton University Press 2011), a comprehensive social history of family law. She is the co-author of Gender & Law: Theory Doctrine & Commentary (6th ed. 2013); the co-editor of Gender Equality: Dimensions of Women’s Equal Citizenship (Cambridge University Press 2009); and the co-editor of Family Law in New York (Carolina Academic Press 2015).

Columns by Joanna L. Grossman

The Big 4-0: Title IX Puts a Fourth Decade Under Its Belt

Justia columnist and Hofstra law professor Joanna Grossman, and Justia guest columnist and U. Pittsburgh law professor Deborah Brake comment on the 40th anniversary of Title IX, the federal civil rights statute that bans sex discrimination in federally-funded education programs. Grossman and Brake focus on the area in which Title IX has had its biggest impact, athletics, and explain its impact on college women’s and high school girls’ opportunities in sports. They reveal the secrets of Title IX’s success, including its refusal to take current, status quo levels of girls’ and women’s interest in sports as fixed or natural and thus to cap opportunities at current levels. Grossman and Brake also comment on Title IX’s recent history, criticizing the George W. Bush Administration for undermining the law, and praising the Obama Administration for properly enforcing it. Finally, they describe the stumbling blocks that still remain when it comes to full Title IX enforcement.

Two More Nails in DOMA’s Coffin: Courts Invalidate Federal Law’s Rejection of Same-Sex Marriage

Justia columnist and Hofstra law professor Joanna Grossman comments on two recent rulings that invalidate applications of a federal law—the Defense of Marriage Act (DOMA)—purporting to reject same-sex marriages. One ruling resolves a set of consolidated cases, and was issued by the U.S. Court of Appeals for the First Circuit. That ruling is entitled Commonwealth v. U.S. Department of Health and Human Services. The other ruling is Windsor v. U.S., a decision from a New York-based federal district court. After providing background on DOMA, Grossman analyzes the claims that were put forth in the cases that led to the two recent decisions, and argues that both courts were right to invalidate the applications of DOMA that were before them. She also discusses three U.S. Supreme Court precedents that are relevant to these issues.

The Supreme Court on the Social Security Rights of Posthumously Conceived Children: State Law Controls Family Status

Justia columnist and Hofstra law professor Joanna Grossman comments on the Supreme Court’s recent family law decision in Astrue v. Capato. As Grossman explains, the case involved a woman’s becoming pregnant with her husband’s sperm—which he had had frozen—after he passed away. The legal question that the situation raised was whether the resulting posthumously conceived children would be deemed to be the husband’s children under the Social Security Act, for purposes of receiving child survivor’s benefits. As Grossman explains, the answer to this question will vary based on the law of the state. Grossman describes some of the complexities of modern parentage law, which derives mostly from state law, but also has federal law aspects. She also explains why the Court ruled as it did, deeming the children at issue not to count as the husband’s children for Social Security survivor’s purposes, and giving six rationales for reaching that result. Grossman also calls upon states to clarify the status of posthumously conceived children, rather than leaving them in legal limbo and out in the cold for Social Security survivor's benefits purposes.

Another Frontier: Connecticut’s High Court Recognizes a Cause of Action for Sexual-Orientation Harassment in the Workplace

Justia columnist and Hofstra law professor Joanna Grossman comments on a recent important decision from the Connecticut Supreme Court. As Grossman explains, the case arose when a manufacturing company failed to take action to stop the ceaseless name-calling that the plaintiff endured in his workplace regarding his sexual orientation. Even worse than the slurs themselves, some of the plaintiff’s tormentors would say the slurs while standing right behind the plaintiff while he was operating heavy machinery. Grossman begins by sketching the legal landscape (federal and state) regarding sexual orientation discrimination, and then goes on to focus on the law of Connecticut, where the employer was located, and the result the Connecticut Supreme Court reached in the case. Grossman also questions why the employer took the case all the way up to Connecticut’s high court when the illegality of the acts involved was quite clear.

The Pregnant Workers’ Fairness Act: Accommodating the Needs of Pregnant Working Women

Justia columnist and Hofstra law professor Joanna Grossman comments upon the proposed Pregnant Workers’ Fairness Act (PWFA), which was recently introduced in the House of Representatives. Grossman explains that, if the bill becomes law, it will guarantee pregnant women the right to reasonable accommodation when the short-term physical effects of pregnancy conflict with the demands of their job, as long as the accommodation does not impose an undue hardship on the employer. Grossman explains the limited protections that federal law currently offers pregnant women, how even those protections have been narrowed by courts, and why further protections are needed. Grossman describes the holdings of relevant Supreme Court cases, explains the provisions of the 1978 Pregnancy Discrimination Act (PDA), and argues that the PDA’s protections are markedly insufficient, especially in light of the courts’ narrowing of pregnant women’s rights. Grossman concludes that the passage of the PWFA is urgently needed to ensure fair treatment for pregnant workers.

The EEOC Rules That Transgender Discrimination Is Sex Discrimination: The Reasoning Behind That Decision

Justia columnist and Hofstra law professor Joanna Grossman explains the EEOC ruling that discrimination against a transgender individual is sex discrimination under Title VII and related law. Grossman begins by describing the facts of the case that led to the EEOC ruling, and then goes on to take a close look at the intersection of Title VII, transgenderism, and sexual-orientation discrimination. As Grossman explains, an amendment to Title VII that would directly protect gay and transgender people from discrimination has repeatedly been introduced in Congress, but has never passed. However, gay and transgender people have been able to find some protection against discrimination under Title VII itself, via the courts, including the Supreme Court, that have interpreted Title VII to prohibit gender stereotyping and sexual harassment.

The Lady in Red: Equal Pay Day and the Continuing Problem of Gender-Based Pay Discrimination

Today, on Equal Pay Day, Justia columnist and Hofstra law professor Joanna Grossman comments on gender-based pay discrimination and the available remedies for it. Grossman covers the current status of the gender-based wage gap; the reasons why the gap persists and has proved difficult to remedy; and the efforts that have been made to bolster pay equality. Grossman first focuses on the clear evidence that pure discrimination plays a significant role in the wage gap. Then, Grossman discusses the roles that the Equal Pay Act and Title VII play, with respect to gender-based pay discrimination, and the unfortunate limitations of both laws. She also covers the more recent Lily Ledbetter Fair Pay Act, which President Obama signed into law during his first week in office. Finally, Grossman concludes by describing the key legal steps, procedural and substantive, that she argues should be taken in order to close the pay gap.

Flag-Waving Gametes: Biology, Not Gestation or Parenting, Determines Whether Children Born Abroad Acquire Citizenship from U.S. Citizen Parents

Justia columnist and Hofstra law professor Joanna Grossman discusses the important questions of whether and when a child who is born outside the U.S. can acquire citizenship from a U.S. citizen parent. Grossman focuses especially on the heartbreaking case of U.S. citizen Ellie Lavi, who gave birth to twins in Israel. When Lavi sought U.S. citizenship for the twins, the State Department informed her that the twins would not be deemed U.S. citizens unless Lavi could prove that the donor sperm or egg came from a U.S. citizen. Grossman strongly criticizes the State Department’s decision to, in effect, deem the gamete donors, not Lavi, the babies’ parents for purposes of U.S. citizenship—even though no one disputes that Lavi, a U.S. citizen, gave birth to the twins. Grossman covers the ways in which children can gain U.S. citizenship by descent; describes the more onerous rules for out-of-wedlock children; considers whether treating unwed citizen fathers and unwed citizen mothers differently is discriminatory; and discusses who counts as a “mother” and thus a person able to convey citizenship. Finally, Grossman considers four interesting scenarios regarding the descent of citizenship to children; describes the consequences of non-citizenship; and urges the State Department to deal more fairly and justly with the modern realities of reproductive technology.

The Controversy Over Public Breastfeeding: Breast May Be Best, but Objectors Say Not in My Backyard (or Airplane)

Justia columnist and Hofstra law professor Joanna Grossman comments on the law regarding public breastfeeding. She covers both of the potentially applicable types of laws: indecent exposure laws, and public accommodations laws. In addition, Grossman discusses a key New York decision regarding toplessness more generally; a decision based on a Wal-Mart employee’s telling a customer that she needed to either breastfeed her son in the bathroom, or leave the store; a decision based on a mother’s refusal to put a blanket over her baby’s head when she was breastfeeding on a Delta airplane, as it was waiting at the gate; and a Vermont law that establishes the right, in that state, to publicly breastfeed. In addition, Grossman notes the changing social mores regarding breastfeeding—illustrated by protests called “nurse-ins” that are often sparked, with the help of social media, when a woman’s attempt to breastfeed in public is shut down.

Is the Defense of Marriage Act (DOMA) Indefensible? A Federal Court Says Yes, in Golinski v. OPM

Justia columnist and Hofstra law professor Joanna Grossman comments on a recent decision by the U.S. District Court for the Northern District of California, holding that the Defense of Marriage Act (DOMA) is unconstitutional. (As readers may know, DOMA defines a marriage as a union between a man and a woman, for purposes of federal law and federal benefits.) The court also held that statutory classifications based on sexual orientation should trigger heightened scrutiny from reviewing courts, and that an anti-same-sex marriage law cannot survive such scrutiny. Grossman provides background on DOMA, and describes the current impact of, and court challenges to, DOMA’s anti-same-sex marriage section. She also describes federal legislative and executive challenges to DOMA, and recaps California’s complicated history regarding same-sex marriage. In addition, she focuses on the interesting question of what level of heightened scrutiny (intermediate, strict, or other) courts will apply when reviewing cases alleging sexual-orientation discrimination. Grossman predicts that whether by repeal, administrative undercut, or judicial invalidation, DOMA is on its way out.

A Federal Judge Thwarts Title VII and the Pregnancy Discrimination Act by Ruling Bizarrely That Lactation Is Not Related to Pregnancy

Justia columnist and Hofstra law professor Joanna Grossman comments on a recent case that was brought by a woman who alleged that she was fired because, after giving birth, she asked if she could pump breast milk in a back room at her workplace. The judge held that she did not have a right to do so, under either Title VII, which prohibits discrimination based on gender, or the Pregnancy Discrimination Act. Grossman takes strong issue with the ruling, which reasoned oddly that lactation and pregnancy are somehow unrelated. Grossman notes that the lactation-discrimination conflict is part of a long-running war—involving employers, employees, insurance companies, state governments, and the federal government—about whether women, alone, should bear all the consequences, costs and hardships of reproduction, or whether their employers and/or others must play a part. In addition to the lactation-discrimination case, Grossman also covers prior cases involving contraceptive equity and infertility discrimination, as well as discussing the legal protections that woman can turn to when the reproductive process conflicts with work, and the role the EEOC has played in this area of law.

The Beginning of the End of the Anti-Same-Sex-Marriage Movement

Justia columnist and Hofstra law professor Joanna Grossman comments on the situation in Washington State, which is now poised to legalize same-sex marriage. Grossman contends that the Washington State situation is significant not only because Washington State will now become the seventh state to legalize same-sex marriage, but also because—for the first time since the beginning of the same-sex marriage controversy—a state legislature will move from a statutory ban on same-sex marriage, to a statutory authorization of it. Grossman covers Washington State’s path through many different stages of the same-sex marriage controversy; the details of the bill passed by the Washington State senate; and the potential implications of the State of Washington’s experience for the same-sex marriage movement more generally.

Men Who Give It Away: The Potential Perils of Free and Non-Anonymous Sperm Donation

Justia columnist and Hofstra law professor Joanna Grossman comments on the legal consequences of different forms of free, non-anonymous sperm donation. As she explains, some of these donations are connected to the online Free Sperm Donor Registry. Grossman, relying in part on previous reportage by 20/20, comments on situations such as that of a man who has given away so much sperm that the government has told him to stop its “manufacture,” and men who donate sperm via what is called “natural insemination”—that is, sex. Grossman explains why in-person sperm donation, especially via “natural insemination” raises complex questions about the legal rights and obligations of the sperm donor—with donors potentially liable for child support, and potentially able to seek visitation or even co-parent status. She also notes that in-person sperm donation may be governed by—and may, in some instances, violate—FDA regulations pertaining to the donation of human cells and tissue. Among other legal sources, Grossman covers the original and revised Uniform Parentage Act (UPA) in the column.

The Complications of Surrogacy: A New Jersey Court Refuses to Uphold a Surrogacy Arrangement, but Awards Full Custody to the Intended Father

Justia columnist and Hofstra law professor Joanna Grossman comments on a New Jersey decision regarding surrogacy. Grossman explains why the surrogacy agreement at issue was ruled to be unenforceable by the New Jersey court; how a custody dispute arose after the two babies that the surrogate had carried were born; the factors that were legally relevant to that dispute; and the reasons why the court, in the end, awarded sole custody to the babies’ biological father. As Grossman notes, the case is of interest not only as a significant precedent regarding the increasingly common practice of surrogacy, but also due to its unusual facts, which pitted a gay couple against a woman who believes homosexuality is sinful.

Everything I Need to Know About Family Law I Learned from Teen Mom: Part Two in a Two-Part Series

In this two-part series of columns, Justia columnist and Hofstra law professor Joanna Grossman draws on an unusual source, the reality television show Teen Mom, to illuminate a number of family law issues. Here, in Part Two, Grossman covers issues that have arisen on Teen Mom relating to legal fatherhood, parental rights, child custody, domestic violence, and open adoption. Using the situations of the young women on Teen Mom as examples, Grossman answers interesting family law questions like these: Does legal fatherhood matter? How are disagreements over custody and visitation resolved, and what kind of disagreements are likely to arise? How and why might custody over a child be relinquished? Do grandparents have visitation rights, and in what circumstances? How does open adoption work, and what problems might occur with open adoption? Finally, what happens when there is family violence? By illustrating instances where these questions arise, Grossman notes, Teen Mom ends up being surprisingly educational for a reality television series.

Everything I Need to Know About Family Law I Learned From Teen Mom: Part One in a Two-Part Series of Columns

In this two-part series of columns, Justia columnist and Hofstra law professor Joanna Grossman draws on an unusual source, the reality television show Teen Mom, to illuminate a number of family law issues. Here, in Part One, Grossman begins by contrasting the precursor show, 16 and Pregnant, which raised few legal issues, with Teen Mom, which raises a plethora of them. She explains why teen pregnancy raises few legal issues, whereas the birth of a child to a teenage mother often, as Teen Mom illustrates, triggers legal conflicts. Specifically, Grossman covers abortion rights for minors and the very limited rights of putative unwed fathers, prior to birth. She also quickly previews the nature of the many post-childbirth legal disputes that she will discuss in Part Two of the series.

Can Laypersons Ordained Online as Universal Life Church Ministers, or the Like, Officiate at Weddings? In Some States, the Answer Is No

In the second of a two-part series of columns raising questions about the legal effect of online ordination, Justia columnist and Hofstra law professor Joanna Grossman discusses whether persons who are ordained only by an online ministry, with no prerequisites for ordination but the payment of a fee, can legally perform marriages. Such online ministries include the Pastafarians (who belong to the Church of the Flying Spaghetti Monster), the Church of Body Modification, the Universal Life Church, and others. Grossman points out that in some states, such ordinations mean nothing, and thus, marriages performed by such “ministers” will not be valid. She focuses, especially, on New York, where the validity of such marriages is especially doubtful.

The Penn State Scandal: Why Is No One Talking about Title IX? Part Two in a Two-Part Series of Columns

In the second in a two-part series of columns on the Penn State alleged child sex abuse and failure-to-report scandal, Justia columnist and Hofstra law professor Joanna Grossman, and Justia guest columnist and U. Pittsburgh law professor Deborah Brake continue their commentary on a new and interesting legal aspect of the scandal. They argue that in addition to raising issues of criminal liability and civil tort liability, the alleged Penn State child abuse and the failure to report it may also raise issues under Title IX—the 1972 federal statute that prohibits recipients of federal funds from discriminating on the basis of sex in their educational programs and activities. Here, in Part Two of the series, Grossman and Brake discuss particular issues that may arise if a Title IX claim is brought: Does it make a difference if a given boy was abused only once, for liability purposes? Did the alleged Penn State abuse occur under “any education program or activity” as the statute requires? Does Title IX apply to the alleged harassment by Jerry Sandusky of these particular boys, who (obviously) were not Penn State students? In answering these questions, Grossman and Brake explain why, at the very minimum, the alleged sexual assaults that took place in the showers of the Penn State locker room or its sauna would, at least, fall within Title IX’s reach. In addition, they explain the legal issues regarding Penn State’s potential liability for the abuse, and look to the Grand Jury’s report to see if actual notice and deliberate indifference can be proven, as Title IX requires. Finally, Grossman and Brake note that, for several reasons, there are likely to be no statute-of-limitations issues here, despite the passage of time.

The Penn State Scandal: Why Is No One Talking About Title IX? Part One in a Two-Part Series of Columns

In the first in a two-part series of columns on the Penn State alleged child sex abuse and failure-to-report scandal, Justia columnist and Hofstra law professor Joanna Grossman, and Justia guest columnist and U. Pittsburgh law professor Deborah Brake comment on a new and interesting legal aspect of the scandal. They argue that in addition to raising issues of criminal liability and civil tort liability, the alleged Penn State child abuse and the failure to report it may also raise issues under Title IX—the 1972 federal statute that prohibits recipients of federal funds from discriminating on the basis of sex in their educational programs and activities. Grossman and Brake note that Title IX has been used in the past to address sexual harassment by teachers and coaches, and by third parties, and that such harassment can encompass sexual assault and rape. Title IX, they note, also reaches same-sex harassment. Based on the grand jury presentment, Grossman and Brake detail the allegations at issue. Based on Supreme Court precedent, they explain why the alleged conduct at issue could fit within the parameters of Title IX.

The Reasons Why Herman Cain Has Not Been Able to Talk His Way Out of His Exploding Sexual Harassment Scandal

Justia columnist and Hofstra law professor Joanna Grossman comments on the Herman Cain sexual harassment scandal from a legal, rather than political, point of view—based on what is known so far, and on Cain’s own comments regarding sexual harassment. Grossman recalls Cain’s negative remarks about the Civil Rights Act of 1991, which strengthened discrimination law, and she explains in detail how discrimination law, and sexual harassment law in particular, have improved the situation of women in the ensuing years. She also takes issue with Cain’s suggestion that speaking to someone cannot be sexual harassment—pointing out that if the words that are spoken connect job benefits with sexual favor, speaking them is the very epitome of sexual harassment. In addition, Grossman notes that harassment by someone who is the head of a company, as Cain has been, triggers different and harsher rules and heightens the risk to the company. Finally, Grossman questions Cain’s claims that he was adept at line-drawing in this difficult legal area, and may only have had a problem with “over-complimenting” women. She notes, too, that the law sees things not from the point of view of the alleged harasser, but of the victim and of a reasonable person in the victim’s place. Worst of all, Grossman, argues, is Cain’s contention that the claims against him were fabricated; fabrications, she points out, are extremely rare in this area of law, making the multiple claims against Cain especially damning.