Amherst Reads Transcript

Ellen McDermott: So, I’m Ellen McDermott, Amherst class of 1990 talking today to Joanna Grossman, also class of ’90, about her new book “Nine to Five: How Gender, Sex, and Sexuality Continue to Define the American Workplace”. Hi Joanna.

Joanna Grossman: Hey Ellen!

EM: [Laughs] How are you?

JG: I’m doing well, happier now that I’m talking to you.

EM: Awesome. Well, Joanna and I have been friends for nearly thirty years, first at Amherst, then we were roommates in DC, now that we live in Dallas and New York City respectively we see each other on social media every day, and in person whenever we can. Joanna is the Ellen K. Solender endowed chair in Women and the Law at the SMU Dedman School of Law. She has co-authored numerous books, including Inside the Castle: Law in the Family in 20^th century America, and Gender Equality: Dimensions of Women’s Equal Citizenship. Her latest book, Nine to Five, is a compilation of her writing over the last fifteen years, for Find Law and Justia, both online publications of legal analysis and commentary. So, Nine to Five is such an obviously good book title for the book, since Nine to Five is shorthand for work generally. But it’s also a reference to the film Nine to Five, which stars Lily Tomlin, Dolly Parton, Jane Fonda, and Dabney Colman, as you discuss in the introduction to the book. I saw that movie not too long ago, and… while on the one hand, it’s like completely over the top in terms of just how awful the discrimination and harassment is - you have Dabney Colman literally chasing Dolly Parton around his office – while reading these essays, it became clear that actually things are still pretty bad in a lot of workplaces.

JG: And that’s absolutely not only what motivated the title of the book, but the book itself. I saw Nine to Five when it first came out, and my only memory of it was that it was funny, it’s a farce, it’s supposed to be funny. And it is funny, but thirty years later, when I went back to it as a person who had now spent a lot of my life writing about discrimination law, writing about women’s issues… all of a sudden it didn’t seem that funny. And I thought instead it was in fact a brilliant feminist statement. When I looked back and looked into the movie, that’s actually kinda how they intended it. They actually didn’t… they intended it to be funny but they intended it to be a sort of feminist statement about work. So the hard part was coming back and realizing as you said, a lot of time has passed and maybe work’s not that different. One amazing thing, if you have the time to go back and look at the movie, is how many women’s issues are packed into--

EM: [Laughs] Right.

JG: There’s this one scene a the beginning where it’s just like they’re reading from index cards. Like, oh make sure you mention sexual harassment and mansplaining! And, uh, policies that hurt women because of pay, and flex time, or… I mean there’s not one issue that they don’t mention--

EM: That they don’t hit, right.

JG: And I had kind of the same reaction to my own… you know, when I was thinking about putting these essays together because I wrote them over such a long period of time, my sort of initial take was “you know, I wonder if there’s a book here”. And literally the first thing I did was go back and print out every essay I had written online that had anything to do with women and work. Pretty broad, pretty general. And when I started piling them up and categorizing them, that’s when I realized… wow, things are still pretty bad, because I’ve got all those categories covered, too. And so in writing the book, I had the same reaction you did in reading it. People need to understand we’re not there yet, wherever there is, we’re not there.

EM: [Laughs] Right. There’s an essay early on in the book, it’s got a great title, called “Too Hot to be a Dental Hygienist”. And that’s actually only from 2013, which surprised me in reading it because it seems like something that could have happened, or would have happened, 40 years ago. You refer to that case again recently, in an article you wrote just a few weeks ago, when Vice President Pence revealed he does not dine with women alone. Could you talk a little bit about that case?

JG: Sure. So the dentist case… was sort of shocking, in part because it was in 2013, and as you said, you would have expected it to be earlier. And in part because every aspect of it was shocking. So I’ll give you a little flavor of the facts for people who haven’t read it. So it’s a specific case in which a dentist ran his own office as they often do, he had a hygienist working for him for over ten years, so she’d been there a long time. He’d go on to say she was the best hygienist he’d ever had, that he had no complaints about the quality of her work, about her professionalism, about any single aspect of her job. And yet he fired her. So why did he fire her? The story was that he found her very attractive, and he initiated a lot of… sort of sexually laced banter, some explicit, some not so explicit. And she mostly didn’t respond. A lot of it was in text, a lot of it was very discoverable, and it was really coming from him. He would make a lot of sexual comments, he would ask her about her sex life, he would comment about how hot she was, about how she wasn’t sleeping with her husband enough, that was like having a Lamborghini and never taking it out of the garage… and what happened? Well, his wife found his phone, she worked in the dentist office also, and read some of these texts, and got alarmed. And that led to a series of events, they had a meeting with the family pastor, and the pastor agreed with the dentist that it was the best thing for his marriage for him to fire his hygienist.

EM: Right.

JG: So he did. Now they were both married, and neither one had… it was quite clear they had never had an affair, they had never engaged in any kind of sexual or romantic relationship of any kind… so her husband called the dentist and said: why did you fire my wife? She’s done a great job, and he said, oh she’s wonderful, I just can’t have her around because it’s gonna ruin my marriage. The interesting thing was it wasn’t just, my wife is jealous and it’s irrational but I have to calm her down, it was, he said, I’m afraid I will try to have an affair with her if I don’t remove her from the work place. So the facts were shocking, but really what’s shocking to me as a legal scholar, as a lawyer, was that at the Iowa Supreme Court, which is where this case ended up, the court bought it. The court said, well, what do you expect him to do? Here’s a married man, he consulted his pastor, he’s trying to do the right thing. He’s trying to save his marriage. But of course at the expense of her workplace opportunity, her right to equality, her right to be judged on merit which is what women have been fighting for for decades, and that just gets lost and the court sort of says, you know, we can understand why he did what he did and completely disregards the fact that he’s violated Title Seven law and violated Iowa anti-discrimination law.

EM: Right, and then she has no recourse after that, after the Iowa Supreme Court says that, essentially.

JG: Yeah, this particular case was brought under Iowa discrimination law, there’s a… in discrimination law there’s kind of a parallel set of rules in the federal system and the state system, they say more or less the same thing, so this particular case was litigated under an Iowa law, and a state supreme court is the final arbiter of what any state law means. So when that Iowa Supreme Court says, we understand what he did and we don’t think it’s discrimination... that’s it. She’s out of a job, she talked to a reporter afterwards and said “he complained that I looked too hot to be a hygienist, and just so you know, I never wore anything other than t-shirts and scrubs to work”. Just sort of cementing the fact that there’s literally nothing she could have done to have repaid her right to have this job, that it was all up to him.

EM: And you know, in that case, a dentist’s office, maybe there’s five, ten employees, and it’s amazing that we, in some ways, that she brought the case at all, because it sounds like the pastors are involved, it may be a small town, kudos to her for even bringing the case. But then, you have the more recent instance of hearing that vice president Pence won’t have dinner alone with a woman. Because, in his marriage, he and his wife have decided that that’s potentially a risky endeavor. And as you have pointed out, that is actually discriminatory. Because men have dinner potentially with him all the time, and are therefore in a position to advance in the workplace.

JG: And if you think about the workplace, the modern… one misleading thing about my book, I don’t like to say there’s a misleading thing but… the idea of “nine to five” as a proxy for work, is misleading particularly for lots of women because nine to five is not when all work happens. First of all, women are more likely to work shifts, and to work nights and part-time and to have unusual schedules. But it’s also not when work happens also when you do work nine to five, it’s not the only place work happens. When you want to work in particular areas, lots of sectors of the labor force, work is about networking. Work is about being available. Work is about being able to travel. Work is about being able to get to know the people above you, so that they pull for you when openings come up. So this sort of artificial rule that was quoted from an old interview with Pence, but which a lot of congressional representatives and other sort of higher-ups on the hill seem to maintain as a current policy, just sort of doesn’t reflect that reality. And this idea that there would be no employment consequence to say, for example, women can’t be the only staffer on an evening event, or women can’t travel alone with a congressional representative, because of the fear of a false allegation or the appearance of propriety. That actually is cutting off their opportunity to succeed. That is, in fact, sometimes how things happen. I quote in that op-ed this line from Hamilton about sometimes things happen over dinner, sometimes business happens over dinner, which just sort of stuck with me, because sometimes no one is in the room when it happens but that’s in fact where you need to be to be good at your job. So for men to have a rule that says, well, I need to protect my marriage, and so if I have to throw your employment opportunities under the bus so be it. My personal safety and morality is more important. That’s simply not acceptable in our current world.

EM: Except, of course, it is! You said after you wrote that op-ed, you got a lot of negative responses from people saying, hey, he’s well within his right to have these rules for himself. So the law may not be on his side, but in a lot of ways culture still is. Which is, sort of depressing to think about, I guess--

JG: Culture is definitely on his side, and I will say this, it was a sort of strange experience to get… in some cases even threatening e-mails from people, in some cases just rude with lots of profanity, or people blaming me for the thirty five year old breakup of their marriage ‘cause their wife slept with the boss after dinner… but it does really bring home how much people don’t accept this fundamental tenet of anti-discrimination law. Which is, what anti-discrimination law does, and it does this purposely, is take away some of the discretion that employers, including individuals in employment contexts, have over defining who’s there and what they’re doing and how they’re treated. That’s the whole idea of Title Seven, passed in 1964 in the height of the civil rights movement, was to say… you know, the way you intuitively behave is not working. You’re not hiring blacks to do certain jobs, you’re not hiring women to do certain jobs, you’re paying them less, you’re treating them badly. So anti-discrimination law is supposed to override business decisions sometimes. Not always, but it’s supposed to set a minimum that says, you know, there are costs and benefits of what you’re doing, and if one cost is that you’re denying equal opportunity to a particular class of workers that’s been historically disadvantaged, that’s in fact not okay. But as you say, the culture might not really get that or accept that the way that the law accepts that. And I think that’s hard, because I’m a lawyer, I have a lot of faith in the law, I have a lot of faith in courts and doctrine and the Supreme Court, and the truth is, some of these things… these are battles that need to be fought at the dinner table and at the water cooler, about who belongs, about who has the right to really be integrated and really be an equal player. And at some level, there’s only so much the law can do. It can lay down the principles, but if people don’t accept that sometimes your own personal morality doesn’t override somebody else’s rights, that’s actually a very hard thing to move the ball on.

EM: Right, right. And it really feels like we’re in a moment where that’s been made very clear, again. Maybe we felt a little bit differently a few years ago, and all of a sudden we’re in a different moment. So another case… the dental hygienist case is about sex discrimination, you also discuss sexual harassment cases in the book, one case that was interesting to me was the California prison case, which was about whether sexual affairs that then lead to favoritism of the subordinate who’s engaging in the affair with the supervisor, whether that can constitute sexual harassment. In that case, I think that the plaintiffs were actually not the subordinates who were having the affair with the supervisor, but subordinates who were NOT having an affair with the supervisor. Can you talk a little bit about that?

JG: Sure. And that guy is one of my favorites. I always, when I teach… in gender law, but also in family law, I always have sort of a full [inaudible] for every principle I teach or every doctrine, and for sexual favoritism absolutely that California prison warden is my guy. And he… I’ll tell you a little bit about the facts of the case. He ran this prison like his own personal episode of Bachelorette. He had three women he was involved with, his first act was to have them all transferred under him so that they were his subordinates specifically, they didn’t start out that way. He carried on simultaneous affairs with all three of them, and then did things to sort of bait them into fights. He’d say to one: you know, I’m actually really more into woman behind door number 2, and I’m actually gonna give her that promotion I promised you. So with the women themselves, he was promising favors, giving them out, you know… linking very much their work place to what was going on in their sexual relations. But as you point out, the case was actually brought by the rest of the workers, who were complaining about sexual favoritism. And that’s actually a hard claim in anti-discrimination law, because things don’t violate Title Seven or the state equivalent unless they discriminate because of a protected characteristic. So why is sexual favoritism hard? Well, who does it hurt? The women who aren’t sleeping with him might say, well, it hurts me because I feel like I should sleep with him in order to get a promotion. And that’s imposing an implicit condition on me, so that’s one kind of a claim. Now, the men are upset too, though. Because the men say, well, he doesn’t want to sleep with me, right, I’d like to be promoted also, or to have extra days off or whatever perk he’s willing to hand out, but he’s not offering them to me, because I’m a man. So maybe that’s because of their sex, if they were women he might harass them too, or might sleep with them too. But there’s no way in which they’re all discriminated against in the same way, so it’s been a hard thing for courts to figure out, of what actually is the discrimination. So they’ve come up with, thanks to the Equal Employment Opportunity Commission - the EEOC, which helps interpret Title Seven and enforce Title Seven – so they came up with a standard that said, basically isolated incidents of sexual favoritism, meaning giving of some kind of job benefit to a paramour, that does not obviously violate an anti-discrimination law. But if you have so much sexual favoritism that basically the workplace is transformed into a place where sex is relevant to the decision making, implicitly, explicitly, or where it’s just clear that the way to get ahead in this workplace is by sleeping with the boss, then that can be actionable because you really have changed the environment, and it really is because of gender of participants. And so this was a good case to sort of say…’cause there’s always this question of, well, how bad does it really need to be for it to go from isolated to widespread? And the court was able to say, you know what, we don’t know exactly, but this is widespread. This entire workplace revolved around this guy’s sexual predilections, and his relationships. And if we know nothing else, we know that anti-discrimination law is not supposed to allow that. People with lesser facts have not done as well in these kinds of cases, but he kind of stands out as the example of, alright, this is what it means to go too far.

EM: Right. Right, right. Speaking of going too far… [laughs] Just in the last couple of weeks, we’ve had not the first but the second major sexual harassment scandal unfold at Fox News, this one involving Bill O’Reilly. And what was amazing to me about this one, was first of all, how incredibly pervasive it seems to have been at that network with O’Reilly and others, but also just how willing the network was to use money to set these women up for a really long time, and into the millions and millions of dollars. And that… that shouldn’t be allowed, somehow? But as long as they can buy people off with a lot of money, I guess that’s really what it comes down to with these cases, the only reason the Bill O’Reilly case really led to his downfall was because advertisers were pulling him in reaction to this. But not because of the behavior itself.

JG: Yeah, well, it’s interesting. So the real turning point in this story is not the advertisers, although that’s what leads to his ouster, it’s the revelation that the settlements had taken place, which had been kept a secret. So if you’ll indulge me, I’ll back up a little bit--

EM: Yeah, yeah.

JG: -- and talk about how these cases started and why we didn’t know anything for so long. And why the advertisers just now learned and had the opportunity to speak with their advertising buys. So this is a case, not dissimilar from the situation with Roger Ales at the same network last year. But this is a case in which women had made complaints against O’Reilly, alleging a variety of types of harassment – some were verbal, some were physical, some were implied, sort of quid pro quo, sort of sleep with me or else, sleep with me and I’ll help you kind of thing – so there was a variety of different complaints from the very lewd to the sort of implied offers of benefits. And so what had happened, in each one of these cases what we now know but didn’t know at the time, somebody made a claim to Fox News, we don’t know how Fox News handled it internally in terms of, did they do an investigation, presumably they didn’t pay off everyone who made a complaint because that could get very expensive very quickly. So presumably they decided that there was some merit to this, or that it wasn’t worth finding out because they could get rid of it for a cost they were willing to bear. But what kept this all secret is two things: one is that Fox, like many employers, particularly larger employers, requires employees to sign forced arbitration clauses in their employment agreements when they’re hired. And what that says is, if I’m ever discriminated against and I bring a suit, I agree not to file a complaint in court and to allow the case to be heard by an arbitrator. Now what’s the benefit to the employer? Employers gamble, often correctly, that arbitrators are probably slightly less likely to find liability against the employer, and likely to impose lower damages, but the real benefit is that it’s not public. So those are not public records, those are not court records, so that can all be done in secret. And, these cases actually never got to arbitration, but the women didn’t have… they knew if they pursued it, it’d have to be an arbitration not court, and then what happens is when they’re offered a settlement there’s a gag order. So the settlement agreement says, we’ll pay you, in this case it was between 1 and 9 million dollars, each settlement, or a little under 1 and 9 million, but you have to agree that you’ll never speak of this again. You’ll never mention it, so it’s a gag order. So each woman settles, took her money, and then honored her commitment – her contractual commitment – they could have come after her for breaching the contract and tried to get the money back, so then it’s all secret. When there’s one claim like that, it goes away. Well then there’s another, then there’s another, then there’s another… in this case, there’s five. So what happens is the New York Times did an investigation finding out about these payoffs, and publishes an article just a few weeks ago saying hey, in case anyone’s interested, there have been five settlements about Bill O’Reilly’s sexual harassment that have totaled 13 million dollars in payouts, and that’s when people started to complain, when people started to talk, then there were more complaints that started to come out of the woodwork, new complaints… and that’s when the advertisers said alright, that’s enough. Had the New York Times never found that information, or never published it, we still wouldn’t know. They would still be making this calculation, you know, is it worth 13 million dollars to keep O’Reilly and get rid of this woman? Yes. Because O’Reilly was their biggest star, he was bringing in millions of dollars certainly beyond what these settlements were costing, tens and hundreds of millions beyond what these settlements are costing. And you started out by saying, well, that shouldn’t be how it works. I certainly agree, but… in large part, it is. That if you’re willing… first of all, you have the kind of money to play with where you can just reduce it to a simple cost-benefit analysis, that’s what they did. Now that’s supposed to work that way, because employers under sexual harassment law, which is a kind of intentional discrimination that’s illegal under Title Seven as well as those state laws we mentioned, employers are liable for harassment that happens in the workplace, depending on who harasses and what they do, and I won’t bore you with all the specifics, but somebody like O’Reilly… he’s a supervisor harassing people who are subordinate to him. At a minimum, Fox News is supposed to be liable if he does those things… they’re supposed to be automatically liable, unless they can show that they have taken reasonable effort to prevent it in the first place, even if they failed, and to respond to it once it happens. And if you look at the whole weight of what happens at Fox, from what we now know, which is probably more than what ever wanted to know about what happens at Fox News… they would never meet that test in court. They would never be able to show. Harboring a harasser and paying off his victims, you know, is certainly not evidence of reasonable efforts to prevent future harassment or reasonable responses to complaints. So it should have caught up with them. But it should have caught up with them in court, but by virtue of what they had been doing they had been able to kind of avoid that consequence.

EM: Right. So I kind of want to pursue that a little bit, in terms of these forced arbitration clauses in their employment contract, I mean obviously that’s legal. But why is that actually legal? For you to sort of sign away your rights, in a way? Or are you not signing away your rights and that’s why it’s…

JG: Yeah, so, it’s complicated. This is an issue that’s been in the courts for a long time, and it took a long time for the employers to win on this point, and for the Supreme Court to finally say that these kinds of clauses were enforceable. Because certainly our initial intuition, and probably mine still, is that it’s not appropriate, because people don’t understand what they’re giving up at the time they’re hired, and they don’t have any bargaining power. So, are you not going to take a job in order to bargain for your future right to sue the employer for something that hasn’t yet happened, and that you expect will never happen? There’s not a good… equality of information or power, there. But nonetheless, over time, we’ve ended up with this very business-friendly Supreme Court, and over time the court reached the point to say, you can… pre-agree, right, to arbitrate discrimination claims. So, are they giving up their rights? They’re not giving up their substantive rights, right, you still have the right not to be discriminated against on an unlawful basis, so you have the same substantive rights, it’s just the form – you have to pursue it in arbitration rather than court. Now as I mentioned earlier, in fact arbitration tends to be more employer-friendly than employee for a variety of reasons, including that the employers know the arbitrator and pick the ones that they think are gonna be friendly. So you’re not giving up your rights, I think is where they left it. The other thing that should have happened, or maybe would happen now in a case like Fox, is the EEOC - which is in charge of enforcing the nation’s federal employment laws – can bring a suit independently, even if every individual woman has given up her right to sue in court, the EEOC has its own… its own standing. So it can bring a claim in court on behalf of women who have given up their rights to be in court, and that would be a natural sort of next step for this to happen. The other thing I might mention, is these forced arbitration laws… first of all, I think they are a problem. I think people do give up, in the end, rights, because the system’s just not gonna protect them. And one of the things that’s happened under the current new presidential administration is that they just withdrew an Obama era executive order that relates to this, and let me just quick explain how this is. So this order in 2014 said to federal contractors, you cannot have forced arbitration clauses for sexual harassment, sexual assault, or discrimination. And they did that in response to a GAO report that contractors – even ones that had been found already to have violated labor and anti-discrimination laws – were still being given new contracts with millions, sometimes tens of millions of dollars with no repercussions for the fact that they were trampling on the rights of their employees in violation of federal law. And the Obama order said, look, we shouldn’t be using tax money to fund employers who are openly violating our anti-discrimination laws, so that order--

EM: That’s reasonable, by the way. [Laughs]

JG: Reasonable, right? [Laughs] It always sounds so reasonable when I say it, right. So this order says one of the things you can’t do is impose these forced arbitration laws. Well, one of the first things that president Trump did that relates to work is to withdraw that order completely, it’s just gone. So now contractors can go back into imposing arbitration clauses.

EM: Right, right. So that was actually going to be my next question, y’know, it seems in a lot of ways that under the Obama administration, he and they prioritized more employee-friendly legislation and regulation to the extent possible, and you’ve already talked about one way in which the Trump administration is… setting a new course. So, do you feel like we are going to see more of that dismantling specifically in this arena of the Obama years’… progress, really?

JG: I do expect to see dismantling, and in ways that are really harmful and might have lasting effects. So one will be the piecemeal withdrawal of executive branch orders. So some of that’s executive orders coming right from the president, like the one we just talked about. Some of it is at the agency level. So federal agencies are charged – depending on the agency – with interpreting and implementing the law or laws that they are under, for which they exist. So the EEOC – just to give an example – the EEOC, first of all, has priorities that are dictated by the executive, by the president. So what they’re going to pursue as enforcement priorities, what kind of strategies, what kind of cases they’re going to zero in on, what kind of goals they’re going to set for themselves… that all comes from the top. The Obama EEOC was extremely strong, they were very proactive, they did a lot of research to try and identify areas that were not getting enough attention, kinds of discrimination that seemed to be proliferating at unusual levels… and they went after them. And they developed strategic priorities, and strategic plans, to try to achieve certain goals to promote equality. So one thing you’ll see - as you would see under any… often any Republican president – is just the scaling back of enforcement priorities. The EEOC will just do less. And they might do different things, also, but they will just do less. They will not proactively try to either make the law more robust, they will not enforce it as much, there’s a hiring freeze at the federal level so the EEOC won’t be able to staff empty positions so they will just have fewer people doing the things they do… and they also will do something that’s more damaging which is withdraw agency interpretations. Agencies issue documents that say… this is what we think pregnancy discrimination is, and here’s when you’ve violated it. So they’ll go through – and we don’t know which ones will go – but they will go through and withdraw those. And that effects how everyday employers operate, because they operate at least in the shadow of the law normally. So they understand, if the EEOC thinks this is pregnancy discrimination, I gotta watch myself when I’m behaving in this way. So the more of those formal documents that come off the book, the less employers have an incentive to change their own policies or practices. And I don’t expect anything to happen in Congress… although very little happened in Obama’s congress, because he didn’t have a congress that shared his goal, so he was sort of frustrated in trying to put forward some civil rights initiatives, particularly on paycheck fairness and trying to get rid of pay discrimination, it just didn’t happen. But certainly not going to see any of that. But I do think we’ll see some pretty damaging rollbacks of the current protections.

EM: Right, right. And the thing is, you know, we talked earlier about law and culture not necessarily being in alignment… but, when you specifically withdraw this guidance on the law, that has an adverse effect on the culture, which makes it then even harder for people to be in these situations, so--

JG: Right, I mean, law can be used as sort of a sword of saying, look, this is where the law is, you need to catch up, but if the law comes back… then--

EM: Then there’s no incentive.

JG: Right.

EM: Great. [Laughs] Okay, well, that’s a cheery thought.

JG: Well, that’s kind of depressing, and…

EM: [Laughs] It really is. But that will probably give you a lot more to write over the course of the next four years. I mentioned at the beginning that Nine to Five is a compilation of essays you wrote for FindLaw and Justia, which are both online publications. Can you just talk a little bit as we wrap up here about why these outlets in particular have been good for you, in discussing these types of cases?

JG: Sure. And I came to online commentary relatively early in the game. I started writing in the year 2000, which it’s hard to even remember back that far--

EM: [Laughs]

JG: It just really was a long time ago, it’s like seven or eight years before the iPhone was invented. And I started writing… a friend of mine was editing a new thing she called an internet magazine, and said, you know, would you like to contribute something once in awhile. And I thought okay, I don’t know why, because how on earth was this gonna help anybody… And what I found over the years, I started doing it and then I liked it. One of the main benefits for me as an academic is you actually have readers. Which… I had a bit of an existential crisis early in my academic career, ‘cause I like to write, I don’t dread it at all, I really enjoy it, but I read a story once that said 63% of law journal articles – which is mostly what law professors do – are never cited. Like not even once. And I thought… what am I doing this for? Who am I writing for? So one of the immediately gratifying things about writing online is, of course, people are online and they read it and you get to write about it when it happens, not with an 18-month publication delay. So something happens in the morning and by six o’clock that night, you could have had your two cents. So you feel very immediately involved in what’s going on, and law is fast. There’s a lot going on. So it’s been great for me to be in touch at that day-to-day level. But the really nice thing for me is just been to sort of reach other people. I have no desire to talk only to law professors. You know, I like talking to them, they’re my friends. [Laughs] I find them interesting. But I love that my readers include the litigants in actual cases, who sometimes will call me up or send me an e-mail and say, hey, let me tell you more about this. Or the harasser in a case, or the discriminator in a case, who will e-mail me and say, hey do you have a few minutes so I can explain to you why I’m actually not a racist? Or a judge, who will e-mail me and say… I think you were a little unfair to me when you said I punted on this issue, it really wasn’t before us. So there’s just this really accessible nature, and that’s also helped me substantively in terms of how I write, and I think over the years I have become much much better at speaking to real people and writing for a general audience. And I think it’s refreshing. I think when people look at something and hear it’s ‘legal commentary’ they think it’s gonna be jargon-y and boring and hard to understand, and I kinda pride myself on… not doing that. On really being able to take something, situate it, explain it, here’s why it matters, and here’s what else we should be looking at. So it’s just been an incredibly important part of my professional life to have this outlet, and to have these sites that are willing to make this happen. And it’s become, of course, more common, everybody writes on the internet now. But they didn’t used to, and I feel so lucky that I came into my profession in a time that this opportunity presented itself, and it was such a good fit for the way I think about things and the way I operate. I feel very lucky, and I plan to do it forever.

EM: Great. Well, I found these essays incredibly readable, and I’m not a lawyer. [Laughs] Getting back to the Nine to Five movie, Jane Fonda once said that she would do a sequel to Nine to Five if someone wrote the right script and sadly no one ever did, but that it should be called Twenty Four Seven.

JG: Uh-huh. [Laughs]

EM: I think that should be the title of your next book.

JG: And if they make it into a movie, then it’s all about who plays me.

EM: That’s right. [Laughs]

JG: Right?

EM: Right.

JG: When I was a teenager, I always thought Nancy McKeon was the actress, from Facts of Life, who looked most like me.

EM: Absolutely, yeah--

JG: And I don’t know if she still has the star power, but I feel like I would be okay with it.

EM: [Laughs] That sounds good. When the movie comes out, we’ll do another one of these calls. [Laughs]

JG: Excellent.