McGinley Employs Empirical Methodology in Law Research

Professor Ann C. McGinley’s pioneering empirical approach to the analysis of law is illustrated nicely in a paper she presented along with her co-author Mitu Gulati from Duke Law School in September 2009 at the Searle Center for Political Science and Law at Northwestern University School of Law.

The paper discusses an effort by McGinley and two colleagues seeking to discover how case law translates into the understandings and behaviors of actors on the ground. After conducting approximately sixty-five interviews during a twelve month period in 2008-09 in the Las Vegas area, they found scant evidence that either the language of case law or its outcomes mattered much for local actors. Instead, they learned from interviewing employees as potential litigants, potential plaintiff and defendant lawyers, state and federal judges, government officials, and human resources personnel that outcomes mattered a bit more.  This significant finding questions to a noteworthy degree the centrality of some court opinions to influence behavior on the ground.

They operationalized their investigation by focusing on a 2006 en banc decision of the Ninth Circuit Court of Appeals. Jespersen v. Harrah’s Operating Co. addressed a claim under Title VII, the federal antidiscrimination law. Darlene Jespersen, a bartender at Harrah’s Reno Hotel & Casino for almost 20 years, challenged her employer’s policy requiring female employees to wear makeup. Harrah’s fired her after she refused to comply.

Since the same requirement was not imposed on men, who were required only to shave and keep their hair cut relatively short, the case appeared to be a classic instance of gender discrimination, but Jespersen lost her appeal. Although the political science community that studies courts showed little interest in the case, legal academics viewed it as important, and it soon was entered into the major casebooks on employment discrimination and gender issues, and it generated hundreds of pages in law review articles.

What interested McGinley and her colleagues, however, was that, even though Jespersen lost, the court’s opinion suggested in contrast that a costume unduly stereotyping women as sexual beings likely would violate Title VII. Recognizing this assertion as a game changer, they reasoned that it could increase the risk of litigation losses for casinos because cocktail servers are required to wear uniforms explicitly designed to be sexualized.  If so, then it would follow that plaintiff lawyers would seek to take advantage of the court’s ambiguous language to create more work for themselves.

Although the result of the interviews cannot be used to assert that case opinion language or outcome does not influence local actors, it does suggest that other factors may be more important. These factors include, for example, employees fearful of being black balled and concerns by plaintiffs and attorneys that damages from a successful suit would be minimal.  They also worry that casinos were likely to invest significant resources in a case that appears to threaten their bottom line.  Nevertheless, their findings are more than a little surprising because they reveal the lack of importance assigned by local actors to factors scholars in the legal academy spend enormous energy arguing about: the relative importance of opinion language versus case outcomes in appellate cases.  In short, the language used by appellate judges and what they decided were not as important as more practical matters.

Next on the empirical research agenda for McGinley and her colleagues is extending this kind of inquiry to the casinos in Atlantic City and to those on the riverboats in Mississippi.

McGinley’s nascent interest in empirical research as a tool for analyzing the law can be seen in two recent law review articles.  In a 2009 law review article (Hillary Clinton, Sarah Palin, and Michelle Obama: Performing Gender, Race, and Class on the Campaign Trail, 86 Denver U.L.R.709), McGinley uses the work of social scientists, both empirical and theoretical, and applies their work to an analysis of law and culture when addressing the question of how white women and women of color can successfully perform their gender and racial identities in the public arena.

She concludes that, although the efforts of these three women have moved all women one step closer to equality in the national political scene, women's identities as aspiring political leaders continue to be problematic because they require women to negotiate a double bind: if they are too feminine, they are deemed incompetent. If they are too masculine, they are considered not likeable.

“The important question,” she writes, “is whether the country will accept women without requiring performances that volley back and forth between feminine warmth and masculine toughness. They still suffer from the double bind, and must negotiate the fine line of acceptable identity behaviors.”

One thing we do know: “second wave” feminism is dead, rejected not only by men but also by women in the electorate. To the extent that “second wave” feminism imposed rigid restrictions on women to behave like men, perhaps this is not a bad thing.

A year earlier, in another law review article (Creating Masculine Identities: Harassment and Bullying 'Because of Sex,’79 U. Colo. L. Rev. 1151), McGinley also employs the widely recognized theories of major social scientists by using traditional masculinities and new bullying research to understand the gendered nature of bullying when the behaviors are not overtly sexual or gendered.

She writes, “Permitting severe or pervasive harassing behavior that is intentionally gendered or that disparately affects women and/or men who are not sufficiently masculine contravenes the purpose of the statute and prevents Title VII from fulfilling its promise of equality at work.”

“Courts should recognize that severe or pervasive misogynist behavior in a previously all-male workplace creates a hostile work environment for women entering the workplace because of their sex,” she concludes, “even if the behavior is not specifically directed at women.”

In addition, she asserts, “They [courts] should also conclude that group behavior that harasses individual men who fail to conform to masculine norms occurs “’because of sex.’”

Third, she states, “Hazing and horseplay, when they are sufficiently severe or pervasive, can occur because of sex and should be prohibited when they do . . . [and]finally, gender- and sex-neutral harassing behavior directed at men or women because of their sex should be illegal if it is sufficiently severe or pervasive to alter the terms or conditions of employment.”