Friday, October 21, 2016

Assistance Animals in Australia

KangarooSpeakers at a workshop in Queensland predict that employers Down Under could soon see a sharp increase in employee requests to bring service animals to the workplace. Per Disability assistance animals or not? Problems in policy and practice workshop: Summary and Scoping Discussion Paper, with Paul Harpur, Martie-Louise Verreynne, Nancy Pachana, Peter Billings and Brent Ritchie:

Employers of the one in every five Australians that have disabilities could face increasing demands to bring "assistance animals" such as dogs and miniature horses into the workplace, a workshop heard recently.

Speakers at the workshop on the issue at the Queensland Supreme Court on September 27 said that recent court rulings and an uncertain regulatory regime have made it difficult to determine or challenge whether a worker is entitled to bring such an animal to work.

Former disability discrimination commissioner Graeme Innes told the forum that four million Australians have disabilities that would give them protection under the Disability Discrimination Act.

Speakers at the workshop suggested while most of these people might not generally regard themselves as disabled, the existence of a medical condition usually enables such a person to assert they have a disability within the meaning of s4 of the Disability Discrimination Act.

They said it would be "relatively easy" for most of those people to claim an animal accompanying them was an assistance animal protected under section 9 of the Act, according to the chief investigator appointed by the workshop, Paul Harpur, a senior lecturer in the University of Queensland's TC Beirne School of Law.

A scoping paper circulated at the workshop – Disability animals or Not? Problems in policy and practice – said the Act defines assistance animals as those that are trained to help a person with a disability to alleviate the effects of their disability and to meet standards of hygiene and behaviour appropriate for an animal in a public place.

It said courts had interpreted the definition broadly to encompass "a self-trained dog that has not been accredited by a recognised disability training organisation".

Continue reading

October 21, 2016 in Disability, International & Comparative L.E.L. | Permalink | Comments (0)

Wednesday, October 19, 2016

Halegua on Protecting Workers' Rights in China

HaleguaAaron Halegua (Research Fellow, NYU Law) is featured today in a Wall Street Journal article on Protecting Workers' Rights in China: Q&A with Aaron Halegua.


October 19, 2016 in International & Comparative L.E.L. | Permalink | Comments (0)

Cherry and Aloisi on "Dependent Contractors" in Canada, Italy, and Spain

    As some debate whether to add “dependent contractor” to the set of worker classifications ({employee, independent contractor}) in the US, a new working paper looks to the experience of Canada, Italy, and Spain: Miriam Cherry and Antonio Aloisi, “‘Dependent Contractors’ in the Gig Economy: A Comparative Approach (SSRN).  Here’s the abstract:

In response to worker misclassification lawsuits in the United States, there have been recent calls for the creation of a hybrid category in between employee and independent contractor specifically for the gig economy. However, such an intermediate category is not new. In fact, the intermediate category has existed in many countries for decades, producing successful results in some, and misadventure in others. In this article, we use a comparative approach to analyze the experiences of Canada, Italy, and Spain with the intermediate category. In our analysis we focus on a set of questions: Is labour law fundamentally outdated for the digital age? Does the gig economy need its own specialized set of rules, and what should they look like? What role does digitalization and technology play in the casualization of work? We ultimately conclude that workable proposals for a third category must also encompass other forms of precarious employment.

The paper itself surveys the law and legal commentary in Canada, Italy, and Spain.  It finds that Canada’s “dependent contractor” category, which originated in Arthurs (1965), succeeded in “expanding the coverage of laws aimed at ‘employees’ to encompass vulnerable small business and tradespeople." In contrast, Italy “saw systemic arbitrage between the standard employment category and the intermediate category,” which caused confusion and “a movement to strip workers of their rights by misclassifying them downwards.”  Meanwhile, in Spain, the category covers only a “tiny” portion of workers, because of “burdensome requirements and a seventy-five percent dependency threshold to enter the third category.” (p. 3).


--Sachin Pandya

October 19, 2016 in International & Comparative L.E.L., Labor Law | Permalink | Comments (0)

Monday, October 17, 2016

Lobel on the Gig Economy & LEL

LobelOrly Lobel (San Diego) has posted on SSRN her article (forthcoming U. San Francisco L. Rev.) The Gig Economy & The Future of Employment and Labor Law. The article is part of a duo – she has a longer article forthcoming in Minn. L. Rev. called The Law of the Platform which looks at a wide variety of sharing companies and their regulatory challenges. Here's the abstract of the Gig Economy article:

In April 2016, Professor Orly Lobel delivered the 12th Annual Pemberton Lecture at the 9th Circuit Court of Appeals. Lobel asks, what is the future of employment and labor law protections when reality is rapidly transforming the ways we work? What is the status of gig work and what are the rights as well as duties of gig workers? She proposes four paths for systematic reform, where each path is complementary rather than mutually exclusive to the others. The first path is to clarify and simplify the notoriously malleable classification doctrine; the second is to expand certain employment protections to all workers, regardless of classification, or in other words to altogether reject classification; the third is to create special rules for intermediate categories; and the fourth is to disassociate certain social protections from the work.


October 17, 2016 in Employment Common Law, Scholarship, Workplace Trends | Permalink | Comments (0)

Tuesday, October 11, 2016

Supreme Court Grants Cert in Pleading Case


The Supreme Court granted certiorari today in a pleading case, Zigler v. Turkmen, which involves the question of pleading discriminatory intent. Though the case arises outside of the employment law context, the decision may provide some guidance on what type of information is necessary for workers to include in a complaint when pleading a claim of workplace discrimination. From Scotusblog, one of the issues in the case includes:

"whether the Court of Appeals erred in finding that Respondents' Fourth Amended Complaint met the pleading requirements of Ashcroft v. Iqbal, and related cases, because that complaint relied on allegations of hypothetical possibilities, conclusional assumptions, and unsupported insinuations of discriminatory intent that, at best, are merely consistent with Petitioner Ziglar's liability, but fall short of stating plausible claims."

As we all know, Twombly and Iqbal have muddied the area of pleading in employment discrimination cases. Hopefully, the Court's decision in this case will (at a minimum) provide some clarity to this field. 

- Joe Seiner

October 11, 2016 | Permalink | Comments (0)

Friday, October 7, 2016

Eleventh Circuit: No ADEA Disparate Impact Claims for Job Applicants

    The Eleventh Circuit now reads the Age Discrimination in Employment Act (ADEA) not to let job applicants bring disparate impact claims.  Villarreal v. R.J. Reynolds Tobacco Co., No. 15-10602 (11 Cir., Oct. 5, 2016) (en banc).  The main reason concerns the text of section 4(a)(2) of the ADEA, which makes it unlawful for any employer

to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.

29 U.S.C. § 623(a)(2). The court, in a majority opinion by Judge William Pryor, reasoned:

By using “or otherwise” to join the verbs in this section, Congress made “depriv[ing] or tend[ing] to deprive any individual of employment opportunities” a subset of “adversely affect[ing] [the individual’s] status as an employee.” In other words, section 4(a)(2) protects an individual only if he has a “status as an employee.” . . . The phrase “or otherwise” operates as a catchall: the specific items that precede it are meant to be subsumed by what comes after the “or otherwise.”

Op. at 7-9 (citations omitted).  The court rejected the dissent’s several textual arguments to the contrary, and then refused to consider legislative history or defer to the EEOC’s interpretation to the contrary, because the statutory text is “clear”.  But cf. id. at 43-46 (Rosenbaum, J., concurring in part and dissenting in part) (pointing to legislative history to support the majority opinion’s reading).


--Sachin Pandya

October 7, 2016 in Employment Discrimination | Permalink | Comments (0)

Thursday, October 6, 2016

AALS Junior Scholars Program - Call for Papers

Brad Areheart (Tennessee) sends along a call for papers for the AALS Junior Scholars Works-in-Progress program.  The announcement is below:



Constructive Feedback. . . Supportive Environment . . .  Network-Building Opportunity

(A productive session designed for engagement on a current project with leaders in the field)

The AALS Section on Employment Discrimination Law and AALS Section on Labor Relations and Employment Law will host a joint program, New and Emerging Voices in Workplace Law, during the AALS 2017 Annual Meeting in San Francisco, California on Wednesday, January 4, 2017 from 3:30-4:45 p.m.  They are soliciting proposals for presentations now.  

Submissions should be in the form of a draft that is near or substantially completed relating to emerging issues in workplace law.  If the author would rather submit an Abstract and the Introduction of the article in response to this call for papers that is acceptable, to the extent it is sufficiently developed and detailed to offer the reviewers’ enough information to engage the thesis and organization of the project.  To facilitate valuable feedback at the session, we ask that the selected presenter(s) provide a substantial draft to the assigned readers by December 5. 

Full-time faculty members of AALS member and fee-paid law schools are eligible to submit proposals. This call for papers is targeted to scholars with seven or fewer years of full-time teaching experience.  Visitors (not full-time on a different faculty) and fellows are eligible to apply to present at this session.

To be considered, drafts and/or proposals must be submitted electronically to Professor Brad Areheart, University of Tennessee College of Law, at and Professor Michael Z. Green, Texas A&M University School of Law,  The deadline for submission is Friday, October 28, 2016. Authors of selected papers will be notified by November 7.  Call for Paper participants will also be responsible for paying their annual meeting registration fee and travel expenses.

Presenters will be selected after review by the Program Chairs of both sections. Any inquiries about the Call for Papers should be submitted to: the Program Chair for the Section on Employment Discrimination Law, Professor Brad Areheart, University of Tennessee College of Law, 865.974.6808 or  and/or the Chair for the Section on Labor Relations and Employment Law, Michael Z. Green, Texas A&M University School of Law, 817. 212. 4140 or"

This is a great opportunity for newer members of the academy, and I strongly encourage all of those interested to apply.

- Joe Seiner

October 6, 2016 | Permalink | Comments (0)

Halegua: Who Will Represent China's Workers?

HaleguaAaron Halegua (Research Fellow, NYU Law) just returned from spending a month in Malaysia with the ILO, working with the government to revise its labor laws to comply with TPP. Meanwhile, his report for the Ford Foundation has been released: Who Will Represent China's Workers? Lawyers, Legal Aid, and the Enforcement of Labor Rights. It examines the legal needs of China's workers, the landscape of legal service providers, and the remaining "representation gap" between legal needs and services--and offers some strategies to narrow it. It also has a lot of information and statistics on labor litigation there. Here's a summary:

In the past decade, China has made considerable progress in legislating new legal protections for workers, expanding their access to arbitration and courts, and paying for more lawyers to represent them. Nonetheless, in China, as elsewhere, labor violations persist and a substantial “representation gap” remains between legal needs and services.

This new Report ... provides an original and in-depth analysis of that gap—and strategies to narrow it. Based on over 100 interviews, observations of legal proceedings, and extensive documentary research, [the Report] examines the legal violations suffered by workers, the range of legal service providers, and how workers fare in litigation. Despite government efforts, problems with unpaid wages, social insurance contributions, workplace injuries, and discrimination endure, which increasingly lead to labor protests and strikes. Workers are also litigating more cases in arbitration and court, but statistics show that they are often unsuccessful.

Continue reading

October 6, 2016 in International & Comparative L.E.L., Labor Law, Scholarship | Permalink | Comments (0)

Wednesday, October 5, 2016

Worker Valuation of Alternative Work Arrangements

    How much of your wages would you be willing to give up for more control over what days and how much you work?  In a new working paper, Alexandre Mas and Amanda Pallais, “Valuing Alternative Work Arrangements,” NBER Working Paper No. 22708 (Sept. 2016), the authors conducted a field experiment to find out.  Here’s the abstract:  

We use a field experiment to study how workers value alternative work arrangements. During the application process to staff a national call center, we randomly offered applicants choices between traditional M-F 9 am – 5 pm office positions and alternatives. These alternatives include flexible scheduling, working from home, and positions that give the employer discretion over scheduling. We randomly varied the wage difference between the traditional option and the alternative, allowing us to estimate the entire distribution of willingness to pay (WTP) for these alternatives. We validate our results using a nationally-representative survey. The great majority of workers are not willing to pay for flexible scheduling relative to a traditional schedule: either the ability to choose the days and times of work or the number of hours they work. However, the average worker is willing to give up 20% of wages to avoid a schedule set by an employer on a week’s notice. This largely represents workers’ aversion to evening and weekend work, not scheduling unpredictability. Traditional M-F 9 am – 5 pm schedules are preferred by most job seekers. Despite the fact that the average worker isn’t willing to pay for scheduling flexibility, a tail of workers with high WTP allows for sizable compensating differentials. Of the worker friendly options we test, workers are willing to pay the most (8% of wages) for the option of working from home. Women, particularly those with young children, have higher WTP for work from home and to avoid employer scheduling discretion. They are slightly more likely to be in jobs with these amenities, but the differences are not large enough to explain any wage gaps.

Puzzled by the low willingness to pay for a flexible number-of-hours option, the authors posed the same choice to Mechanical Turk workers, and asked them to explain their choice. The Mechanical Turk workers are more likely to prefer flexibility.  Of those who preferred the M-F 9 am - 5 pm option, they “typically mentioned that they liked having someone else set the schedule and tell them how many hours they should work. They expressed concern that if they could choose it would be difficult to force themselves to work their desired number of hours.” (p. 14).


--Sachin Pandya

October 5, 2016 in Wage & Hour, Worklife Issues | Permalink | Comments (0)

Tuesday, October 4, 2016

Shnitser: ERISA's Foundation is Built on Sand

ShnitserERISA scholarship has the unfair reputation of being as exciting as drying paint, but this important piece of scholarship is quite the opposite. Natalya Shnitser (Boston College) argues that the model of donative trusts that underpins private employer pension plans is entirely inappropriate. Pension plans are not "gifts" -- they are earned wages, and should be given higher priority than a discretionary gift.

Natalya's article is Trusts No More: Rethinking the Regulation of Retirement Savings in the United States (forthcoming 2016 BYU L. Rev.). Here's the abstract:

The regulation of private and public pension plans in the United States begins with the premise that employer-sponsored plans resemble traditional donative, or gift, trusts. Accordingly, the Employee Retirement Income Security Act of 1974 (ERISA) famously “imports” major principles of donative trust law for the regulation of private employer-sponsored pension plans. Statutes regulating state and local government pension plans likewise routinely invoke the structure and standards applicable to donative trusts. Judges, in turn, adjudicate by analogy to the common law trust.

This Article identifies the flaws in the analogy and analyzes the shortcomings of a regulatory framework that, despite dramatic changes in the nature of modern pension benefits, still regards employees as gift recipients, grants both settlor and trustee rights to employers, and increasingly relies on trust-based fiduciary obligations to prevent employers from prioritizing the interests of their non-employee stakeholders over the interests of pension plan participants.

Today, the mismatch between the trust-based legal framework and the parties’ rights and interests has contributed to the high cost of pension fund investing, the significant gaps in pension coverage, and the underfunding of public pension plans. As such challenges force U.S. policymakers to reconsider how and how much Americans save for their retirement, this Article shows that long-term retirement security for U.S workers requires a fundamental reevaluation of the employer, employee, and government roles in the provision and management of retirement assets.


October 4, 2016 in Pension and Benefits, Scholarship | Permalink | Comments (0)

Wednesday, September 28, 2016

Big Data and the ADA

Hoffman_sharonaSharona Hoffman (Case Western) has just posted on SSRN her essay (forthcoming Hastings L.J.) Big Data and the Americans with Disabilities Act. Here's the abstract:

While big data offers society many potential benefits, it also comes with serious risks. This Essay focuses on the concern that big data will lead to increased employment discrimination. It develops the novel argument that the Americans with Disabilities Act (ADA) should be amended in response to the big data phenomenon in order to protect individuals who are perceived as likely to develop physical or mental impairments in the future. Employers can obtain medical data about employees not only through the traditional means of medical examinations and inquiries, but also through the non-traditional mechanisms of social media, wellness programs, and data brokers. Information about workers’ habits, behaviors, or attributes that is derived from big data can be used to create profiles of undesirable employees. It can also be used to exclude healthy and qualified individuals whom employers regard as vulnerable to future medical problems. The ADA, which now protects only individuals with current or past disabilities and those who are perceived as having existing impairments, can no longer ignore the discrimination threats posed by predictive health data. The Essay analyzes these risks and propose a detailed statutory response to them.


September 28, 2016 in Employment Discrimination, Scholarship | Permalink | Comments (0)

Stone Argues for a Workplace Sabbatical

StoneKatherine Stone (UCLA) just had her essay What Hillary Should Say published in The Huffington Post. The essay argues that Hillary Clinton should respond to Trump's critique of free trade by adopting any of several proposals to help American workers deal with discontinuities in their careers. Stone reviews several alternatives, and proposes one of her own:

My proposal is for what I call a workplace sabbatical — a program that would enable workers to accumulate time in the labor market – whether for one employer or multiple ones – that they could use to take paid time away off in order to improve their position in the labor market. They could use their time sabbatical to engage in training, entrepreneurial activity, changing jobs, public service work, or careworkfor dependents. It could also help cushion a bout of involuntary unemployment. The workplace sabbatical would be a right that the individual could invoke on an optional basis to navigate career transitions, thereby giving flexibility and security in an era of uncertainty.


September 28, 2016 | Permalink | Comments (0)

Tuesday, September 27, 2016

EEOC Launches Small Business Center


Earlier today, the EEOC initiated an online resource center for small businesses.  The resource is targeted specifically toward small businesses, with an eye toward helping them comply with federal anti-discrimination laws, which can often seem daunting and complex to new and small employers.  The resource includes tips, videos, answers to frequently asked questions, and other information on these laws.  From the EEOC press release on this new resource:

"The Small Business Resource Center (SBRC) . . . provides a user-friendly one-stop source for information on federal employment anti-discrimination laws. The Resource Center was designed for the busy small business owner who needs information both quickly and in a format that is easy to understand. In addition to providing general information on EEOC's laws and ways in which EEOC can assist small businesses, there are also answers to frequently asked questions, guidance in making employment decisions and tips for small businesses on a variety of potential workplace discrimination issues.

EEOC is also launching the first in a series of short videos for small business owners on frequently asked compliance questions. The videos feature EEOC employees from across the country addressing topics, such as responding to an EEOC discrimination charge, and many helpful strategies for small businesses to follow when they start the hiring process."

This appears to be a great resource for small businesses, and will hopefully lead to greater compliance with federal anti-discrimination law.

- Joe Seiner

September 27, 2016 | Permalink | Comments (0)

Thursday, September 22, 2016

Wellness Programs & The ADA


A recent federal lawsuit brought by the EEOC looks at the extent to which a company's wellness program falls within the insurance safe harbor provision of the ADA.  A federal district court in Wisconsin rejected the employer's motion for summary judgment in the case, and ruled that the program was subject to review.  From the government's press release:

"In the Orion lawsuit (EEOC v. Orion Energy Systems, Inc., No. 14-CV-1019 (E.D. WI)), EEOC argued that Orion required [the employee] to submit to medical testing as part of a wellness program or pay 100 percent of the premium for the employer-provided health insurance... The district court rejected Orion's safe harbor argument, and held that the plan was subject to ADA review. The court concluded that EEOC's recently issued regulations on the ADA's safe harbor provision were within EEOC's authority, and further held that the safe harbor provision did not apply even without regard to the new regulations. However, the court found that the wellness plan was lawful under the ADA because it concluded that the employee's decision whether to participate was voluntary under that statute. . . The court also held that there were issues of fact regarding whether [the employee]  was fired because of her opposition to the wellness plan, and indicated that the case would be set for trial."

The case provides an interesting perspective on the applicability of the ADA to wellness programs, and it will be interesting to see if other courts rule the same way on this issue.

-- Joe Seiner

September 22, 2016 | Permalink | Comments (0)

Wednesday, September 21, 2016

Bisom-Rapp on lifetime disadvantage for working women

Bisom_rapp_book_cover-1_240Congratulations to our friend Susan Bisom-Rapp (Thomas Jefferson) whose book (with Malcolm Sargeant, Middlesex Univ., London), Lifetime Disadvantage, Discrimination and the Gendered Work Force is available to pre-order from Cambridge University Press. It will be out September 30. From the press release:

In many countries, including the United States, women are significantly more likely to fall into poverty in retirement than are men. Understanding why this is so and what can be done about it is the aim of this new book.

"Susan Bisom-Rapp's scholarship tackles some of the most pressing real world challenges facing the modern workplace," said Thomas Jefferson School of Law Dean and President Thomas F. Guernsey. "I am delighted about the publication of her latest book."

Beginning in girlhood and ending in advanced age, "Lifetime Disadvantage, Discrimination and the Gendered Workforce" examines each stage of the lifecycle and considers how law attempts to address the problems that inhibit women's labor force participation. Using their model of lifetime disadvantage, Professor Bisom-Rapp and her British co-author Malcolm Sargeant show how the law adopts a piecemeal and disjointed approach to resolving challenges with adverse effects that cumulate over time.

"The problem unfolds over the working lives of women," said Bisom-Rapp. "Women's experiences with education, stereotyping, characteristics other than gender like race and age, caregiving, glass ceilings, occupational segregation, pay inequality, part-time work, and career breaks over a lifetime make it difficult to amass the resources necessary for a dignified retirement."

In order to achieve true gender equality, Bisom-Rapp and her co-author recommend a more holistic approach. Employing the concept of resiliency from vulnerability theory, the authors advocate changes to workplace law and policy, which acknowledge yet transcend gender, improving conditions for women as well as men.

"One must know the end goal – decent work and dignified retirement – and monitor progress towards it in order effectively address the problem," noted Bisom-Rapp.

The book is the culmination of nearly a decade of collaboration between Professor Bisom-Rapp and Professor Sargeant, who teaches at Middlesex University Business School in London. Beginning with a project that examined the plight of older workers during the global economic crisis, they have been struck by differences in workplace law and protections in their respective countries; the United Kingdom is far more protective.

Equally noticeable, however, are similarities in outcomes, including women's economic disadvantages in retirement. By examining why more protective law in one country coexists with comparable outcomes to the other country, the book reveals lessons for understanding a problem that is global in nature. At a time in which an aging population makes a retirement crisis a distinct possibility, and employment has become increasingly insecure, they recommend a regulatory approach that would enhance work life and retirement for all.

Susan and Malcolm have published a few articles related to these topics in the last few years in the Employee Rights Employment Policy Journal, the Elder Law Journal, and the Loyola University Chicago Law Journal. I can't wait to read more of their work.


September 21, 2016 in Books, Employment Common Law, Employment Discrimination, International & Comparative L.E.L., Labor Law, Pension and Benefits, Scholarship, Wage & Hour, Worklife Issues | Permalink | Comments (0)

Tuesday, September 20, 2016

Co-Authoring with Non-American Profs & Practitioners

TransnationalI just uploaded my most recent article, Transnational Employment Trends in Four Pacific Rim Countries, 34 UCLA Pacific Basin Law Journal ___ (forthcoming 2017) (co-authored with Lia Alizia, Masako Banno, Maria Jockel, Melissa Pang, and Catherine Tso). I mention this not because this is a groundbreaking work of legal scholarship, but instead to encourage others to consider co-authoring scholarship with non-American  faculty members and practitioners. This article, for example, had its genesis in a panel I served on at a LawAsia Employment Conference. I find it rewarding to bring together a disparate group of folks to pool their interest and expertise in topics related to labor/employment law, and a huge side benefit is creating relationships that can far outlast a specific project.


September 20, 2016 in Employment Common Law, International & Comparative L.E.L., Workplace Trends | Permalink | Comments (0)

Friday, September 16, 2016

Greene cited by Eleventh Circuit

Doris-Wendy-Green-new Congratulations to friend of the blog, Wendy Greene (Samford) whose article, Title VII: What’s Hair (and Other Race-Based Characteristics) Got to Do With It? was cited today by the Eleventh Circuit in EEOC v.Catastrophe Management Solutions.  Wendy's article was cited for its discussion of the socially constructed nature of race.

Wendy describes the case: 

In this case, CMS, an insurance processing company in Mobile, Alabama, rescinded an African American woman’s job offer to handle phone calls related to customer service support because she refused to cut off her locked hairstyle. Essentially, the employer made "no locks" a condition of employment for the applicant, though she was deemed qualified, interviewed and was offered the job with the hairstyle. And, apparently CMS’ human resources manager considered her hair well-groomed at the time of hire, yet remarked that the applicant’s locks might eventually become “messy.”  The HR manager told the applicant she would be unable to hire her if she did not cut off her hair; the applicant refused do so, returned her initial paperwork as requested, and left the premises. The Birmingham office of the EEOC filed a Title VII intentional race discrimination case against CMS. In doing so, the EEOC attempted to overturn over 30 years of legal precedent affirming the legality of natural hairstyle bans (except those involving afros). Largely drawing upon legal scholarship of U.S. employment discrimination and race and law scholars, one of the EEOC's primary arguments centered around the immutability doctrine; the EEOC advanced that a biological notion of race, which treats race as an “immutable” characteristic, should no longer be employed when interpreting Title VII’s prohibitions against race discrimination. Rather, the notion of race should be expanded to include both immutable and mutable characteristics. Thus, a grooming policy prohibiting natural hairstyles, like locks, braids, twists, etc., which are associated with African descendants—in law and society—constitutes unlawful race discrimination. 

Ultimately, the 11th Circuit declined to abolish the immutability doctrine in EEOC v. Catastrophe Management Solutions and held that CMS’ “no locks” mandate did not violate Title VII, as the EEOC would be unable to produce evidence that all individuals who adorn locks are Black or that only individuals who adorn locks are Black. Though the court did not rule in the EEOC’s favor, it did engage in a fairly lengthy dialogue about the meaning of race and competing arguments of notable race and law scholars. Aside from the exploration of race, this opinion may be of interest to proceduralists and those interested in the application of the Supreme Court’s decision in Young v. UPS, the (purported) demarcation between disparate treatment and disparate impact theories of liability, and statutory interpretation more generally. 

The opinion relied very heavily on legal scholarship for its analysis. In addition to citing Wendy, the opinion cites Ian Haney Lopez, Camille Gear Rich, Sharona Hoffman, Barbara Flagg, Richard Ford, Annelise Riles, Kenji Yoshino, Juan Perea, and Rhonda Magee Andrews in its discussion of what race is. Ultimately the court relied on what it believed Congress thought race was in 1964--a set of immutable physical characteristics--and its prior precedent. But the court's analysis went a bit further, too, considering the legal scholarship. The opinion expressed some concern about including cultural or behavioral practices as part of the identity protected by Title VII because those practices might vary by individual and change over time. The court was very uncomfortable with the idea that courts would have to decide what was an "authentic" part of a racial group's culture and what was not. Despite the court's reluctance to agree with many of the scholars it cited, the fact that the opinion considers this work so carefully is heartening. 


September 16, 2016 in Employment Discrimination, Faculty News, Scholarship | Permalink | Comments (1)

Thursday, September 15, 2016

Former Law Dean, Himself Accused of Sexual Harassment, Sues Berkeley for Race Discrimination

ChoudhryFrom National Jurist, via Paul Caron's Tax Prof Blog:

The ex-dean of UC-Berkeley’s law school has accused the university of racial bias in its aggressive response to sexual harassment allegations once they were aired publicly.

In a federal lawsuit filed Thursday in Oakland, lawyers for Sujit Choudhry argue that Berkeley has a long history of letting sexual harassment slide when white professors were involved. By contrast, the university has made Choudhry a “pariah” on campus, the suit alleges.

“By targeting Professor Choudhry, who is of South Asian descent and a non-U.S. citizen, the university hopes to deflect attention from its failure to meaningfully punish Caucasian faculty and administrators who were found to have committed appalling sexual misconduct,” the complaint says.


September 15, 2016 in Employment Discrimination | Permalink | Comments (0)

Doorey on Climate Change and Labor Law

Fellow blogger, David Doorey ( has just posted on SSRN a new article, A Law of Just Transitions: Putting Labor Law to Work on Climate Change. The abstract:

Climate change will dramatically affect labor markets, but labor law scholars have mostly ignored it. Environmental law scholars are concerned with climate change, but they lack expertise in the complexities of regulating the labor relationship. Neither legal field is equipped to deal adequately with the challenge of governing the effects of climate change on labor markets, employers, and workers. This essay argues that a legal field organized around the concept of a 'just transition' to a lower carbon economy could bring together environmental law, labor law, and environment justice scholars in interesting and valuable ways. "Just transitions" is a concept originally developed by the North American labor movement, but has since been endorsed by important global institutions including the International Labour Organization and the U.N. Environmental Program. However, the prescriptions that would guide a policy of just transition have been under-explored in the legal literature. This paper marks an important early contribution to this challenge. It explores the factual and normative boundaries of a legal field called Just Transitions Law and questions whether such a field would offer any new, valuable insights into the challenge of regulating a response to climate change.

This is definitely an intersection that we haven't heard much about, but as we can see from the politics surrounding trade and climate agreements, it's clearly one that it's important. 


September 15, 2016 in Labor Law, Scholarship | Permalink | Comments (0)

Wednesday, September 14, 2016

AALS L&E Sections Newsletter

Joey Fishkin & Joe Mastrosimone are co-chairing the labor and employment AALS sections this year and write to seek information for the joint annual newsletter. As someone who has had the pleasure of helping with this effort in the past, let me put in a plea on their behalf--please help out! The newsletter is only as good as the info provided for it, so at a minimum, fill them in on any relevant news for the year. Also, the case/legislation briefs are really helpful to readers, so please consider doing one of those as well. Joe & Joey write:

Dear Colleagues:

It is time once again for the preparation of a joint annual newsletter for the AALS Section on Employment Discrimination and the Section on Labor Relations and Employment Law, and we need your help as readers and section members. Please forward this message to any and all people you know who teach or write in the Employment Discrimination, Labor Law, and Employment Law fields.

First, if you have news of any faculty visits, lateral moves, entry-level hires, or promotions and please e-mail that news to Joseph Mastrosimone at

Second, please also e-mail Joseph Mastrosimone with any information about conference announcements and calls for papers, employment or fellowship opportunities, honors and awards, and reports on recent conferences or other events of interest to the two Sections’ members.

Third, we want to include a list of relevant employment or labor law-related publications published in 2016.  These publications can be books, articles, and chapters.  We are working on compiling a list, but it would help us make sure not to miss your publications if you would send them to us!  So, please send an email with your relevant 2016 publications to Ms. Penny Fell at; use the subject line “Publications for AALS Newsletter”.  (Note: please hold your forthcoming 2017 publications for next year’s newsletter.  We’re looking for 2016 publications.)

Fourth and finally, we want to solicit anyone who would be interested in writing a brief description of a recent important labor and employment case or any significant new labor or employment legislation. Your subject could be a recent Supreme Court decision (including Fisher v. University of Texas, Heffernan v. City of Paterson, Tyson Foods, Inc. v. Bouaphakeo, Green v. Brennan, etc.), a significant NLRB decision (including Columbia University, Miller & Anderson, Inc., Piedmont Gardens, etc.), a significant circuit court decision or emerging circuit split, a state supreme court decision, or an innovative and potentially influential new federal, state, or local law. The description should be fairly short — it need not be more than a couple of paragraphs, and should definitely be under 2 pages.  If you're looking for an easy way to get your name out there or want a quick outlet for your ruminations about a case or new law, this could be a good opportunity.  Please let us know what you are interested in writing about — if you would like to do this, please email Joey Fishkin at by October 15 to indicate your interest and say what you’d like to write about.

Thank you very much for your help!

Joe & Joey

September 14, 2016 in Conferences & Colloquia, Faculty Moves, Faculty News, Faculty Presentations, Labor and Employment News | Permalink | Comments (0)