Saturday, December 3, 2005

AALS Section on Employment Discrimination at Annual Meeting

At the upcoming AALS annual meeting in Washington D.C, the AALS Section on Employment Discrimination will be having a panel on Gender Stereotyping - Expanding The Boundaries of Title VII, on Thursday, January 5, 2006, from 10:30 to 12:15.

The Moderator for panel will be Michelle Travis (University of San Francisco School of Law), and the speakers will include: Miriam A. Cherry (Visiting Hofstra Law/Cumberland School of Law), Arthur S. Leonard (New York Law School), and Joan Williams (California-Hastings College of the Law).

The panel will discuss how stereotyping theory has been used to prove the existence of class-wide sex discrimination and gender harassment in the workplace, as well as utilized to expand Title VII’s protections to classes of persons who were originally thought not to have been protected by the statute.  For instance, in harassment cases, gay men and effeminate men (both gay and straight) have used stereotyping theory, in cases such as Nichols v. Azteca Restaurants and Rene v. MGM Grand Hotel, to argue that such harassment violates Title VII because it is a way of enforcing gender stereotypes. Transgendered workers have also successfully argued (see Rick's previous post on Barnes v. Cincinnati and this synopsis) that discrimination against them violates Title VII because it is motivated by impermissible gender stereotypes and role norms.                            

The panelists will discuss how the content and use of gender stereotyping theory has changed over time, the increasing reach of gender stereotyping law, and the potential limits of this discrimination theory.

Posted by: Paul M. Secunda

December 3, 2005 in Conferences & Colloquia | Permalink | Comments (0) | TrackBack (0)

One of Labor's Largest Gains in Recent Memory

The Houston Chronicle reports in this article that 4,700 janitors, who work for four cleaning companies and who clean many of Houston's high-rise buildings, have voted to recognize the SEIU as its exclusive representative for purposes of collective bargaining.  The janitors, who currently make near minimum wage ($5.30/hour) and receive no health benefits, hope to negotiate with their employers for higher pay and benefits.

Update: Michael O. just sent this Chronicle Editorial on the meaning of the janitors' unionization.

Hat Tip: Michael Olivas

Post By: Paul M. Secunda

December 3, 2005 | Permalink | Comments (0) | TrackBack (0)

Taking It to the Street

At least that is what the SEIU Union is doing to get new ideas for common sense ideas to the nation's most pressing problems. Check out this Los Angeles Times article and enter your own ideas at  And if you win some of the contest's prize money for your ideas, remember who told you about it!

Hat Tip: Cynthia Nance

Posted By:  Paul M. Secunda

December 3, 2005 | Permalink | Comments (0) | TrackBack (0)

Friday, December 2, 2005

Law School Faculty Hiring, Age Discrimination, and Disparate Impact

Is there an employment discrimination law professor in the house?

Over at the Prawfs Blawg, and through our Brother Caron over at the Tax Prof BlogKristin Hickman writes about a forthcoming article in the Virginia Journal of Social Policy by Douglas Richmond (Aon Risk Services) and Ethan Burger (American University, School of International Service), in which they suggest that law schools may be open to age discrimination suits because they tend to look skeptically at candidates who have been practicing law for more than five years, even if such candidates have extensive publication records.

Kristin writes: "
Now, I know next to nothing about employment discrimination law; and I haven’t been in the field long enough to consider myself much more than a rank amateur at identifying who is or will be a good legal scholar. But I am going to go out on a bit of a limb here and suggest that the issue may not be age discrimination but rather disagreement over the proper qualifications for the job of tenured or tenure-track law professor (as opposed to adjunct or clinical professor) . . . . I must admit to being skeptical that “discrimination” is the right label to affix here."

And so am I, Kristin, from the standpoint of someone who does know a thing or two about employment discrimination law (and litigated these cases in a former life).  It sounds like our ol' friend, the RFOA (reasonable factor other than age) defense, will do just fine in sparing law schools from age discrimination law liability in these circumstances.

On the other hand, query whether a neutral policy to hire only candidates with scholarship or scholarship potential which has a disproportionate impact on law faculty candidates over the age of 40 is unlawfully discriminatory under the ADEA.  Although the Supreme Court has permitted disparate impact claims under the ADEA in light of Smith v. City of Jackson, it appears the scope of that claim under the ADEA is severely restricted by the RFOA defense (not to mention the fact that it will have to take place under a Wards Cove/pre-CRA 1991 analysis).

Hat Tip: Rick Bales (who originally posted on this topic this past Tuesday)

Posted by:  Paul M. Secunda

December 2, 2005 in Labor Law | Permalink | Comments (3) | TrackBack (0)

The Scope of Equitable Relief Under ERISA

Proskauer Rose LLP has put out a "Client Alert" (which I received through discussing the case of Midatlantic Medical Services, LLC v. Sereboff, 407 F.3d 212 (4th Cir. 2005), cert. granted, 2005 U.S. LEXIS 8573 (Nov. 28, 2005).  In Sereboff, the Supreme Court hopes to make more clear the scope of equitable relief available to a plaintiff under Section 502(a)(3) of ERISA, in the context of a plan's claims for reimbursement of medical expenses paid on behalf of a participant or beneficiary.

Having just finished teaching this dynamic area in my employee benefits class (please detect a note of sarcasm), I can only say that this area of ERISA needs a tremendous amount of clarification after the Great-West Life case (2002), which had me dreaming about the differences between monetary and equitable restitution during "the times of the divided bench" in my sleep and wishing I had taken a Remedies class in law school.

The outcome of Sereboff should also be interesting because what the concurring opinion in the recent Supreme Court Davila (2004) opinion left unsettled; that is, whether one can obtain a form of make whole relief under a equitable restitution theory of remedies.  Recall that in her Davila concurrence, Justice Ginsburg noted "the rising judicial chorus urging that Congress and [this] Court revisit what is an unjust and increasingly tangled ERISA regime."

Does ERISA get any more exciting than this?

Posted by: Paul M. Secunda

December 2, 2005 in Labor Law | Permalink | Comments (0) | TrackBack (0)

Marcella David to Speak on Sweatshops

MarcelladavidphpMarcella David, a professor at the University of Iowa College of Law, will present The Workers' Rights Consortium: University Efforts to Address Sweat Shops on Wednesday, Dec. 7 in Iowa City.  David is a member and past chair of the governing board of the Worker Rights Consortium, a non-governmental organization that assists in ensuring that goods with university logos are manufactured under conditions that respect the rights of workers.  David's research interests include the use of economic and other sanctions, international criminal law, and issues related to international organizations.

December 2, 2005 in Conferences & Colloquia | Permalink | Comments (0) | TrackBack (0)

World Health Organization: Smokers Need Not Apply

The Financial Times of London reports in this article:

"The World Health Organisation on Thursday became the largest international employer to ban the hiring of smokers in an effort to promote its public health campaign against tobacco use.

In a memo circulated to its 8,000 staff this week, the WHO stressed that it had 'a responsibility to ensure that this [its campaign] is reflected in all its work, including recruitment practices'.

The move is an escalation of action taken against smokers. Several countries have introduced legislation banning smoking in pubs, restaurants and public places, while some employers ban smoking on their premises."

In the United States, such anti-smokers hiring practices would be illegal under some state statutes (e.g., the New Jersey Smokers’ Rights Law 34:6B-1). 

On the other hand, there is strong empirical evidence that smoking causes employees to miss many more days of work and spend more money on health care than non-smokers.  In all, smokers make for more expensive employees.  Perhaps, consistent with my earlier post on obesity regulation, employers should be able to use a combination of carrots and sticks to give employees incentives to quit smoking.

Finally, privacy advocates argue that although employers should be able to prevent employees from smoking at work or on working time, employees should be free from employer interference if they choose to smoke on their own time, away from work.

An interesting debate, indeed. I am opening comments for thoughts and opinions.

Posted by: Paul M. Secunda

December 2, 2005 | Permalink | Comments (2) | TrackBack (0)

Thursday, December 1, 2005

Walgreens, Insubordinate Pharmacists, and the Morning After Pill

The ACSBlog is reporting:

"Four Illinois pharmacists who refused to fill prescriptions for the morning-after pill--a violation of state law--were put on unpaid leave by Walgreens." 

"Penalties for violation of the Illinois law include possible revocation of both the pharmacy's and its chief pharmacist's licenses. A Walgreen's spokesman said that the leave will continue "until they either decide to abide by Illinois law or relocate to another state." Walgreen's allows its pharmacists to refuse to fill a prescription on religious grounds as a general matter, provided they take steps to have the prescription filled by another pharmacist or store."

Posted by: Paul M. Secunda

December 1, 2005 | Permalink | Comments (0) | TrackBack (0)

The Solomon Amendment, Expressive Associations, and Public Employment

There has been a lot of anticipation leading up to the Supreme Court's arguments this coming Tuesday concerning the constitutionality of the Solomon Amendment in the case of Rumsfeld v. F.A.I.R. As many of you know, the Solomon Amendment conditions the provision of certain federal education funds on an institution of higher education's willingness to allow military recruiters to not only recruit on campus, but to provide the military with the same career placement resources as it provides other employers.  Because of the military's current policy on homosexuals, a number of law schools have sought to protest the military's stance on homosexuals by disallowing military recruiters on campus.  The question for the Supreme Court will be whether the Solomon Amendment violates the First Amendment rights of these law schools.  For an excellent on-going debate between Dean Daniel Polsby (George Mason) and William Eskridge (Yale) concerning the constitutionality of the Solomon Amendment, check out the ACSBlog).

The FAIR case is also about expressive associations because opponents of the Solomon Amendment have argued that, like the Boy Scouts in the Dale case, the law schools, as private associations, should be able choose the message they wish to convey to the public through with whom they choose to voluntarily associate.  In other words, these law schools do not want to be seen as endorsing the military's "Don't ask, don't tell" policy regarding homosexuals.

So, Paul, please explain to me the much promised public employment angle? Well, if the law school is a public law school, the question becomes whether government institutions also have First Amendment rights to expressive association.  If so, it might be easier for a government institution in its employer capacity to discharge employees whose very employment conveys an unpopular or controversial message to the public at large.  This would be particularly true where the public employer hires someone to be the "public face" of the employer. 

On the other hand, if government institutions do not have rights to expressive association (because, as one theory goes, the Bill of Rights only provides rights to the governed rather than to the governing), it would seem to mean that in this post-Lawrence world that public employers would even have less justification to interfere with the private and personal lives of their employees.  For instance, without expressive association rights to rely on, a government employer could run afoul of a public employee's right to decisional non-interference in private affairs (as espoused in Lawrence) unless it had a legitimate and substantial justification for so interfering.  My larger point is that in the absence of rights of expressive association, public employers may have a harder time discharging employee based on the activities these employees decide to undertake on their own time.

For further ruminations on this point regarding the future of public employee privacy rights, check out the abstract and, if the spirit moves you, download my most recent article on the impact of Lawrence v. Texas on public employee privacy rights at:

Posted by: Paul M. Secunda

December 1, 2005 in Labor Law | Permalink | Comments (0) | TrackBack (0)

NYU Ratchets Up The Pressure on Its Striking Graduate Students

The Chronicle of Higher Education reports in an article this past Tuesday that John Sexton, the president of New York University, has issued an ultimatum to striking graduate assistants.  In the letter, Mr. Sexton demands that the graduate students return to class by Monday, December 5, 2005, or face losing their teaching assignments and stipends for the spring semester. Nevertheless, the letter also states that students remaining on strike past the deadline will still receive tuition and health benefits and will be able to apply for loans if they had depended on the lost teaching stipends for subsistence.

The question is: does Mr. Sexton's actions give support to the argument that these graduate students are more in the nature of students or employees?  My thought on this matter is that because much of the pressure that NYU is able to place on these graduate assistants involves the ability to withhold substantial amounts of money on which most graduates students depend to live, there is not much difference between this situation and one where an industrial employers says to its employees, "Return to work or face permanent replacement."

Of course, if the graduate students were afforded the protections of federal labor law (as they were prior to the recent 2004 NLRB decision discussed in an earlier post), the Sexton letter would almost certainly represent both a Section 8(a)(1) and 8(a)(3) unfair labor practice of intimidation and discrimination.


Posted: Paul M. Secunda

December 1, 2005 | Permalink | Comments (0) | TrackBack (1)

Wednesday, November 30, 2005

Dionne: "Labor's Lost Story"

Great column from E.J. Dionne, Jr. in today's Washington Post on American Labor's current struggles, with reference to the recent General Motors mass layoff and Delphi bankruptcy.

Michael Barone, of U.S. News and World Report, isn't so sure he agrees with Dionne.

Posted by: Paul M. Secunda

November 30, 2005 in Labor Law | Permalink | Comments (0) | TrackBack (0)

Show Down at the Cash Balance Plan Corral

The Eastern District of Pennsylvania has just released a decision in Register v. PNC Financial Services Group, Inc., No. 04-CV-6097 (11/21/05), finding that the conversion of PNC's traditional defined benefit plan to a cash balance plan did not violate the age discrimination provisions of ERISA Section 204(b)(1)(H).

This is holding is in direct opposition to the Southern District of Illinois' finding in Cooper v. IBM Personal Pension Plans, 274 F. Supp. 2d 1010 (S.D. Ill. 2003), which concluded that cash balance plans almost inherently violate the benefit accrual rate age discrimination provisions of ERISA because the employee's benefit accrual must be determined solely in terms of a single life, normal retirement age annuity.  The Register Court disagreed and concluded that, "the accrual rate should be 'the change in the employee's cash balance account from one year to the next.'"

Stay tuned as the Cooper decision is on appeal to the Seventh Circuit Court of Appeals and there is every reason to believe that the Register case will find its way to the Third Circuit Court of Appeals. Of course, a circuit split in this important area of employee benefits law could mean Supreme Court intervention.

Posted by: Paul M. Secunda

November 30, 2005 | Permalink | Comments (0) | TrackBack (0)

Insensitive Co-Worker of the Week reports in this article about the following retaliation lawsuit brought against the Dana-Farber Cancer Institute in Massachusetts:

The Associated Press reports that Aliana Brodman von Richthofen testified that a co-worker, who knew much of her family had been killed in the Holocaust, said she admired Adolf Hilter and that 'He was an admirable leader.'  Von Richthofen alleges that when she complained to supervisors about the conversation, she was demoted and eventually forced to resign.

An attoney for the Dana-Farber Cancer Institutte said that the institute moved the two women out of the small office they shared and gave them separate workspaces so they would not have to interact with one anohter. "They were conscientious, effective, and responsive to Miss von Richthofen's complaint," James Horgan said.

Posted by: Paul M. Secunda 

November 30, 2005 | Permalink | Comments (1) | TrackBack (0)

Sharona Hoffman to Receive Award Honoring Women's Scholarship

Hoffman_sm_1Sharona Hoffman is one of eight women faculty members at Case Western Reserve University to be honored for their excellence in research and scholarship at the first annual Spotlight Series Awards for Women's Scholarship.  Thw award will be presented at a reception tomorrow.  In addition to teaching Employment Discrimination, Hoffman is a Professor of Law and Bioethics and the Associate Director of the Case Western Law-Medicine Center.

November 30, 2005 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Left Dangling in the Winds of Legal Academia?

Inside Higher Ed reports in this article on the quandary University of Oregon law professor Merle H. Weiner finds herself in after publishing an article regarding international domestic violence disputes.  When one of the alleged batterers in one of the cases she discussed in her article for the University of San Francisco Law Review threatened to sue her, neither the law review nor the University of Oregon would agree to help defend her in the lawsuit. 

The law review removed the offending passages from its electronic data bases and the University issued a statement stating, "as was 'customary' — Weiner had agreed to indemnify the University of San Francisco against actions arising from the article. While the university [of Oregon] was happy to advise Weiner on the case, it did not feel any obligation to defend her."

On the other hand, Roger Bowen, general secretary of the American Association of University Professors, states in the same article that, "under his group’s policies, the university should have backed Weiner. The events that transpired with regard to her article were 'blatant censorship' and 'an obvious infringement on academic freedom.'"

As for Weiner, Inside Higher Ed reports her observing that, "if colleges take Oregon’s approach, other professors will be sued by plaintiffs who know that faculty members lack the resources to defend themselves. 'My fear is that this is a tool that is going to be used by certain groups and certain people to stop feminist professors and others from writing on issues that they don’t like.'"

Who do you side with?

Posted by: Paul M. Secunda

November 30, 2005 | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 29, 2005

Roundtable on Reasonable Accommodation as a Part of Anti-Discrimination Law

Over on the AALS Employment Discrimination Listserv, there has been a fascinating exchange concerning the relationship between reasonable accommodation and anti-discrimination law.  Below are highlighted some of more thought-provoking comments put forward by Chai Feldblum (Georgetown), Sam Bagenstos (Washington University), Stephen Clark (Albany), and Noah Zatz (UCLA).

"[T]he strong support for liability based on non-EE harassment of EEs, the awarding of damages in even non-supervisory [hostile work environment] cases, and the failure in these cases to invoke any of the trappings of [disparate impact] all suggest that harassment law has, once again, been an important site of doctrinal innovation, including the creeping incorporation of [reasonable accommodation] into Title VII."  - Noah Zatz

"If the Court in Hardison is to be believed, the EEOC's 1967 guideline requiring accommodation of religion was consistent with Title VII before the 1972 amendment adding explicit religious accommodation language, so that provides you at least one weak precedent for [reasonable accommodation] in Title VII despite the absence of accommodation language for race and sex."  - Steve Clark

"My sense is that [Judge] Easterbrook would deny that he's incorporating an accommodation principle into harassment law.  But the analytic continuity between antidiscrimination and accommodation, which Christine [Jolls] and I tried to show different aspects of in our respective articles on the subject, means that even people who think the two concepts are very different will at times read antidiscrimination laws in ways that require what many of us would call accommodation." - Sam Bagenstos

"I think analytically we should certainly presume that any rich understanding of antidiscrimination against a group of people that has needs different from the norm requires a pro-active accommodation requirement . . . . To the extent this has not been carried over instinctively with regard to race and sex has to do, I think, more with the complications attendant on seeing those characteristics as necessarily deviating from a background norm — rather than from a limitation in what 'antidiscrimination' requires. My sense is that we will always need accommodations, in this society, for religion, disability and caregiving responsibilities — because it’s really difficult to change the background norms enough so that all folks with such characteristics will always be treated equally.  But perhaps we will not need similar accommodations for sex and race if and when we really manage to get rid of sexism and racism." - Chai Feldblum

All comments and thoughts on these comments are welcome!

Posted by:  Paul M. Secunda

November 29, 2005 in Conferences & Colloquia | Permalink | Comments (0) | TrackBack (0)

Garcia on Guest Workers and Freedom of Association Post 9/11


Ruben Garcia's essay "Labor as Property: Guest Workers, International Trade, and the Democracy Deficit" will be published next year by the Iowa Journal of Gender, Race, and Justice.  Ruben presented this paper at the University of Iowa College of Law this past October.

Ruben's other essay, "Labor's Fragile Freedom of Association Post-9/11" will be published this coming February by the University of Pennsylvania Journal of Labor and Employment Law.

Ruben is also co-chairing the 2006 Conference of the Western Law Professors of Color in San Diego this upcoming March. 

Keep up the great work, Ruben!

November 29, 2005 in Scholarship | Permalink | Comments (0) | TrackBack (0)

DOL News

Recent releases from the Department of Labor:

November 29, 2005 in Labor Law | Permalink | Comments (0) | TrackBack (0)

Are Law Schools Vulnerable to Age Discrimination Suits?

Hiring practices in America’s law schools are vulnerable to an age discrimination lawsuit, according to Douglas Richmond and Ethan Burger, the co-authors of a forthcoming article on the issue in the Virginia Journal of Social Policy and the Law.   Richmond, senior vice president for Aon Risk Services, a company that provides professional liability insurance for lawyers, and Burger, scholar-in-residence at American University’s School of International Service, and an adjunct associate professor of law at the Washington College of Law, spoke at UVA Law School at the invitation of the Journal and the University of Virginia Law School’s Employment and Labor Law Association.  The issue, Richmond summed up, is that “If you’ve practiced for longer than five years, you are regarded as an undesirable law school faculty candidate.”

“One of  these suits is going to come,” Burger predicted. “And many law schools are  unprepared to defend such a suit.”

Law professor Rip Verkerke  called the complaint that legal education is not realistic enough “a fairly  well-plowed field.  The  value of practical instruction is undeniable,” he said. “The question is how  much weight to give it” [as compared to scholarship].

November 29, 2005 | Permalink | Comments (0) | TrackBack (1)

Monday, November 28, 2005

Hedge Funds and Pensions

Interesting article in the Sunday New York Times regarding how more pension plans (it appears the article is only referring to defined benefit plans) are putting a significant amount of plan assets into hedge funds. The reason that this raises some red flags for some (including me) is that hedge funds are usually less regulated than other forms of traditional investments and some notorious hedge funds have gone belly up in the last few years. 

Of course, with any investment undertaken by ERISA fiduciaries, the fiduciaries must act with an eye single to the interests of the participants and beneficiaries of the plan and must act as prudently as a reasonable ERISA fiduciary would under the circumstances.   There is also a requirement of prudent diversification placed on the fiduciary.  Whether all of these fiduciary duties can be met in any given circumstance remains to be seen, but I am not at all buoyed by one comment in the article in which Susan M. Mangiero, author of "Risk Management," a textbook for pension officials, "said she had come across pension executives who had not done that level of analysis. Some did not even know they had derivatives in their portfolios, she said."

In the days of Enron and United Airlines, I have to say that I am a little skeptical that this development will help pensioners in the long run, but I am certainly open to convincing by others.

Update: Vic Fleischer over at the Conglomerate blog has an interesting post on this article as well.

Posted by: Paul M. Secunda

November 28, 2005 | Permalink | Comments (0) | TrackBack (0)