July 18, 2008
Johnny Sack and EFCA
Matt Bodie (St. Louis) has an interesting post on Prawsblawg about a new anti-EFCA ad, featuring the actor who played Soprano's mobster Johnny Sack as--you guessed it--a union boss who intimidates workers. Matt identifies many of the problems with this line of of argument.
I've always been somewhat torn on EFCA. In an ideal world, having secret ballot elections seems the best way to vote for unionization. Of course, what this ad and other anti-EFCA arguments refuse to acknowledge is that the world is far from perfect, as the level of employer intimidation that goes on almost certainly exceeds union intimidation by a country mile. EFCA, then, is an imperfect answer to a bad situation. I've always thought that it would be possible to implement a system that ensures a far more intimidation-free election (e.g., Canada's expedited elections), but the political environment makes such an outcome unlikely.
Hat Tip: Anne Marie Lofaso
Critiques of DOL
Earlier this week, the Government Accountability Office published two reports, critical of the Department of Labor's enforcement of the Fair Labor Standards Act: Better Use of Available Resources and Consistent Reporting Could Improve Enforcement of the Fair Labor Standards Act; and Case Studies from Ongoing Work Show Examples in Which Wage and Hour Division Did Not Adequately Pursue Labor Violations.
From the report on resources,
From fiscal years 1997 to 2007, the number of WHD’s enforcement actions decreased by more than a third, from approximately 47,000 in 1997 to just under 30,000 in 2007. According to WHD, the total number of actions decreased over this period because of three factors: the increased use of more time-consuming comprehensive investigations, a decrease in the number of investigators, and screening of complaints to eliminate those that may not result in violations. Most of these actions (72 percent) were initiated from 1997 to 2007 in response to complaints from workers. The remaining enforcement actions, which were initiated by WHD, were concentrated in four industry groups: agriculture, accommodation and food services, manufacturing, and health care and social services. WHD’s other two types of compliance activities—partnerships and outreach—constituted about 19 percent of WHD’s staff time based on available data from 2000 to 2007.
WHD did not effectively take advantage of available information and tools in planning and conducting its compliance activities. In planning these activities, WHD did not use available information, including key data on complaints and input from external groups such as employer and worker advocacy organizations, to inform its planning process. Also, in targeting businesses for investigation, WHD focused on the same industries from 1997 to 2007 despite information from its commissioned studies on low wage industries in which FLSA violations are likely to occur. As a result, WHD may not be addressing the needs of workers most vulnerable to FLSA violations. Finally, the agency does not sufficiently leverage its existing tools, such as tracking the use and collection of penalties and back wages, or using its hotlines and partnerships, to encourage employers to comply with FLSA and reach potential complainants.
The extent to which WHD’s activities have improved FLSA compliance is unknown because WHD frequently changes both how it measures and how it reports on its performance. When agencies provide trend data in their performance reports, decision makers can compare current and past progress in meeting long-term goals. While WHD’s long-term goals and strategies generally remained the same from 1997 to 2007, WHD often changed how it measured its progress, keeping about 90 percent of its measures for 2 years or less. Moreover, WHD established a total of 131 performance measures throughout this period, but reported on 6 of these measures for more than 1 year. This lack of consistent information on WHD’s progress in meeting its goals makes it difficult to assess how well WHD’s efforts are improving compliance with FLSA.
Even more disturbing are the case studies. Here are three that are highlighted.
A homeless woman receiving free room and board while working as a night attendant at a nursing home alleged her employer had failed to pay her wages for an entire year. According to WHD, the employer admitted it had failed to pay any wages to the night attendant and considered the room and board to be pay, but stated it did not have any money to pay the back wages.WHD dropped the case and advised the night attendant of her right to file a private lawsuit. The employer was still in business as of June 2008.
Pool maintenance technician alleged that he did not receive his final paycheck from his employer.Employer admitted to the WHD investigator that they did not pay the employee’s last paycheck but refused to pay employee.WHD dropped case and advised the worker of his right to file a private lawsuit.
Complainant alleged he was not paid for overtime. Investigator did not perform any actions for 15 months citing a backlog of cases. Investigation was dropped after 15 months when the investigator saw a news article showing that the business in question had closed.
In a NYT article on the reports, Steven Greenhouse reported that the DOL said it was focusing on bigger cases and that the amount of recovery per case had substantially increased. Additionally, "'The Labor Department said the “Wage and Hour Division is delivering pay for workers, not a payday for trial lawyers.'”
But if the DOL is telling people to go file their own private suits, isn't that exactly what it's doing? The failure to enforce the FLSA is appalling.
Moberly on Protecting Whistleblowers by Contract
Richard Moberly (Nebraska) has posted on SSRN his forthcoming article in the University of Colorado Law Review: Protecting Whistleblowers by Contract.
Here is the abstract:
Numerous statutes and the tort of wrongful discharge purport to prohibit companies from retaliating against employee whistleblowers. However, whistleblowers often lose retaliation lawsuits because these statutory and common law tort protections depend upon a variety of nuanced factors, such as the employer for whom the whistleblower works, the kind of wrongdoing reported, the way in which the employee blew the whistle, and, under some laws, the willingness of an administrative agency to investigate the whistleblower's claim. Given these difficulties, this Article explores an alternate route for whistleblower protection: enforcing the existing contract protections that private employers currently provide employees when they report misconduct. Rules recently enacted by the major stock exchanges now require each publicly traded company to publish a Code of Business Conduct and Ethics promising not to retaliate against employees. These Code anti-retaliation promises potentially provide broader whistleblower protection than statutory and tort protections, and enforcing the Codes contractually could address the weaknesses of these traditional remedies. This Article highlights the benefits of breach of contract claims based on corporate Codes, addresses the potential difficulties that whistleblowers may face when asserting such claims, and presents possible solutions to these problems.
I really like this idea (and heard Richard present it at the Colorado Labor Symposium last year). Given the astounding difficulty in bringing a whistleblower claim under any statutory and common law frameworks, breach of contract of corporate codes sounds like a promising idea.
ERISA Reform Legislation Effort
Professor Colleen Medill at the University of Nebraska College of Law has agreed to help the Amschwand family identify members of Congress who may be interested in sponsoring legislation to amend Section 502(a)(3) of ERISA so that “equitable” relief includes monetary relief designed to make a plan participant or beneficiary whole for injuries caused by a breach of fiduciary duty. For those of you who need an update on the Amschwand and Goeres cases, where the Supreme Court recently denied certiorari, here is a recent news story:
As a starting point, Professor Medill is collecting:
1. Names of members of the Senate and the House of Representatives who may be interested in learning more about this issue and possibly sponsoring reform legislation. Please include the full name, state and party affiliation.
2. Law professors and ERISA attorneys who might (not a firm commitment required right now) be interested in working on proposed legislation and educating members of Congress on the need for reform.
Please send replies directly to Professor Medill at email@example.com.
July 17, 2008
Markel on Retributive Damages
Dan Markel at Florida State has posted on SSRN his article, forthcoming in the Cornell Law Review, Retributive Damages: A Theory of Punitive Damages as Intermediate Sanction. From the abstract,
Not long ago, Professor Cass Sunstein lamented that our legal culture lacks a full normative account of the relationship between retributive goals and punitive damages. This Article offers that full normative account - through a theory of retributive damages.
Under the retributive damages framework, when people defy legal obligations the state has imposed to protect the rights and interests of others, the state may either seek to punish them through traditional criminal law or make available the sanction of retributive damages, which would be credited against any further criminal sanctions imposed by the state for the same misconduct. Retributive damages statutes would empower private parties to act on behalf of the state to seek the imposition of what is in effect a fine determined largely by the reprehensibility of the defendant's misconduct. The base amount of the fine would assess a percentage of the defendant's wealth (or net value for entities) that increases with the reprehensibility of the defendant's misconduct, an assessment informed by guidelines and commentary provided by the state. The total retributive damages award should also include gain-stripping amounts, if any, in excess of compensatory damages, as well as lawyers' fees and a modest and fixed award for the plaintiff for bringing the matter to the public's attention. These payments together (to the state, the plaintiff, and the lawyer) constitute the best way to structure punitive damages to advance the goals of retributive justice.
After offering some background on punitive damages and how retributive justice differs from other rationales for punitive damages such as optimal deterrence or victim-vindication, the Article describes the structure of retributive damages and clarifies the comparative advantages of retributive damages vis-à-vis other remedies and mechanisms. Finally, the Article defends the retributive damages framework against possible constitutional objections. Importantly, the account here not only answers Professor Sunstein's challenge, but also promises to makes sense of the Supreme Court's recent and somewhat puzzling holding in Philip Morris USA v. Williams, i.e., that juries may not calculate punitive damages by considering the amount of harm caused to strangers to the litigation.
Dan's article provides an interesting theoretical framework for damages that serve a retributive and not compensatory function, particularly in light of the Supreme Court's recent decision in Exxon Shipping Co. v. Baker, which as Rick noted, could have devastating impact on employment cases. Anyone interested in enforcement should find this a good read.
Hutchinson on Racial Exhaustion
Contemporary political and legal discourse on questions of race unveils a tremendous perceptual gap among persons of color and whites. Opinion polls consistently demonstrate that persons of color commonly view race and racial discrimination as important factors shaping their opportunities for economic and social advancement. Whites, on the other hand, often discount race as a pertinent factor in contemporary United States society. Consequently, polling data show that whites typically reject racial explanations for acute disparities in important socio-economic indicators, such as education, criminal justice, employment, wealth, and health care. Echoing this public sentiment, social movement actors, politicians, and the Supreme Court have all taken a skeptical stance towards claims of racial injustice by persons of color and have resisted demands for tougher civil rights laws and race-based remedies. They have viewed these policies as: (1) unnecessary, given the eradication of racism and the prior implementation of formal equality measures; (2) excessive in terms of substance or duration; (3) futile because the law cannot alter racial inequality; (4) misguided because nonracial factors explain racial disparities; and (5) unfair to whites and a special benefit for persons of color. Adhering to these beliefs, a majority of the public has reached a point of racial exhaustion.
This Article argues that the public's racial exhaustion did not recently emerge, and it is a product of a hard-fought and successful battle against racial subjugation. Instead, throughout history, opponents of racial justice measures have invoked this discourse to contest equality measures and to portray the United States as a post-racist society, even when efforts to combat racial hierarchy were in an embryonic state and persons of color lived in extremely vulnerable political, social and economic conditions. To elaborate this claim, this Article examines political resistance to civil rights legislation and remedies immediately following the Civil War and during Reconstruction, after World War II and through the Cold War era, and in contemporary political and legal discourse in order to demonstrate the persistence of racial exhaustion rhetoric. This Article then considers how social movement actors, civil rights lawyers and theorists, and scholars interested in the interaction of law and rhetoric could respond to the persistent portrayal of racial egalitarianism as redundant and unfair by dissecting the premise of these claims, placing them in an historical context, and, if necessary, by strategically modifying their arguments to focus on class and other structural barriers that correlate or intersect with racial inequality. Despite the presumptive constitutionality of class-based remedies, political opposition to social welfare policies and the depiction of these programs as handouts to undeserving individuals - including persons of color - might limit the efficacy of economic approaches to racial inequality. Moreover, the intersection of race and poverty suggests that class-based remedies alone might not adequately address racially identifiable material inequity.
Those of us familiar with human resources, hiring, and diversity are very familiar with the concept of "diversity fatigue," and this article puts that concept in the light of the broader culture and historical context. This article is an important addition to the scholarship on discrimination and an interesting read.
You're Not Always In Good Hands With Allstate
BNA's Daily Labor Report (subscription required) has an article on a Seventh Circuit decision that--at least to my non-expert ear--sounds a bit odd. The key issue in Mobley v. Allstate Insurance Co., seems to be whether the employer's accommodation efforts (or lack thereof) contributed to the performance problems that were cited as reasons for terminating the employee. What was striking to me is that, after a lot of foot-dragging, the employer provided the employee with a small quiet room to work. However, after her performance improved (although allegedly still not to a sufficient level), the employer no longer allowed her use of the room, then fired her for her poor performance. By a 2-1 vote, the court held that this didn't violate the ADA. According to the DLR's report:
The court majority found that Allstate offered Catherine Mobley, a 16-year employee with a neurological illness, a reasonable accommodation, but she did not improve her work level. The dissenting judge argued that Mobley raised a fact issue on whether she failed to meet expectations only because of Allstate's failure to provide her with a reasonable accommodation.
"[W]e find that Allstate did eventually reasonably accommodate Mobley's disability," Judge Joel M. Flaum ruled. "Although it was an admittedly laborious process for Mobley to obtain the accommodation she finally received, the fact that Allstate may have failed to engage in the interactive process prior to that time is by itself insufficient to establish a failure to accommodate claim when, in the end, Mobley was provided with a reasonable accommodation," he said. . . .
When Mobley was allowed to work in a small, quiet conference room, she was able to raise her work level, the court noted. But after she raised her work level, her supervisor did not permit her to use the room.
Mobley contended that other employees were provided alternate arrangements--such as working from home or working four 10-hour days--and that accommodating her would not have been an undue hardship. But even if the [other] accommodations she sought did not cause an undue hardship, "that did not obligate Allstate to grant these accommodations," Flaum said. "An employer is not obligated to provide an employee the accommodation she requests or prefers; the employer need only provide some reasonable accommodation," Flaum stated. Allstate met its obligation by allowing Mobley to use the small conference room, "the only accommodation proven to effectively accommodate her limitations," the court ruled. She failed to show that her other requested accommodations would have been effective, it said.
To prevail on her failure-to-accommodate claim, Mobley had to show that she was a qualified individual with a disability, Allstate was aware of her disability, and it failed to accommodate her disability, Flaum noted. . . . She failed to establish her claim because she did not meet her performance requirements, he said. . . .
Dissenting in part, Judge Diane P. Wood would have reversed and remanded on the failure-to-accommodate and wrongful discharge claims. . . . " Allstate's abrupt withdrawal of an accommodation that everyone admits was both a reasonable request and a successful arrangement is among the more troubling aspects of this case," Wood argued. "[I]f she was failing to meet its expectations only because of its failure to provide reasonable accommodation, then she is entitled to proceed," she wrote.
This case seemed to revolve around a factual dispute about whether her performance ever met, or with appropriate accommodations would have met, expectations. Summary judgment, therefore, should be inappropriate. But, perhaps others can shed light on what's going on.
July 16, 2008
Bodie on Unions and Private Equity Firms
Matt Bodie (St. Louis University) has just posted on SSRN his recent article,"Mother Jones Meets Gordon Gekko: The Complicated Relationship between Labor and Private Equity," which will be published in the Colorado Law Review. The abstract:
In 2007 private equity firms came under increasing scrutiny for the favorable tax treatment accorded to their fund managers' compensation. Labor, particularly the Service Workers International Union (SEIU), was instrumental in bringing this issue to the attention of the media and the public. However, SEIU's private equity campaign is just one way in which the union is pursuing its primary concern: increasing the ranks of its members. This Article examines the role that the SEIU private equity campaign plays both in the overall debate about private equity taxation as well as the union's negotiations with private equity firms. It argues that SEIU is using the campaign not only to promote changes in public policy, but also to pressure private equity firms to work with the union on issues such as card-check agreements. Unions, like other businesses, should be free to pursue their political agendas - agendas that serve their interests as a business. Efforts to restrict union political activity are based on an outdated vision of union representation and would cause (if enacted) further distortions to the market for political influence.
I saw Matt present this paper at last year's Annual Colloquium on Current Scholarship in Labor and Employment Law and it was really interesting. Check it out.
Also, Matt notes that today is the SEIU's Take Back the Economy Day, which is a call for public support of the legislation referred to in Matt's paper.
Empowering Women in Jordan
Earlier this month, a coalition of organizations began a gender equality campaign (including workplace equality) in Jordan. According to an article in the Jordan Times,
Sponsored by several organisations including the King Hussein Foundation, the Women’s Studies Centre at the University of Jordan and the Queen Zein Al Sharaf Institute for Development, GEC aims to change attitudes towards both men and women.
“We want to reach a point where a girl can walk down the street without anyone bothering her, and where a guy is able to enter a mall without having to accompany a girl,” Kilani told The Jordan Times on Saturday.
Symbolising this goal, the GEC logo consists of a pink strip, representing women, beside a blue strip for men, both the same length.
According to the press release, via Tololy's Box:
Gender Equality Campaign
This campaign was created as part of an initiative by a group of young Jordanians who are committed to the idea of justice and equality for the women and men of Jordan. The main purpose of the Gender Equality Campaign is to educate the public in Jordan about Women’s Rights and to mobilize the community to take action to address this human rights issue in Jordan.
The vision for the campaign is to increase the level of awareness and commitment to women’s rights in Jordanian society. Furthermore, the mission is to create a channel for a broad based dialogue about the rights and roles of women in Jordan.
Lulwa Al-Kilani Dina Liddawi
Gender Equality Campaigner Gender Equality Campaigner
Telephone: +962 77 90 6 90 40 Telephone: +962 77 9999 187
As part of that campaign, volunteers took the conversation to the streets, literally, speaking with people about gender and equality. And yesterday, HRH Princess Basma spoke at a ceremony launching a
a joint Jordanian-Danish project on “engendering the public sphere”, Princess Basma expressed hope that the initiative will pave the way to improve the conditions of working women.
In her address, Princess Basma highlighted discrimination against women in the workplace.
She said previous experience by the Jordanian National Commission for Women (JNCW) in gender mainstreaming revealed that organisational cultures are often discriminatory and hinder gender equality within institutions and businesses.
Voicing optimism that the initiative will work to change this culture, the Princess said the project will address such imbalances and strengthen mechanisms within management structures in both the private and public sectors to address gender issues at policy-making and administrative levels.
Overcoming challenges that face women in the public sphere is of critical importance for the country to move forward, she noted.
Overtime Class Action Lawsuit Against Dell Certified
Up and down week for Dell in the employment law world. First, they survived an ERISA fiduciary suit last week, but now this (via the Austin American Statesman):
A federal judge in Oregon has granted class-action status for a lawsuit that claims Dell Inc. underpaid as many as 5,000 of its U.S. call center employees.
U.S. Magistrate Judge Thomas Coffin ruled last week that most employees who worked at Dell's domestic call centers from Feb. 8, 2004, to the present could opt into the lawsuit. He denied class certification for another part of the complaint tied to Oregon state law but left open the option to re-file pending workers' participation in the federal action.
The proposed class covers consumer service representatives at current and former Dell call centers in Oregon, Central Texas, Tennessee, Oklahoma and Idaho.
A Dell spokesman declined to comment on the case, but the company denied the claims in its court filings.
Two employees at the computer maker's former call center in Roseburg, Ore., filed the lawsuit in February 2007. They claimed Dell did not pay its consumer service agents proper overtime rates, and it did not compensate them for some training and workday preparation time.
More than 80 people have signed onto the lawsuit since, and one of the lead attorneys said Tuesday that the class ultimately could include as many as 5,000 current and former agents. The case also names as a defendant Spherion Corp., a staffing agency that works closely with Dell.
These types of overtime suits are really taking off and can quite hard to defend and consequently expensive for companies. Like many other class action overtime suits, an eventual favorable settlement of the claims in plaintiff's favor is a real possibility.
House Moves to Ban Mandatory Pre-Dispute Arbitration Clauses in Employment
The BNA Daily Labor Report (subscription required) is reporting:
The House Commercial and Administrative Law Subcommittee decides by a voice vote July 15 to report the Arbitration Fairness Act bill favorably to the full House Judiciary Committee. The bill, H.R. 3010, would invalidate arbitration agreements in employment, consumer, and franchise contracts between parties of unequal bargaining power unless both parties voluntarily agree to use arbitration after a dispute arises.
It is unclear yet whether this bill has any legs, but if it does it would change the way arbitration clauses would work in the employment context. It might also have an impact on cases like Pyett pending before the Supreme Court for next term.
July 15, 2008
The Lack of Retirement Savings in the US
Just a tad alarming (from the BNA Daily Labor Report (subscription required):
The average projected postretirement income replacement needed among employees of large U.S. employers is 126 percent of final pay, a level only about 19 percent of employees are expected to satisfy, according to a Hewitt Associates report released July 1.
In fact, according to the report, Total Retirement Income at Large Companies: the Real Deal 2008, about 67 percent of the more than 1.8 million employees of 72 large U.S. employers tracked in the study are expected to have accumulated less than 80 percent of their projected needs at age 65.
Despite the gloomy projections, the report's authors concluded that employees can make a big difference in their retirement readiness by making small changes in their savings rates, investing smarter, paying lower fees, and delaying their retirement.
I think in particular the last point is what we are going to see more and more of: individuals working well into their 70's just to pay their bills and survive.
Clermont and Schwab on Employment Discrimination Plaintiffs in Federal Court
It is not easy being green and it is apparently not easy being an employment discrimination plaintiff either. Kevin Clermont (Cornell) and Stewart Schwab (Cornell) have posted on SSRN their new piece: Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?
Here is the abstract:
This Article utilizes the Administrative Office's data to convey the realities of federal employment discrimination litigation. Litigants in these "jobs" cases appeal more often than other litigants, with the defendants doing far better on those appeals than the plaintiffs. These troublesome facts help explain why today fewer plaintiffs are undertaking the frustrating route into federal district court, where plaintiffs must pursue their claims relatively often all the way through trial and where at both pretrial and trial these plaintiffs lose unusually often.
These findings are a good response to the Roberts Court seeming obsession with curtailing litigation by plaintiffs in employment discrimination cases (see Ledbetter). The pendulum has now swung too far to employers in these cases and meritorious claims are not even being litigated because the feeling among potential plaintiffs has become: why bother?
Ninth Circuit GERA Case Goes En Banc
BNA's Daily Report (subscription required) is reporting that the Ninth Circuit will hear Alaska v. EEOC en banc. As the DLR explained last year, the case addressed whether the Government Employee Rights Act--which amended Title VII to allow elected officials' aides and assistants to sue--was valid under the Eleventh Amendment. A split Ninth Circuit panel held that Congress did not provide enough evidence to abrogate states' sovereign immunity under the congruent and proportional rule.
The question may come down to whether evidence showing state discrimination used by Congress in the 1972 Title VII amendments is applicable to the 1991 GERA. Of course, the fact that a court should be in a position to comb through congressional testimony in these cases is ridiculous, but that's what the Supreme Court requires.
Things have been quieter on the sovereign immunity front for a while; perhaps this case signals a new issue for the Supreme Court.
Shifting Age Demographics of Low-Wage Work
The Washington Post reports on other reports (here and here, for example) issued by Northeastern University's Center for Labor Market Studies, which demonstrate that the unemployment rate for teens (aged 16-19) has declined steadily since 2000, and that it has reached 37%, down from 50% in 2000. The news is worst for males of color from low-income families, and the rates overall are as high as 86% in D.C. and 85% in Chicago.
This news is worrying for a number of reasons. First, it signals the employment problems in other parts of the population. The reason for the declining teen rate isn't because of the loss of jobs in the low-income service sector, but because the jobs that exist are being filled by adults, squeezed out of more lucrative jobs as those jobs are disappearing. Second, employment for teenagers is important training for future work, and it helps keep those kids on a path toward success, productivity, and good citizenship. Third, the kids from low-income families need the income to add to the support of their families. The trend then seems to be contributing to the stickiness of class--a widening gulf between the rich and poor and a declining mobility out of lower socioeconomic classes.
July 14, 2008
Verkerke on the Law and Economics of Discharge
Here's the abstract:
This chapter focuses on economic analysis of the legal rules governing involuntary termination of the employment relationship. It describes the legal framework governing discharge in the US and compares those rules to job security provisions in other countries. I also offer a critical review of the theoretical and empirical literature on employment protection. Aside from the observation that increased firing costs will reduce turnover, economic theory produces mostly ambiguous predictions that depend on the structure of the model and assumptions about crucial parameters. Contrary to an oft-cited assertion in Lazear (1990), there is no feasible employment contract that ensures Coasean invariance to legally mandated firing costs. An extensive empirical literature broadly supports the notion that employment protection reduces aggregate employment, but other results have been decidedly mixed. Nevertheless, the available empirical evidence casts doubt on many of the market failure stories that advocates of legally mandated just cause protection offer to explain the prevalence of at-will contracts at private sector employers. The chapter concludes by proposing a new approach to measuring legal variables for the purposes of estimating their effect on the US labor market. First, we should focus on the marked differences among jurisdictions in the stringency of their employment law doctrines. Second, we should model explicitly the process by which both multi-state employers and cross-jurisdictional influences create powerful spillover effects.
I tend to speak in terms like liberty, privacy, and justice, which are hard to quantify, but for you law and economic types out there (this means you, Scott Moss), I would be interested in hearing your comments on this piece.
Email and Professors' Sexual Fantasies About Students
From Inside Higher Ed today:
But at the University of Texas at San Antonio, such fantasies in e-mail have taken center stage in a bid to fire a professor. And last week, a professor at another college — who received such e-mail messages, but didn’t share similar thoughts about his students — was suspended.
While much of the discussion in San Antonio has centered on shock in the local community that a professor could spend so much time recording offensive thoughts about students, there are some — beyond the lawyers for the professors involved — who believe that the case raises issues of due process and faculty rights.
Jordan Kurland of the American Association of University Professors said that in dismissing tenured professors, the rationale must be “directly and substantially related” to a faculty member’s job performance. In the case of e-mail containing fantasies about students, Kurland said that he could see these relating to job performance if a professor widely shared the e-mail in a way that would hurt the students discussed, or if he acted on the fantasies. But if neither of things happened (and no one at San Antonio alleges that they did), Kurland said flatly that there are not grounds for dismissal.
The professor at the center of the dispute is Ronald Ayers, a tenured economics professor who was fired last year by the university for having sexually explicit materials on his computer, in violation of the university’s policy of banning the use of the campus network to view obscene materials unless related to a professor’s teaching and research.
Ayers’s computer was examined after a graduate student reported hearing, from outside of his office, sexual noises coming from within, and then seeing Ayers leave his office alone, with no one else in the office. Ayers was not fired on the basis of his fantasies about students, but the university turned over those e-mails to a faculty panel, to which Ayers took an appeal of his dismissal. The faculty panel overturned his dismissal, saying that however unprofessional he may have been, dismissal was not justified.
The faculty panel — at least in its statements — ignored the fantasy e-mails as irrelevant. But The San Antonio Express-News requested and obtained the e-mails and published excerpts. The Web site The Smoking Gun has now published much of the e-mail in explicit entirety (minus student names) in a feature called “The Naughty Professor.” And since the e-mails named the professor who received them in addition to the author, the recipient (a community college professor) has now been suspended from his job. Neither professor has been accused of sex discrimination or harassing any student, nor is there any evidence that the e-mails represent anything by fantasy . . . .
Christina Gomez, president of the student body at the university, said that she found the e-mail fantasies offensive, but also (if not used in ways that would directly hurt students) irrelevant. “I personally don’t think a professor should be fantasizing like that, but you can’t prevent that. As long as he’s not doing something to fulfill the fantasy, you can’t do anything,” she said. “Everyone has their fantasies.”
I think the real problem here and why I disagree with the AAUP analysis is what the president of the student body points out: "She said she could never imagine going to his office to discuss questions. “That’s where the problem lies. With all of this, he won’t be able to do his job . . . .I don’t think students would feel safe having a one-on-one meeting with him.”
Oh yeah, and one more thing: probably not a good idea to masturbate loudly in your office either.
Just a thought.
Duru on The Impact of an Ex-Ballplayer's Legal Quest for a Pension
Jeremi Duru (Temple) has posted on SSRN his forthcoming piece in University of Cincinnati Law Review: Exploring Jethroe's Injustice: The Impact of an Ex-Ballplayer's Legal Quest for a Pension on the Movement for Restorative Racial Justice.
Here's the abstract:
In 1950, at the end of a triumphant season with the Boston Braves, outfielder Sam Jethroe earned Major League Baseball's National League Rookie of the Year Award. Limited, as a consequence of his race, to three full seasons and one partial season in the big leagues, however, Jethroe fell narrowly shy of the four-year eligibility requirement for a Major League Baseball pension. And, forty years later, without the safety net pensions are designed to provide, Jethroe found himself destitute and homeless. Shortly before his death in 2001, Jethroe sought, but failed to secure, legal relief from Major League Baseball.
Far from a minor matter of one retired ball-player's fight for supplemental income in his golden years, the basic characteristics of Jethroe's suit - a claim for pension funds denied as a consequence of Jim Crow era racial discrimination - present a uniquely powerful claim for delayed racial justice. Analyzed, such claims, coined Jethroe Claims by the author, avoid criticisms routinely launched at delayed racial justice claims and thus present a model for claims potentially open to scores of people of color who, by virtue of racial discrimination suffered during their working years, are deprived pension benefits in their later years.
This article explores the feasibility of the civil rights statute 42 U.S.C. § 1981 as a vehicle for such claims as well as the substantial obstacle statutes of limitations would pose. Recognizing, however, an enduring concern among jurists and scholars alike as to statutes of limitations dismissal of otherwise meritorious claims seeking to remedy civil rights deprivations, this article argues Jethroe claims should be spared statutes of limitations application and considers various approaches to thwarting such application.
Ultimately, this article argues that Jethroe claims could, if freed from statutes of limitations strictures, serve to deliver long-denied justice to retirees across the country and, in doing so, help heal the festering wound of racial animosity that has pervaded in America for centuries.
Of course, this scenario took place before the enactment of ERISA in 1974, and I doubt any way that that law would have provided the necessary relief is the various vesting schedules and accrual requirements could have been met. I like Jeremi's use of Section 1981 in this instance, but what really bothers me in cases like this is MLB and other sports organizations unwillingness to bend the rules in such instances crying out for justice.
ECJ Prohibits Sweeping Discriminatory Statements in Employment
The Wall Street Journal Blog has this interesting report on a recent European Court of Justice decisions concerning a sweeping discriminatory statement by an employer, but without a specific victim bringing the suit:
That tension, reports the WSJ’s Charles Forelle, bubbled to the surface in a recent ECJ ruling that a Belgian garage-door installer broke the EU’s antidiscrimination laws by stating publicly that he wouldn’t hire Moroccans, even though there was no evidence any job applicant had actually been rejected. The ruling rejected a prior decision from a a Belgian court originally that the statements, while possibly unsavory, didn’t necessarily amount to discrimination since no injured party could be found. (The British and Irish governments joined the case with similar arguments.)
Here’s what happened: The Belgian newspaper De Standaard quoted the director of a garage-door company, Pascal Feryn, as saying “we aren’t looking for Moroccans. Our customers don’t want them.” In a TV broadcast, he expanded: “People often say: ‘no immigrants’…I must comply with my customers’ requirements.” He added: “I’m not a racist. Belgians break into people’s houses just as much. But people are obviously scared.”
In rejecting the views of the Belgian Court, the ECJ said EU countries must provide for “effective, proportionate and dissuasive” sanctions — including, possibly, injunctions and fines — against employers who make sweeping statements viewed as discriminatory.
So how would this come out in the United States? Well, there would definitely be issues of standing with no identified injury apparent. However, if a Moroccan challenged such a facially discriminatory policy, there would be no bona fide occupational qualification (bfoq) defense because customer preference is not a bfoq under the Southwest Airlines Wilson case ("Love Airline") and similar decisions.
Heller on Discrimination as a Social Fact
Here are some highlights:
In my first post of this series (“When is Discrimination Wrong?”), I argued that drawing distinctions among people is morally problematic when it is demeaning and morally unproblematic when it is not demeaning. Of course this formulation leaves unanswered the important question: what is demeaning? In that post, I explained that to demean involves both an expression and power: to demean is to deny the equal moral worth (the equal humanity, if you will) of others and to do so in a way that has the ability to put others down. In this post, I explore the idea of demeaning further. In particular, I argue that whether a policy or practice distinguishes among people in a way that is wrong depends to a large extent on context and culture . . . .
A timely example of the social dimension of wrongful discrimination is the Turkish high court’s decision last month striking down a parliamentary enactment that would have eased the ban on head scarves at universities. Whatever one thinks about the importance of guarding the secularism of Turkey’s government, it is easy to see that the issue of whether head coverings are allowed in public schools has a different social significance in Turkey (or indeed in France as well) than it would in the U.S. While a ban on head coverings (or religious symbols or clothing of any kind) would have an impact on many different observant people in the U.S., the Turkish (or French) restrictions must be understood against the backdrop of the debate about the importance of safe-guarding the secular government, as well as debates (especially in France) about how welcome that country has been to recent immigrants from largely Muslim cultures. I don’t mean here to offer a precise account of this difficult and complex issue. Rather the point is this: the a ban on head covering, or religious symbols more generally, in public schools carries different meanings in some cultures as compared to others. This fact matters when assessing whether a ban on religious clothing, or a policy that treats students differently depending on whether they wear head coverings, constitutes wrongful discrimination . . . .
Clearly a theory of discrimination that grounds its wrongfulness in whether a policy which distinguishes among people does so in a way that demeans will need to confront the difficult question of disagreement among people about when and whether laws, policies and practices demean. I will take up the issue of disagreement in my next post.
Thought-provoking stuff, which challenges the way that courts have determined the scope of unlawful employment discrimination in this country.