Saturday, September 20, 2008

District Court for D.C. Holds Gender Identity Protected by Title VII

64pxa_transgendersymbol_plain3svgOn Friday, the District Court for the District of Columbia issued its decision  in the liability phase of Shroer v. Billington, a case brought by a woman who was transgendered against the Library of Congress.

Although born male, Diane Schroer identifies as female. She has an internal, psychological sense of herself as a woman. In August 2004, before she changed her legal name or began dressing publicly as a woman, Schroer applied for the position of Specialist in Terrorism and International Crime with the Congressional Research Service (CRS) at the Library of Congress. The terrorism specialist provides expert policy analysis to congressional committees, members of Congress and their staffs. Schroer was well-qualified for the job, having served in the U.S. armed forces in special forces and special operations and having directed an organization that tracked international terrorist groups. Although she was undergoing the long psychological and physical treatment to transition from male to female, she had not yet reached the stage of presenting herself as a woman. She applied under her legal, male name. She was the most qualified candidate in the view of the hiring staff at the Library of Congress, and was given the position. After the hiring paperwork had been submitted but before Schroer actually started work, she told her superiors that she would be transitioning to female and that when she began the job, she would do so as female. The Library rescinded the offer and gave the job to a less qualified man.

Schroer sued, and the district court found in her favor. The court held that the discrimination on the basis of gender identity is literally discrimination on the basis of sex and it is also discrimination on the basis of failing to conform to sex stereotypes, both prohibited by Title VII. The Library refused to hire her because she would not be feminine enough, in the view of one of the decisionmakers, having a particularly "macho" background and based on pictures Schroer provided of herself dressed as a woman. The court acknowledged that it was difficult to separate this motivation from the motivation  that it was Schroer's transgendered condition which made her a bad candidate, and which several courts have held is not protected by Title VII.

Ultimately, I do not think that it matters for purposes of Title VII liability whether the Library withdrew its offer of employment because it perceived Schroer to be an insufficiently masculine man, an insufficiently feminine woman, or an inherently gender-nonconforming transsexual. One or more of [the decisionmaker's] comments could be parsed in each of these three ways. While I would therefore conclude that Schroer is entitled to judgment based on a . . . claim for sex stereotyping, I also conclude that she is entitled to judgment based on the language of the statute itself.

Expert testimony conflicted over the issue of whether sexual identity is part of "sex" or "sexuality," and the extend to which a biological etiology determined identity. The court took a more pragmatic approach in deciding whether this conduct was discrimination on the basis of sex, however. The court analogized to religious conversion, stating that discrimination on the basis of conversion from Christianity to Judaism would still be discrimination on the basis of religion. "Discrimination 'because of religion' easily encompasses discrimination because of a change of religion." The library refused to hire Schroer because she was changing her physical sex through surgery. Likewise, it falls within the literal definition of "because of . . . sex."

In reaching  its decision, the court was critical of several circuit court opinions that have distinguished discrimination on the basis of "transsexualism" from discrimination on the basis of sex as using some notion of the spirit of Title VII to contradict the letter of the law, an approach to statutory interpretation that has  been clearly rejected by the Supreme Court. In all, the court's opinion is very thoughtful and thought provoking. If you have any interest in sex discrimination, gender identity issues, or Title VII, I highly recommend reading it. For a good analysis of the impact of this decision, see Nan Hunter's posts on Feminist Law Professors and hunter of justice.


September 20, 2008 in Employment Discrimination | Permalink | Comments (0) | TrackBack (1)

Friday, September 19, 2008

Tenth Circuit Holds that Defense of Title VII Claim Falls under Participation Clause

Scales_2The Tenth Circuit has issued an opinion in a non-traditional type of retaliation case. In Kelley v. City of Albuquerque, the employee, an attorney, had represented the city as a defendant in an EEOC investigation and was terminated when counsel for the plaintiff in that matter became the city's Mayor. The plaintiff won a jury verdict on her retaliation claim, and the City appealed, arguing in part that her activities were not protected by Title VII.

Title VII prohibits taking an adverse action against a person because that person "has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a) (emphasis added). The usual retaliation case under this provision involves a person who has participated in a way that assists the employee, much like retaliation under the opposition clause, which might be read more easily to exclude counsel for a defendant at least in most circumstances. Whether a defense attorney representing an alleged violator of Title VII is also protected as a participant was a matter of first impression. Under the plain language of the provision, the Tenth Circuit found that a person who participates by representing a client is covered, and a person who participates in a way that helps the defense is covered. Because the language was plain, the court stated that it needed to go no further, although, since courts like to cover their bases, it further held that this was not an absurd result.

[I]ncluding defense counsel within the ambit of the statute actually promotes its objectives. Congress’s studied use of all-embracing language signals its intent to address more than the limited objective of facilitating the reporting of discrimination by employees. Instead, Congress was also concerned with ensuring the “overall integrity of the administrative process.” . . . . . Protecting attorneys who afford representation to all parties in EEOC proceedings from subsequent adverse employment actions motivated by their participation serves this objective. Failing to shield such activity could chill the likelihood—and quality—of representation during such proceedings thus, in turn, impacting the fairness of the proceedings, the openness of the litigation, and the possibility of settlement. The City offers no cogent rationale for why this result fails to further the process-oriented goals of Title VII.

One of the really challenging things about this case was that the mayor and plaintiff had very different versions of what happened during the proceedings at issue, and essentially, the City might have been able to argue that it was not the fact of the plaintiff's participation that motivated the termination, but rather information about her competence that the mayor happened to learn through her conduct at the proceedings. The city did not make that argument, but instead argued that her termination had nothing to do with her participation in the proceedings. Still, that's a difficult question. Is acting on facts learned during EEOC proceedings retaliation? Can the impressions of a participant be separated from the role that person took?


September 19, 2008 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Job Announcement: Darryl Bean Professorship at Western Ontario Law

Westernontario Michael Lynx, the Associate Dean of Academics at the University of Western Ontario Law School, writes us about the following exciting new job announcement.

My university (the University of Western Ontario) received a very generous donation several years ago by the country's largest federal public service union (the Public Service Alliance of Canada) to create a professorship in labour law and women's studies, and the position is going to be cross-appointed between the Faculty of Law and the Centre for Women's Studies. The Darryl Bean Professorship is asking for a rather unique set of credentials and academic interests, and we are searching far afield for the right person.

The full job announcement for this position can be found on the Law School website.  Applications for the position are due by November 30th.


September 19, 2008 in Faculty News | Permalink | Comments (0) | TrackBack (0)

Annuity Issues to Consider When Moving from Wife No. 8 to Wife No. 9

Annuity From Suzanne Wynn at the Pension Protection Act Blog:

Yesterday, the 9th Circuit Court of Appeals decided whether or not a participant in a plan with a Qualified Joint and Survivor Annuity (QJSA) may change the surviving spouse beneficiary after the participant has retired and the annuity has become payable. In [Carmona v. Carmona], No. 06-15938 (CA9 Sept. 17, 2008), the Court held that the “QJSA surviving spouse benefits irrevocably vest in the participant’s spouse at the time of the annuity start date - in this case the participant’s retirement - and may not be reassigned to a subsequent spouse.”

How did this case become an issue:

At the time of the annuity starting date, Mr. Caruso was married to his 8th wife, Janis Caruso. In 1994, Mr. Caruso and 8th wife decide to divorce, and before the entry of the formal divorce decreee, Mr. Caruso ask to remove 8th wife as his named survivor beneficiary. Both plan administrators refused to remove her as beneficiary since the designation became irrevocable at the time of his retirement and annuity starting date.

Who says employee benefits law cannot be fun?


September 19, 2008 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

The Scope of IRCA Preemption

Scales Thanks to Ross Runkel for bringing to my attention this case from the 9th Circuit concerning whether the Legal Arizona Workers Act (LAWA)  is preempted by Immigration Reform and Control Act (IRCA).

In CPLC v. Napolitano (9th Cir 09/17/2008), the court examined LAWA, which allows state courts to suspend or revoke the business licenses of employers who knowingly or intentionally hire “unauthorized aliens.” 

As Ross explains:

That act also requires employers to use the federal E-Verify system (an internet-based system that allows an employer to verify an employee’s work authorization status). 


The 9th Circuit rejected various facial challenges to the Act, concluding (among other things) that it is not expressly preempted by the federal Immigration Reform and Control Act (IRCA).  In reaching that conclusion, the court determined that the Act fell within the scope of the “savings clause” of IRCA’s express preemption provision as a “licensing law.”

So it seems that IRCA, like ERISA, recognizes federalism concerns by exempting certain types of state laws that have historically been in the domain of state regulation. 


September 19, 2008 in Labor Law | Permalink | Comments (0) | TrackBack (0)

11th Cir. Follows Glenn in Denial of Benefit Case

Benefits In Doyle v. Liberty Life Assurance Co. of Boston, No. 07-10348 (11th Cir. Sept. 18, 2008), the Eleventh Circuit abandoned the heightened arbitrary and capricious review for denial of benefit claims under ERISA which have structural conflicts.

The move comes after the Supreme Court decided in Metlife v. Glenn this past term that benefit cases in which insurance companies both determine the right to benefits and pay out those benefits are in a structural conflict and that conflict must be considered as part of the court's review.  The Court refused to label that type of review as a type  of heightened review, instead saying that the court must review, in essence, the totality of the circumstances to determine whether the conflict amounted to arbitrary and capricious action:

We hold that the existence of a conflict of interest should merely be a factor for the district court to take into account when determining whether an administrator's decision was arbitrary and capricious. And we hold that, while the reviewing court must take into account an administrative conflict when determining whether an administrator's decision was arbitrary and capricious, the burden remains on the plaintiff to show the decision was arbitrary; it is not the defendant's burden to prove its decision was not tainted by self-interest.

Expect more courts to follow the 11th Circuit's lead in this regard in light of Glenn.


September 19, 2008 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Thursday, September 18, 2008

Remarks by NLRB Board Members and General Counsel

Nlrb The ABA's Labor and Employment Law Section recently held a conference at which the NLRB's remaining two members and its General Counsel spoke.  As described by the BNA's Daily Labor Report (subscription required), among the Board members' discussion was how the two-person Board is working and their reflections on the Bush Board generally: 

 On the one hand, the current board can be viewed as "stymied and dysfunctional," Schaumber said. He explained that the two members have been unable to reach agreement on about 20-25 percent of the new cases they review and on "a significant number of major cases" that were not decided while the board still had five members. There currently are about 22 cases that have been pending at the board for four to seven years, the chairman said. He observed that the current board is unable to reverse precedent because the board traditionally does not do so unless at least a three-member majority agrees. . . .

But on the other hand, "our two-member board is actively engaged in seeking to perform our statutory role to the extent possible," the chairman said. He reported that by the end of fiscal year 2008--on Sept. 30--the board is likely to have issued more than 300 decisions for the year, most of them by the two current members, and that they have set a goal of issuing 50 decisions this final month. He also pointed out that the inventory of pending cases is at a historic low of just under 200 cases. . . .

Liebman acknowledged Schaumber's "commitment and dedication ... in making this work and in trying to issue as many cases in an expeditious way as possible." She asserted that "it is really working with a fair degree of success." Echoing her colleague's comment, she said sometimes it is a "challenge" for the two members to agree on what the current board law is.

* * *

Without historical perspective, "it is difficult, if not impossible, to assess in a meaningful way the true legacy of the Bush board, Schaumber said. "Given the political dynamics of labor policy, it is conceivable that any legacy might be short-lived," he observed. "I will suggest, however, that if left to the test of time, the vast majority of the Bush board decisions will be seen as faithful to the statutory text and the intent of Congress in passing the act and ultimately as enhancing the integrity and independence of a board which is too often seen as a partisan tool of either labor or management," the chairman said. . . .

"There is no better gauge of how faithfully a board is following its statutory mandates" than how its decisions have fared on review in the federal appeals courts, which are composed of "judges with lifetime appointments and with no apparent labor-management bias," Schaumber said. He cited statistics showing that in FY 2007 just under 87 percent of board decisions were enforced in full and 97 percent were enforced in full or in part. "This is a historic high," the chairman said. In comparison, he said, during FY 2002 just over 60 percent of board decisions were enforced in full and just under 71 percent were enforced in full or part. . . .

 The major policy decisions of the Bush board "reflect very deep divisions about what the law is, what the law should be, about policy choices, and about judicial philosophy itself," Liebman said. She observed that "the issue that perhaps best captured that is the view of the competing policies within the act to promote collective bargaining as a national policy goal and to preserve the freedom of choice of employees to either accept or reject union representation." The board traditionally applied criteria to balance the competing policy interests, Liebman said. She asserted that the Bush board "for the first time" reordered the statutory policies and held that protecting freedom of choice prevails over the promotion of collective bargaining, which she said is the central focus of the NLRA. 

This "divide over policy preferences" arose in many different contexts, Liebman said. She criticized majority opinions that she said elevated employer property and speech rights over employee rights, rather than balancing both sides' rights. Although the NLRA "was enacted to promote collective rights," many of the significant policy choices of the Bush board "reflect something of a discomfort with collective rights, collective action, and the zeal that may accompany those efforts and perhaps even a discomfort with the notion of government regulation of business, particularly in the employment and labor context," Liebman said.

The General Counsel also spoke (and faced protests by members of the NLRBU) and the DLR's summary of his remarks include:

One of the general counsel's roles is to defend board decisions in the appeals courts, Meisburg said. He reported that there currently are eight cases pending in the federal appeals courts that challenge the legality of decisions that are issued by just two members. In addition, a party has asked an appeals court to enjoin a representation proceeding, arguing that a two-member board lacks the authority to decide election issues. . . .
 The general counsel supervises the regional directors, who are responsible for processing representation cases. Meisburg said his office issued a memorandum (OM 08-07) last October implementing procedures for the regional offices to issue a notice to be posted in the workplace when an employer voluntarily recognizes a union based on authorization cards signed by a majority of employees. The general counsel's office developed the notice form and issued the memo in response to the board's decision last fall in Dana Corp., 351 N.L.R.B. No. 28, 182 LRRM 1457 (2007). The board 3-2 modified the recognition bar doctrine to create a 45-day window for employees, after receiving notice that their employer has voluntarily recognized a union, to file a petition for a decertification election or to support an election petition by a rival union. . . .

As of Sept. 9, the regional offices have received requests for approximately 388 voluntary recognition notices, the general counsel said. He reported that 30 election petitions have been filed in voluntary recognition cases and that NLRB has conducted 15 elections. The employees voted for union representation in 11 of the elections and against union representation in the other four elections. Of the other 15 petitions, seven were withdrawn, two were dismissed, two are blocked by pending unfair labor practice charges, and four are pending, Meisburg said.

The GC discussed as well past memos dealing with employee political activity, the Toering and Oil Capitol salting cases, and the Grosvenor Orlando and St. George Warehouse (the memo for which is expected soon) mitigation cases.

A final note is that Liebman cited Sam Estreicher's (NYU) 1985 article, "Policy Oscillation at the Labor Board: A Plea for  Rulemaking," in which he argued that the Board could use rulemaking to establish policymaking and quickly decide more routine cases.  She compared the two-member Board's process as focusing on the same type of more routine cases that Estreicher described.


September 18, 2008 in Labor Law | Permalink | Comments (0) | TrackBack (0)

ADA Amendments on to Bush's Desk

120pxuswhitehouselogosvgYesterday, the House, by voice vote, approved the Senate version of the amendments to the Americans with Disabilities Act, amendments we've blogged about here, here, and here. According to the New York Times, President Bush has said he will sign it. The legislation clarifies the definition of who is disabled, superseding the Supreme Court's decision in Sutton v. United Airlines, in which the Court had held that people who can mostly compensate for an impairment through mitigating measures are not disabled under the ADA.

This bill had widespread support, bipartisan and employer/employee advocates alike, and its passage is good news.


September 18, 2008 in Beltway Developments | Permalink | Comments (0) | TrackBack (0)

Website Launched for Global Workplace Casebook

Global Mike Zimmer (Seton Hall) reports that the authors of The Global Workplace: International & Comparative Employment Law – Cases & Materials (Cambridge University Press 2007) have started a website for the book.  The website provides  access to the current Teachers Manual, current Update of the materials, PowerPoint slides for class presentations, a Research Tools section, and a (password protected) section of sample exams  for courses based on the book.

The website can be accessed at


September 18, 2008 in Teaching | Permalink | Comments (0) | TrackBack (0)

Miller Inducted into College of Labor & Employment Lawyers

Millerps_2 Paul Steven Miller (U. Washington) has been inducted as a fellow into the College of Labor and Employment Lawyers.

Miller is the Henry M. Jackson Professor of Law specializing in disability and employment discrimination law.  He joined the U.W. faculty in 2004, after spending 12 years in public service in Washington, DC.  He was one of the EEOC Commissioners.  Since 2006, Miller has been the director of the UW Disability Studies Program, an interdisciplinary program that examines the social, cultural, historical and personal experience of disability.  He is also a member of the UW Graduate School faculty, a Faculty Associate of the UW Harry Bridges Center for Labor Studies, and a faculty advisor to the UW School of Law Health Law Concentration Track.


September 18, 2008 in Faculty News | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 17, 2008

More on Pyett

Court Dennis Nolan points us to the Daily Labor Report's discussion this morning of the panel on the Pyett case at last week's ABA L&E Section meeting.  Predictions lean toward a ruling that unions may not waive employee's right to a judicial forum for employment discrimination claims.  Some of the speakers predicted gloom and doom for employees if the Court rules the other way.  That may be hyperbole, says Dennis -- employers have bigger fish to fry, unions can always just say no, and neither will often be willing to strike over the issue.


September 17, 2008 in Arbitration | Permalink | Comments (0) | TrackBack (0)

Levinson on Workplace Privacy and Employee Monitoring

Levinson Ariana Levinson (Louisville) has just posted on SSRN her article Industrial Justice: Privacy Protection for the Employed.  Here's the abstract:

118 years ago Samuel Warren & Louis D. Brandeis proclaimed that technological change necessitated new protections for the right to privacy. Today, new protections for the right to privacy are called for once again because, in the American workplace, technological change continues unabated and little privacy is afforded employees from employer monitoring using the technology. Moreover, employers are disciplining and terminating employees based on information uncovered by monitoring. Recently, many employees have been terminated for off-duty blogging. Employees are often disciplined for using e-mail for personal reasons while at work. And global positioning systems ("GPS") have been relied on to discipline drivers and other employees.
This is the first academic article to provide a detailed review of labor arbitration decisions governing the right to privacy from employer monitoring in over thirty years. The article uses the decisions, on employee privacy and technologies such as GPS, e-mail, and the Internet, as a springboard to propose privacy protections in the non-Union private sector workplace. It, thus, fills a gap in the academic literature. The framework suggested provides the greatest protection for off-duty behavior, intermediate protection for on-duty expression of thought, such as through computer usage, and baseline protection for on-duty actions. It could be implemented through legislation of minimum rights or mandates for employers to adopt safe-harbor policies.

Ariana invites comments -- please send them to her directly.


September 17, 2008 in Employment Common Law, Scholarship | Permalink | Comments (0) | TrackBack (0)

Former Censored Fim: The Story of OSHA

Fascinating.  Via the folks at the Institute for Workplace Studies at Cornell IR:

[These are] 3 films created in the ending days of the Carter Administration, then censored by the incoming young buck appointed by Ronald Reagan to systematically neuter the organization.

The Story of OSHA (1980)

This film tells workers how OSHA was set up to stem the tide of disease, injury, and death, and what their rights are under the law. Explains how NIOSH conducts tests, how standards are set, and how OSHA investigates complaints. Produced and distributed by OSHA in 1980. Then in 1981, the incoming head of OSHA Thorne Auchter recalled and destroyed most copies. A few copies were kept alive by renegade union officials who refused to return their copies. The penalty for being discovered in possession of one of these films was loosing all OSHA funding for their safety and health programs.

This film was preserved through the years through the efforts of Mark Catlin, who made this and other censored OSHA films available for digitizing.

Gee, imagine that.  Reagan was against allowing workplace safety and health initiatives.

In any event, I plan to show this in my employment law class to help explain the realities of workplace injuries and illnesses.  And who knows? Maybe in a new presidential administration, the federal government will actually carry out OSHA's purposes and pass some new regulations.


September 17, 2008 in Workplace Safety | Permalink | Comments (0) | TrackBack (1)

ERISA Preemption and State Apprenticeship Laws

Erisa The Sixth Circuit decided an important ERISA preemption case yesterday, Associated Builders & Contractors, Saginaw Valley Area Chapter v. Michigan Dep't of Labor & Economic Growth, No. 07-1639 (6th Cir. Sept. 16, 08) ,concerning the continuing validity of state apprenticeship laws in light of ERISA. 

From the Daily Labor Report today (subscription required for full article):

The Employee Retirement Income Security Act does not preempt a Michigan law that sets ratio and equivalency requirements for apprentice electricians, the Sixth Circuit rules in lifting an injunction issued in 1992 that barred the state from enforcing the apprenticeship laws.

In ruling that the Michigan Department of Labor and Economic Growth can now enforce the ratio and equivalency requirements set out in the state's electrician apprenticeship law, the three-judge appellate panel finds that the state law imposed mandates on apprenticeship training programs, but those mandates did not affect ERISA-regulated concerns.

According to the appeals court, the policies underlying the ratio and equivalency rules, which were aimed at the safety of electrical apprentices, are "quite remote from the areas with which ERISA is expressly concerned." The court finds, among other things, that if ERISA preempted the apprenticeship law, it would result in states being prevented from regulating the safety of apprentices and the standards of electrical apprenticeship, areas that traditionally have been regulated by the states.

This case is an appropriate application of ERISA's modern ERISA preemption doctrine, which is closer to conflict preemption than field preemption. 

It also highlights something that I have been writing about a lot recently, which is that states have an important, complementary role to play in areas that are generally though to be occupied by federal labor relations law.  Jeff and I have a debate on PENNumbra coming out on October 1st on the role of state regulation of the workplace (more details to follow).

I will take this decision, Jeff, as the Sixth Circuit siding with my side of the debate.


September 17, 2008 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Symposium: Intersection of Transgender Lives & Law

Temple_2 Natalie Hrubos, EIC,  emails to update us on the November 8 symposium at Temple, to be hosted by the Temple Political & Civil Rights Law Review:

The Symposium will feature a keynote address by Professor Dean Spade of Seattle University School of Law, an afternoon address by Shannon Minter of the National Center for Lesbian Rights, and panels of accomplished scholars and practitioners addressing the ways in which our legal and social systems create obstacles for transgender persons and the ways in which those obstacles affect transgender lives.

Symposium panels will focus on issues of gender self-determination, workplace diversity, and criminal justice. Ultimately, the Symposium aims to provide a forum for discussion regarding the policies and practices that would best address the challenges faced by transgender communities.


  • Gabriel Arkles, Staff Attorney, Sylvia Rivera Law Project
  • Kylar Broadus, Associate Professor, Business Law, Lincoln University of Missouri
  • Taylor Flynn, Associate Professor of Law, West New England College School of Law
  • Dr. Gwen Greenberg, Podiatrist and Lecturer on Transgender Issues
  • Dr. Dan Irving, Assistant Professor, Human Rights and Sexuality Studies, Institute for Interdisciplinary Studies, Carleton University
  • Terry Kogan, Professor of Law, S.J. Quinney College of Law, University of Utah
  • Andrea Ritchie, Attorney and Author
  • Katrina Rose, Attorney at Law (Texas and Minnesota), Doctoral Candidate and Graduate Teaching Assistant, Department of History, University of Iowa
  • Dr. Jillian T. Weiss, Associate Professor of Law and Society, Ramapo College of New Jersey


September 17, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 16, 2008

Jones Plastic Affirmed

Nlrb The Seventh Circuit has just enforced the NLRB's decision in Jones Plastic & Engineering Co.  In that case, a 3-2 Board found that striker replacements whose job applications said they were at-will employees could be considered permanent replacements who would block the reinstatement of workers who who seeking to return to work after an economic strike.  This decision overruled the Board previous rule in Target Rock, which stated that at-will disclaimers undermined an employer's attempt to show that the replacements were permanent.  As described by the BNA's Daily Labor Report (subscription required), the court agreed with the new Board rule:

A Tennessee company did not violate the National Labor Relations Act by failing to reinstate immediately economic strikers because it had hired permanent replacements, even though those "permanent" workers had signed job applications indicating that they could be fired at will, the U.S. Court of Appeals for the Seventh Circuit ruled Sept. 15. 

Denying a United Steelworkers challenge to a National Labor Relations Board decision, the court found that the board permissibly held that Jones Plastic and Engineering Co. had proven that the company and striker replacements had a "mutual understanding" that their employment was permanent. In a 3-2 decision, the board ruled that an at-will employment clause in the striker replacements' job applications did not make them "temporary" replacements who must give way to returning strikers. 

The union argued that although an at-will employment clause does not by itself defeat a finding of "permanency," it weakens the argument that Jones and the replacement workers had a mutual understanding their jobs were permanent. The Steelworkers warned that by allowing employers such as Jones to "keep all options open," NLRB's ruling could permit employers to manipulate the process to allow only favored strikers to return to work.

 The appeals court, however, found that under NLRB's approach, an employer could not fire some replacement workers in order to bring back strikers who had renounced the union, for example, and still assert that the replacement workers were "permanent." "Plainly, such conduct would constitute nearly incontrovertible evidence that the replacements--despite their label as 'permanent'--were not in fact permanent," Judge William J. Bauer wrote. "Thus, contrary to the dissenting Board members' view and the Union's argument, Jones Plastic has not kept all its options open." 

In a separate concurring opinion, Judge Diane P. Wood said the union "has in fact won the war even if it lost the battle" regarding Jones Plastic. She explained that although the court rejected the union's argument that in order to be considered "permanent," replacements must have contractual protections against discharge, it effectively agreed with the Steelworkers that employers cannot supplant replacements with returning strikers on an ad hoc basis and still call them "permanent" replacements. "[T]his case presents the question whether a company is entitled to exercise its discretion to fire an at-will employee solely because it wants to bring back strikers in the absence of a formal settlement or order from the Board," Wood wrote. "In my view, the [Seventh Circuit] majority has answered that question 'no.' " . . .

  The court's "important gloss" on NLRB's decision is "exactly what the union requested, as a matter of law," Wood wrote. "Before a replacement worker who was hired as an employee at will can be characterized as 'permanent,' and thus before an employer may refuse to release the worker when the economic strikers make an unconditional offer to return to work, the company must somehow make it clear that the employer's normal discretion to fire the at-will employee is constrained," Wood wrote. "It may not fire the at-will worker just to create a position for a returning striker, unless that action is required either by a strike settlement agreement or by an order of the Board."

 I'm OK generally with the court's statements that the classification of a replacement as "permanent" need not always require an enforceable contract under state law (if only because the states can have widely different approaches to accepting the validity of such agreements--Tennessee, in particular, is very resistant to finding that an employment agreement trumps the at-will default).  But I'm also not as sanguine as the concurrence about the basic holding of the case; I fear that it will give employers too much of a leash with which they can treat replacements as at-will employees, but still use them to block strikers' return.  Indeed, the fact that the other two judges didn't sign on to Judge Wood's analysis seems telling.  Only time will tell, I guess.

Hat Tip:  Dennis Walsh


September 16, 2008 in Labor Law | Permalink | Comments (5) | TrackBack (0)

Call for Submissions

Manu Journal of Employment and Labor Law

The Journal of Employment and Labor Law is the official publication of the Employment and Labor Law Section of the Academy of Legal Studies in Business.  The editorial mission is to provide accurate and authoritative information and commentary on statutory, regulatory, and jurisprudential developments in employment and labor law, in a form that is practical and readily usable by management professionals, students, teachers, researchers, and writers in the fields of employment and labor law, and to encourage and facilitate research and writing about issues at the developing edge of these fields.

The Journal of Employment and Labor Law is seeking manuscripts for its next issue, with an anticipated online publication in February 2009.  The deadline for submissions is November 15, 2008.  All submissions should comply with the Manuscript Guidelines and can be sent to the Journal’s Editor-in-Chief, Denise Smith, at

Hat tip: Bob Sprague (U. Wyoming Department of Management & Marketing).


September 16, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Call for Papers for Southeast/Southwest People of Color Conference

Seswpocc_2 From Wendy Greene (Samford) comes a call for papers for the 2009 Southeast/Southwest People of Color Legal Scholarship Conference. The Conference will be held in Phoenix, Arizona in March. If you are interested in presenting a paper or organizing a panel related to the theme of the conference, please submit your materials to Wendy at

Also, the Conference sponsors a Student Writing Competition. The winner of the competition is awarded an all expense paid trip to the Conference and the opportunity to present his/her paper at the conference.


September 16, 2008 in Conferences & Colloquia | Permalink | Comments (0) | TrackBack (0)

Depressing Gender Wage Figures

120px1999_sba_obv_pI think Susan B. Anthony is grumpy because she read the most recent Income, Earnings, and Poverty Data From the 2007 American Community Survey from the Census Bureau. That report demonstrates continued earning disparities between men and women, disparities the legal profession is not exempt from.

Women in the legal profession make only about 51% of what men in the legal profession make. Of course, some of that disparity is caused by gender segregation--women disproportionately are employed in the lower paying jobs of secretary and paralegal. But even within the same job categories, the numbers should give us pause. The median salary for male lawyers was 120,400, while for women it was 93,600. The median salary for male judges, magistrates, and other judicial workers was 108,100, and for women it was 69,500. For paralegals and legal assistants, the disparity was smaller at 45,700 for men and 42,600 for women. And for other workers, labeled "miscellaneous legal support workers," men earned 56,000 and women, 40,700.

The only occupations of all analyzed where women's wages were equal to or slightly greater than men's (not accounting for the margin of error), were "other" personal care and service workers and telecommunications equipment installers and repairers. Just more context for the fair pay debate.

Hat tips: Paul, Paul Caron, ABA Weekly Journal


September 16, 2008 in Government Reports | Permalink | Comments (0) | TrackBack (0)

Call for Information from AALS Employment Discrimination Section Newsletter

Conf Nancy Levit (UMKC) writes to tell us that the AALS Section on Employment Discrimination Law is preparing a list of recent scholarship for the upcoming annual section newsletter. 

If you have an article that was published between November 2007 and now (or will be forthcoming in the next two months) that you would like to have included, please send complete title, volume, journal, page and year information to Nancy Levit at by October 1, 2008.


September 16, 2008 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)