October 10, 2009
Sen. Bayh on EFCA
Interesting take on the Employee Free Choice Act (EFCA) from one of the more moderate Democrats in the Senate, Senator Evan Bayh (D-IN) (from an interview with Howey Politics Indiana):
I’m for reform of the labor law system. I’ve said that repeatedly. I think there are problems with the election process getting strung out months and months and months. Some of the penalties for either side committing abusive conduct are either meaningless because they’re too small or they get strung out for years and it doesn’t have an impact. And when you do have successful elections, sometimes the negotiations go on for years and the results of the elections are frustrated in that. At the same time, I think preserving the secret ballot is a good thing. The hardest issues are what do you do once there’s been a successful election and there’s just an impasse at negotiations? I don’t think we’re going to have binding arbitration. But is the mechanism short of that? Is it some sort of last best offer? Is there some sort of finding of bad faith trigger? Some sort of action for mediation? I don’t know. I’m not on the committee that handles that, either, so I am an observer. I’m hoping we can reach a sensible compromise. Many in the business community this summer felt this is going to go off on an irrational way. I’ve heard their concerns. But many in the business community say, “Look, if you can preserve the secret ballot, have reasonably prompt elections, meaningful penalties for those few bad actors out there, then there is some incentive for people to bargain in good faith.” Many in the business community would support that kind of thing. Many on the labor side would say that’s not everything they want, but it’s a step forward. So I’m hopeful we’ll end up in that place. Only time will tell. I told the labor guys this and this is above my pay grade, but I don’t think we’re even going to vote on it this year.
Disappointing that Bayh does not think there will be a vote this year on some version of EFCA, but at least he is for reform of the labor law system. I guess the time it takes to pass some form of health care reform will give us the best indication of when we might see the final push for some version of EFCA.
Prof Sues George Mason Law School for Sexual Harassment
The National Law Journal reports that Kyndra Rotunda, currently at Chapman, has sued her former employer George Mason Law School for sexual harassment. She alleges that the director of the legal assistance clinic for military service members where she worked at GMU became uncomfortably attentive. In one incident, she claims he called himself her "knight and protector"; in another he bought her a scarf and suggested how she should wear it. In December 2006, according to the complaint, he allegedly invited her to drinks alone at his house, then stormed into her office screaming after she did not go. After that incident, Rotunda claims in court documents, Zengerle began micromanaging her work. He "repeatedly came uncomfortably close." There was another screaming incident.
October 9, 2009
EEOC Will Hold Town Hall Meetings on new ADAAA Regs.
The EEOC has announced that it will hold town hall meetings on the new ADAAA regs. From the notice,
The EEOC and DOJ's Civil Rights Division will hold four town hall meetings throughout the nation to share information and gather comments about proposed regulations in the recently enacted Americans with Disabilities Amendments Act. Each town hall meeting will consist of two sessions, one for disability advocates and one for the employer community, offering opportunities for both the business and disability communities to comment in person. The meetings will take place by Nov. 20 in Philadelphia, Chicago, San Francisco and New Orleans.
In addition, as part of a Federal Government-wide job fair for people with disabilities during early Spring 2010, the EEOC and other agencies will provide workshops throughout the day on a variety of topics involving reasonable accommodations for Federal workers and applicants. At the job fair, people with disabilities should be able to register, submit materials and perhaps get hired on the spot.
The Administration initiatives follow EEOC action last month to expand opportunities for people with disabilities by returning the ADA to the broad and strong civil rights statute that Congress originally intended it to be, and smoothing the road for those seeking protection under the ADA.
GAO Report on Sexual Orientation and Gender Identity Employment Discrimination
The Government Accountability Office has issued a Report on Sexual Orientation and Gender Identity Employment Discrimination: Overview of State Statutes and Complaint Data, GAO-10-135R. The report (1) reviews state statutes that prohibit discrimination in employment on the basis of sexual orientation and gender identity, including the characteristics, coverage, and exclusions of the laws, and (2) gathers information concerning the number of administrative employment discrimination complaints filed in each state -- both the total number and the number of complaints listing sexual orientation or gender identity as one of the claimed bases for discrimination.
The Report concludes that the administrative complaint data reported by states show relatively few employment discrimination complaints based on sexual orientation and gender identity. However, in some states, the laws proscribing sexual orientation and gender identity employment discrimination were enacted relatively recently, and data was incomplete.
Hat tip: Carol Furnish.
October 8, 2009
PR for the NLRB
The NLRB has just announced that it will be distributing a video (in both English and Spanish) that "dramatically portrays representation case processing." According to the Board:
The video is designed to inform the public, including potential voters, employers and unions about the role of the Agency. Employing narrators and actors in vignettes, the video chronologically depicts an organizing campaign, the filing of a petition, and an election. It also contains a general description of the pre-election hearing and post-election objection process, as well as a description of our Information Officer program that explains the various ways the Agency can be contacted.
The Office of Employee Development will be sending copies of the video on DVD to each field office for distribution to employers, employer associations, labor organizations, chambers of commerce, congressional offices, other federal and state agencies, schools, legal aid organizations, immigrant advocacy groups, and other local entities in the course of Regional outreach activities. In addition, it will be posted as a streaming video on the Agency’s Internet Website.
I smell Oscar. In all seriousness, this small step is welcome. I (among others) have long thought that the Board should advertise its role more to employees. Budget constraints have long been a big hurdle, so it's good to see that the Board is still working to get the word out. Hopefully, there will be more to come--especially in workplaces that do not have a union on the scene..
October 7, 2009
DOL Nomination To Be Held
The New York Times is reporting that Republican Senator Mike Enzi (WY) intends to place a hold on the nomination of Patricia Smith as Solicitor of the Department of Labor. There's some question whether this is partially payback for Democrats' delay of Eugene Scalia's nomination to the same post (he eventually got a recess appointment). For his part, Enzi cites Smith's involvement with the group Wage Watch:
Mr. Enzi first urged Mr. Obama to withdraw the nomination in August, complaining of the inaccuracies in Ms. Smith’s testimony concerning New York Wage Watch, a program created by her department in which labor unions and groups advocating on behalf of low-wage immigrants work with state officials to uncover wage and hour violations.
At one point in her confirmation hearing, Ms. Smith said she had not had discussions about expanding Wage Watch. At another, she said the idea for Wage Watch had been developed within her department, before outsiders were approached about the program. Ms. Smith, who declined to be interviewed for this article, has acknowledged since the hearing that she “misspoke.” In saying she had not discussed the program’s expansion, she had intended to say only that she had not authorized the expansion, her Democratic defenders say. And, they say, as for her testifying that the idea for the program originated within the department, she had not known that one of her deputies had consulted with a labor group about it.
“It is clear that these were inadvertent errors, not an attempt to mislead the committee,” the panel’s Democratic staff wrote in an internal paper circulated in recent days. “There is no reason for Smith to hide anything from the committee about this program, because nothing improper occurred.” But Mr. Enzi stepped up his opposition on Monday, sending a letter signed by all the committee’s Republicans that urged the chairman, Senator Tom Harkin, Democrat of Iowa, not to move forward with the nomination.
Whatever the reason for the hold, the DOL really needs a Solicitor to get its litigation machine in full gear. So here's hoping that it'll be resolved soon.
Louis Jackson Competition
Once again the law firm Jackson Lewis and Chicago-Kent’s Institute for Law and the Workplace will cosponsor the annual Louis Jackson Memorial National Law Student Writing Competition in Employment and Labor Law. The papers and supporting documents are due Tuesday, January 19, 2010. Papers are blind judged by a national panel of law professors. Neither Jackson Lewis nor Chicago-Kent have any say in the selection of the winners.
For many years now, Jackson Lewis has funded this competition as a service to us and our students, in memory of Louis Jackson, one of the founders of the firm. The first place award is $3,000 and there are two second place awards of $1,000 each. I have attached a flyer with more information about the competition. The flyer is also available here http://www.kentlaw.edu/
academics/plel/flyer%202009- 10.pdf .
Please spread the word and encourage your students to participate. At the end of the semester, as you are grading seminar papers, encourage the authors or your best papers to enter the competition.
Symposium on Iqbal
On March 26, 2010, Penn State University,
Dickinson School of Law will hold a symposium addressing the Supreme Court's
recent decision in Ashcroft v. Iqbal. The symposium, entitled Reflections on Iqbal, will be held
in Carlisle and videoconferenced to University Park.
DHS Issues Final Elimination of No-Match Rule
The Department of Homeland Security just released a final rule eliminating the no-match requirements. The Bush DHS had implemented the no-match rule, which required that employers "resolve discrepencies" between Social Security data and information that employers supplied about employees. This would generally require employers to simply fire employees whose information didn't match Social Security records. Even after a court struck down the rule, the DHS kept pushing for a similar requirement. The Obama DHS, however, had been indicating that it would adandon the requirement, which the rule finalizes.
October 6, 2009
Ricci Discussion on the Empdiscr Listserv
The Employment Discrimination Listserv has been buzzing lately with lots of debate on what the state of the law is now, after the Court's decision in Ricci v. DeStefano earlier this summer. Much of the debate centered around what is required now to prove discrimination, and really what the definition of discrimination is.
Whither intent? A large part of the debate focused on the intent requirement of disparate treatment. On the one hand, it seems, as Mike Zimmer noted here earlier, as if knowledge alone of the racial distribution of the test was enough for the Court to label the city's action discrimination. Knowledge alone has never before been enough to for an adverse action to constitute discrimination. In the words of the Supreme Court, the defendant must act "because of" the plaintiff's status, "not despite" it. The problem here seems to be the logical leap that the majority opinion makes between the City's knowledge of the racial results--poorer scores than chance would predict for the African American and Hispanic firefighters--and the conclusion that the sole reason the City did not certify the results was because the successful candidates were primarily white. The majority seems to have done this calculation: knowledge of racial results + decision to throw out test = explicit racial motive for throwing out the test. There does seem to be something missing there.At the same time, the City's decision not to use the test was caused by the racial outcome of the test. Had each group received passing scores at the same rate, the City would not have (presumably) thrown out the test. So race played a role here. So another line of analysis follows the thoughts of Kerri Stone, noted here, on transferred intent. The City wanted to spare the African American and Hispanic firefighters the consequences of the test results, and so to the extent that the City was motivated by race, the race that was considered was not the race of the plaintiffs. So does this mean that any time an employee is injured by an employer decision motivated by someone else's protected status (even where this employee doesn't share that status), will this employee have a cause of action? There are probably situations we could posit where we would say yes to that. For example, if a person is hired only because he or she is white, normally we would say that equally qualified people of color passed over were discriminated against. We could also posit situations in which we would be more likely to say no. For example, if a person subject to quid pro quo sexual harassment by a supervisor who has sexual relationships with only one sex (sleep with me for that promotion) gets a benefit (the promotion), can someone of the opposite sex sue because they didn't have the opportunity to provide the sexual favor and get the benefit? We're probably less comfortable with that scenario. And in Ricci, it's all the more complicated by the fact that if you consider winners and losers of the City's decision to throw out the test, you have white and Hispanic firefighters on both sides. Usually, if some members of the group are both winners and losers (think women in the pregnancy context--pregnant women v. non-pregnant persons), usually the courts find no discrimination on the basis of that group status.
Whither the African American firefighters? Another line of debate focused on what happens with the African American firefighters now, particularly their potential disparate impact claim. As a matter of preclusion law, they should not be barred by the Court's decision from bringing their claim. They weren't parties, and they never got the chance to prove that the process as a whole had a disparate impact and to make the City prove that the process was sufficiently job-related or to themselves prove that there was an alternative that wouldn't have the same impact. But the Civil Rights Act of 1991 provided that parties not represented but whose legal interests might be affected by a court decision or consent decree may not challenge the decision or decree if another party with substantially similar interests on the same facts used essentially the same arguments these parties would have. In other words, the City's defense of its actions may be close enough to what the African American firefighters would have argued had they been parties to the case that they may be barred from bringing a subsequent action to challenge the use of this test.
Another concern was whether by focusing almost exclusively on job relatedness the Court has discarded a disparate impact plaintiff's opportunity to prove that there are less discriminatory alternatives.
Broad or narrow? The last main point of discussion was what impact this case is really going to have. The majority at least attempted to cabin its decision by focusing on the expectation interests of these firefighters. In other words, the majority said that the decision only applies where an employer has announced criteria for hiring or promotion, but then changes mid-stream. If that is true, then an employer deciding on a process still has substantial leeway to choose among options and may choose a process that does as little harm as possible to any particular racial group as long as that process does not itself focus on race but even if that process is not perfectly job-related.
My takeaway, for what it's worth. While we're all trying to figure out what this case means going forward, I
don't think that the majority of the Court thought about these issues
with anywhere near as much nuance. It seems that Justice Kennedy worked fairly hard
to write the opinion as if the effect of this case was limited to a
situation in which the process had been announced and then changed
midstream after all of the applicants performed. And, honestly, I think the majority had a very simple view of human motivation and the state of the average workplace, particularly a political workplace, in this country. This is the scenario
(a fictional oversimplification) that I think the Court had in mind in
deciding this case:
1. Written tests are good and objectively and accurately measure merit--to the point that a person who scores a 93.02 will clearly be more qualified than a person who scores a 93.01.
2. This test was carefully designed by experts.
2. The people who passed worked really hard to pass.
3. The city's attorney saw the results and essentially this dialogue happened:
City Attorney: Oh Crap! Too many white people and not enough people of color passed this exam. We can't promote this many white people. We'll get sued.
Mayor: I agree. We can't promote this many white people. We'll get sued.
City Activist: You can't promote all of these white people.
Two Board members: The test was fine. Let them sue us. The testing company has to foot the bill: certify.
Two Board members: We can't promote this many white people: don't certify.
Given this simplified view, it was easy to say that the city's action was discrimination.Those of us who think about this all the time see the underlying record as much more complicated. And where things are complicated, we naturally want to create coherence.
I apologize to the participants in the discussion if I've overlooked or mischaracterized contributions to the debate. I'd welcome corrections, additional thoughts, and more discussion in the comments. And if you feel left out because you're not on the listserv but you teach courses in the area and want to be, contact our own Paul Secunda--he's the manager.
Supreme Court Rejects Card Check Challenge
Yesterday, the Supreme Court denied cert in Adcock v. Freightliner, a case in which a card-check agreement was challenged as a violation of Section 302 of the LMRA. The union and employer in the case had agreed to a neutrality and card-check agreement for five plants; pursuant to the agreement, the union was able to organize three of those plants. Five employees, represented by the National Right to Work Legal Defense Foundation, filed a RICO suit against the union, claiming that the agreement violated Section 302, which prohibits an employer from giving a union "any money or other thing of value." The denial of cert upheld a Fourth Circuit holding that the agreement merely established groundrules for organizing, and didn't represent something "of value" under Section 302.
The cert petition seemed to be trying to ride the publicity of EFCA to get the Court to take up this issue, but it's not a big surprise that the Court didn't bite. Courts have consistently rejected this type of interpretation of Section 302, so there wasn't even a circuit split to settle.
Hat Tip: Dennis Walsh
Perez Confirmed As Head of DOJ Civil Rights
Today, the Senate confirmed Tom Perez as head of the Department of Justice's Civil Rights Division. The vote was 72-22. You can see Perez's bio here.
Gross Goes Ledbetter
It now appears that the Gross ADEA decision might be going the way of the Ledbetter pay discrimination Title VII decision. From CQ Politics:
A trio of top Democrats from both chambers plan legislation aimed at rolling back a Supreme Court ruling they say makes it harder for plaintiffs to win age discrimination suits.
Tom Harkin , D-Iowa, chairman of the Senate Health, Education, Labor and Pensions Committee, and Patrick J. Leahy , D-Vt., chairman of the Senate Judiciary Committee, said Tuesday they will introduce a bill to restore a less-demanding burden of proof for plaintiffs in age discrimination suits. Rep. George Miller , D-Calif., chairman of the House Education and Labor Committee, said he intends to introduce a similar measure.
The proposed legislation is a response to the Supreme Court’s June 2009 ruling in Gross v. FBL Financial Services that plaintiffs claiming disparate treatment under the Age Discrimination in Employment Act must show that age was the determining factor in the alleged discrimination, rather than just one of several factors . . . .
Under the proposed legislation, the burden would be on the employer to show it complied with the law once a plaintiff shows age discrimination was a “motivating factor” behind an employment decision.
What I particularly like about the Congressional response is that in announcing the legislation Sen. Leahy quite rightly referred to the Supreme Court's decision as an activist decision by conservative justices.
Of courses when I say that "Gross Goes Ledbetter," I refer to the fact that President Obama signed into law the Lilly Ledbetter Fair Pay Act making it easier for workers to challenge wage discrimination, responding to the restrictive 2007 Supreme Court ruling in Ledbetter.
Supreme Court Asks for Solicitor General's Views on ERISA Preemption and San Francisco Universal Health Plan
As part of its orders yesterday, the U.S. Supreme Court asked the solicitor general to file a brief expressing the view of the federal government on whether the Employee Retirement Income Security Act (ERISA) preempts the San Francisco ordinance which sets up the Healthy San Francisco plan.
That plan requires medium and large employers in the city that are not providing more generous benefits to make minimum health care expenditures on behalf of covered employees, either into the employer's benefit plan or a city-administered health care program
I am especially interested in seeing how General Kagan and the DOJ handle this case. While there are arguments why we should let states be laboratories of experimentation in the health care financing context, the controlling ERISA preemption law arguably might require a preemption finding.
For my part, I find the Ninth Circuit panel decision in Golden Gate to be more consistent with the modern preemption doctrine first enunciated by the Court in the Travelers decision and which holds that there should be a presumption against preemption in areas of tradition state concern (like the health of its citizens).
New Legal Research Tool
Crain on Branding Work
Employment has shifted from a relatively stable and secure relation in which shareholders bore the risks associated with the market and firms buffered the risks vis-à-vis workers to a dynamic relation characterized by employment insecurity and individual responsibility. Modern businesses face new management challenges stemming from decreased employee loyalty and difficulties in supervising and controlling the workforce. Firms have responded by implementing internal branding programs that parallel consumer marketing programs but target workers rather than consumers. The goal of such programs is to re-align employees’ self-interest with that of the firm, persuading employees to internalize the firm’s brand so that they “live the brand” and react instinctively “on-brand.” Identity-based brand management, the most aggressive and potentially effective of the internal branding programs, aims to induce employees to view their employment as a personal relationship akin to a family tie, imbuing the economic transaction with emotional significance. In this psychological framework, workers’ decisions to invest in the firm - by staying and rejecting other labor market alternatives, and by purchasing company stock in their individual retirement plans - signify emotional attachment and faith rather than reflecting a cognitive process of choice. Understanding how identity-based brand management programs work sheds light on why employees consistently ignore conventional advice against over-investment in company stock in their individual retirement accounts, with potentially disastrous effects should the firm fail. The recent wave of “stock drop” litigation triggered by the recession reveals an even more disturbing trend: as the recession deepened, employees invested more, not less, in their firms.
Despite its willingness to regulate consumer advertising and dissemination of information to shareholders, the law has steadfastly refused to regulate internal branding or the investment choices that it influences. The traditional justification for the law’s refusal to intervene to protect employees from losses stemming from over-investment in their firms has been that employees unilaterally choose to make these investments: they choose employment at a particular firm, they choose to remain at the firm, and they choose to invest in company stock. Drawing on research by management theorists, economists and sociologists concerning the potential for manipulation of employees’ psychological framework through identity based brand management, I argue that the law’s matrix of unilateral choice to invest at a particular moment in time is only half the story. Though employees are not mindless victims or dupes, their vulnerability to brand management programs that influence their frame of reference over time fundamentally alters the lens through which they view investment choices. Branded employees come to see their relationship with the firm in affective terms rather than as a market transaction, and their investments signify faith and loyalty rather than reflecting a reasoned choice between investment options. I contend that the absence of regulation is unsustainable, and sketch the contours of possible legal responses.
October 5, 2009
The Wall Street Journal has a recent piece on EEOC retaliation filings. A familiar story to most readers: like other employment claims, they're up. And retaliation remains a significant portion of employment discrimination claims. As the WSJ's graph shows, retaliation claims enjoyed a slow rise as a proportion of all discrimination claims in the 1990s and has hovered in the general area of one-third of all discrimination claims for about the last decade. So, as all discrimination claims are on the upswing during this period of high unemployment, so too are retaliation claims (although the data show that retaliation claims rose faster this year).
One thing that the piece hinted at, but represents a significant aspect of retaliation claims, is that they're far more successful than straight discrimination claims. Managers often get angry after they're sued and, as a result, do really dumb things. So, as I tell my students, retaliation claims are the employment law equivalent of a political scandal: it's not the crime; it's the cover-up (OK, t's not a perfect comparison, but you get the drift).
Hat Tip: Joe Seiner
Call for Proposals for Fifth Annual Colloquium on Current Scholarship in Labor and Employment Law
The Organizing Committee for the Colloquium on Current Scholarship in Labor and Employment Law is now taking proposals to host the 5th Annual Colloquium to be held in Fall 2010. Previous Colloquiums have taken place in Milwaukee, Denver/Boulder, San Diego, and Newark, NJ. The Colloquium offers a chance for labor and employment law scholars to workshop their papers in front of a supportive group of their colleagues from around the country (and sometimes from around the world).If you are interested in pitching your school for the Colloquium, please email a written proposal to me
(email@example.com) by November 15th. The proposal should include information about the facilities to be used, the days proposed, how panels will be set up, food to be offered, accessibility to airport, and other costs to be borne.
If people are interested in seeing proposals from previous years, the Committee will be happy to supply you
with some past examples. Please note that past Colloquium have not charged a registration fee and participants are only responsible for their travel and lodging costs. Host schools have generously provided meals in the past during the Colloquium.
Please also feel free to email me with any additional questions you might have.
Virginia Law Responds to Prof. Eskridge's Allegations and Eskridge Replies
As posted on Brian Leiter's Law School Reports:
Professor Eskridge testified that he was denied tenure in 1985 because of his sexual orientation. He was not actually denied tenure, but was deferred for future consideration, a common procedure at the time. The faculty wished to see the fruits of his promising, but nascent, scholarly interest in legislation before granting tenure. His subsequent scholarship in that area was highly successful and influential, and he would certainly have received tenure at Virginia had he not resigned to accept a lateral offer from Georgetown.
People who were on our faculty at the time of these events deny that Professor Eskridge’s sexual orientation played any role. Many were unaware of it. And they emphatically deny the specific conversations Professor Eskridge recounts.
In my 19 years on the Virginia faculty, I have seen none of the prejudice that Professor Eskridge alleges. On the contrary, relations among straight, gay and lesbian professors have always been warm and supportive. Virginia prides itself on a friendly, collegial, welcoming environment and remains completely committed to equality, civility and mutual respect.
And now the Above the Law blog has posted a reply from Professor Eskridge to Dean Mahoney's statement. It reads in part:
On September 23, 2009, I delivered (brief) oral and (lengthy) written testimony before the House Committee on Education and Labor. I recounted my own tenure case at the University of Virginia . . . .
My claim was that the tenure decision in the autumn of 1985 was tainted by legal improprieties. I identified three kinds of improprieties:
# Due process. There were written procedures the Virginia Appointments Committee was supposed to follow, including notifying me promptly of the committee’s preliminary deliberations and giving me a chance to respond in person, before its report to the faculty. The Committee never informed me of my right to hear its concerns and to respond, a right that would have been very useful.
# Animus. The day after the committee’s final substantive deliberations, the committee chair “stormed into my office and screamed at me for 10 minutes or so. With clenched fists and a beet-red face, the chair of the committee threw a tantrum that included a string of accusations, such as ‘stabbing me in the back’ and behaving in the treacherous manner that he and his colleagues ought to have expected of a ‘faggot.’ Apparently, the chair thought I had complained to the dean that he had been derelict in following the established law school procedures and that I was sneaking behind his back to discredit him. In fact, I remained utterly clueless as to what those procedures were and was reduced to tears as the chair of the committee spat on me and called me dirty names.” (My written testimony, pp. 86-87.)
# Misrepresentations. The committee’s 24-page report (which essentially supplanted a positive report by a separate subcommittee) materially misled the faculty with misstatements of fact, fabricated versions of arguments I allegedly made, and offered some short-sighted evaluations—including the wacky opinion that my casebook on legislation “provide[s] far more detail than can be pedagogically justified, e.g., the treatment of rules and maxims of statutory interpretation” (committee report, p. 20).
As I recount in my written testimony, the result of this process was a faculty vote ratifying the tainted committee recommendation that I not receive tenure but be given a short-term contract (my written testimony, p. 86). Based upon my experience with the committee chair, conversations with committee members, and the misrepresentations in the committee report (which I secured in 1986), I left Virginia for Georgetown.
In conclusion, I testified that “the state had discriminated against me at least in part because of anti-gay animus, and its own documents indicated that there was not a rational basis at work; I was lied to and denied the process long established by the law school’s own procedures and probably also guaranteed by the Due Process Clause; and I was probably also being disciplined for various intellectual positions I had taken on matters of law school policy, including my leadership in a faculty motion for the law school to divest itself of investments in South Africa during apartheid, and matters of legal theory, such as my critique of leave-markets-alone law and economics, based upon cognitive psychology.” (My written testimony, p. 91.) . . . .
Dean Mahoney’s reply is mistaken as to a number of specific points, and I’d welcome a conversation with him where contemporaries or I can provide written or other evidence that (1) the committee’s report was dismissive of my legislation work and explicitly belittled the excessive “detail” in my “treatment of rules and maxims of statutory interpretation”; (2) there was no chance that the faculty would have reconsidered or granted tenure based upon the legislation or any other work, as I was told at the time by senior faculty and at least one member of the committee; (3) relations between the law school and gay professors have not “always” been warm and supportive. The University of Virginia School of Law’s culture in the 1980s was the culture of Justice Lewis Powell, the Justice from Richmond, Virginia who (erroneously) thought he had never met a “homosexual” and who was willing to join the Court’s opinion in Bowers v. Hardwick (1986), which rejected a privacy challenge to the state’s power to make consensual “homosexual sodomy” a felony with a mandatory one year sentence.
My larger point of disagreement with Dean Mahoney rests upon my characterization of the lack of professionalism displayed by the committee and its chair. Did the committee inform me of the written guarantee that I had to respond to their criticisms in person before the committee issued its report to the faculty? Did the chair engage in the tirade that I describe? I can describe that tirade in detail; if the chair of committee claims that he followed the procedures described above or denies that he engaged in this tirade, he is lying to Dean Mahoney.
To be sure, Dean Mahoney is in a tough spot. He was not there in 1985, and it can hardly be surprising that he would deny impropriety in a “he said, he ‘emphatically’ said” situation. There is a smoking gun, however, and it is in writing: the committee’s report. The report is filled with factual misrepresentations and fabrications; its few evaluations include the dismissive attitude toward rules and canons of statutory interpretation that refute Dean Mahoney’s view that I “would certainly have received tenure at Virginia” based upon legislation work . . . .
And I have the feeling this is not the last we will hear about this controversy. For now, however, I leave it to the readers to decide who they find to be more persuasive.
October 4, 2009
The New Two-Member Board Footnote
Following all the cert. petitions on the two-member NLRB issue, the Board's introductory footnote has changed yet again. Reflecting the craziness that's happened, it's become hilarious long. From The Parkside Group:
Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kir- sanow and Walsh on December 31, 2007. Pursuant to this delegation, Chairman Liebman and Member Schaumber constitute a quorum of the three-member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act. See Snell Island SNF LLC v. NLRB, 568 F.3d 410 (2d Cir. 2009), petition for cert. filed __ U.S.L.W. ___ (U.S. Sep- tember 11, 2009) (No. 09–328); New Process Steel v. NLRB, 564 F.3d 840 (7th Cir. 2009), petition for cert. filed 77 U.S.L.W. 3670 (U.S. May 22, 2009) (No. 08–1457); Northeastern Land Services v. NLRB, 560 F.3d 36 (1st Cir. 2009), petition for cert. filed 78 U.S.L.W. 3098 (U.S. August 18, 2009) (No. 09–213). But see Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir. 2009), petition for cert. filed sub nom. NLRB v. Laurel Baye Healthcare of Lake Lanier, Inc., _U.S.L.W._ (U.S. September 29, 2009) (No. 09–377).
Hat Tip: Justin Keith