Workplace Prof Blog

Objections to Kodak's Proposed Race Discrimination Class-Action Settlement

In 2004, a group of Black workers of Eastman-Kodak filed a class action against the company, alleging widespread discrimination in pay and a failure to promote on the basis of race. A second class action was filed by another group of workers in 2007. The two classes together consist of about 3000 past and current employees. This past July, the company proposed a $21.4 million dollar settlement with the class--with payouts between $1,000 and $75,000 for individual class members. Magistrate Judge Jonathan Feldman (W. D. N.Y.) held a hearing Friday on the fairness of the proposed settlement, and will hold another on November 5. At Friday's hearing, several class members objected that the payouts were too low, that the attorneys were getting too much of the award, and that class members who left the company before 1999 would be excluded.

Some examples of the unfairness of the award include that one decades-long employee would be awarded $1000 while her daughter, employed for only 11 months, would be awarded $3000. For more details see news reports here and here.

Despite this example, it's hard to predict without knowing more what the judge will likely rule on whether the settlement is fair overall. In addition to the money, the company promised to improve its diversity training for supervisors and hire an industrial psychologist and two labor statisticians to review its pay and promotion policies and to recommend improvements. As Jason Bent recently suggested, having an external monitor to report to the court and some sort of ongoing supervision would be even better.

MM

Waterstone quoted on McCourt Firing

Congratulations to Michael Waterstone (Loyola--LA), who is quoted in this LA Times article about a high profile termination by the owner of the Dodgers. It's an interesting and likely messy situation. The owner of the Dodgers, Frank McCourt, fired the co-CEO and Vice Chair of the organization, his wife, Jamie McCourt, by letter. The couple is separated. The letter (posted here at tmz.com), states that she was an at-will employee, but although no cause was required for her termination, her "insubordination, non-responsiveness, failure to follow procedures, and inappropriate behavior with regard to a direct subordinate, have made this decision necessary." Yikes. Jamie McCourt is expected to file a lawsuit next week.

Mike was asked about the firing, and here is what he had to say about why the letter had these reasons in it if she was really an at-will employee:

"It could be one of two reasons," Waterstone said. "One could be emotions that have nothing to do with legal issues."

The other, he said, could be an anticipation that Jamie McCourt might argue she had an oral contract, a reasonable expectation that a husband and wife working together and presenting themselves as the top executives of the club would not have a written contract between them.

"He's moving the first chess piece to respond to that," Waterstone said.

Frank McCourt claims he is the sole owner of the Dodgers. If Jamie McCourt can establish in court that she is a co-owner of the team and not an employee, Waterstone said, then issues surrounding when and how an employer can fire an employee might not be relevant.

MM

NLRB's FY2009 Productivity

The NLRB has just announced its Fiscal Year 2009 productivity.  This past year, the Board--working with only two members--decided 256 cases.  Unfair labor practice cases made up 195 of these decisions; 61 of the cases were representation ones.  The number of cases awaiting decision rose to 195 from 171 last year.  The previous fiscal year, where the Board had a full complement of members for 3 months saw 328 decisions.

Further evidence that Chairwoman Liebman and Member Schaumber are working hard.  We'll find out if much of that work has to be repeated because of the two-member decision issue.

-JH

Teacher's Manuals

As a group project in my Labor Law course this semester, my students are drafting a teacher's manual for the casebook (lest you think I'm expropriating their labor, they organized a union and bargained for this as a term and condition of employment).  As a side benefit, they've come up with all kinds of creative ways to approach the cases that I never would have thought of.

I'd like to give them a model case discussion from a teacher's manual so they can pattern their case discussions accordingly.  I'm having a difficult time, however, coming up with a good one.  An ideal example would be of a labor law case or a prominent case from the first-year curriculum -- something they'll all recognize.  Any suggestions? If so, please email me a pdf or Word copy.  I'd much appreciate it.

(Cross-posted on PrawfsBlawg.)

rb

Curbing Excessive Executive Compensation by Making it Non-Deductible

 Aaron Zelinsky (Yale 3L) proposes curbing excessive executive compensation by making it nondeductible.  The best part: the IRS can do it by simply re-interpreting an existing provision of the tax code, so there's no need for a bruising political battle in Congress.  Here's Aaron's abstract:

Section 162(a)(1) of the Internal Revenue Code, as construed by the IRS, effectively allows publicly traded businesses to deduct an unlimited amount of executive compensation for corporate tax purposes. In contrast, the IRS has consistently used § 162(a)(1) to limit corporate deductions for executive compensation paid by closely held corporations. This Comment proposes that, in light of recent scholarship, the IRS has misapplied § 162(a)(1), since publicly traded corporations may lack the appropriate oversight and incentive infrastructure to set executive compensation reasonably. Therefore, this Comment proposes that the IRS should use § 162(a)(1) to render such compensation nondeductible, just as the Service examines the deductibility of compensation paid by privately held corporations. 

Aaron's article is on SSRN -- see Taxing Unreasonable Compensation: §162(A)(1) and Managerial Power (forthcoming Yale L.J.).

rb

Toward a 4-Day Work Week

Michael Fischl (U. Conn.) writes to give us the scoop on Connecticut Law Review's upcoming symposium (Freiday, October 30) Redefining Work: Implications of the Four-Day Work Week.  The symposium is particularly timely given news continuing to come out of Utah at the end of the first year of its experiment with the four-day work week for public sector employees.  Register for the symposium here.  The star-studded program:

The Four-Day Work Week: Views from the Ground

• Chair: Sachin Pandya (University of Connecticut School of Law)
• Rex Facer & Lori Wadsworth (Brigham Young University, Marriott School), Four-Day Workweeks: Current Research and Practice
• Zachary Henige (Service Employees Int'l Union), Shortened Work Week: Ask the Workers
• Riva Poor (Author and Lecturer), How and Why Flexible Works Weeks Came About 
• Robert Bird (University of Connecticut School of Business), The Four-Day Work Week: Old Lessons, New Questions

The Law & Economics of Reduced/Compressed Work Weeks

• Chair: Peter Siegelman (University of Connecticut School of Law)
• Jennifer Hunt (McGill University, Department of Economics), If the Four Day Week Is Such a Good Idea Why Don't We Have It Already and other Reflections of an Economist
• David Howell (Milano, The New School for Management and Urban Policy), The Economic Consequences of Legislating Work Hour Reductions: Lessons from the U.S. Fair Labor Standards Act (1938) and the French Aubry Laws (1998-99)
• Rachel Arnow-Richman (University of Denver, Sturm College of Law), Incenting Flexibility: What the Four-Day Week Tells Us About the Relationship between External Law and Voluntary Action in Enhancing Work/Family Balance
• Deborah Epstein Henry (Flex-Time Lawyers LLC), The Case for Flexible and Reduced Hours: Making Work/Life Balance a Win/Win Economic Solution for Lawyers and Legal Employers?

Keynote: Emily Grabham (Kent Law School, University of Kent at Canterbury)
Flexible Work, Gender and the New Economy: Retrieving Clock Time through the Four-Day Work Week?

Reduced/Compressed Work Weeks: Who Wins? Who Loses?

• Chair: Lucy Williams (Northeastern University School of Law)
• Shirley Lung (CUNY School of Law), The Four-Day Work Week: But What About Ms. Coke, Ms. Upton, and Ms. Blankenship?
• Michael Green (Texas Wesleyan University School of Law), Four-Day Weeks and Efforts Aimed at Reducing Work Time: Employer Sympathy or Circumventing Unions and Wage Hour Laws?
• Allison Hoffman (Academic Fellow, Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, Harvard Law School) , Working Time and Health 
• Lonnie Golden (Penn State Abington), The Greatest of All Times? Timing v. Length of the Work Week and Implications for Workers’ Well Being

Redefining Work: Possibilities and Perils

• Chair: Karl Klare (Northeastern University School of Law)
• Vicki Schultz (Yale Law School), Through the Gender Lens, Darkly:  The Need for More Reasonable Working Hours for Most Working Families
• Michelle Travis (University of San Francisco School of Law), What a Difference a Day Makes, or Does It?  Work-Family Balance and the Four-Day Work Week
• Brishen Rogers (Climenko Fellow, Harvard Law School), The Four-Day Work week and the Foundations of Employment Law
• Katherine Silbaugh (Boston University School of Law), Social and Institutional Practices Influencing the Value of the Four-Day Week

rb

Estreicher on the Future of American Trade Unionism

Sam Estreicher (NYU) has released his article, "Trade Unionism Under Globalization:  The Demise of Voluntarism?" [Download Estreicher Article], which will be published in the St. Louis University Law Reviews "Competition in the Global Workplace:  The Role of Economic Markets" symposium issue.  His thesis:

We are now beginning to see a qualitative change in labor’s relationship to the state: trade unionism as a supplement to politics. Labor’s economic objectives have not changed; the means are undergoing change. The thesis of this paper is that largely in response to the deepening of competitive forces in private markets in the U.S. – from deregulation, changing technology and the opening up of global labor and product markets (due to decreasing transportation and communication costs and the lowering of trade barriers) -- organized labor increasingly will function predominantly as a political organization. Collective bargaining will continue to provide an institutional raison d’etre and critical funding source for unions but only one (and a diminishing one) of several means for advancing the interests of its members and other constituencies. This is not to suggest the emergence of a labor party on the European model; it is an American variant: the fortunes of the labor movement will become ever more tightly tied to the fortunes of the Democratic Party and economic goals increasingly will be achieved not at the bargaining table but through the provision of public resources.

I saw Sam present an early version of this piece at the SLU symposium and it's very interesting, so definitely check it out.

-JH

Why Isn't the EEOC Pursuing Better Consent Orders?

In my last post, I discussed the EEOC’s pursuit of systemic harassment cases and noted that they almost always settle with the entry of a consent order.  Today, I want to take a closer look at some of those consent orders and consider whether the EEOC is missing an opportunity to pursue positive structural changes in some workplaces that need them.

As part of a recent project, I reviewed the consent orders that were publicly available in EEOC pattern or practice of harassment cases.  The consent order recently entered in EEOC v. Corrections Corp. is a fairly typical one.  The highlights of that consent order include: 

(1) monetary relief in the amount of $1.3 million; 

(2) enjoining the employer from maintaining a hostile work environment or retaliating against an employee complaining of a hostile work environment;

(3) requiring the employer to maintain policies and practices that help assure a work environment free from sexual harassment of their employees, including maintaining a 1-800 number for reporting complaints;

(4) requiring the employer to retain a training consultant to provide consultation and training on sexual harassment for 3 years.  This consultant must provide one live training session (at least 90 minutes, plus at least 15 minutes for Q&A) annually for the first 3 years, after which time the defendant may use a videotape of the training session;

(5) requiring HR and managerial staff to be provided 2 hours of training on prevention of harassment and retaliation;

(6) requiring the employer to maintain a written policy concerning sexual harassment, which must meet certain identified minimum criteria;

(7) requiring the employer to assign outside investigators to investigate any complaints of harassment; and

(8) requiring the employer to self-report to the EEOC its compliance with the consent order.

Most of the consent orders that I researched in systemic harassment cases likewise focused on monetary relief, changes to written policies and handbooks, similar mandatory harassment training requirements, and self-reporting. 

The Corrections Corp. consent order also appears to be generally consistent with the EEOC’s overall approach to consent orders in sex discrimination cases.  A study by The WAGE Project examined a total of 160 consent decrees (or EEOC summaries of unavailable consent decrees) in sex discrimination cases.  Of those, 96% contained some form of monetary award, 57% contained employee training requirements, and 56% contained compliance reporting requirements.  Only 21% required the appointment of a monitor.  Less than 3% contained provisions allowing the EEOC to conduct interviews with employees in the future.  I discuss a potential problem with this approach after the jump.

There are good reasons to doubt the effectiveness of the EEOC’s approach.  Professor Susan Bisom-Rapp and others have extensively researched the effectiveness of mandatory harassment training programs.  Professor Bisom-Rapp argues that, when poorly implemented, mandatory harassment training programs are ineffective and even counterproductive.  They can give the appearance of legal compliance without actually accomplishing any real change in the work environment.  They can also lead to employee backlash.  See, e.g., Susan Bisom-Rapp, An Ounce of Prevention is a Poor Substitute for a Pound of Cure, 22 Berkeley J. Emp. & Lab. L. 1, 31-38, 44-45 (2001).

What I find curious about the EEOC’s approach is that, in the past, the EEOC has been more ambitious about obtaining meaningful prospective relief that will lead to structural change in workplaces.  In both EEOC v. Mitsubishi and EEOC v. Dial (mentioned in my last post), the EEOC required the appointment of an independent monitoring panel as part of the consent order.  The panel consisted of one member appointed by the employer, one by the EEOC, and a chairperson agreed to by the parties.  The employer compensated the panel members at rates agreed to by the parties and the panel members.  The panel conducted periodic reviews and reported to the EEOC.  Importantly, the panel was allowed to gain information about the problems in the workplace over time and to make recommended proposals for change.  The employers were required to adopt the panel’s recommendations, subject to an objection and resolution procedure.  This allowed for solutions to be developed and implemented that were uniquely tailored to the problems observed in each employer’s workplace.  In addition, the employer in Dial was also required to permit the EEOC to conduct periodic follow-up interviews with employees.  EEOC Regional Attorney for the Chicago District Office John Hendrickson has touted the positive results in the Mitsubishi case, and has specifically noted the importance of the “sleeves-up, in-the-trenches work of the Consent Decree monitors” in accomplishing substantial change in the workplace.  See Selected Materials on “Multiple Plaintiffs and Class Actions in Sexual Harassment Matters,” PLI Order No. 8483 (June 2006).  And the Mitsubishi and Dial consent orders represent just a few examples of potential prospective solutions that could be incorporated into consent orders.  Other examples might include requiring employers to collaborate with industrial psychologists or organizational consultants and implement their recommendations. 

So why hasn’t the EEOC been pursuing more creative and effective prospective relief, tailored to the individual circumstances and problems of each employer?  Why is the EEOC placing so much emphasis on obtaining large monetary settlements for the individual claimants?  After all, as one court recently reminded us, “[T]he EEOC’s ability to secure enforcement of Title VII on behalf of the public is primarily served through its ability to secure injunctive relief, not bootstrapping individual damage claims into the EEOC’s enforcement action.”  See EEOC v. Burlington Med. Supplies, Inc., 536 F. Supp. 2d 647, 659 (E.D. Va. 2008).

Perhaps the EEOC is emphasizing monetary relief in these cases because of a belief that large monetary settlements will deter tolerance of harassment in other workplaces.  There seems to be little empirical support for that position, and in fact there may be at least some reason to doubt it.  See Michael Selmi, The Price of Discrimination:  The Nature of Class Action Employment Discrimination Litigation and Its Effects, 81 Tex. L. Rev. 1249, 1305 (2003) (arguing that the filing and settlement of large class action discrimination suits has had little, if any, deterrent effect).  If anything, news of large monetary settlements might give other employers an incentive to adopt some cosmetic changes – like mandatory harassment training and changes to written policies – that will give the appearance of legal compliance while having very limited effectiveness in actually changing behavior.  The relative deterrent effects of monetary damages and prospective injunctive relief, however, are certainly worthy of further study. 

Perhaps employers are just unwilling to agree to more intrusive prospective measures (or unwilling to agree to pay for them).  It is essentially impossible for us to determine what positions the parties are taking during the negotiations leading up to these consent orders.  But it seems unlikely that the EEOC can get employers to agree only to annual standard harassment training sessions, when it was previously able to implement much more comprehensive programs in the Mitsubishi and Dial consent orders.  In any event, employers’ resistance to such programs might be tempered if the EEOC changed its focus and emphasized the importance of meaningful prospective measures in negotiations, rather than just focusing on the relative size of the monetary payments.  Individual claimants with strong claims for monetary damages could intervene in the EEOC’s enforcement action to protect their own pecuniary interests – as they often do, and as 3 of the 21 claimants did in Corrections Corp.

In any event, it seems to me that when negotiating consent orders in cases like Corrections Corp., the EEOC would do well to keep in mind the words of the Burlington court.  The EEOC does the most public good by spurring actual structural changes in workplaces through effective injunctive remedies, not by simply maximizing the monetary payment it can extract from the employer.

-Jason Bent

EEOC's Townhall Meetings

I blogged previously about the town hall meetings the EEOC and DOJ will hold on the new ADAAA regulations. Today's federal register gives the dates and specific locations:

October 26, 2009 in Oakland, CA; October 30, 2009 in Philadelphia, PA; November 17, 2009 in Chicago, IL; and, November 20, 2009 in New Orleans, LA. Each session will be from 9 a.m. until 4 p.m. 

ADDRESSES: The locations of the sessions are:

1. Oakland, CA—California Endowment, 1111 Broadway, 7th Floor, Oakland, CA 94607.

2. Philadelphia, PA—Liberty Resources, 714 Market Street, Suite 100, Philadelphia, PA 19106.

3. Chicago, IL—Access  Living, 115 West Chicago Avenue, Chicago, IL 60654.

4. New Orleans, LA—University of New Orleans Training Resource and Assistive-Technology Center (UNO–TRAC), 2000 Lakeshore Drive, New Orleans, LA 70148.

FOR FURTHER INFORMATION OR TO REGISTER AS A SPEAKER CONTACT:

1. Oakland, CA—Ms. Linda Li at 415–625–5618 (TTY 415–625–5610) or at Linda.Li@eeoc.gov.

2. Philadelphia, PA—Ms. Mary Tiernan at 215–440–2671 (TTY 215–440–2610) or at Mary.Tiernan@eeoc.gov.

3. Chicago, IL—Ms. Rita Coffey at 312–353–7254 (TTY 312–353–2421) or at Rita.Coffey@eeoc.gov.

4. New Orleans, LA—Ms. Maple Thomas at 504–595–2827 (TTY 504–595–2958) or at Maple.Thomas@eeoc.gov.

The sessions will be presided over by the EEOC's acting Chair Ishimaru and acting Vice Chair Barker along with Deputy AAG for Civil Rights (former prof.) Sam Bagenstos, Counsel to the AAG for Civil Rights Mazen Baswari, and Chief of the Disability Rights Section of the Civil Rights Division, John Wodatch. Five minute time slots to address the panel will be available, some on a pre-registration basis, and some on a first-come-first-served basis. And anyone may watch whether they are commenting or not. Written regulations can be submitted at the sessions also. Written comments can also be submitted electronically through the Federal eRulemaking portal, and in writing to the address specified in the notice linked above.

Hat tip: Patricia Schaeffer

MM

Becker's Answers to Republican HELP Committee Questions

Given the continued objections to Craig Becker's nomination to the NLRB, as noted in the previous post, it's worth linking to his written answers to the HELP committee's questions (from the Republican members). I've only had enough time for a quick skim, which didn't reveal anything startling to me (there's a lot of the usual "because this issue could arise before the Board, I do not believe it would be appropriate to address them in this context" answers).  He even addresses some of the criticisms of his Minnesota Law Review article, emphasizing the different roles of scholar and Board member and noting that his article's proposal said that the NLRA needed to be amended to fully implement his idea.  However, I'm sure others who take a more thorough look with a more critical eye, will find concerns. 

I encourage readers to use the comments section to flag anything of interest.  We've already had a good debate going in the previous post on some of Becker's comments as they relate to Board nominees in general and I imagine that this document will prove an even more fruitful starting point.

Hat Tip:  Jeff Wilson

-JH

NLRB Nominations Clear Committee

Reports (from BNA's Daily Labor Report among others) are now out about the Senate HELP committee's vote on the NLRB nominations.  All three nominees went through, but not without signs of problems to come.  Sen. McCain, in particular, objeced to the lack of hearings on Craig Becker's nomination (with Chairman Sen. Harkin responding that hearings had only been used once, for Bill Gould, in the last 25 years).  So, McCain insisted on a recorded rather than voice vote, which Becker cleared 15-8 (the other two passed unanimously on a voice vote).

More important, McCain has threatened to put a hold on Becker's nomination.  Democrats responded that they would refuse to vote on the other two nominations if Becker's is held.  This means, of course, that even more two-member NLRB decisions will be at stake if the Supreme Court takes up that issue.  What's unclear is how long McCain can keep the hold before unions lose their patience and the nomination dispute comes to a head.  My guess is that Becker's nomination could end up becoming enmeshed in the EFCA debate and perhaps be part of an overall compromise on some new NLRA legislation.  When that would happen, however, is even less clear.

Stay tuned.

Hat Tip:  Justin Keith

The Shriver Report

Late last week, the Center for American Progress and Maria Shriver issued The Shriver Report: A Woman's Nation Changes Everything. The report contains studies and essays on a number of important issues related to women and society, written by a host of scholars, and an epilogue by Oprah Winfrey. The report examines the changes in our society now that one-half of all U.S. workers are women, and mothers are the primary breadwinners or co-breadwinners in two-thirds of American families.

From the executive summary,

Recognizing the importance of women’s earnings to family well-being is the key piece to understanding why we are in a transformational moment. This social transformation is affecting nearly every aspect of our lives—from how we work to how we play to how we care for one another. Yet, we, as a nation, have not come to terms with what this means. In this report, we break new ground by taking a hard look at how women’s changing roles affect our major societal institutions, from government and businesses to our faith communities. We outline how these institutions rely on outdated models of who works and who cares for our families. And we examine how our culture has responded to one of the greatest social transformations of our time.

Some highlights from the press release

A Seismic Workforce Shift

• The advent of women becoming half of US workers is the greatest transformative force of our time. This is a permanent change in our culture – unlike temporary spikes in female employment in the past when, for instance, men left the workforce and went off to war.
• Three-quarters of Americans view the rising proportion of women in the workplace as a positive development for society, with fully 70% percent of men saying they are comfortable having women work outside the home. But both fathers and mothers are concerned about the negative effect on their children when there is no longer a stay-at-home parent.
• This seismic shift is impacting every institution in American life. But many of them – government, business, faith, education, and media – haven’t kept up with the shifting nature of American families. For example, basic labor standards and the social insurance system are based on supporting “traditional” families, where the husband works and the wife stays home to care for children.
• More than 80% of men and women agree that businesses failing to adapt to the needs of modern families risk losing good workers. And the fact is, businesses that support and retain women do have healthier bottom lines.
• The current recession has accelerated the workforce shift towards women, because most of the jobs lost have been men’s jobs. But the increase in women’s proportion of the workforce will continue, because future job growth is predicted to be most robust in industries, such as education and health, where women dominate.

One of the key points of the report is that we have moved beyond the "battle of the sexes" to negotiation by the sexes over work, family, and everything else. The html version is here, and the full report in pdf can be downloaded here.

MM

Call for Papers-International Conference on New Employee Representation

Christian Brunelle (Université Laval) writes to tell us of a call for papers for an international conference on employee representation in the new world of work and on what it entails in terms of the dynamics of rights, voice, performance and power. Jointly organized by the Interuniversity Research Centre on Globalization and Work and the Canadian Industrial Relations Association (CIRA), the conference will take place in Quebec City (Canada), on June 16th, 17th and 18th, 2010. Deadline for submission is November 15, 2009.

All proposals for this thematic call for papers, workshops and symposia should be submitted by November 15th, 2009 and will be subject to a competitive review by the Scientific Committee. Individual paper proposals should be a maximum of 2 pages and should outline the nature of the study, the methodological approach, and the main lines of analysis to be developed. The selected authors should submit a first draft of the full version of their paper by May 1, 2010, which will be made available at the time of the conference on a special Web site for participants. Workshop and Symposium proposals should be 3-5 pages in length and include details on the contribution as a whole, on each contribution (see details on papers proposals above) and on the institutional affiliations of the participants. All proposals should be sent by electronic mail to: Nicolas Roby, CRIMT Scientific Coordinator at the following address: Nicolas.Roby@umontreal.ca.

More details can be found in this flyer for the conference: Download CIRA-CRIMT Representation at Work - Thematic Call for papers - Quebec - 16-18 June 2010. It looks to be a fabulous event.

MM

Zimmer to Speak on ADEA Causation at Marquette

Michael Zimmer (Loyola-Chicago) will speak on Gross v. FBL Financial Servs., Inc., 129 S. Ct. 2343 (June 18, 2009), at Marquette Law School, this Thursday at 12:15.  It's a homecoming of sorts -- Michael obtained both his A.B. and J.D. from Marquette.  A widely recognized scholar in the areas of employment discrimination law, labor and employment law and constitutional law, Professor Zimmer is co-author of one of the first employment discrimination casebooks as well as co-author of the first casebook on international and comparative employment law.

Here's a synopsis of the topic:

[In the 5-4 Gross opinion] by Justice Thomas, the Supreme Court held that a plaintiff bringing an Age Discrimination in Employment Act (ADEA) disparate-treatment claim must always prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.

Gross adds to the difficulty already extant in proving individual disparate-treatment discrimination, the most common type of discrimination case. Michael Zimmer . . . will argue that differentiating proof structures between cases brought under the Age Act (plaintiff must always prove “but-for” causation) and Title VII (plaintiff can use “but-for” causation or can establish liability by proving “a motivating factor”) is confusing and seems to be without any real justification, other than the fact that five Justices agreed to it.

rb

Implicit Bias and Law Firm Partnership

Thanks to Paul for sending me the link to an editorial in yesterday's National Law Journal by Lauren Stiller Rikleen, author of Ending the Gauntlet: Removing Barriers to Women's Success in the Law, Executive Director of the Bowditch Institute for Women's Success and a senior partner in the Framingham, Mass. office of Bowditch & Dewey. The editorial, Evaluated to (career) death, argues that implicit bias against women in evaluations is responsible for much of women's stalled progress in law firm partnership rates.

Rikleen suggests that the effect of unexamined bias on the evaluation process and as a consequence elevation to partnership

can best be understood by offering this one-question survey to male partners: "What is the percentage of women partners in your law firm?"

It is highly likely that the answer to this question will be a number that is higher than the actual data. In the course of countless conversations by the author with male partners across the country during the past several years, not one has underestimated the percentage of women who are their colleagues. All believed that women fared much better than the actual number would suggest.

This consistent perspective is not an effort to hide a more negative portrayal of the firm's statistics. It is the result of a quality that most humans share — the "illusion of objectivity" — which allows us to believe that biases we may recognize in others are not present in ourselves.

This aspect of human nature, however, hinders our ability to understand the harm that results from the divergence between our explicit beliefs and our implicit biases. The unexamined biases we all carry can result in a work environment that diminishes the commitment and abilities of women.

The slow pace of women's advancement in the legal profession can be traced to the unexamined biases that influence decisions about assignments, compensation and how people are evaluated and promoted. These are not, to be clear, purposeful efforts to sabotage careers. Forty years of social science research helps us to understand the critical influence that our implicit stereotypes have on our conscious behaviors. As Harvard professor Mahzarin Banaji stated in a 2003 Harvard Business Review article, "Even the most well-meaning person unwittingly allows unconscious thoughts and feelings to influence seemingly objective decisions."

Read the whole editorial. It's very interesting. And it's especially interesting in conjunction with a recent study by Scott N. Taylor at the University of New Mexico, presented at the Annual Meeting of the Academy of Management at the end of the summer. In It May Not Be What You Think: Gender Differences in Predicting Emotional and Social Competence, Taylor reports that women underrate how they are viewed by others.

"When asked to predict how they were rated by their managers, direct reports, and peers, women were significantly poorer at predicting others' ratings compared to men," . . . . "[T]hese women were confident in their ability (compared to men) but were unaware of how others viewed them."
 
And their predictions invariably erred on the low side, the study makes clear. Women managers, the research suggests, believe that others rate them substantially lower than they actually do on a whole range of social and emotional competencies essential to effective leadership.
 
The study . . . finds the difference between genders to be most striking when it comes to supervisors. Where men actually overestimated slightly how their boss would rate them, women underestimated their ratings on average by about 11 percent . . .

. . . What accounts for these results? "The most obvious answer, lack of confidence, can easily be ruled out," Prof. Taylor says. "How do we know? Women rated themselves just as highly as men rated themselves, an encouraging development from the norm of two or three decades ago."
 
Closer to the answer, he thinks, is that "women are so accustomed to decades of being 'disappeared' and hearing histories of women whose contributions went unnoticed that they assume these conditions exist to the same extent today. As a result, women in our sample predicted others would not notice their work, when in reality others rated them higher than men on a whole range of emotional and social competencies basic to leadership."

It's an interesting bunch of research.

MM

Harkin to Speak on ADA at Pitt

Senator Tom Harkin will speak at the University of Pittsburgh from 1 to 2:30 p.m. Oct. 26 in the Barco Law Building's Teplitz Memorial Courtroom, 3900 Forbes Ave., Oakland. Harkin's free talk, part of the Thornburgh Family Lecture Series in Disability Law and Policy, is titled Disability Rights: The Achievements and the Unfinished Agenda.  The lecture is cosponsored by the Dick Thornburgh Forum for Law and Public Policy.

rb

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Another Pattern or Practice Problem: Harassment Cases Don't Fit

Last week, Marcia McCormick posted a story about the settlement of an EEOC suit against a private prison operator in Colorado.  The lawsuit, EEOC v. Corrections Corp. of America, No. 06-cv-01956-KHV-MJW (D. Colo.), involved some disturbing allegations of conduct by male managers, including sexual harassment, requests for sexual favors, retaliation in response to complaints about such conduct, and even allegations that – if true – would likely rise to the level of criminal rape.  The EEOC alleged that the defendants engaged in an unlawful pattern or practice of maintaining a hostile work environment based on gender, in violation of Title VII.  The case settled, with the parties entering into a consent decree that included a total payment of $1.3 million to the 21 individual claimants in the class (with $140,000 designated as payment to private counsel representing three intervenor-plaintiffs).  Here, I should note that when the EEOC brings a pattern or practice case, it is not an ordinary class action under Rule 23 of the Federal Rules of Civil Procedure.  The EEOC can pursue a pattern or practice case, including seeking monetary relief on behalf of a group of individuals, without meeting the Rule 23 requirements for class certification.  Thus, the “class” of claimants is really just the group of allegedly aggrieved individuals for whom the EEOC seeks relief.  The defendants, as part of the consent decree, denied all of the allegations.

Putting aside, for the moment, the shocking nature of the supervisors’ alleged conduct in Corrections Corp., the case also involved some interesting doctrinal issues.  The Corrections Corp. case is a prime example of the next problem area in pattern or practice law that I want to discuss.  Hostile work environment cases, like Corrections Corp., do not fit the Teamsters burden-shifting mold for a pattern or practice case.  I explain why after the jump.

As I described in last week’s post, the Supreme Court held in Teamsters that if the government meets its burden of establishing in Phase I that the employer engaged in a pattern or practice of discrimination, then the burden of proof shifts onto the defendant in Phase II to prove that the adverse action suffered by any particular claimant was not the product of discrimination.  In other words, if the government can establish a pattern or practice in Phase I, then a presumption is created in favor of individual relief for each individual claimant.  Statistical evidence plays a key role in Phase I of most pattern or practice cases.  As the Teamsters Court put it, an unexplained statistical disparity in hiring or promotion can provide the “telltale sign of purposeful discrimination” that justifies shifting the burden onto defendant and creating a presumption in favor of individual relief as to each claimant.  Individual testimony about anecdotal experiences can, in the words of the Teamsters court, bring “the cold numbers convincingly to life” in Phase I to demonstrate the existence of a pattern or practice of discrimination.

In pattern or practice of harassment cases, however, meaningful statistical evidence is often unavailable.  In Corrections Corp., for example, the EEOC did not offer any statistical evidence at all.  Instead, it argued that a pattern or practice could be found in Phase I, under the Teamsters framework, without any statistical evidence.  In a Motion to Bifurcate Proceedings the EEOC argued that in Phase I a “few individual class members may provide anecdotal evidence of discrimination during the liability trial, in order to bring the pattern or practice convincingly to life.”  If the jury found a pattern or practice based on this evidence, the EEOC argued, then the burden should shift to the defendant in Phase II for determining individual relief.  Thus, according to the EEOC, in Phase II “a putative class member may benefit from a presumption that he or she suffered discrimination.”  But without some statistical “telltale sign” to accompany the individual testimony, should the anecdotal testimony of some subset (perhaps only “a few,” as suggested in the EEOC’s brief) of the 21 class members be sufficient evidence to shift the burden of proof onto the defendant for Phase II and create a presumption that all the class members were subjected to unlawful harassment?     

That question is further complicated by the subjective element of a hostile work environment claim.  The Supreme Court has held that, in order to be actionable under Title VII, a work environment must be both objectively hostile (i.e., a reasonable person would find the environment hostile or abusive) and subjectively hostile (i.e., the plaintiff actually perceived the work environment to be hostile or abusive).  Should the testimony of only a few of the class members create a presumption, for purposes of the individual damages to be decided in Phase II, that: 1) all 21 class members were exposed to conduct that was sufficiently severe and pervasive so as to rise to the level of an objectively hostile environment, and 2) that all 21 class members subjectively perceived as hostile the conduct to which they were individually exposed?  Presumably, the EEOC would offer the testimony of only the most sympathetic class members in Phase I, leaving the less sympathetic class members to benefit from the operation of the presumption in Phase II.  In the Corrections Corp. case, the EEOC asserted that a showing of a pattern or practice of harassment through anecdotal testimony in Phase I should create a presumption in favor of individual relief for each of the claimants in Phase II, but acknowledged that the individual claimants would still need to show, in Phase II, that they were subjectively offended by the hostile environment.  (The EEOC’s argument was not clear on which side should bear the burden of proof on that issue).   

The Teamsters Court did not say that statistics are necessarily required to establish a pattern or practice at Phase I.  But should anecdotal testimony of a subset of claimants be sufficient to create a presumption in favor of all the remaining claimants?  If so, how many (or what percentage of) claimants must testify to establish a pattern or practice?

These are difficult questions.  Courts are all over the map on pattern or practice of harassment cases.  The EEOC obtained favorable rulings in a few early cases, EEOC v. Mitsubishi, 990 F. Supp. 1059 (C.D. Ill. 1998), and EEOC v. Dial Corp., 156 F. Supp. 2d 926 (N.D. Ill. 2001), which allowed a Teamsters-style presumption in harassment cases, even without statistical evidence.  Some later rulings, like EEOC v. Int’l Profit  Assocs., Inc., No. 01 C 4427, 2007 WL 3120069 (N.D. Ill. Oct. 23, 2007), have attempted to apply various modifications of the Teamsters approach by eliminating or narrowing the effect of the presumption in harassment cases.  Thus, in Int’l Profit Assocs., the court held that sufficient anecdotal evidence of harassment at Phase I could establish that the employer maintained a policy of tolerating harassing behavior, justifying injunctive relief against the employer at the conclusion of Phase I, but that such testimony could not create a presumption of unlawful harassment in favor of all the individual claimants for purposes of determining individual relief in Phase II. 

These issues come up every time the EEOC brings a pattern or practice of harassment suit, and the district courts continue to struggle with them.  Although the EEOC has made systemic harassment cases a priority, they never seem to make it to trial or to an appeal – probably because the EEOC is armed with the Mitsubishi and Dial district court rulings.  See EEOC v. CRST Van Expedited, Inc., 611 F. Supp. 2d 918, 938, n.10 (N.D. Iowa 2009) (suggesting this explanation).  As a result, the appellate courts have not yet had much of an opportunity to provide any guidance.  Almost all of the EEOC’s systemic harassment cases end up settling with the entry of a consent order, and Corrections Corp. is no exception. 

In future posts I will take a closer look at these consent orders, including the one in Corrections Corp., and explain why the EEOC is missing an opportunity to spur real change in some workplaces that need it.  I will also consider another feature of hostile work environment cases – relatively symmetrical access to the evidence – that might make Teamsters burden shifting inappropriate in pattern or practice of harassment cases.

-Jason Bent

Borzi on Health Care Reform and ERISA Remedies

Finally! I am so happy to hear the head of the Employee Benefit Security Administration (EBSA), Phyllis Borzi, talk about the need for need for ERISA reform in the area of remedies as part of the push for health care reform.

From today's BNA's Pension and Benefits Daily (subscription required):

Plan sponsors and employee benefit attorneys too often jump to the defense of the Employee Retirement Income Security Act for all the wrong reasons, Phyllis Borzi, assistant secretary of labor of the Employee Benefits Security Administration, said Oct. 19 at a health and welfare plans conference sponsored by the American Bar Association. . . . .

Borzi said it would it a tragedy if Congress passed health care reform legislation without addressing remedies available to plan participants under ERISA.

I certainly agree with Sec. Borzi that the current state of ERISA remedies is a tragedy and that health care reform efforts need to consider addressing this remedial issue.  I also agree that many employers and management-side attorneys have a knee-jerk reaction to defend that system because of favorable treatment under ERISA's remedial and preemption provisions.

It is time for Congress to finally provide a meaningful remedy for ERISA violations.

PS

Not Taking the Hint

Massachusetts' Supreme Judicial Court recently affirmed an employer's trial win in a quid-pro-quo sexual harassment case.  One interesting fact in the case, Dahms v. Cognex, was the lengths that the employer went to in trying to stop one of its officers from having sexual relationships with people he supervised (other than the obvious option of firing the guy).  As noted by the court:

Earlier in his employment at Cognex, Rogers [the officer] had romantic relationships with two female employees who reported to him. There were no allegations of sexual harassment; however, Shillman [the CEO] determined that it was inappropriate for Rogers to be romantically involved with Cognex employees who reported to him and had fined him $10,000 for the first relationship and $100,000 for the second. Shillman also delayed the vesting of some stock options that Rogers was due to receive.

The employer was clearly paying that guy way too much if fines of $110,000 and delayed stock options didn't do the trick.

Hat Tip:  Justin Keith

-JH

Race-Based Disparities in the Employment of Minorities

Friend of the blog, Jack Sargent, provides us with the thought-provoking analysis on a recent trend in employment discrimination law:

In the last several days, 3 separate unrelated news items have focused on the same theme: Race-based disparities in the employment of minorities.
 
First, a UK study "uncovered widespread racial discrimination against workers with African and Asian names".

Second, the NY Atty Gen sued 6 construction companies, accusing them of using race-based pay scales.

Third, a field study in the low wage labor market of New York City found that "black applicants were half as likely to receive a callback or job offer relative to equally qualified whites" and "black and Latino applicants with clean backgrounds fared no better than a white applicant just released from prison".

My take: However cautioned we must be against drawing inferences from allegations and studies (especially a study from the UK), this is sobering news and, at least, relevant to whether we are living in a post-race America. 

Agreed and good stuff, Jack.

PS