February 7, 2009
SSRN Top-10 List of Recent Employment & Labor Downloads
- David C. Yamada, Workplace Bullying and Ethical Leadership (600).
- Gaobo Pang & Mark J. Warshawshy, Calculating Savings Rates in Working Years Needed to Maintain Living Standards in Retirement (112).
- Carola Frydman (photo above), Learning from the Past: Trends in Executive Compensation over the Twentieth Century (104).
- Gregory Mitchell, Second Thoughts (80).
- Suja A. Thomas, The Fallacy of Dispositive Procedure (78).
- Jeffrey M. Hirsch, Revolution in Pragmatist Clothing: Nationalizing Workplace Law (73).
- Christian E. Weller & Jeffrey B. Wenger, Prudent Investors: The Asset Allocation of Public Pension Plans (68).
- Deborah Widiss, Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides (65).
- Mitchell H. Rubinstein, A Lawyer's Worst Nightmare: The Story of a Lawyer and His Nurse Clients Who Were Both Criminally Charged because the Nurses Resigned En Mass (57).
- Nicholas Barr & Peter A. Diamond, Reforming Pensions (52).
Epstein Opposes EFCA
Richard Epstein (Chicago) has just posted on SSRN his article The Case Against the Employee Free Choice Act. Here's the abstract:
This monograph offers a comprehensive critique of the Employee Free Choice Act (EFCA) now before Congress. EFCA would fundamentally alter the current labor law in three ways. The first of these is to allow unions to opt for recognition through a card check instead of the secret ballot currently required under the National Labor Relations Act. The second would institute a regime, if the parties do not reach an agreement within 130 days after the union is recognized, of compusory arbitration and arbitrator-imposed requirements and restrictions, binding for a two-year period. The third would increase the current sanctions for unfair labor practices committed by employers during an organizational campaign. My major thesis is that all of these changes are unwise deviations from the status quo that will introduce unwise dislocations in labor markets that are not justified by the current union claim that the decline of unionization in the private sector is largely attributable to improper employer intransigence. The better explanations focus on structural changes in ordinary labor markets in an increasingly globalized economy, which shows similar downturns in union representation in developed nations, often operating under different legal regimes.
February 6, 2009
Tristin Green on Ricci v. DeStefano
Tristin Green (Seton Hall, visiting at Berkeley) is guest blogging at Concurring Opinions, and asks an important question about Ricci v. DeStefano, which I've commented on a few times (here's the most detailed): where is the adverse employment action? To state a Title VII disparate treatment claim, a plaintiff must allege that she has suffered some sort of adverse employment action, and that action must have been because of her protected class.
The answer is fleshed out a bit in the comments, but essentially comes down to the fact that the city of New Haven didn't contest that the firefighter plaintiffs suffered an adverse employment action, presumably in the denial of promotion. But that's a little hidden by the framing of the issues.
I think that if the test results had been given effect, at least some of the plaintiffs would have been promoted, and the City didn't contest that. The promotional process was laid out by ordinance, and a formula based on test scores and something else ranked the candidates. A certain number passed the test, but promotions would be given only to a few of those who passed, starting with the highest scores and working backwards. So there was a very direct causal link between throwing the test out and these high-scoring plaintiffs not being promoted.
Instead of framing this issue as the lack of an adverse employment action, the city accepted the plaintiffs' characterization (that this was an adverse action) and instead argued that the decision to not promote (by throwing the test out) didn't discriminate on the basis of race because no one was promoted, Black, White, or Latino. In a way, that sort of is a backdoor way of suggesting that there was no adverse action taken against anyone because everyone suffered the same adverse action--no one was promoted, and everyone will have to compete again under whatever new process will be established.
Hat tip: Paul Secunda
January Unemployment Data
The bad job reports just keep coming. Today, the labor department released its January figures, which show that almost 600,000 jobs were lost in January and the unemployment level is now 7.6%, the highest level in over 16 years. According to the New York Times:
It was the biggest monthly job loss since the economy tipped into a recession more than a year ago, and it was even worse than most forecasters had been predicting.
In addition, the government revised the estimates for previous months to include another 400,000 job losses. For December, the government revised the job loss to 577,000 compared with an initial reading of 524,000. Overall, it said, the nation has lost 3.6 million jobs since it slipped into a recession in December 2007. . . .
As in previous months, employers in January slashed their payrolls in almost every industry except health care Manufacturers eliminated 207,000 jobs, more than in any year since 1982. The construction industry eliminated 111,000 jobs. And retailers, who were wrapping up their worst holiday shopping season in years, eliminated 45,000 jobs.
One modest exception to the bad news was in workers’ wages, which have thus far not reflected the dramatic plunge in employment. Hour earnings edged up to $18.46, up five cents, and average weekly earnings climbed $614.72, up $1.67. . . .
Most forecasters had predicted that the economy would lose about 540,000 in January. Instead, the Labor Department estimated that 598,000 jobs disappeared. . . .
And in sign that the country’s slowdown continues to reach beyond its borders, Canada, America’s largest trading partner, reported Friday that its unemployment rate jumped to 7.2 percent in January, from 6.7 percent in December. . . .
For comparison, the [U.S.] unemployment rate was 4.9 percent in January 2008. But some analysts contend that the current unemployment rate of 7.6 percent understates the labor market’s problems because the percentage of adults participating in the labor force has slumped in recent years, and those people are not listed as “unemployed.”
The wage data are interesting and no doubt related to a recent report on increased productivity in U.S. firms (which in turn is related partially to turmoil in the economy and job market). Who knows if this will represent one of the worst months for jobs during the recession, but it's definitely not going to be the last bad one.
February 5, 2009
More Delays for Solis
The delays on Hilda Solis' nomination as labor secretary are mounting. This time Solis is getting caught up in yet another tax issue--one that is related to her husband's business. According to the Washington Post:
A Senate committee today abruptly canceled a session to consider President Obama's nomination of Rep. Hilda Solis to be labor secretary in the wake of a report saying that her husband yesterday paid about $6,400 to settle tax liens against his business -- including liens that had been outstanding for as long as 16 years.
The report, by USA Today, came just before the Senate's Health Education Labor and Pensions Committee was slated to meet to consider Solis's nomination, which had been delayed by questions over her role on the board of the pro-labor organization American Rights at Work. A source said that committee members did not learn about the tax issue until today.
"Today's executive session was postponed to allow members additional time to review the documentation submitted in support of Representative Solis's nomination to serve in the important position of Labor Secretary," read a joint statement issued by Sen. Edward M. Kennedy (D-Mass.), the panel's chairman, and Mike Enzi (Wyoming), the committee's ranking Republican. "There are no holds on her nomination and members on both sides of the aisle remain committed to giving her nomination the fair and thorough consideration that she deserves. We will continue to work together to move this nomination forward as soon as possible."
No new date has been set for the hearing.
Ross Runkel at Law Memo predicts that the tax issues have become so toxic that this will sink her nomination.
A Company that Needs a New HR Department
Blogger emeritus Paul Secunda has let us know about a recent Slate column that involves an employee who has had to deal with a co-worker who repeatedly engaged in "solo activity usually done in the bedroom" while she was nearby (now we know what Paul is spending his time reading with his new free time). Surprisingly, the noteworthy aspect of this isn't the co-worker's behavior--it's the HR manager's response to the employee's complaint. The HR manager wouldn't do anything until the employee could get the manager to catch the co-worker in the act (which was especially difficult because the activity apparently stopped as soon as the employee left her cubicle). It's unbelievable that anyone who has spent more than five minutes preparing to be an HR official would react in this way. I see a lawsuit coming.
Another "Inflatable Rat" Ruling
Thanks to Brendan White for alerting us to a New York Times online article about State v. DeAngelo, No. A-73-07 (Feb. 5, 2009), in which the New Jersey Supreme Court held that a union's use of a giant inflatable rat as part of a protest is constitutionally protected speech. The appellate court had held that a town ordinance banning banners, streamers, and inflatable signs, except for grand openings, was content-neutral. The Supreme Court reversed, holding that a law "that prohibits a union from displaying a rat balloon, while at the same time authorizing a similar display as part of a grand opening, is content-based."
Disability and Employment Research Collection
Gabriela Fitz, Co-Director of IssueLab, writes to tell us of a new Disability and Employment research collection that provides a large body of facts and information related to rights and protections for people with disabilities. The collection highlights:
- Youth with disabilities transitioning from school into the workplace.
- The advantages for businesses employing PWD.
- Strategies and tactics for employers to accommodate PWD.
- The long term impact of unemployment and under-employment on health and retirement benefits for PWD.
- The adequacy of workers compensation and disability prevention and prevalence of late-career disability
IssueLab is a nonprofit organization that contributes to social change by archiving and publishing social research done by other nonprofits.
Zelinsky on Age Discrimination in Defined Benefit Pensions
Edward Zelinsky (Cardozo) has just posted on SSRN his article The Aftermath of the Cash Balance Controversy: Defining Age Discrimination for Traditional Defined Benefit Pensions. Here's the abstract:
The appellate decisions upholding cash balance pensions against the claim of age discrimination are unconvincing. Nevertheless, these decisions reach the proper result as a matter of pension policy. These decisions read the statutory term "benefit accrual" as meaning employer contributions for purposes of measuring for age-based pension discrimination in the defined benefit context. However unpersuasive this reading may be as a textual matter, it reaches a sound outcome in terms of pension policy. In particular, this reading of the pension age discrimination statutes enables employers sponsoring traditional, annuity-paying defined benefit pensions to control their costs by decreasing the annual growth of the accrued benefits earned by older employees. This ability to subdue costs will encourage employers to remain with their traditional defined benefit plans rather than move to the cash balance format or 401(k). On the other hand, controlling costs by reducing the rates at which older workers accrue additional benefits will disappoint the reasonable pension expectations of some, perhaps many, of those older workers.
February 4, 2009
Faith Based Initiatives and Employment
National Public Radio's Morning Edition had an interesting story this morning about the controversy brewing in the Office of Faith Based and Neighborhood Partnerships:
President Obama is expected on Thursday to announce his version of the Office for Faith Based and Neighborhood Partnerships, which brings together government and religious groups to provide social services. Obama is trying to avoid the Constitutional fights that plagued a similar program under his predecessor. But, the office is already caught up in controversy.
The issue revolves around the requirements linked with government funding. Usually, as a condition of federal funding, contractors must agree not to discriminate in employment on the basis of religion, or any other class protected by federal antidiscrimination laws. Federal money shouldn't be spent in a discriminatory manner. This raises a problem when the funding goes to religious organizations, which have rights to freely exercise their religion. So do those organizations have to agree to hire people who aren't members of the same religion or whose conduct might violate the tenets of the religion?
President Bush avoided the issue by signing an executive order creating an exemption to this rule for faith based organizations. President Obama suggested while he was campaigning that he would not exempt faith based-organizations from these rules:
If you get a federal grant, you can’t use that grant money to proselytize to the people you help and you can’t discriminate against them — or against the people you hire — on the basis of their religion . . . Federal dollars that go directly to churches, temples and mosques can only be used on secular programs.
According to the story, groups on both sides are getting ready to file suit the minute that the President sets the rules for his office. The story was very thoughtful, and I recommend a listen.
Gottesman on EFCA's Constitutionality
We posted earlier on Richard Epstein's arguments that EFCA was unconstitutional under the First Amendment and the Fifth Amendment's taking clause; arguments that I expressed several doubts about. Now, Michael Gottesman, a far more trusted source than me, has responded in far more detail on the ACS Blog. An excerpt:
The debate over EFCA can comfortably remain on the terrain of policy, uncomplicated by concerns of unconstitutionality. For Epstein’s imagined constitutional difficulties haven’t the remotest chance of gaining judicial acceptance.
First Amendment. As things stand presently (i.e., without EFCA) employers, during the course of an NLRB election campaign, are free to air their views about the downsides of unionization so long as they refrain from threats or coercion. Epstein grieves that employers will lose this opportunity if EFCA is enacted, as a union would be able to conduct a “clandestine organizing campaign” and produce a card majority before the employer is aware of the need to speak out in opposition. Whatever its power as a policy argument, this observation has no purchase under the First Amendment. It’s one thing to say that the government can’t muzzle an employer from expressing its views. It’s quite another to say that the government has to structure its laws to provide employers notice about when their speech might be most efficacious. . . .
Takings Clause. For decades, Epstein has argued that the Takings Clause is a full-throated embodiment of libertarianism. His thesis, expounded most fully in his 1985 book, Takings: Private Property and the Power of Eminent Domain, is that government can never take anything from a private party unless it is providing “in kind” compensation to that party of roughly equivalent value. . . . On the basis of this thesis, Epstein has concluded that virtually all of the New Deal programs were unconstitutional, and that all laws that require an employer to provide benefits to its employees that it wouldn’t voluntarily choose to provide are unconstitutional takings. . . .
Plainly, Epstein’s interpretation of the Takings Clause is not, and never has been, the interpretation applied by the Supreme Court. . . . So what is the Supreme Court’s interpretation of the Takings Clause that so disappoints Epstein? The Court has consistently distinguished between the taking of property and the regulation of property. When the government “takes” a person’s property by exercising eminent domain, or authorizes permanent occupation of that property by others, that is per se a taking that requires compensation. But, for the most part, government regulation does not constitute a taking, even when the regulation imposes substantial non-reciprocal costs on the property owner. . .
This is not to say that a regulation can never be a taking. The Court has held that a regulation that deprives the owner of all economically beneficial use of his property is a taking (while hinting that if it deprived the property of only 95 percent of its value it might not be.) And the Court has given lip service to the idea that a regulation that fell short of eliminating all value in property might nonetheless go “too far” and thus constitute a taking. . . .
Epstein has sought an end-run around these principles by invoking the metaphor that property rights are a “bundle of sticks.” A minimum wage law may not take the entirety of a corporation’s property, but it takes the entirety of what it takes. Thus, the principle that a regulation is a taking if it deprives the owner of all value should apply to this stick in the bundle. This proposal, which has come to be labeled “conceptual severance,” has been explicitly rejected by the Court, which insists upon viewing property [here, the corporation] as a whole.
An arbitration award issued under EFCA requiring an employer to raise wages or provide other benefits would be analytically indistinguishable, for purposes of the Takings Clause, from minimum wage laws or other laws mandating benefits for employees. It would be a taking only if it awarded the employees 100 percent of the employer’s assets or was so draconian that it qualified for the “goes too far” condemnation not met even in the zoning and historic preservation cases described above. The chances that an arbitrator would issue an award of that dimension are nil.
Check out the entire piece.
Epstein has written a lengthy response to Gottesman's post on the ACS Blog. You can see it here.
Hat Tip: Randy Enochs and Paul Secunda
Hugler Named as Acting Labor Secretary
In what appears to be a sign that the White House thinks that the hold on Hilda Solis is going to last for a while, they've named Ed Hugler as the Acting Secretary of Labor. Hugler is a 32-year veteran at the DOL and has been serving as the Deputy Assistant Secretary for Administration and Management, where he managed the the agency's IT, human resources, civil rights, and business services.
Mitch Rubinstein over at Adjunct Law Prof Blog reports that a case has been filed in Texas against Hooters by a man who claims that his job application for a serving position was rejected because the employer hires only women for that position. Recall that the EEOC challenged, then dropped under political pressure, this issue several years back. The case is Grushevski v. Texas Wings Inc. et al., No. 09-cv-00002, complaint filed, 2009 WL 101632, Jan 08, 2009(S.D. Tex., Corpus Christi Div. Jan. 8, 2009).
Expanding Discrimination Awards to Compensate for Adverse Tax Consequences
Shannon Duffy at Law.com, via Paul Caron at TaxProf Blog, reports on the Third Circuit case of Eshelman v. Agere Systems, Inc., No. 05-4895 (3d Cir. Jan. 30, 2009). The court last Friday held that trial judges have the power to increase employment discrimination awards to compensate for the adverse tax consequences of receiving a backpay award in a lump sum in a single year and thus being taxed in a higher bracket than if the pay had been spread out over a period of years. The federal circuits currently are split on the issue.
Secunda on [No] ERISA Remedies
Paul Secunda (Marquette) has just posted on SSRN his article (forthcoming Hofstra LELJ) Sorry, No Remedy: Intersectionality and the Grand Irony of ERISA. Here's the abstract:
Congress enacted the Employee Retiree Income Security Act of 1974 (ERISA or Act) to protect employees' retirement and welfare benefits. Nevertheless, the Act has been interpreted by the U.S Supreme Court over the years to be in essence an Employers' Security Act, with employers using ERISA to shield themselves against employee benefit-related claims.
The flaw in the current ERISA scheme lies at the intersection of ERISA's preemption and remedial provisions. Courts broadly interpret the preemption provisions of ERISA under Section 514 to invalidate employee benefits-related state laws and then force employees to depend on an inadequate, "comprehensive and reticulated" remedial scheme under Section 502(a). This intersectionality problem leads to a state of affairs that is contrary to ERISA's purpose of protecting the interests of participants and beneficiaries by "providing for appropriate remedies, sanctions, and ready access to the Federal courts."
The Court has accomplished this feat of perverting Congressional intent by choosing to elevate a secondary purpose of ERISA over its primary one. While the primary purpose of ERISA is clearly stated in the Act to be the protection of employees' benefits, the Court has instead emphasized a subsidiary policy of containing employee benefit plan costs. In doing so, the Court's ostensible goal is to ensure that employers continue to voluntarily adopt ERISA plans. Yet, this restrictive approach is contrary to the remedial nature of the legislation and the elevation of this secondary purpose consistently favors employer interests.
Unlike some ERISA commentators, I believe that the legislative history of ERISA clearly rejects the idea that these "right without remedy" cases arise because of a compromise entered into by interested parties at the time of ERISA's enactment. Although ERISA's broad preemptive reach was calculated and intentional, there is no similar evidence that Congress meant there to be a limited remedial scheme for protecting employee benefits. Nothing in the legislative record, the view of the so-called literalist Justices to the contrary notwithstanding, evinces Congress' intent to say all that it intended to say on particular remedies. Instead, it is the Supreme Court that has blundered in its incorporation of inappropriate trust law analogies in this area of the law. In short, intersectionality is only a problem under the current scheme not because of broad preemption alone, but because of the impact of this broad preemption coupled with a limited ERISA remedial scheme.
To cure what currently ail ERISA, this article proposes three alternative reforms - one judicial and two legislative. The judicial approach would call for the Court to adopt a remedialist approach, which would be in line both with Congress's intent to incorporate most of the common law of trusts into ERISA, and also consistent with a modern interpretation of a remedial statute. Only to the extent that there were intended to be deviations from that common law should the unique characteristics of the ERISA statute be considered in applying the remedial provisions.
Failing an adequate judicial fix, Congress should take steps to expand the remedies available under ERISA. To effect this recalibration, Congress should re-examine and reject the far-fetched analogy between ERISA, enacted in 1974, and the "days of the divided bench" analysis offered up by Justice Scalia in Mertens v. Hewitt Associates. Congress should overrule Mertens by providing an express and expansive definition for "appropriate equitable relief" under proposed Section 3(43). Additionally, Congress could pass an ERISA Civil Rights Act under proposed Section 502(a)(11), which, like the Civil Rights Act of 1991 in the Title VII context, would permit capped, compensatory and punitive damage awards in appropriate cases.
Recently Published Scholarship
- Joseph A. Seiner (left), The Failure of Punitive Damages in Employment Discrimination Cases, 50 Wm. & Mary L. Rev. 735 (2008).
- Lisa J. Bernt (second), Finding the Right Jobs for the Reasonable Person in Employment Law, 77 UMKC L. Rev. 1 (2008).
- David C. Yamada (third), Human Dignity and American Employment Law, 43 U. Rich. L. Rev. 523 (2009).
- Lara Queen Plaisance (fourth), You Want Fries with that Shake? The Sexual Harassment of and Discrimination Against Teenage Workers, 77 UMKC L. Rev. 227 (2008).
- Miranda Fleschert (fifth), Elevator Company Goes Down: Mandatory Arbitration Provisions as Applied to Pending Civil Rights Claims in the Employment Context, 2008 J. Disp. Resol. 517.
- Christina Semmer, The "Knowing and Voluntary" Standard: Is the Sixth Circuit's Test Enough to Level the Playing Field in Mandatory Employment Arbitration?, 2008 J. Disp. Resol. 607.
- Christopher D. Vanderbeek, An Untimely Death of Wrongful Discharge Claims: Ohio Removes Decedent-Employee Wrongful Death Claims from the Arbitral Forum, 2008 J. Disp. Resol. 621.
- Nicholas A. Dorsey (right), Mandatory Reassignment Under the ADA: The Circuit Split and Need for a Socio-Political Understanding of Disability, 94 Cornell L. Rev. 443 (2009).
February 3, 2009
Refinery Strike Avoided
Bloomberg.com is reporting that United Steelworkers and five big oil companies (Shell, Exxon, BP, Valero Energy, and Chevron) have reached a contract agreement. The multi-employer bargaining unit is made up of about 30,000 employees at 86 plants.
From the article,
Refiners reached a tentative agreement on a new contract for 30,000 unionized workers, averting a strike that would have affected almost two-thirds of U.S. capacity to make gasoline, diesel and other fuels.
. . .
“These were tough negotiations given the economic conditions of an economy still in a total free-fall,” said Gerard in a statement. “The oil companies were not willing to work with us fully to improve process safety.”
The union was seeking higher wages, a cost-of-living adjustment, and full medical, dental and vision-care benefits for employees and retirees. Workers also wanted improvements in plant safety practices after a March 2005 explosion at BP Plc’s refinery in Texas City, Texas, killed 15 people and injured 170.
. . .
The threat of a nationwide strike came at a time when Valero and ConocoPhillips, the two largest refiners by U.S. capacity, were slowing fuel output after margins narrowed. In the fourth quarter, oil processors made gasoline at a loss for a record number of days, as indicated by futures prices, as fuel demand slowed.
. . .
“There is too much capability to make gasoline in this marketplace,” Valero Chief Executive Officer Bille Klesse told investors on a Jan. 27 conference call.
U.S. motorists drove less in November, extending a drop in road travel into a second year and resulting in the longest continuous decline on record. Vehicle-miles traveled fell by 12.9 billion miles, or 5.3 percent, from a year earlier, the Federal Highway Administration said in a report Jan. 22.
Despite the drop in demand, gas prices rose last week about 10% based on fears of a strike at the refineries. The agreement was possible because the workers agreed to table the safety issues and reach agreement first on the economic issues. “We opted to reach a tentative agreement on economic issues and withdrew our bargaining demands for the safety language we and the public sorely need,” said Steelworkers International Vice President Gary Beevers, the union’s top negotiator. “But let it be clear, we are not finished with our struggles for meaningful change in the health and safety arena.”
Motions to Dismiss Severely Restricted in Securities Arbitration
Yesterday's Wall Street Journal reports that the securities industry's self-regulator, the Financial Industry Regulatory Authority (Finra) has made it much more difficult for securities firms to obtain summary dismissals in disputes brought by investors. "Finra said it had received complaints that parties -- most often securities firms -- were filing dispositive motions routinely and repetitively, causing increased costs for claimants, who are typically retail investors." Under the new rule, such motions may be granted only in three narrow circumstances:
[T]he parties have settled their dispute in writing; there is a "factual impossibility" involved, such as a claim involving auction-rate securities against a firm that doesn't sell any; or a party doesn't file a claim within six years of the events at issue. Arbitrators also must conduct hearings on motions to dismiss.
The rationale given by Finra for the rule in securities arbitration applies equally to employment arbitration. One of the few advantages employees get out of arbitration is access to a dispute resolution forum when the value of their claim is not sufficient to attract an attorney on a contingent fee basis. Dispositive motions make it far more difficult to proceed pro se, and therefore significantly diminsih the access advantage of arbitration. For this reason, I think this new securities arbitration rule should apply equally to employment arbitration.
Transgender, Identity, and Discrimination
Zak Kramer (Penn State-Dickinson) and Elizabeth Glazer (Hofstra) have just posted on SSRN their book review Trans Fat, which reviews Anna Kirkland, Fat Rights: Dilemmas of Difference and Personhood. Here's the abstract:
In her book, Fat Rights: Dilemmas of Difference and Personhood, Professor Anna Kirkland uses fat discrimination as a case study to examine the ways in which we talk about difference in antidiscrimination law. She argues that the proper way to frame questions of difference in antidiscrimination is not in terms of protected traits or categories, but rather in terms of what she calls "logics of personhood." The logics of personhood are narratives that enable us to talk about which differences matter in a given discrimination case. In other words, they are ways of talking about what happens when people do or do not have rights, as well as whether certain people should be protected by antidiscrimination law. After applying the logics to the case of fat discrimination, Kirkland joins a growing community of scholars seeking to transcend antidiscrimination law's categories. By identifying in the logics of personhood the presumptions that lay beneath the surface of antidiscrimination law, Kirkland creates an entirely new way to talk about differences among people.
In this Book Review, we extend Professor Kirkland's discussion of fat plaintiffs to a discussion of transgender plaintiffs. Much like fat plaintiffs, transgender plaintiffs' only hope of articulating actionable discrimination claims is to map their claims onto existing antidiscrimination norms. As Kirkland demonstrates in Fat Rights, fat plaintiffs must cast themselves as disabled in order to state an actionable discrimination claims. And as we demonstrate in this Book Review, transgender plaintiffs must cast themselves as gender-nonconformists in order to state actionable claims. While both fat and transgender employees may be willing to negotiate their identities to win lawsuits against their discriminatory employers, the purpose of this Book Review is to ask whether they should have to. We use Kirkland's logics of personhood to demonstrate that fat plaintiffs and transgender plaintiffs share a common frustration with respect to antidiscrimination law's protected categories, namely, that antidiscrimination law sees both fat people and transgender people differently from how they see themselves. And we argue further that this is a significant harm to a plaintiff's dignity and that antidiscrimination law should take into consideration such dignitary harms.
Unions Without Borders
Alan Hyde (Rutgers-Newark) and Mona Ressaissi have just posted on SSRN their article (forthcoming 14 Canad.Lab.& Emp.L.J. No. 3 (2009)) Unions Without Borders: Recent Developments in the Theory, Practice and Law of Transnational Unionism. Here's the abstract:
Unions facing global capital, or representing migrant workers, or both, should adopt a strategy of: (1) insisting, to the extent possible, on representation of workers by national labour movements covering the location where work is performed; (2) linking those national labour movements in enduring transnational union organizations that coordinate reciprocity; and (3) vigourously seeking alliances with worker support organizations outside the union movement. These conclusions follow a review of recent experiences, which confirm a game-theoretic account in which transnational institutions arise to solve coordination problems among national institutions. (1) The insistence on the local responds to union defeats in European Union law, in which Swedish unions, insisting that Latvian workers building a school in Sweden be paid Swedish wages, were held to have interfered with the free movement of capital. North American unions representing migrant farm workers must avoid the analogous claim that such workers were hired in Mexico or Jamaica, then posted to Canada or the U.S. (2) While existing formal transnational union organizations and framework agreements have achieved little, they offer the promise of future reciprocity. By contrast, ad hoc campaigns seeking union support have achieved less, while engendering cultural misunderstanding harmful to future support. (3) Although systematic comparison is not possible, many anecdotes suggest that alternative worker support organizations in the developed world, are more effective allies for unions in the developing world, than are developed-world unions.