Workplace Prof Blog

Seinfeld as Real Life: Too Hot for Work

For Seinfeld fans out there, you might recall the episode where George was interviewing secretaries for his job with the Yankees.  To one candidate, he said that she was simply too good-looking and that he could not hire her because he would not be able to concentrate on his work. He hired a rather normal looking female secretary instead.

Fact now mimics fiction. From the Village Voice:

Everything about Debrahlee Lorenzana [picture at left] is hot. Even her name sizzles. At five-foot-six and 125 pounds, with soft eyes and flawless bronze skin, she is J.Lo curves meets Jessica Simpson rack meets Audrey Hepburn elegance—a head-turning beauty.

In many ways, the story of her life has been about getting attention from men—both the wanted and the unwanted kind. But when she got fired last summer from her job as a banker at a Citibank  branch in Midtown—her bosses cited her work performance—she got even hotter. She sued Citigroup, claiming that she was fired solely because her bosses thought she was too hot.

This is the way Debbie Lorenzana tells it: Her bosses told her they couldn't concentrate on their work because her appearance was too distracting. They ordered her to stop wearing turtlenecks. She was also forbidden to wear pencil skirts, three-inch heels, or fitted business suits. Lorenzana, a 33-year-old single mom, pointed out female colleagues whose clothing was far more revealing than hers: "They said their body shapes were different from mine, and I drew too much attention," she says.

All kidding aside, this raises a Jesperson-like appearance discrimination issue under Title VII.  It appears that she does have a claim since she is not conforming to the stereotype of what a "normal" woman should look like, no?

Hat Tip: Randy Enochs

Paul

May Unemployment Data

The Department of Labor has released its employment data for May and, as has become the norm the last few months, there's good news and bad news.  The good news is that the unemployment rate decreased to 9.7% in May, from 9.9% in the previous month.  Moreover, the underemployment rate also went down to 16.6% from 17.1% in the previous month.  These numbers are largely the result of 431,000 new jobs.  However, the bad news:  most of those jobs (411,000 of them) were temporary ones with the Census. 

-JH

Dukes v. Wal-Mart: New Evidence that Wal-Mart Knew of Gender Disparities in Mid-90s

Steven Greenhouse has an article in the New York Times Thursday about a new development in the Dukes v. Wal-Mart class action--a confidential report was leaked to the Times. Apparently, Wal-Mart hired Akin Gump Strauss Hauer & Feld to analyze the business for vulnerability to discrimination actions. The firm submitted a report warning Wal-Mart that it had serious gender disparities in pay and promotion, and it recommended the company take steps like posting for promotions. From the story,

The 1995 report said that women employed by Wal-Mart earned less than men in numerous job categories, with men in salaried jobs earning 19 percent more than women. By one measure, the law firm found, men were five and a half times as likely as women to be promoted into salaried, management positions.

Without significant changes, the lawyers said in their confidential analysis, Wal-Mart “would find it difficult to fashion a persuasive explanation for disproportionate employment patterns.”

There's quite a bit more that sounds rather damaging at least to Wal-Mart's reputation. Read the full story if you're interested. Despite that, it's not likely that the report could be used as evidence at trial, since it's likely attorney work product, and Wal-Mart challenges the accuracy and relevance if the report in any case.

I had the chance to discuss this case with several amazing scholars this past Sunday at the Law and Society annual meeting. Beth Burch (Florida State), Lesley Wexler (Illinois), Zak Kramer (Arizona State), and Bill Bielby (U of Illinois at Chicago, Sociology) all spoke on various aspects of the case, and the audience held several additional folks who have written in this area, like Laura Beth Nielsen (American Bar Foundation/Northwestern, Sociology). part of our discussion focused on the likelihood of settlement in this case. I imagine that enough negative PR will eventually create an incentive. The question is whether this will add significantly to that.

MM

Labor Law Group Meeting in Lake Arrowhead

The Labor Law Group, a non-profit trust dedicated to the development of materials for the preparation of law students for the practice of labor and employment law, is meeting the rest of this week in Lake Arrowhead, California.   Wilma Liebman, NLRB Chair, will deliver the keynote.  I'll report on any happenings.

rb

Update on Colloquium Accommodations

Registration for the Fifth Annual Colloquium on Current Scholarship in Labor and Employment Law has been open for a few weeks now, and from the abstracts, it is already shaping up to be another great event. We have an update on accommodations to let everyone know about.

We have reserved a room rate of $113 per night at the Parkway Hotel, 4550 Forest Park Avenue, St. Louis, MO 63108, conveniently located just over a block from the MetroLink and between Washington University and St. Louis University. The hotel is also close to many restaurants in the Central West End neighborhood and right next to Forest Park. Reservations can be made by calling 866-314-7700, or download this Parkway reservation form, fill it out, and scan/email or fax it to the contact information on the form. Explain that you are a member of the Labor and Employment Law group to receive the discounted rate. Our block will be released on August 23, and the discounted rate may not be available after that, so make reservations early.

MM

NY Senate Passes Home Care Workers' Bill of Rights

New York's Senate appears to be on something of an employment law tear. First the anti-bullying legislation, and now, according to Crain's New York Business, a wage and hour bill to benefit domestic workers. From the story,

In addition to six paid holidays, paid sick days and vacation, the Senate bill would compel employers to give domestic workers, such as nannies and housekeepers, notice of termination and would cover them under basic discrimination laws and unemployment and workers' compensation statutes.

The National Labor Relations Act, which guarantees employees the right to organize, excludes domestic workers; the Fair Labor Standards Act, which sets federal minimum wage and overtime standards, also does not include to them; and civil rights laws that protect workers against discrimination do not apply to most domestic workers.

Employers who don't comply would be subject to civil and criminal penalties, and both the labor commissioner and attorney general could bring legal action against them. To become law, the two versions of the bill must be brought together via reconciliation and Gov. David Paterson must sign the bill that emerges. The governor pledged last year that he would give it his stamp of approval if it reaches his desk.

Still some work ahead, but what a victory for this workforce of more than 200,000, mostly foreign born women of color who are currently very exploitable.

MM

General Counsel Meisburg to Step Down

Proskauer Rose has just announced that the NLRB's General Counsel, Ronald Meisburg, will leave the NLRB to join the firm.  The announcement did not identify a starting date, but others have suggested a June 20 date, which is a few weeks before his term expired.  Although of a different political bent than me, I always thought that Meisburg did a good job as GC.  Now, of course, the focus will be on who will replace him.

.

-JH

WARNS Institute June 24-25 at Louisville

Ariana Levinson (Louisville-Brandeis) sends us the final line-up for the upcoming 27th Annual Carl A. Warns Jr. Labor and Employment Law Institute (June 24-25, 2010), The Galt House, 140 North 4th Street, Louisville, KY.  William Gould, a Professor of Law at Stanford University and former Chair of the National Labor Relations Board, will be the keynote speaker.  Other members of the all-star cast are:

• Scott Bauries, Assistant Professor of Law, University of Kentucky.
• Matthew T. Bodie, Associate Professor of Law, Saint Louis University School of Law.
• Sherri P. Brown, Ferreri & Fogle.
• Angela McCorkle Buckler, Partner, Wyatt Tarrant & Combs LLP.
• Susan E. Cancelosi, Assistant Professor of Law, Wayne State University Law School.
• Scott Drexel, Attorney Advisor, Professional Responsibility Advisory Office, U.S. Department of Justice.
• Randolph H. Freking, Freking & Betz, LLC.
• Honorable C. Cleveland Gambill, Gambill Mediation and Arbitration Services.
• Michael Z. Green, Associate Dean for Faculty Research & Development and Professor of Law, Texas Wesleyan School of Law.
• Janet Jernigan, Just Solutions Mediation Services.
• Barry J. Kearney, Associate General Counsel, Division of Advice, National Labor Relations Board.
• Lori Ketchum, Special Ethics Counsel, National Labor Relations Board.
• Kenneth J. Mudd, E.ON U.S. LLC.
• Elizabeth Neumeier, Arbitrator-Mediator.
• Edwin R. Render, Professor of Law, Louis D. Brandeis School of Law.
• Jennifer Sova, Ballard & Spahr.
• Carolyn L. Wheeler, Assistant General Counsel, Equal Employment Opportunity Commission.

This is consistently one of the best conferences of its kind in the country, and the wealth of talent on this year's roster of speakers indicates that this year will be no different.

rb

Shout-Outs

If you have recent accomplishments to share, don't forget to send them our way.  One of the best things about blogging here on Workplace Prof Blog is the opportunity to keep up with -- and brag to the rest of the blogosphere about -- the myriad accomplishments of our readers.  So please -- let us know what you're up to.

rb

Debating Workplace Bullying Legislation

Marcia mentioned a couple of weeks back that anti-workplace bullying legislation has passed the New York Senate.  This has prompted a healthy back-and-forth discussion of the topic.  For particularly good discussions, see David Yamada's post Why the Healthy Workplace Bill is Not a Job Killer, and Mike Fox's Bullying as a Cause of Action -- One Large Step Closer.

rb

Recently Published Scholarship

• Catherine T. Struve, Shifting Burdens: Discrimination Law Through the Lens of Jury Instructions, 51 B.C. L. Rev. 279 (2010).
• Richard Primus, The Future of Disparate Impact, 108 Mich. L. Rev. 1341 (2010).
• Michael Waterstone, Returning Veterans and Disability Law, 85 Notre Dame L. Rev. 1081 (2010).
• Daniel E. Mooney, Employer on the Web Wire: Balancing the Legal Pros and Cons of Online Employee Screening, 46 Idaho L. Rev. 733 (2010).
• Sarah J. Wild, On Equal Footing: Does Accommodating Athletes with Disabilities Destroy the Competitive Playing Field or Level It?, 37 Pepperdine L. Rev. 1347 (2010).

SG Recommends Denying Cert in Important ERISA Health Insurance Case

In Golden Gate Restaurant Association v. San Francisco, the Solicitor General has now urged the U.S. Supreme Court to deny challenge to 'Healthy San Francisco,' the pay or plan health insurance plan San Francisco adopted a last year.

The Supreme Court had called for the views of the Solicitor General last October, postponing its decision on whether to grant review in case.

Additional information and a copy of the brief are available here.

PS

Amicus Brief Opportunity

Two attorneys who have a petition for certiorari pending regarding a retaliation case are looking for professors who would be interested in writing an amicus brief in support of the petition. 

The question presented is: Are repeated unfulfilled threats of job termination and criminal prosecution insufficient as a matter of law to constitute "adverse employment action" that supports an employee's retaliation claim?
 
The plaintiff-petitioner is a court employee who participated in an EEOC proceeding involving religious discrimination. The employer allegedly retaliated with threats, a reprimand, and by instigating a hostile work environment. Plaintiff sued under Title VII and Section 1983 for First Amendment retaliation. The district court granted summary judgment for defendants, and the Ninth Circuit affirmed.
 
If you are interested, please contact Jack Ross at jross@shrlawfirm.com.
 
PS

Top-10 Labor & Employment Recent SSRN Downloads

1. Richard H. Thaler, Cass R. Sunstein, & John P. Balz, Choice Architecture (1173).
2. Joshua D. Rauh, Are State Public Pensions Sustainable? Why the Federal Government Should Worry About State Pension Liabilities (675).
3. Carola Frydman & Dirk Jenter, CEO Compensation (510).
4. Amy Monahan, Public Pension Plan Reform: The Legal Framework (407).
5. Robert Pikowsky & John A. Miller, Taxation and the Sabbatical: Doctrine, Planning and Policy (315).
6. Omri Ben-Shahar & Carl E. Schneider, The Failure of Mandated Disclosure (212).
7. Brian D. Galle, Conditional Taxation and the Constitutionality of Health Care Reform (181).
8. Kees C. G. Koedijk, Alfred Slager, Alfred Slager, & Rob Bauer, Investment Beliefs that Matter: New Insights into the Value Drivers of Pension Funds (178).
9. Robert Flannigan, Fact-Based Fiduciary Accountability in Canada (131).
10. Robert F. Göx, Frédéric Imhof, Alexis H. Kunz, ‘Say on Pay’ and its Repercussion on CEO Investment Incentives, Compensation, and Firm Profit (111).

rb