July 9, 2010
Update on DOMA Case
As Art Leonard (NYLS) kindly pointed out in the comments to my prior post, the DOMA challenge was actually two cases, one premised on the Tenth Amendment (and the Spending Clause) and the other brought by two individuals alleging that DOMA violated equal protection. The district court ruled in favor of those plaintiffs as well, finding that DOMA violated equal protection. Notably, the court held that DOMA did not pass rational basis review. That opinion is here, and the opinion in the case brought by the Commonwealth of Massachusetts is here. Both opinions provide for interesting reading
NLRB Ratifies Delegation to GC
As we noted in our post on New Process, the Supreme Court (in what will hopefully not be a famous footnote 4) raised, but did not answer, the question whether a two-member NLRB delegation of litigation authority to the General Counsel was valid. The NLRB has now moved to make that question moot, by ratifying all action made by the GC pursuant to that delegation. From the announcement:
In the wake of [New Process], and in order to remove any lingering questions, the newly constituted five-Member Board has taken the following actions:
First, it has ratified the December 2007 temporary delegation to the Agency’s General Counsel of all authority on court litigation matters that would otherwise have required authorization of the Board. Second, it has ratified all personnel, administrative, and procurement actions taken by the two Members during the 27-month period, including but not limited to appointments of Regional Directors, Administrative Law Judges, and Senior Executives.
Specifically, with respect to court litigation, the 2007 delegation gave “the General Counsel full and final authority on behalf of the Board to initiate and prosecute injunction proceedings under Section 10(j), or Section 10(e) and (f) of the National Labor Relations Act, contempt proceedings pertaining to the enforcement of or compliance with any order of the Board, and any other court litigation that would otherwise require Board authorization; and to institute and conduct appeals to the Supreme Court by writ of error or on petition for certiorari.”
The 2007 delegation was made knowing that the Board would soon be reduced to two members. The authority was automatically revoked when additional members joined the Board in April 2010.
In order to remove any question about the General Counsel’s authority to act during that 27-month period, the current five-member Board ratified the delegation on Friday. In a statement, the Board explained, “Although we believe that the court litigation delegation has always been valid, this ratification is intended to remove any question that has arisen or may arise regarding this delegation. Accordingly, the Board hereby ratifies the court litigation authority of the General Counsel described in the December 28, 2007 delegation.”
Hat Tip: Patrick Kavanagh
New Study on Gender Pay Gap
As a supplement to news of Nancy and Doug's new book on Happy Lawyers, which Paul just noted, the ABA online journal has a story about some unhappy lawyers--women equity partners. The story covers this study just out by Joan Williams (UC-Hastings, Center for Worklife Law) and Veta Richardson (Minority Corp. Counsel Ass'n): New Millennium, Same Glass Ceiling? The Impact of Law Firm Compensation Systems on Women.
From the ABA's story:
What is being billed as a first-of-a-kind survey of female law firm partners has revealed a "deep vein of anger" over pay disparities.
"A recent Census Bureau report revealed that the median income of women lawyers is only 74 percent of that of male lawyers. Unfortunately, what starts as a $2,000 annual gap between male and female associates accelerates to a $66,000 annual gap between male and female equity partners," write Roberta Liebenberg and Catherine Lamboley in a letter introducing a report (PDF) on the survey, New Millenium, Same Glass Ceiling? The Impact of Law Firm Compensation Systems on Women.
Liebenberg and Lamboley are, respectively, the chair and a member of the American Bar Association Commission on Women in the Profession, which collaborated on the survey with the Project for Attorney Retention and the Minority Corporate Counsel Association. PAR and MCCA released the report today. It includes comments from some unidentified female partners who say they are paid roughly half of what their male counterparts earn.
Although conventional wisdom says women lawyers are paid less due to a stronger focus on family, responses from the almost 700 partners surveyed suggested that being bullied out of origination credit and omitted from compensation committees may play a more significant role in an apparent gender-based pay gap, according to a press release from PAR and MCCA.
It's a very thorough and interesting study worth a read for those interested in the gender pay gap or law firm life.
Levit and Linder Publish "The Happy Lawyer"
Congratulations to Nancy Levit and Doug Linder at UMKC Law for the publication of their important new book: The Happy Lawyer: Making a Good Life in the Law.
Here is the press release:
You get good grades in college, pay a small fortune to put yourself through law school, study hard to pass the bar exam, and finally land a high-paying job in a prestigious firm. You're happy, right? Not really. Oh, it beats laying asphalt, but after all your hard work, you expected more from your job. What gives?The Happy Lawyer examines the causes of dissatisfaction among lawyers, and then charts possible paths to happier and more fulfilling careers in law. Eschewing a one-size-fits-all approach, it shows how maximizing our chances for achieving happiness depends on understanding our own personality types, values, strengths, and interests.
Covering everything from brain chemistry and the science of happiness to the workings of the modern law firm, Nancy Levit and Doug Linder provide invaluable insights for both aspiring and working lawyers. For law students, they offer surprising suggestions for selecting a law school that maximizes your long-term happiness prospects. For those about to embark on a legal career, they tell you what happiness research says about which potential jobs hold the most promise. For working lawyers, they offer a handy toolbox--a set of easily understandable steps--that can boost career happiness. Finally, for firm managers, they offer a range of approaches for remaking a firm into a more satisfying workplace.
Read this book and you will know whether you are more likely to be a happy lawyer at age 30 or age 60, why you can tell a lot about a firm from looking at its walls and windows, whether a 10 percent raise or a new office with a view does more for your happiness, and whether the happiness prospects are better in large or small firms.
No book can guarantee a happier career, but for lawyers of all ages and stripes, The Happy Lawyer may give you your best shot.
I believe this new book will become essential reading for law professors advising their students on career paths in this new economy. Pick up a copy!
Diversity Initiatives in Corporate America
Patrick Shin (Suffolk) and Mitu Gulati (Duke) have just posted on SSRN their article (forthcoming North Carolina L. Rev.) Showcasing Diversity. Here's the abstract.
Diversity initiatives are commonplace in today’s corporate America. Large and successful firms frequently tout their commitments to diversity, sometimes appointing women and racial minorities to highly visible posts, including seats on their boards of directors. Why would a profit-minded firm engage in such behavior? One frequently voiced explanation is that by creating such diversity, firms send out a positive signal about their attributes: a firm’s willingness to expend resources on diversity shows its commitment to workplace fairness and equality, which makes it more attractive to potential employees, customers and financiers. This claim has considerable surface appeal not only as an explanatory thesis, but as a rationale that conveniently bridges the normative gap between corporate self interest and the promotion of social justice. In this article, we raise some difficulties with the theory of diversity-as-signal in terms of both its explanatory adequacy and its normative implications.
Alfred Brophy riffs on this theme over at The Faculty Lounge. Here's a taste:
I'm perhaps somewhat more optimistic about the origins and effects of the board diversity initiatives than are Patrick and Mitu; it seems to me that these initiatives are different from a corporation taking out an advertisement with "diverse" people in it, who may not even be corporate employees. Corporate board diversity may be about what they call "showcasing," but it has a positive effect in that it results in representation on the board of people from groups that have not traditionally been represented.
July 8, 2010
DOMA Invalidated on Tenth Amendment GroundsJudge declares US gay-marriage ban is unconstitutional - Local News Updates - MetroDesk - The Boston Globe
According to the Boston Globe, a federal district court judge in Boston struck down the Defense of Marriage Act on the grounds that the federal statute makes it too hard for the state of Massachusetts to define civil marriage and to permit same-sex unions on the same basis and with the same benefits provided for opposite sex unions.
Gender Transition Discrimination Violates Equal Protection
The District Court for the Northern District of Georgia held late last week that when the Georgia General Assembly fired a Legislative Editor because she was going to transition from male to female, it discriminated against her on the basis of nonconformity to sex stereotypes in violation of the Equal Protection Clause. The case, Glenn v. Brumby, is available here via Lambda Legal, which represented Vandy Beth Glenn, the plaintiff. The General Assembly's legislative Counsel, Brumby, had terminated Glenn and told her that the termination was because her transition would be disruptive because some people, including some legislators would view it as immoral and would lose confidence in the Office of Legal Counsel for the General Assembly, and that it would make Glenn's coworkers uncomfortable.
On cross-motions for summary judgment, the court ruled in favor of Glenn. The court engaged in a very thorough analysis of the conflicting authority on gender identity and gender transition cases, declining to follow cases that found no equal protection violation before the Supreme Court recognized in Price Waterhouse v. Hopkins that penalizing an employee for failing to conform to sex stereotypes was sex discrimination. The court also distinguished between status and conduct: discrimination against a person because of transsexual identity and discrimination against a person who does not act in conformity to gender stereotypes. Transsexuals identity is not a protected status under the Equal Protection Clause, but sex is. Here, Glenn did not simply identify as transsexual, she told her employer that she would transition genders and begin dressing and acting in ways that conform to stereotypes of women's behavior. It was the nonconforming behavior that Brumby identified as the cause of her termination. With sex as the protected class, the court applied intermediate scrutiny and found that "avoiding the anticipated negative reactions of others cannot serve as a sufficient basis for discrimination and does not constitute an important government interest." There was no evidence that anyone other than Brumby had a negative reaction, and some evidence to show that other employees were reacting neutrally or positively.
The court rejected Glenn's second legal theory--that discrimination on the basis of medical condition violated the Equal Protection Clause. Glenn had been diagnosed with Gender Identity Disorder, a recognized medical condition. The court found that this status was entitled only to rational basis review, and that hypothetical concerns were rationally related.
The court then set a date for a hearing on the remedy for next week.
I think the court did an admirable job of negotiating the precedent here and the legal doctrines that seem to conflict. The case demonstrates the weakness, though, in my view of the way we draw lines and protect only some identities and not others. Many cases that involve sex, sexual identity, and sexual orientation can be characterized in ways that do receive protection (sex stereotyping) and ways that do not (unprotected identities or conduct unrelated to identity). So to categorically wall off some things (or wall in some things) requires us to do lots of mental gymnastics. Maybe that's simply what law does in any case, but it's particularly pronounced here. And the same could be true for race, with slightly different twists.
NLRB Orders Election at Foxwoods Casino
The continuing saga of union attempts to organize the Foxwoods Casino and the question whether the NLRB or tribal labor law applies turns another page. An NLRB Regional Director just ordered an election to determine whether the UFCW should represent a group of bartenders and servers. This wasn't unexpected given a similar ruling in favor of an earlier UAW attempt to organize dealers. However, there had been a settlement between the casino and UFCW to use tribal law. Notably, the Regional Director firmly concluded that tribal labor law fell too far short of the NLRA, given that the tribal law didn't allow strikes, doesn't require bargaining over safety issues, and other problems.
This is obviously just one step in a longer process, so more is sure to come.
July 7, 2010
Arthurs Urges CautionThough many in the Canadian labour movement are celebrating the Canadian Supreme Court's recent rulings indicating constitutional protection for labor rights, Harry W. Arthurs (York - Osgoode Hall) urges caution. In The Constitutionalization of Labour Rights: What Bliss in this Dawn to Be Alive, he
caution[s] against excessive optimism concerning the potential of rights-based constitutional litigation to improve the lot of workers. Despite recent pro-labour Charter decisions of the Supreme Court of Canada, litigation will not fundamentally alter the underlying conditions which have disempowered workers and unions. This is not to say that the constitution is irrelevant, but rather that its most significant features are economic and political, rather than juridical.
July 6, 2010
Second Edition of the Global Workplace
Susan Bisom-Rapp (Thomas Jefferson) writes to tell us that she and her co-authors are working on a new edition of The Global Workplace: International and Comparative Employment Law: Cases and Materials. The first edition, published in January 2007 by Cambridge University Press, was the first law school casebook on the subject. The team of authors from the first edition remains intact. In addition to Susan, it includes Roger Blanpain (Universities of Leuven (Belgium) and Tilburg (the Netherlands), Bill Corbett (Louisiana State), Hilary Josephs (Syracuse) and Mike Zimmer (Loyola-Chicago). The team, however, is changing publishers and the second edition will be produced by Aspen Publishers/Kluwer Law International (Aspen/KLI) with a publication target of early 2012.
The second edition, like the first, will use the forces of globalization as its backdrop, and develop labor and employment law in the context of the national laws of nine countries important to the global economy -- US, Canada, Mexico, UK, Germany, France, China, Japan, and India. These national materials will be contextualized by coverage of international labor standards promulgated by the International Labour Organization, as well as principles that emerge from regional trade agreements, such as the North American Free Trade Agreement and the European Union. A final chapter will cover corporate self-regulation through TNCs' global codes of conduct and the pursuit of international labor standards in US courts.
Since the first edition came out, however, there have been significant global developments that affect the global workplace. There have also been important legal changes that will be reflected in the new text. In addition to coverage of the latest trends and legal developments, the co-authors will add more cultural background materials to increase the comfort level for newcomers to international, but especially, comparative employment law. The co-authors plan to provide many more concrete classroom exercises that will aid professors and students to encourage the development of their interest in the subject.
Susan notes the first edition was designed as an "out of the box" offering for labor and employment law professors. To that end, the first edition is supported by a dedicated website that provides background information, PowerPoint slides that can be customized by adopters, advice and publications on the pedagogy of international and comparative workplace law, and a 212 page instructor's manual, the only instructor's manual in the field. This approach will be continued and refined in the second edition. Feedback from adopters and others is most welcome.
Off to KL
I'm off this morning to Kuala Lumpur, Malaysia, for my Fulbright. I'll be facilitating a mediation training program coordinated by the Industrial Court (here's a brilliant idea the U.S. should consider: channel all labor/employment cases through a single administrative/adjudicatory agency!), and learning all I can about the labor and employment law of Southeast Asia.
I expect my blogging will slow down a bit while I'm there.
July 5, 2010
UPS v. FedEx
The Washington Post has an interesting article on the political battle between UPS and FedEx over a congressional attempt to bring FedEx under the NLRA. As many readers know, FedEx's origins as an airline has led it to be covered under the RLA, while UPS has been covered by the more union-friendly NLRA (relatively speaking, of course). As proof that the RLA is deemed more employer-friendly, both companies have spent millions in an attempt to get FedEx under the NLRA (UPS's position) or to keep it under the RLA (FedEx's position). The fact that both companies perform essentially the same functions are beside the point. This appears to be a pure, political brawl. Stay tuned.