September 24, 2010
Thanks so much to everyone at the LEL Colloquium for tolerating my luncheon presentation and giving me all the terrific ideas for follow-up! Please please please send those comments to me by email, or add a comment to this post.
Dean Dad posits:
- Student takes class with professor last year.
- After conclusion of class, student and professor have brief affair.
- Affair ends badly.
- Student signs up for another class with professor this year.
- Student demands an ‘A’ or threatens to reveal all.
Any advice for professor?
September 23, 2010
Conference on Regulating for a Fair Recovery Network
Colin Fenwick (on leave from Univ. of Melbourne, with the ILO) writes to inform us about next year's Conference on Regulating for a Fair Recovery Network. The conference is being sponsored by the ILO and Melbourne Law School's Regulating for Fair Work Project (among others). The conference announcement:
In the most prominent global policy agendas, the economic crisis has relegated labour market regulation to a subordinate status. Yet at national-level there have been notable successes in sustaining regulatory institutions and adjusting them to recessionary conditions; and there are signs of ongoing innovation and evolution in regulatory strategies, design and techniques in all regions. The altered economic conditions have also prompted reconsideration of longstanding research and policy themes, lending some new resonance while others are refashioned or discarded. Among the most urgent tasks for researchers and policy-makers is to determine how labour market regulation can help to promote a fair recovery: one that generates and sustains decent jobs. This project entails a set of wide-ranging and complex challenges that include identifying the role of labour regulation in curbing spiralling unemployment and halting the decline in wage growth; gauging the effect of new regulatory agendas on issues such as fairness and job quality; and identifying the role of implementation and enforcement of labour laws in the altered economic context.
To advance these debates, the Regulating for Decent Work Network is pleased to announce the Second RDW Conference, to be held in the International Labour Office, Geneva from 6-8 July 2011. The RDW Conference will be co-hosted by the University of Manchester’s Fairness at Work Research Group (FaW) and the University of Melbourne’s Centre for Employment and Labour Relations Law (CELRL). Researchers from all regions and from a range of disciplines including law, economics, industrial relations, development studies, sociology, psychology and geography are encouraged to attend.
Abstracts should be submitted to email@example.com. They will be subject to a competitive review process. It is expected that a number of edited volumes will be published drawn from selected conference papers.
You can get more information on what looks to be a really interesting conference, including the program, at the ILO's website.
Sex Discrimination, Abroad and at Home
Executives from Coca- Cola, GlaxSmithKline and Sony (amongst others) were left spluttering into their white wine spritzers over lunch at the UN summit when told by Cherie Blair that they should deal with injustices to women "in their own back yard" before telling developing countries what to do, "Because the women who work in your organisations would give a hollow laugh if you go back and say ‘Oh, we believe in empowering women in the developing world and helping women…… in fact on your boards you have no women, or you just have token women.'"
Oppenheimer on Sources of United States Equality Law
David B. Oppenheimer (Berkeley) has posted on SSRN his recent piece in the European Anti-Discrimination Law Review: Sources of United States Equality Law: The View from 10,000 Meters.
Here is the abstract:
This brief overview of U.S. anti-discrimination law was initially prepared as a keynote address at the Legal Seminar on the Implementation of EU Law on Equal Opportunities and Anti-Discrimination, on October 6, 2009 in Brussels, Belgium. I conclude that "A person making a claim of discrimination in the United States must consider the availability of U.S. and State Constitutional law; U.S., State and local statutory law; U.S. and State administrative law; State common law; private law; and (perhaps) international law. A claimant is wise to cast a wide net in the search for remedies, rather than relying on only the federal civil rights statutes, because as quickly as the Congress is expanding these rights, the U.S. Supreme Court is restricting them."
David's piece is a welcome addition to the increasing number of papers exploring the relationship comparatively between equality law in the United States and other jurisdictions. It is also just a good overview of all the types of claims a U.S. worker might have in an employment discrimination case.
Looking forward the best law prof conference of the year -- the Fifth Annual Colloquium on Current Scholarship in Labor and Employment Law. The Colloquium is hosted this year by St. Louis University Law School and Washington University Law School.
The Colloquium provides an opportunity for labor and employment law scholars to present works-in-progress and receive feedback from their colleagues in the field. It is truly the best conference of the year because the collegial and supportive environment makes it a safe place to float scholarly trial balloons -- and because labor/employment folks are always the life of any party!
It will be terrific to see again in person the folks we normally get to connect with mostly online.
Hoffman on Immutability
Sharona Hoffman (Case Western) has just posted on SSRN her article (forthcoming William & Mary) The Importance of Immutability. Here's the abstract:
This article argues that recent developments in employment discrimination law require a renewed focus on the concept of immutable characteristics. In 2009 two new laws took effect: the Genetic Information Nondiscrimination Act (GINA) and the Americans with Disabilities Act Amendments Act (ADAAA). This Article’s original contribution is an evaluation of the employment discrimination statutes as a corpus of law in light of these two additions.
The Article thoroughly explores the meaning of the term “immutable characteristic” in constitutional and employment discrimination jurisprudence. It postulates that immutability constitutes a unifying principle for all of the traits now covered by the employment discrimination laws. Immutability, however, does not explain why other characteristics that are equally unalterable are excluded from the statutory scheme. Thus, I conclude that the employment discrimination laws lack coherence. While they extend even to fringe religions, such as white supremacy, they disregard a variety of traits that are fundamental to identity, including sexual orientation, parental status, and others. A focus on the concept of immutability can shed new light on the achievements and limitations of the anti-discrimination mandates and serve as an impetus to provide more comprehensive protection to American workers.
September 22, 2010
Another Swipe at the EEOC for Failing to Conciliate in a Pattern and Practice Case before Filing Suit
Thanks to Jason Bent (Penn State), frequent guest and pattern and practice expert for sending along EEOC v. Cintas (Download EEOC - Cintas), a decision by Judge Sean Cox in the District Court for the Eastern District of Michigan. You might recall our earlier post about EEOC v. CRST, where the District Court for the Northern District of Iowa granted summary judgment to the employer and socked the EEOC with a multi-million dollar attorneys fees award.
As Jason writes
Another district court has dismissed an EEOC Section 706 claim because of what it perceived as the EEOC’s “sue first, ask questions later” litigation strategy. The court followed the reasoning of CRST, quoted extensively from the CRST opinion, and expressly adopted the central holding of that case. The court criticized the EEOC for failing to identify its purported “class” members until years after filing its initial complaint, using discovery to locate the individuals it later claimed were the “class” members, and failing to conciliate any of the claims of those individuals as required by Title VII.
“Class” is in quotation marks because (as the court points out) even though the EEOC often uses that term when it seeks to represent a group of “persons aggrieved” under Section 706, a Section 706 claim is actually quite different from a Federal Rule 23 class action.
Here, suit was filed by one woman, and the EEOC intervened later, seeking to bring a pattern and practice claim on behalf of a group of unnamed women. While the EEOC had attempted conciliation for the one woman in whose suit it intervened, it did not attempt to conciliate on behalf of anyone else and didn't name any of the women in the group for several years of the litigation. So, the court essentially held that for non-class aggregate litigation, the EEOC has to identify all of the people on whose behalf it is bringing a case and attempt to conciliate for each of them before bringing suit on their behalf.
But I wonder if the court would have been less stringent had the EEOC identified by name a large number of women before it filed suit, but then added a few more after. It seems that although these two courts have focused on conciliation, Judge Cox, at least, seems actually to be expressing frustration with the incredibly slow process of the EEOC's investigation--that the EEOC isn't gathering evidence more quickly.
Cintas picked up on this argument as soon as the CRST decision came down, and I'm sure other employers will capitalize on these two cases, as well. It will be interesting to see what other district courts do now and how the courts of appeals come down.
Dimick on Paths to Power: Labor Law, Union Density, and the Ghent System
Matthew Dimick (Georgetown) has posted on SSRN his recent paper: Paths to Power: Labor Law, Union Density, and the Ghent System.
Here is the abstract:
Advocates for the labor movement are understandably disheartened by the uncertain future of the Employee Free Choice Act. Underlying the EFCA strategy of union revitalization is a widespread belief about the efficacy of strong labor laws for supporting strong, high-density labor movements. In this paper I ask: How necessary are strong labor laws for strong labor movements? If not labor law, what sorts of policies and institutions support high union density? By comparing the National Labor Relations Act with the labor laws of Denmark and Sweden, countries where union density has ranged between 70 and 80 percent in recent years, I argue that the necessity of strong labor laws for high union density is doubtful. Rather, what does appear to be important for these high-density Nordic countries is the administration of unemployment insurance by labor unions, an arrangement known as the Ghent system. The Ghent system helps unions overcome three separate problems that labor law in the US attempts to resolve, in evidently ineffective ways. I call these three problems the free-rider problem, the recognition problem, and the adversarial problem. Further, in helping to resolve the adversarial problem, I provide an economic analysis arguing that collectively-bargained unemployment insurance is efficient and establishes a positive-sum tradeoff between a form of labor-market security for workers and a flexible workplace for employers. The paper concludes by considering whether a version of the Ghent system could be adopted in the US as a strategy of union revitalization. One argument in support of this possibility is the broad deference states enjoy under the federal Social Security Act to design the administration of their unemployment-insurance systems, which makes possible the adoption of state-level Ghent systems and hence a “progressive-federalist” strategy of union revitalization.
Very interesting. I really love the attempt to look elsewhere and outside-of-the-box to consider new ways of helping to revitalize the union movement in this country.
Thomas on Oddball Iqbal and Twombly and Employment Discrimination
Suja A. Thomas (Illinois) has posted on SSRN her forthcoming essay in the University of Illinois Law Review: Oddball Iqbal and Twombly and Employment Discrimination.
Here is the abstract:
This brief Essay argues that Bell Atlantic Corp. v. Twombly was an oddball case, a massive antitrust action with significant costs, much different than the vast majority of cases in the federal courts. While the Supreme Court and some scholars including Professor Richard Epstein have largely justified the new plausibility standard in Twombly on the basis of these costs, they have not shown why the new standard should apply transsubstantively to cases without these same costs, including typical employment discrimination cases. This Essay further argues that Ashcroft v. Iqbal like Twombly was also an oddball case, though with different types of costs than Twombly. Finally, contrary to Professor Epstein, this Essay argues that the standard under Iqbal and Twombly is likely to be procedurally revolutionary in employment discrimination cases. Indeed, the new standard could lead to a revolution due to the convergence of the new motion to dismiss standard with summary judgment and the effective death of Swierkiewicz v. Sorema N.A.
Suja continues to be one of the leading authorities on the impact of Twombly and Iqbal in the employment discrimination law context. This is a must-read for any one who is interested on the impact of these decisions on future employment discrimination law claims.
Twisting and Turning towards Summary Judgment
The Eighth Circuit today issued a decision in a Title VII race discrimination case that I'm struggling to get my brain around: EEOC v. Con-Way Freight. The court affirms the district court's grant of summary judgment, but the facts (and in my view the analysis) are exceptionally messy.
The plaintiff is black, and a mid-level manager wanted to hire her for a position. When he talked to his boss about creating the position and hiring the plaintiff, the boss, after hearing that the plaintiff was black, warned the manager that he would be "opening a can of worms" by hiring her and that he "didn't want to go that route." The manager asked the plaintiff how she would react to racially derogatory comments in the workplace and said the boss had warned him that if the manager hired the plaintiff, he "was just asking for the NAACP." Sounds like it's shaping up for a pretty straightforward race discrimination case.
But here is where the facts get messy. The manager also interviewed others for the position because of this comment, and decided that the plaintiff and a white woman were the best candidates. Here I'm going to leave out the facts that don't relate to the plaintiff. The manager told the plaintiff that she had the job and that he had gone to bat for her. He then sent her for a drug test, apparently without authorization--the personnel department must first run a background check to approve the candidate. The manager was fired before he submitted her name to the personnel department. When the plaintiff, thinking she had been hired contacted the company, she was told that there was no hiring going on by one person, and by another that her application for the position would be on top of the pile if the manager was replaced. The manager was eventually replaced, and he hired a third person (neither the plaintiff nor the other woman candidate).
To make things more complicated, the plaintiff had two misdemeanor shoplifting convictions, which she disclosed, and two felony theft convictions that had been pardoned, which she did not.
The court of appeals affirmed summary judgment, finding that the plaintiff could not prove that her race was the reason she was not hired. And here's where the analysis becomes a mess. The plaintiff argued that she would have been hired well before the manager had been fired but for the comments which made the manager change the way he had planned to hire--to look for other applicants. The court held that this is not direct evidence of race discrimination because the manager didn't have the authority to hire until the personnel department approved of the candidate. And the personnel department would have rejected her application because of her convictions, so the manager never would have had the authority to hire her. The plaintiff argued that the company had not provided enough evidence to compel a jury to find the existence of such an across-the-board policy, but the court disagreed. Although the policy was not in writing, there was evidence to support that such a policy had disqualified many people from employment.
The court then rejected a mixed motives approach, holding that it was not available when the employer claims no motive at all for the adverse employment action--the employer contended it did not consider her application at all.
The court further rejected a McDonnell Douglas approach, finding that she could not provide evidence of a prima facie case because her convictions made her not qualified. Without a prima facie case, the court did not describe what legitimate reasons the employer may have offered, although it does suggest elsewhere that the reasons for not hiring her were that her name was never put forward and "it simply didn't consider her application" after the manager was fired.
So why am I so confused? The court appears to hold that she can't prove a single motive case because even though she can prove that race played a role at one point in the process, the employer also would have had a nondiscriminatory reason for its action (sounds a lot like mixed motives). So, she can't prove the single motive because this is really mixed motives. But the court also holds that she can't prove a mixed motive case because there was no evidence that the employer actually relied on that legitimate reason (sounds a lot like race is the single motive now). So she can't prove a mixed motives case because there's no evidence that the motives were mixed--but they're mixed enough to defeat the single motive?
So maybe one answer is in the way that mixed motive interacts with a rigid McDonnell Douglas framing. Or maybe it has something to do with the difference between motive and reason for the action, which the court at least implies are different things. But there's no explanation of the distinction, so we're left in the dark. Is there a difference? Am I missing something?
NAA Grant Opportunities
Thanks to Marty Malin for letting us know that the National Academy of Arbitrators is soliciting grant applications for, among other things, the study of labor/employment dispute resolution. Here's the announcement ; here is detailed information on the application process.
Pope on Human Trafficking
In theory, an unwanted thing or condition can be eradicated by the negative means of attacking it directly or the positive means of nurturing a nemesis, or a combination of the two. In the field of pest control, for example, a given pest can be attacked directly with pesticides, or a nemesis species can be introduced into the environment. In the latter case, the nemesis species does the work of extermination either by attacking the pest or by outcompeting it for food and other resources. Direct attack is the predominant legal approach to human trafficking (which is defined to include not only cross-border trafficking, but also the harboring or maintenance of a person in a condition of slavery or involuntary servitude). The United Nations Protocol, for example, calls on member states to criminalize “trafficking in persons” and to provide protection and assistance to victims of that practice. There is, however, another possibility: nurturing the free labor system as a nemesis to trafficking. This approach operates by guaranteeing to workers a set of rights sufficient to achieve either economic independence or, failing that, the power below to give employers the incentive above to provide jobs that rise above servitude. It relies primarily on workers – not government enforcement – to achieve and sustain labor freedom. This free labor approach, which finds support in the law of “involuntary servitude” under the United States Constitution, appears to provide an indispensable and cost-effective way to eliminate instances of trafficking that elude criminal prosecution. The article discusses the possible application of this approach to slavery and involuntary servitude, cross-border trafficking, and sex trafficking.
Harkavy on the 2009 Scotus Term
Jon Harkavy (Patterson & Harkavy) has just posted on SSRN his article Supreme Court Employment Decisions 2009 Term. Among other things, it contains a nice dedication to the late Professor/Dean Albert Rosenthal.
September 21, 2010
Secunda on Challenge to Wisconsin's Anti-Captive Audience Law
CCH's Employment Law Daily has a story on a challenge to Wisconsin's new anti-captive audience law. Business groups allege that the law is unconstitutional and is preempted by the NLRA. Our own Paul Secunda, who has written frequently on this issue, had this to say on the suit:
"A finding of NLRA preemption in this case would be both inconsistent with Congress’ purposes in enacting the NLRA and with principles of federalism which give the states and federal government shared authority over the employment relationship,” argues Paul Secunda, a professor of law at Marquette University in Milwaukee, Wisconsin. Secunda, a member of the Wolters Kluwer Law and Business labor and employment law editorial advisory board, has written extensively on state captive audience measures — and whether they can withstand federal preemption challenges. “Indeed, a number of well-known exceptions exist to the Machinists preemption doctrine, in the area of state police powers and the regulation of property rights. Under this line of cases, traditional areas of state concern are within the states' power to regulate and, therefore, not within the scope of NLRA preemption.”
“There are two sources of applicable authority here: (1) the state can place property restrictions on the bundle of property rights that the state grants to its property owners and (2) the state can provide for minimum conditions in the workplace under its police powers. Consistent with Section 8(c) of the NLRA, employers can still inform employees of their views of unionization, but may not force employees into mandatory meetings to hear those views under Wisconsin’s Act 290.”
“In short, the court should find that Wisconsin has the inherent power to enact this law and such promulgation is consistent with both the reach and purposes of the NLRA and the principles of federalism,” Secunda contends. “As to the First Amendment claim, the right to speech does not include the right to compel someone to listen. Not under the First Amendment and certainly not under statutory law.
Should be interesting to see what the court decides; Paul will no doubt have more to say on the topic.
Moberly on the Supreme Court’s Anti-Retaliation Principle
Richard Moberly (Nebraska) recently posted an article about the Supreme Court's retaliation jurisprudence: The Supreme Court's Anti-Retaliation Principle. It will be published in Volume 61 of the Case Western Law Review in January 2011.
Here is the abstract:
In five cases issued during the last five years, the Supreme Court interpreted statutory anti-retaliation provisions broadly to protect employees who report illegal employer conduct. These decisions conflict with the typical understanding of this Court as pro-employer and judicially conservative. In a sixth retaliation decision during this time, however, the Court interpreted constitutional anti-retaliation protection narrowly, which fits with the Court’s pro-employer image but diverges from the anti-retaliation stance it appeared to take in the other five retaliation cases. This Article explains these seemingly anomalous results by examining the last fifty years of the Supreme Court’s retaliation jurisprudence. In doing so, a persistent theme emerges: the “Anti-Retaliation Principle,” which the Court uses to advance the notion that protecting employees from retaliation will enhance the enforcement of the nation’s laws. The Court has used the Anti-Retaliation Principle for a half-century to strengthen statutory protection from employer retaliation. However, the Court also has demonstrated consistently that it considers the Principle to be primarily a statutory, rather than a constitutional, norm. The Anti-Retaliation Principle explains the recent cases and provides a reasoned and consistent standard against which they can be evaluated. Furthermore, the Supreme Court’s Anti-Retaliation Principle provides important lessons for courts as they confront the need to prevent employers from retaliating against employees who report illegalities.
Of considerable interest is that Richard added some thoughts about the two retaliation cases that will be decided by the Supreme Court this Term: Kasten v. Saint-Gobain Performance Plastic Corp. and Thompson v. North American Stainless, LP.
Hurd and HP Settle
HP has settled its lawsuit against Mark Hurd, former CEO of HP, current Co-President of Oracle, filed less than two weeks ago. The contents of the settlement were not disclosed except that HP says Hurd has promised to protect its confidential information, and according to an SEC filing, he has also apparently agreed to waive about half of the compensation agreed to under the original separation agreement (see NYT article).
So we won't get any answers on inevitable disclosure and trade secrets in California for now.
September 20, 2010
Tenure, Insubordination, and the Triumph of Procedure
Pretty much all I know about Branham v. Thomas Cooley Law School is what I read in the recent opinion, so I'm sure there's much backstory that I'm missing. But the opinion itself raises some interesting issues.
To oversimplify a complicated story, plaintiff, a tenured professor at Cooley, was terminated by the school for refusing/failing to teach assigned courses. Although she claimed that the assignment was in retaliation for certain of her actions, the opinion focused on the procedures involved and whether she had some right not to teach the courses in question.
In fact, Cooley had, in the court's mind, violated the governing procedures set forth in law school policies and incorporated in her "standard faculty contract." (The school unsuccessfully argued that she had abandoned her position and so there was no need for any process), In an earlier round of the litigation, the court found a breach of contract in this regard, and Cooley had responded by giving Prof. Branham the process she was due -- including a hearing, a vote by her fellow faculty (who voted 85 to 19 for termination), affirmance by the Board's Academic Committee, and final decision by the full Board.
Back in the district court, plaintiff charged that she had not, in fact, received the process due under her contract, but the court disagreed. She had been accorded the process her contract called for, which sufficed. It stressed that her contract governed, not some "abstract notion of 'tenure'" or, say, the ABA's standards. While the court seemed to think that the procedures satisfied due process, its analysis would seem to make irrelevant whether the Constitution -- or ABA rules -- might require more protections (such as the right to call witnesses) once it was determined that the contract had been performed.
The opinion also rejected plaintiff''s argument that, despite having received the process she was promised, she had a right to some kind of judicial review of the merits. While a court would consider whether an employer indeed had cause if the contract provided for good cause protection simpliciter, this contract provided such protection while also setting forth the mechanics for determining cause. The only question then "is whether the employer actually decided good cause in accord with contractually provided procedures, not whether the decision was correct, sensible, or good in the abstract."
The notion that a party is entitled, as a matter of contract law, only to the protections of the contract is unobjectionable, if tautological. But a contract may incorporate -- either expressly or impliedly -- what in the UCC would be called trade usage; thus,the idea that ABA or AALS standards and principles might be read into a law school's contract is not strange. Indeed, in another portion of the opinion Branham found plaintiff''s contract explicitly incorporated ABA rules regarding maximum teaching loads. But with respect to procedures, the contract was explicit enough to foreclose any implied incorporation of external standards (in the UCC, express terms trump trade usage if clear enough),
Conceivably, this could have been critical to the decision. At some points, plaintiff seems to suggest that her tenure entitled her to not teach any subject she didn't want to teach. As the court noted, "academic chaos" would result from such a broad principle. "Insubordination necessarily has real consequences in the workplace, even for tenured faculty." But perhaps her position was not so extreme -- trade usage (whether or not found in ABA standards) might limit the extent to which new preparations could be assigned, or at least the amount of lead time that would have to be provided. And plaintiff claimed that her health limited her ability to prepare for new courses.
In any event, an argument that Cooley was wrong and plaintiff was right on the merits seems beside the point -- according to the court. Cooley's determination was binding as to cause so long as the school followed the procedures laid out in the contract.
Which takes us back to the question of the use of procedures in contracts. Although originally conceived of as an additional layer of protection for employees, Branhamillustrates how specified procedures can actually reduce substantive rights. The plaintiff's position was unsympathetic, and apparently a supermajority of her colleagues disagreed with it. But the procedures rested final decision in the Board of Directors, which would seem to meant that she could have been terminated even had she won the faculty vote. One could say, of course, that she won in the first round -- the court did order her to be given the contractual procedures. But there's no indication that she was compensated from having been removed without them, and there are few cases that award damages to an employee in an individual employment setting who is fired without the requisite procedures but whose firing is ultimately upheld.
Admittedly, maybe I'm being too ex post about this. A dean might hesitate to invoke the elaborate and public process at stake for less extreme conduct, so the existence of the procedures might have some value. Of course, conversely, an employee aware that deans are usually supported by boards might not want to risk fighting an looming ouster when the board of directors has the final and unreviewable say.
ERISA Preemption of State Malpractice Claim
In Taylor v. UAW-GM, a plaintiff alleged legal malpractice based on a plan attorney's denial of benefits. The district court held that the state malpractice claim was preempted by ERISA because it was dependent upon her entitlement to benefits under that act:
Despite their different captions, all three claims allege that Defendants denied Plaintiff the legal services she was entitled to under the Plan...It is not the label placed on a state law claim that determines whether it is preempted, but whether in essence such a claim is for recovery of an ERISA plan benefit...This is not to say that all common law legal malpractice or quantum meruit claims against plan attorneys would be preempted by ERISA. But the thrust of Plaintiff's allegations in this case is that she was improperly denied benefits under the Plan.
Hat Tip: Alex Long