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April 2, 2011
New Report from Center for WorkLife Law: Poor, Pregnant, and Fired: Caregiver Discrimination Against Low-Wage Workers
Professor Joan Williams and Deputy Director Stephanie Bornstein at the Center for WorkLife Law at U.C. Hastings Law School write to tell us that they just released a report that should be of interest to many readers of this blog—an analysis of caregiver discrimination lawsuits brought by low-wage workers.
Here is the full report, Poor, Pregnant, and Fired: Caregiver Discrimination Against Low-Wage Workers.
The press release for this report states in part:
A new report released by the Center for WorkLife Law details the extreme measures to which low-wage workers must go to keep a job and care for their children or elderly family members—and the sometimes shocking discrimination they face at work despite these efforts . . .
Even in family emergencies, the report shows, low-wage workers are refused the small kinds of workplace flexibility that are commonplace for middle-wage and professional workers. Ironically, small changes by employers can make a significant difference in keeping experienced employees in their jobs. They can also prevent costly liability: several lawsuits profiled resulted in large verdicts, including four with recoveries of between $2.3 and $11.65 million, despite the plaintiffs’ (a housekeeper, a shipping dispatcher, a bakery delivery driver, and a hospital maintenance worker) low wages.
Sounds like a very interesting study. Check it out.
April 2, 2011 in Employment Discrimination, Worklife Issues | Permalink
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April 1, 2011
March Employment Data
The Department of Labor's March employment figures are now in. The highlights include 216,000 jobs added last month, with the unemployment rate down to 8.8% (from 8.9% the previous month). Overall, this slightly beat expectations and appears to be viewed as good, but not great, news. In does, however, represent another month of growing private-sector employment (now at 13 months in a row), albeit relatively modest growth. But, there are still a lot of long-term unemployed, low labor participation rate, and unchanged number of hours worked. On the other hand, unemployment claims have been dropping. In short, things are looking a bit better and continues to give hope for a future recovery, but we're still not there yet.
April 1, 2011 in Government Reports | Permalink
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March 30, 2011
Ohio Set To Enact Anti-Union Bill
The Ohio Senate (by one vote) has passed a far-reaching anti-union bill, which has already passed the House and that the governor is expect to sign soon. A recent story in the New York Times by Steven Greenhouse summarizes the bill:
The bill would bar public employees from striking and would prohibit binding arbitration for police officers and firefighters. It would allow bargaining over wages, but not health coverage and pensions and would allow public-employee unions to bargain only when the public employer chose to do so. . . .
Under the Ohio bill, when there is public-sector bargaining and management and union fail to reach a settlement, the legislative body, such as a county or school board, would make the final decision on what offer to accept. But if the legislative body refrains from selecting either side’s last best offer, the public employer’s last offer would become the agreement between the parties. . . .
The bill would allow public employees who are covered by union contracts but who choose not to belong to the union to opt out of paying union dues or fees. The bill would also bar any governmental unit in Ohio from deducting any part of a worker’s paycheck and giving it to the union for political activities unless the worker gave express permission.
The bill would bar any union contract that limited a public employer’s ability to privatize operations. It eliminates statutory schedules and steps that automatically increase salaries year by year, and it bars seniority, by itself, from determining who is to be laid off. . . .
Under the bill, if a public employer chose the costlier of two final offers from management and union and that choice forced a community to raise taxes, then voters would be given the opportunity to overturn the contract through a referendum.
The article also quotes Jim Brudney (OSU, soon to be Fordham), who said that:
the bill effectively crippled collective bargaining. “There’s a kind of mask or illusion element in this,” he said. “The essence of collective bargaining is when you can’t agree on terms of a contract, you have a dispute resolution mechanism, by strikes or perhaps binding arbitration. Here, you have none of that. That’s not collective bargaining. I’d call it collective begging. It’s a conversation that ends whenever an employer decides that it ends.”
March 30, 2011 in Labor and Employment News | Permalink
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Hamline Symposium on Disability Law
Hamline Law Review is hosting Friday a symposium on Disability Discrimination in the New Millenium: Triumphs and Setbacks in Education and Employment. Here's a copy of the symposium schedule. I'm very much looking forward to it -- among other things, it'll give me a chance to reconnect with Robert Bird (Connecticut) and David Larson (Hamline), and to escape Northern Kentucky into the warm climes of St. Paul!
March 30, 2011 in Conferences & Colloquia, Disability | Permalink
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Levinson on Electronic Monitoring of Employees
Ariana Levinson (Louisville) has just posted on SSRN her article (forthcoming West Virginia L. Rev.) Toward a Cohesive Interpretation of the Electronic Communications Privacy Act for the Electronic Monitoring of Employees. Here's the abstract:
Professor Levinson proposes a cohesive interpretation of the Electronic Communications Privacy Act (ECPA) designed to protect employees’ fundamental right to privacy in their electronic communications. The difficulty of new technology outpacing the law’s ability to protect employees’ privacy from electronic monitoring by employers is widely acknowledged. Yet, scholars have generally overlooked or dismissed the potential of the ECPA to provide privacy protection for employees in the electronic workplace, calling instead for reform through the legislative process. Nevertheless, despite increasing calls from a broad range of entities for stronger privacy protections, passage of new legislation designed to adequately protect employees is, at best, not close at hand, and, at worst, unlikely. On the other hand, several recent cases suggest that the courts are beginning to interpret the ECPA in ways that accommodate the changes in technology. Indeed, despite the admittedly limited scope of its coverage, the ECPA can and should be interpreted to provide employees some significant level of protection for their electronic communications. This article describes the details of how this can be done.
March 30, 2011 in Employment Common Law, Scholarship | Permalink
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Wisconsin Judge Clarifies Injunction Against Anti-Union Act
UPDATE (3.31.11): Gov. Walker's administration has announced that, given the judge's most recent ruling, it will halt efforts to implement the new law.
Another chapter in the saga revolving around the alleged open meetings violation of Wisconsin's new statute restricting public-sector collective-bargaining: As we noted last week, the publication of the law by an administrative bureau despite a temporary restraining order by a judge left open questions about the scope of the TRO and the effect of the publication. The judge put some of those questions to rest yesterday. As reported by the AP:
Dane County Circuit Judge Maryann Sumi chastised state officials Tuesday for ignoring her earlier order to halt the law’s publication.
“Apparently that language was either misunderstood or ignored, but what I said was the further implementation of (the law) was enjoined,” Sumi said during a hearing. “That is what I now want to make crystal clear.” . . .
Sumi [had earlier] issued a temporary restraining order blocking Secretary of State Doug La Follette from publishing the bill — typically the last step before a law takes effect. Republicans got around that by having the Legislative Reference Bureau, another state agency, publish the bill on Friday. They declared victory, saying the law went into effect on Saturday.
Sumi’s order on Tuesday told state officials to stand down from any further action to put the law into effect. This time, she warned that anyone who defied it would face sanctions. She did not say what those sanctions might be.
There are still more hearings pending on the open meetings lawsuit and the effect of the publication. However, the article quotes several defiant statements from the backers of the measure, so there looks to be a decent chance that they might still push ahead despite the order or, at a minimum appeal.
What I wonder the most in all of this is why the Republicans don't simply pass the measure again? It seems like they are fighting an unnecessary battle, unless there's some hurdle I'm not aware of (which is entirely possible). I suppose there's additional opportunities for the opposition to get PR, but that seems like a drop in the ocean at this point.
March 30, 2011 in Labor and Employment News | Permalink
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UNLV Law's Faculty Resolution on ABA Standards
From Ann McGinley (UNLV) on her faculty's resolution on the ABA standards that deal with employee rights:
Resolution of the Faculty of the Boyd School of Law, University of Nevada, Las Vegas Regarding Proposed Changes to Existing ABA Standards Regarding Security of Position, Academic Freedom, and Attraction and Retention of Faculty
The Standards Review Committee of the American Bar Association’s Section of Legal Education and Admissions to the Bar (“Committee”) has proposed substantial changes to ABA Standards 206, 405, and 603. These changes would dramatically reduce the ABA’s longstanding commitment to a system of tenure and of security of position for law school deans, traditional faculty, clinical faculty, legal writing faculty, and librarians. Specifically, the proposed changes would weaken or eliminate the
(1) Standard 206(c) mandate of tenure for law school deans;
(2) Standard 405(b) requirement of an established tenure policy for traditional faculty;
(3) Standard 405(c) mandate of security of position for clinical faculty members;
(4) Standard 405(d) mandate of security of position for legal writing faculty; and
(5) Standard 603(d) support for security of position for directors of law libraries.
The University of Nevada, Las Vegas faculty vigorously opposes these proposed changes and adopts the following resolution opposing them, based on the resolution originally formulated by Georgetown University Law Center, on the grounds that they would:
(1) Undermine the quality of legal education;
(2) Undermine academic freedom in the legal academy;
(3) Undermine faculty governance in the legal academy; and
(4) Undermine the movement at UNLV to bring clinical law professors, legal writing professors and the library director into full membership in the academy.
I have a feeling these are just the first shots fired in this important debate occuring at law schools across the country. I, for one, believe in strong standards that support academic freedom and faculty governance and I hope the ABA will consider the views of law faculties like UNLV.
March 30, 2011 in Faculty News, Teaching | Permalink
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March 29, 2011
Oral Argument Transcript in Wal-Mart v. Dukes
The Supreme Court heard arguments today in Wal-Mart v. Dukes, the gender discrimination class action that has been pending for ten years. Based on the transcript, it's hard to predict what the Court will decide. The Justices seemed to split their questions between the procedural questions about the class action rules, questions about the practicalities of trying the case, and questions that go to the merits of the discrimination claim. I'm still processing what I've read, but here are my preliminary impressions.
Counsel for Wal-Mart argued that the only policy the company had was to not discriminate, that any policy which allowed for excess subjectivity by managers couldn't be a "practice," presumably for pattern and practice or disparate impact liability, and that to the extent that there might have been a policy towards that discretion, the policy affected individuals in different ways, so there was no commonality. He also argued that the claims for backpay were really monetary rather than equitable, and were the primary remedy sought, so certifying the class under the section of Rule 23 that allows for an easier process for claims for injunctive relief was improper.
Counsel for the class argued that parts of the policies on pay and promotion gave too much discretion to managers, but there was a strong corporate culture that filled in the exercise of that discretion in a way to prime stereotyping. Thus, the women in the class were all subject to the same policy, which made their claims sufficiently common. He also argued that what was really at stake was the claim for injunctive relief, including back pay, and that Wal-Mart's HR database was thorough enough that a formula could be devised to determine who in the class was entitled to back pay and the amount of that backpay so that individual hearings would not be necessary.
Many of the questions of counsel for Wal-Mart focused on when company headquarters should be on sufficient notice that it should have known that its policies were allowing discrimination to occur. More focused on the possibility of separating out the monetary claims into a separate class and what the effect would be on women who did not want to be part of the class.
Many of the questions for the plaintiff-class's counsel focused on the tension within the plaintiffs' theory of discrimination and commonality. How could a policy of too much managerial discretion affect all of the members of the class in a common way. And more fundamentally, how did the allegation of the strong corporate culture then mesh with the delegation of too much discretion. More questions were skeptical of the use of statistics in general, particularly in the remedial phase. Similarly, many questions focused on how Wal-Mart would be able to raise the pattern and practice defense that it didn't discriminate against a particular woman without individual hearings.
I'm terrible at predictions, and this one seems particularly challenging. It seems safe to say that Justices Ginsburg, Breyer, Sotomayor, and Kagan would hold that some formation of a class could move forward. It's equally safe to say that Justice Scalia, and probably Justice Alito would say the class could not. I couldn't tell conclusively how Justice Roberts or Justice Kennedy might be leaning. Justice Roberts was concerned about fairness to the women not before the court, but he also seemed to suggest that companies should be on notice at some point of a pattern of discriminatory actions by lower level managers such that inaction becomes a policy. He may have been skeptical, though, that the point had been reached here. Justice Kennedy, too, was thinking along those lines, and referenced Monell, a case about when action or inaction by a municipality becomes a policy the municipality is liable for. But both he and Justice Roberts said they had a hard time pinpointing what the plaintiffs were alleging the policy was.
I'll predict a win for Wal-Mart because of those concerns, but I could easily be wrong.
March 29, 2011 in Employment Discrimination | Permalink
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Recently Posted Scholarship
After several months of relatively little new scholarship being posted on SSRN, all of a suddent there's a deluge. Tis the season, I suppose. Here are some of the titles that have been posted in just the last forty-eight hours or so. My apologies for not being able to comment on each individually:
- Tristin Green, The Future of Systemic Disparate Treatment Law, 32 Berkeley JLEL (2011).
- Hiro N. Aragaki, Equal Opportunity for Arbitration, 58 UCLA L. Rev. (2011).
- Amy L. Wax, Disparate Impact Realism, __ William & Mary L. Rev. (2011).
- Robert W. Wood, Can Franchisees Be Recast as Employees?, 130 Tax Notes #12 (2011).
- Dawn D. Bennett-Alexander, The 'C Word,' the 'B Word,' and the 'W Word': Can Derogatory Terms Traditionally Used for Females Form the Basis of Actionable Sexual Harassment When Directed toward Males but Overheard by Females? Must They Be Directed toward Claimant?
- Benjamin I. Sachs, Despite Preemption: Making Labor Law in Cities and States, 124 Harv. L. Rev. 1153 (2011).
March 29, 2011 in Scholarship | Permalink
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March 28, 2011
Free Statutory Supplement
Who says there's no such thing as a free lunch? Or at least a free digital supplement book. The authors of Employment Discrimination: A Context and Practice Casebook have released the following bit of good will:
In an effort to diminish the costs of law school for students, Susan Grover, Sandra Sperino, and Jarod Gonzalez are making available a free statutory supplement for Employment Discrimination courses. The statutory supplement contains relevant portions of Title VII, the ADEA, the ADEA, section 1981, section 1981(a), the Civil Rights Act of 1991, the Congressional Accountability Act, the Equal Pay Act and Fair Labor Standards Act (provisions related to employment discrimination), the FMLA, the Federal Arbitration Act, GINA, IRCA and the Portal-to-Portal Act.
The authors give permission for this supplement to be used with attribution for any educational purpose, as long as the materials are provided to students for free or for copying costs. Instructors may also edit the available document to meet their course needs. The statutory supplement is available in Word and pdf formats. The supplement is available at the following link.
March 28, 2011 in Books | Permalink
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Hart & Secunda in NYT
Congratulations to Melissa Hart (Colorado) and our own Paul Secunda (Marquette), whose 2009 Fordham Law Review article on social framework evidence was quoted heavily in a New York Times article on Wal-Mart v. Dukes, which the Supreme Court will hear tomorrow. The article focused on the use of sociology and expert testimony by William Bielby (U. of Ill. at Chicago) in the class certification decision.
March 28, 2011 in About This Blog, Commentary, Employment Discrimination, Faculty News | Permalink
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SCOTUS to Hear Ministerial Exception Case
Almost exactly a year ago, we blogged about a case on the ministerial exception to the ADA from the Sixth Circuit, EEOC v. Hosana-Tabor Evangelical Lutheran Church and School. The Supreme Court granted cert. in the case today on the question:
Whether the ministerial exception, which prohibits most employment-related lawsuits against religious organizations by employees performing religious functions, applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship.
That question is not exactly framed the way that the Sixth Circuit addressed the issue. It looked at the teacher's primary duties and held that forty-five minutes of religious instruction of every seven hours of work was not enough to make her a ministerial employee.
To see the relevant documents, here's a link to SCOTUSBlog's case page. This will be an important one to watch.
March 28, 2011 in Employment Discrimination, Religion | Permalink
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An Empirical Look at Public-Sector Unions
David Lewin (UCLA-Business), Tom Kochan (MIT-Business) and a slew of others have jointly posted on SSRN their Report Getting It Right: Empirical Evidence and Policy Implications from Research on Public-Sector Unionism and Collective Bargaining. This is a must-read for anyone engaging on the current debate. Here's a brief description of the Report:
The United States is in the throes of a public-policy debate about public-sector unionism and collective bargaining. The ostensible trigger of this debate is the fiscal crises that state and local governments have been experiencing since 2008. The debate largely centers on the extent to which public employee unions have contributed to this crisis through the pay and benefits they have negotiated for public employees. The role of government as employer is connected in this debate to the role of government as a taxing authority and provider of public services. These roles are often claimed to be in conflict with one another — that is, governments as employers are seen as not exercising the same due diligence in setting pay and benefits as private-sector employers. The research evidence indicates, however, that these claims about public employment are based on incomplete and in some cases inaccurate understanding.
Far too much of the current debate is ideologically driven. The primary objective of this paper, which is sponsored by the Employment Policy Research Network (EPRN), is to bring evidence to bear on public-sector collective-bargaining debates. We seek to clarify the role of government as an employer and evaluate proposals for public-sector unionism and collective-bargaining reform.
Further, too little attention has been given to the roles that public-sector unions and public-sector collective bargaining can play in addressing the fiscal crises facing governments at all levels. Therefore, an additional objective of this paper is to identify innovations that can improve public-sector collective bargaining and its impact on public service.
Here are some of the findings:
- The existing research, much of which is very current (completed within the past two years), shows that, if anything, public employees are underpaid relative to their private-sector counterparts. While public-sector benefits are higher than private-sector counterparts, total compensation (including health care and retirement benefits) is lower than that of comparable private-sector employees. Erosion of public-sector pay and benefits will make it harder for public employers to attract, retain and motivate the workforce needed to provide public services.
- While total compensation is not out of line with the private sector, the costs, funding, and administration of health and pension benefit plans merit attention. Rising health care costs characterize both the public and private sectors and need to be addressed by management and labor. The growing liabilities of retiree health care and pensions require more disciplined funding, reform of administrative rules and formulas that lead to benefit “spikes,” and changes in other features that inflate the costs of some plans. These problems are equally prevalent in states with and without collective bargaining and for unionized and non-unionized employees.
- Challenges to the freedom of association and the right to bargain collectively places the United States out of sync with established international human-rights principles.
March 28, 2011 in Labor and Employment News, Labor Law, Public Employment Law | Permalink
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NLRB Rules on Access Rights of Off-Duty Contractors
The NLRB has just issued its decision (3-1) in New York New York, a case that has yo-yoed from the Board and D.C. Circuit for many years. The case involves the NYNY Casino barring restaurant workers (who were not directly employed by the casino) from distributing handbills supporting their organization drive to customers in the casino. This raises one of the many troubling aspects of the Lechmere/Republic Aviation rules, namely the importance placed on whether handbillers are employees. The trouble here is defining who is an "employee." In particular, this case adds a wrinkle to the normal Lechmere (nonemployee organizers) and Republic Aviation (employees) situation because the handbillers were employees of a restaurants inside the casino, and handbilling while off duty. It is not clear, therefore, whether Lechmere of Republic Aviation should apply. The Board answered that question by splitting the baby. It concluded that neither analysis is necessarily applicable to such situations and used a balancing test to make the determination. According to the Board press release:
In their decision, Chairman Liebman and Members Becker and Pearce stated, “We strike an accommodation between the contractor employees’ rights under federal labor law and the property owner’s state-law property rights and legitimate managerial interests.” They concluded that:
“[T]he property owner may lawfully exclude such employees only where the owner is able to demonstrate that their activity significantly interferes with his use of the property or where exclusion is justified by another legitimate business reason, including, but not limited to, the need to maintain production and discipline…”.
In dissent, Member Hayes wrote that the majority’s decision “artificially equates the Section 7 rights of a contractor’s employees with those of the property owner’s employees, pays only lip service to the owner’s property interests, and gives no consideration to the critical factor of alternative means of communication.” He would have found only that the casino acted unlawfully in excluding the handbillers from the sidewalk area outside its main entrance, but that it was within its rights to expel them from the interior of the casino.
This balancing test is actually a pretty good rule based on the Court's earlier cases in this area. But it's got one big problem: it looks a lot like the Jean County balancing test that the Court struck down in Lechmere. In Lechmere, the Court just kept hammering at the fact that the organizers were not employees of the company. I don't think that distinction makes much sense, but the Court was very clear about its importance. If this rule ever reaches the Court, I could envision a similar result; if the Court holds that they're not "employees" as understood by the Lechmere rule, that case will apply.
Hat Tip: Dennis Walsh
March 28, 2011 in Labor Law | Permalink
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Recently Published Scholarship
- Joshua P. Booth & Larry I. Palmer, ERISA Preemption Doctrine as health Policy, 39 Hofstra L. Rev. 59 (2010).
- Jaclyn S. Millner & Gregory M. Duhl, Social Networking and Workers' Compensation Law at the Crossroads, 31 Pace L. Rev. 1 (2011).
March 28, 2011 in Scholarship | Permalink
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New Edition of Rothstein & Liebman's Employment Law
Congratulations to Mark Rothstein (Louisville) and Lance Liebman (Columbia) on the publication of the seventh edition of their casebook Employment Law Cases and Materials. Here's the editor's description:
This popular casebook provides a comprehensive overview of the constitutional, statutory, regulatory, and common law principles of employment law. The doctrinal development of the law is assessed in light of contemporary economic, technological, social, and political conditions. The new edition contains a detailed discussion of health care reform legislation and the role of employers in financing and administering employee health plans. It also considers such important issues as sexual harassment, workplace privacy, wrongful discharge, and employee pensions. Among the statutes covered by the casebook are Title VII of the Civil Rights Act of 1964, Age Discrimination in Employment Act, Americans with Disabilities Act, Family and Medical Leave Act, Employee Retirement Income Security Act, and Worker Adjustment and Retraining Notification Act.
March 28, 2011 in Book Club, Scholarship | Permalink
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Burch on Mandatory Arbitration
Thomas Burch (FSU) has just posted on SSRN his article Regulating Mandatory Arbitration. Here are excerpts from the abstract:
Over the last twenty-five years, the Supreme Court has relied on party autonomy and the national policy favoring arbitration to expand the Federal Arbitration Act’s scope beyond Congress’s original intent. ... Although [arbitration] reduces judicial caseloads and lowers companies’ dispute-resolution costs, it also restricts or eliminates individual rights and reduces public regulation of the companies that require it. The Court has supported the spread of mandatory arbitration despite these negative effects.
... [In response, reformers have introduced] 139 anti-arbitration bills since 1995 – the majority of which proposed eliminating mandatory arbitration. A review of these efforts, including an original survey of these bills, reveals that these parties have been disregarding mandatory arbitration’s public benefits in favor of a rights-oriented, liberal approach that rejects regulation as a possible way to improve mandatory arbitration’s overall fairness.
This Article shows that both the Supreme Court’s and the reform advocates’ approaches to mandatory arbitration are flawed. It makes more sense, at least for now, to continue mandatory arbitration’s use while improving its overall fairness through legislative or agency regulation. Regulating mandatory arbitration with the goal of improving its fairness is consistent with pragmatic principles and is superior to the Supreme Court’s formalism and the reform advocates’ liberalism in the current mandatory-arbitration context. Taking this approach will allow us to study mandatory arbitration over time before deciding whether to eliminate it – a fair way to proceed given the importance of the rights at stake and the positive effects that mandatory arbitration can (possibly) have on the public good.
March 28, 2011 in Arbitration, Scholarship | Permalink
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Malveaux on the Class-Action Issue in Dukes
Suzette M. Malveaux (Catholic U.) has just posted on SSRN her article (forthcoming Harvard L. & Pol'y Rev.) Class Actions at the Crossroads: An Answer to Wal-Mart v. Dukes. Here's an excerpt from the abstract:
The Supreme Court has recently decided to hear argument in the largest private-employer civil rights case in American history, Dukes v. Wal-Mart Stores, Inc. ...While the case involves numerous complex procedural and substantive issues, this article examines the discrete yet critical question presented in the Dukes litigation of whether any monetary relief is permitted in a (b)(2) class, and if so, under what circumstances. ... [T]the courts of appeals disagree over how predominance should be defined. There are three major predominance approaches: the Fifth Circuit’s incidental test established in Allison v. Citgo Petroleum Corp., the Second Circuit’s ad hoc balancing test established in Robinson v. Metro-North Railroad Co., and the Ninth Circuit’s objective effects test established in Dukes v. Wal-Mart. ... Dukes takes the best from its sister circuits by including non-incidental damages - contrary to Allison - while retreating from a plaintiff-centered and subjective analysis - contrary to Robinson and Molski v. Gleich. The Ninth Circuit resurrects the broad judicial discretion required for a rigorous class certification analysis, and yet introduces practical factors that address manageability and due process concerns, thereby advancing judicial economy. Finally, the Dukes test offers promise, as contemplated by the Advisory Committee and Title VII’s drafters, that Rule 23(b)(2) will continue to aid those fighting to rid society of systemic discrimination and repair those ravaged by its consequences.
March 28, 2011 in Scholarship | Permalink
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