June 10, 2011
Greene on Hair Proscriptions
Wendy Greene (Cumberland-Samford) has just posted on SSRN her article (J. Gender, Race & Justice) Black Women Can’t Have Blonde Hair . . . in the Workplace. Here's the abstract:
This Article introduces a recent string of “hair stories” involving the regulation of Black women’s blonde hair in the workplace. At first glance, these “hair stories” appear unlawful, unreasonable, and unfathomable, as it is difficult to imagine that an employer would prohibit and could lawfully bar Black women from wearing blonde hair in the twenty-first century. However, these cases illustrate that modern employers have exacted a “no blonde hair in the workplace” ban that is singularly applied to Black women, and courts have ruled disparately regarding the legality of this proscription. Thus, this Article argues that it is imperative that courts begin to address, in a meaningful and consistent fashion, the particular discrimination that Black women suffer at the intersection of race, color, and sex pursuant to employers’ arbitrary hair regulations.
Additionally, this Article maintains that hair proscriptions – though largely viewed by courts as irrelevant to equal employment opportunity – are indeed critical to Black women’s ability to acquire and maintain employment. This Article’s broader examination of “hair stories” involving Black women illustrates the conflicting and restrictive demands the judiciary(and employers) impose upon Black women and their hair. Employers are allowed to force Black women to wear their hair in a straightened style and thus conform to an “invisible” norm of white womanhood and beauty to maintain and acquire employment. Yet, employers are able to lawfully deny Black women employment opportunities if they venture into territory that is deemed “visibly white” by wearing blonde hair – a hair color presumably natural to only white women. Simultaneously, employers are allowed to prohibit natural hairstyles that are deemed “visibly Black” such as braids, twists, and locks. Accordingly, courts have constructed and reified a very narrow space in which Black women can express their natural or chosen hair style and color without reprobation, stigmatization, or exclusion. Therefore, with respect to hair, Black women's freedom, autonomy, and privilege are constrained in ways that are unique to Black women, which our antidiscrimination law needs to address.
Dubin on Defining SSI Disability
Jon C. Dubin (Rutgers) has just posted on SSRN his article (S. Cal. Rev. L. & Soc. Justice) The Labor Market Side of Disability-Benefits Policy and Law. Here's the abstract:
The primary administrative mechanism for ascertaining the availability of less demanding work to which [SSA] disability claimants might adjust is an innovative medical-vocational matrix or "grid" regulation that takes administrative notice of job characteristics, job incidence, and adaptation assumptions based on the U.S. Department of Labor’s ("DOL") first occupational taxonomy, the Dictionary of Occupational Titles ("DOT") and other government surveys. However, the empirical data about the labor market upon which the grid regulation was based is nearly half a century old and dependent upon an occupational taxonomy (the DOT) that was discontinued twenty years ago. In addition, changes in disability policy and social welfare policy from the Americans with Disability Act ("ADA") of 1990 and the Personal Responsibility and Work Opportunity Reconciliation Act ("PRWORA") of 1996 that emphasize work over benefit receipt have provided impetus to reconceptualize disability benefits eligibility. Because of the complexity of the disability benefit programs’ existing labor market adjudicative process, the empirical vulnerabilities in the present system and the public policy currents from the ADA and PRWORA, a variety of alternatives has been suggested for altering or modifying the present system for adjudicating labor market work adjustment issues.
This article evaluates those alternatives and concludes that the SSA should employ a "mend it don’t end it" approach to the adjudication of labor market considerations in the disability benefits programs. It argues that the suggested alternatives to the present system are either fundamentally misguided or politically unpalatable. It urges acceptance of the National Research Council’s recommendation from a report issued in March 2010 for the DOL and SSA to collaborate on completion of an up-to-date and methodologically appropriate labor market taxonomy to support an updated grid’s empirical bases for continued use. It further advocates for institutionalizing at least decennial revision of the underlying labor market data and taxonomy to enhance the grid’s temporal reliability on a continuing basis. Finally, it eschews usage of a grid updating or revision process as an opportunity to tighten or restrict benefit eligibility in light of the consequences of wrongful disability benefit denial in a post-welfare reform reality of substantially restricted safety net alternatives and in a depressed and constricted economy for characteristically low-skilled, disability benefit claimants.
June 9, 2011
Golf Still Means “Gentlemen Only" or Maybe "White Gentlemen Only"
While only tangentially related to employment (in this case, employment as a judge) the 6th Circuit's
recent embarrassing dispute about judicial ethics casts light on how difficult it can be to prove racial or gender discrimination in more run-of-the-mill situations. Perhaps needless to say, the dispute has generated any number of blog posts, e.g., here and here, and here.
At issue was whether a federal bankruptcy judge’s membership in a particular country club violated Cannons 2A of the Code of Conduct for United States Judges, prohibiting the appearance of impropriety and 2C prohibiting membership in a discriminatory organization. The commentary for 2C states:
in lieu of resigning, [the judge may] make immediate and continuous efforts to have the organization discontinue its invidiously discriminatory practices. If the organization fails to discontinue its invidiously discriminatory practices as promptly as possible (and in all events within two years of the judge's first learning of the practices), the judge should resign immediately from the organization.
A Special Committee of the 6th Circuit Judicial Council, by a 10 to 8 vote, found no problem with the judge's membership in the Belle Meade Club and recommended dismissing the complaint. There were several spirited dissents. While some dissenters raised questions about the process, the central focus was the implausibility of the majority's conclusion -- given the fact that the Club voting membership was all-white and all male. .
The majority proffered two, somewhat inconsistent, theories for its result: (1) while a judge cannot belong to a club with discriminatory practices, there was not enough evidence of discrimination by Belle Meade; and (2) the judge tried hard to integrate the club so the rule doesn’t really matter. In short, the majority's opinion seems to point in two different, and somewhat conflicting, directions.
Let's take the second point first -- the implication that the judge did nothing wrong, even if the club had discriminated, because he "actively worked towards diversifying" it. That would be pretty hard to square with the text of 2C, much less the commentary -- which allows judges to be members of discriminatory clubs for two years while trying to desegregate them. And the factual basis for this assertion is, in any event, highly questionable. During his membership, the Judge sponsored only one African-American candidate, Darrell Freeman, whose membership has been pending for over six years -- and it doesn’t appear that the judge did anything to hasten a decision.
In any event, the other thrust of the opinion is more important for our purposes -- and it indicates how far backwards some judges seem willing to bend in finding no discrimination. No African-American or woman had ever been accepted as a full member, and applications from African Americans had been pending for up to six years. Apparently, active efforts by the judge weren't enough to even bring this application to a vote.
Now, it's true that even the "inexorable zero" doesn't mean that an entity discriminates -- we know from Hazelwood and Teamsters that the racial/gender composition of the applicant pool or relevant population (presumably wealthy people around Nashville) has to be compared with their representation in the workplace (in this case, the playplace), No one seems to have done that or, indeed, to have identified any nondiscriminatory reason for the all white/male composition of the membership. And there's the suspicious fact that African American applications were left hanging for years.
Much as it is to be decried in the abstract, one can only hope that this is an example of judges protecting their own rather than illustrating judicial attitudes towards cases that may come before courts in the Sixth Circuit.
Hat tip to Katie Eyer for raising this with me, and thanks to my RA Liana Nobile for working on this post.
June 8, 2011
Senator Files FOIA Request to NLRB GC Re Boeing
Senator Jim DeMint (R-SC) has filed a Freedom-of-Information-Act request with the NLRB's General Counsel, seeking information about the decision to file a complaint against Boeing for the company's relocation of a production plant from Washington State to South Carolina. The GC contends the relocation is retaliation against workers in Washington for past strikes. Republicans like DeMint argue the complaint is an attack on right-to-work states like South Carolina on behalf of unions.
According to The Hill:
DeMint is looking for evidence that the suit was a result of coordination between the NLRB and the International Association of Machinists (IAM), and believes he has found it.
Specifically, he cited the April 2011 edition of Aero Mechanic, the newsletter of the IAM Local 751, the same local union that would benefit from the NLRB's suit against Boeing. In that edition, the group said monetary contributions "gain your Union access to officials, which is critical to get our issues addressed and ensure our input is heard."
Anyone have any experience with FOIA requests for internal documents on pending cases before an administrative agency?
Hat tip: Dennis Nolan.
Kaplan on Reforming Pension Plans
Dick Kaplan (Illinois) has just posted on SSRN his essay Supreme Court CIGNA Ruling Allows Workers to Reverse Harmful Pension Changes. Here's the abstract:
This brief article discusses the recent Supreme Court decision in CIGNA v. Amara. That case held that ERISA authorizes a court to reform a pension plan that an employer had changed so that employees receive the benefits they had been promised. The article considers the key implications of this decision for employees and employers, focusing on relevant communications of the employer and the applicable standard of proof.
June 7, 2011
AstraZeneca Settles OFCCP Equal Pay Suit
They had the same job classification, did the same work, had the same history with the company, but the company paid women an average of $1,700 less than men. Sounds like a classical equal pay kind of case right out of the 1970s? Sure does, but it was apparently how things worked at at least one AstraZeneca office as recently as last May.
The Office of Federal Contract Compliance Programs announced yesterday that it had reached a settlement with the pharmaceutical company to pay $250,000 to 124 women who worked at the company's Philadelphia Business Center in Wayne, Pa. The action resolves a lawsuit filed by the U.S. Department of Labor in May 2010 alleging that the company discriminated against female sales specialists by paying them salaries that were, on average, $1,700 less than their male counterparts.
The OFCCP conducted a scheduled compliance review of the business center in 2002 and found that AstraZeneca had violated Executive Order 11246 by failing to meet its obligations as a federal contractor to ensure employees were paid fairly without regard to sex, race, color, religion and national origin. AstraZeneca holds a contract valued at more than $2 billion with the U.S. Department of Veterans Affairs to provide pharmaceutical products to hospitals and medical centers around the country.
Additionally, in accordance with a consent decree, the company has agreed to work with OFCCP to conduct a statistical analysis of the base pay of 415 individuals employed full time in two additional categories of pharmaceutical sales specialists in thirteen states and the District of Columbia. If the analysis concludes that female employees continue to be underpaid, the company will adjust salaries accordingly.
It's an interesting development in what seems to be a wave of pay-related and sex discrimination actions against pharmaceutical companies. See this post at Overtime Law Blog, for example, on the circuit split and SCOTUS denial of cert on classification of outside sales reps, and here for the recent sex discrimination settlement involving Novartis. Maybe women are tired of putting up with poor conditions and are starting to file complaints in greater numbers, or maybe pharmaceutical company practices are coming under greater scrutiny as part of the study of what is driving rising healthcare costs. It would be interesting to know whether this really is a trend or it just happens to be what the news is focused on lately.
Hat tip: Pat Schaeffer
Recently Published Scholarship: Wake Forest Symposium on CRA
Volume 46, Number 2 Summer 2011
- Pat K. Chew, Arbitral and Judicial Proceedings: Indistinguishable Justice or Justice Denied? p. 185.
- Wendy Parker, Juries, Race, and Gender: A Story of Today's Inequality, p. 209.
- Roberto L. Corrada, Ricci's Dicta: Signaling a New Standard for Affirmative Action Under Title VII? p. 241.
- Melissa Hart, From Wards Cove to Ricci: Struggling Against the "Built-In Headwinds" of a Skeptical Court, p. 261.
- Michael Selmi, The Supreme Court's Surprising and Strategic Response to the Civil Rights Act of 1991, p. 281
- Julia DiVito, The New Meaning of New Process Steel, L.P. v. NLRB, p. 307.
Dream Job at DOL
The Department of Labor International Labor Affairs Bureau (ILAB) has just posted a job that looks like great fun. Here's an excerpt from the job description:
ILAB works to increase employment opportunities and provide workers a fair share of their productivity and voice in their work lives. You will help shape U.S. policies and design innovative projects to improve global livelihoods and protect vulnerable people, including women and children.
ILAB seeks a labor law expert to lead systematic research and monitoring of labor conditions in other countries; serve as an advisor on international labor rights; and perform comprehensive legal analyses, investigation, and reporting of labor-related complaints filed against trade partners.
Hat tip: David Foley at LaborRelated.
June 6, 2011
CT Passes Transgender, Sick-Days Bills
The Connecticut legislature has been busy, passing on Saturday bills that (a) add transgender to the state's list of prohibited bases for discrimination, and (b) requiring employers of 50+ employees to give 5 sick days a year to hourly service employees. Here are articles about the bills in The Jurist and the New York Times.
Recently Published Scholarship
- Ani B. Satz, Disability Discrimination after the ADA Amendments Act of 2008: Foreward, 2010 Utah L. Rev. 983.
- Stephen F. Befort, Let's Try This Again: The ADA Amendments Act of 2008 Attempts to Reinvigorate the "Regarded As" Prong of the Statutory Definition of Disability, 2010 Utah L. Rev. 993.
- Ruth Colker, Speculation about Judicial Outcomes under 2008 ADA Amendments: Cause for Concern, 2010 Utah L. Rev. 1029.
- Brian S. Clarke, Grossly Restricted Pleading: Twombly/Iqbal, Gross, and Cannibalistic Facts in Compound Employment Discrimination Claims, 2010 Utah L. Rev. 1101.
- Michael Steven Stein & Emily Teplin, Rational Discrimination and Shared Compliance: Lessons from Title IV of the Americans with Disabilities Act, 45 Valparaiso U. L. Rev. 1095 (2011).
- Ralph Anzivino, Drafting Restrictive Covenants in Employment Contracts, 94 Marquette L. Rev. 499 (2010).
- Timothy A. Kelley, Labor Law Gap-Filling: Federal Common Law Ideals Versus Litigation Realities, 72 Ohio St. L.J. 437 (2011).
June 5, 2011
Bodie Reports on Oral Argument in NFL Lockout
Matt Bodie watched the Eighth Circuit oral argument on the issue of whether the Norris LaGuardia Act prohibits courts from enjoining the NFL owners' lockout of the NFL players. Matt has a terrific post on PrawfsBlawg describing the argument and reflecting on the broader implications of the lockout. Check it out!