July 16, 2011
Stone on Stereotyping
People make comments all the time that include or invoke stereotypes. Sometimes those comments are indicative of their belief systems or values. Sometimes they are feeble – or genuine – attempts at humor or wit. Sometimes people speak rashly and in anger. Many times, people are misunderstood, and their true feelings are belied by a clumsy choice of words. Much of the law of employment discrimination necessarily implicates a searching probe into the often undisclosed – sometimes even to oneself – motivations, beliefs, and intentions that underlie an impel acts alleged to have been discriminatorily premised on someone’s race, gender, or protected class status. Rarely in this day and age does one who suspects that discrimination has befallen him have a “smoking gun” or an admission to that effect. Generally, the undisclosed mindset of a discriminatory decision-maker, far from a simple hidden secret, is actually a complex tapestry of unvoiced beliefs, assumptions, and associations. This tapestry, a victim of discrimination soon realizes, is typically too tightly woven to easily extricate the needed, discrete strand of thought that shows a predisposition to see or judge certain groups differently.
This Article addresses the largely undefined, misunderstood-yet-often-resorted-to concept of “stereotyping” as a basis for, or sufficient evidence of, liability for employment discrimination. Since, the concept’s genesis in Supreme Court jurisprudence in 1989, Price Waterhouse v. Hopkins, plaintiffs have proffered remarks alleged to be tinged with, or indicating the presence of, impermissible stereotypes as evidence of discrimination based on protected-class status – be that sex, race, color, religion, or national origin – in contravention of Title VII of the Civil Rights Act of 1964. The Article examines the language in Hopkins and its precise mandates and guidance for lower courts. It then explains the widespread extrapolation of Hopkins by lower courts and the framework in which the case now operates.
This Article posits that Hopkins furnished guidance that is less than clear as to when so-called “stereotyping” is evidence that warrants evaluation by a trier of fact and when a comment is harmless or too attenuated from an adverse action to permit an allegation of discrimination to survive. The Article also identifies the various smaller, often unarticulated questions bound up in the larger issues of when impermissible stereotyping has occurred and how various courts’ failures to specify these questions and their answers may have led to the confused state of stereotyping jurisprudence. The Article aims to dispel the myth, propagated in part by courts’ misreading of Hopkins, that there is such a discrete cause of action as “stereotyping.” At the same time, it reviews the myriad of cases that have tried to decide, as a matter of law, when a stereotyped comment sufficed to create an issue of fact as to intentional discrimination and breaks down this complex question. Courts appear to have no real uniform standards for evaluating when a statement alleged to have stereotyped a plaintiff is probative and when it can only reasonably be seen as a misspeak, a mistake, or otherwise too “stray” to suffice as evidence that impermissible discrimination took place.
July 15, 2011
Recent Labor News
- The NFL lockout looks to be ending soon, as the parties have apparently reached an informal agreement, or at least are very close to doing so.
- The NLRB wins another circuit court decision that holds that the Board's delegation to the General Counsel of authority to seek 10(j) injunctions--just before the Board went to two members--is valid.
- The NLRB has released the list of speakers who will comment on its new election rule proposals. The list is long, it covers 78 speakers over 2 days, and including academics such as Sam Estreicher (NYU) and Anne Marie Lofaso (WVU), as well as several past Board officials.
Hat Tip: Dennis Walsh
How to Hire
Dale Dwyer writes over at Psychology Today about some of the dumb things employees do and say. For instance:
I was interviewing a candidate for the entry-level construction position. His application did not indicate a reason for leaving his most recent position. I asked him why. Here is the answer that I received: "Well, I was working in the ditch with another employee, and he was really getting on my nerves with his humming. I told him that if he didn't shut up, I was going to hit him over the head with the shovel and bury him. They fired me. But I think he just took it the wrong way."
Dwyer then follows up with tips for spotting red flags before a person is hired. Here's one that I particularly liked -- one that we probably should use in hiring law school faculty:
Do reference and background checks, but don't use the references you are given, except as referrals to another reference. Often, references given by the candidate will not provide objective, accurate information.... Contacting the reference you were given and asking to be referred to another coworker, customer, client, supervisor, etc., will take you one level deeper in your investigation. Another strategy is to contact someone that is not listed as a reference, but who you may know is affiliated with the organization or candidate (e.g., a board member or member of a professional organization who you may know). Both of these approaches may provide more accurate information about the candidate's behavior, judgment, and skill sets.
Dimick: Pro-Union Legislation Doesn't Necessarily Increase Union Density...
This paper presents the first cross-national analysis of the relationship between labor law and union membership rates. Leftist political parties are believed to have a positive impact on union density [i.e., the proportion of workers who are members of a union] and the mechanism linking them, prounion labor law, is widely thought to bolster union membership fortunes. Contrary to these beliefs, this paper generates theory and presents evidence that union-favoring collective-bargaining legislation has a negative effect on union density. Nevertheless, unions are not irrational: the same legislation has strong positive and significant effects on union coverage [i.e., the proportion of workers who are covered by a collective bargaining agreement]. Further theory and evidence test the notion that labor legislation has a positive effect on the rate of membership in employer associations: labor law may be more effective at organizing employers than employees. The paper also shows that patterns of both union power (density and coverage) and labor law cluster around the usual suspects: Anglo-American, Continental, and Nordic countries. These patterns also roughly correspond to ``legal origin'' typologies, but in ways that undermine those authors' key claims. The conclusion considers questions of policy and the trade-offs between the two measures of union strength.
This is a nuanced article worth reading. The author points out, for example, that because American labor law is so different from the labor law in most of the studied countries, the results do not necessarily predict the effect that EFCA would have had. So what would enhance union density? "Institutional supports such as union-administered unemployment insurance or more centralized wage coordination...".
Ruth on the Future of Telecommuting
Stephen Ruth (GMU - Public Policy) has just posted on SSRN his chapter (the future book is not indicated) The Dark Side of Telecommuting - Is a Tipping Point Approaching?. Here's the abstract:
This chapter proposes a cautionary view of the potential challenges that would arise if telecommuting implementation increases significantly beyond its present, popular, highly successful baseline. Current telecommuters are the cream of the crop—mature, carefully trained, and mostly from significantly higher-than-average income and education levels. But as more persons are added in telecommuting plans, there may be serious problems. Several of the challenges associated with greater telecommuting participation are described: difficulties in assessing current telecommuting demographics, problems in the evaluation of productivity, the dilemma of determining verifiable costs and benefits, the drawbacks and distractions in home-siting of telework as the levels of education and experience decrease, the imbalance of broadband service, especially for the poor, and the reluctance of some organizations to take advantage regional telecenters.
This is an interesting read. Despite the title, it's not a horror story -- it's a thoughtful explanation of how telecommuting may change many aspects of worklife in the future, and on some of the practical limits of telecommuting. For example:
First, there would be dislocation. An employer would not be very wise to preserve a good permanent office for an employee who is using it only sporadically. So hoteling, which has been around for decades, will begin to be used by average companies and agencies, not just the Fortune 100.... Also, unions and other employee rights organizations will begin to become involved in telecommuting decisions Second, there may be some productivity anomalies. If a person is significantly more successful on a work unit basis while telecommuting, what behaviors can be expected when she or he is back at the office?... Third, there may be a need for an intermediate location for telecommuting due to security problems. No matter how skillful the organization’s tech staff may be, it will more difficult to replicate the secure, sabotage-proof hardware software/software suite available at the primary location in the home computer or the nomadic device. Many of those who have been working at home will need to migrate to the robust, comfortable confines of a telecenter, where it’s easier to replicate the full security protocols that are needed.
July 14, 2011
ILAB Job Opening
The US Department of Labor is seeking a qualified candidate to serve as an International Relations Officer (Senior Research Analyst) to contribute to the research of Bureau of International Labor Affairs (ILAB). The position is located within ILAB’s Office of Child Labor, Forced Labor, and Human Trafficking. Qualified candidates will have extensive experience in research design for quantitative surveys, survey methodology, and data analysis. Open period for application is from 7/11-25/2011, Here is the job description and instructions for application.
Lund on the Ministerial Exception
[Case law on the ministerial exception is an awful mess, both at doctrinal and theoretical levels.] This article begins by suggesting that the ministerial exception is best conceived not as a single indivisible whole, but as the composition of several different discrete immunities. The piece sees the ministerial exception as having three components - a relational component, a conscience component, and an autonomy component - each with different purposes and different justifications. Deconstructing the ministerial exception in this way, the piece then examines the justifications for each of the various components of the ministerial exception, leading to a general and quite pluralistic defense of the thing that courts now call the ministerial exception.
This piece comes at an opportune time. Nearly forty years after the birth of the ministerial exception in the lower courts, the United States Supreme Court has finally agreed to hear its first ministerial exception case this fall. The case is EEOC v. Hosanna-Tabor, and the Court will have to decide both whether the ministerial exception exists and what it covers. After looking at the ministerial exception in general, this piece concludes by offering specific thoughts on the issues presented in Hosanna-Tabor.
Harkavy: SCOTUS Eviscerating Ee Rights
This paper briefly examines the course of employment law in the United States and concludes that the current Supreme Court's laissez-faire approach to regulation is disabling our fair employment laws. The paper points out the consequences of such a course and concludes that the romance with deregulation on the part of a majority of Justices on the Roberts Court is endangering the moral imperative of equal opportunity in our nation's workplaces.
July 13, 2011
Wage Determinations Online
The U.S. Government Printing Office has partnered with the Department of Labor and the National Technical Information Service to provide permanent public access to Davis-Bacon Wage Determination information. Wage Determinations OnLine is the official Federal Acquisitions Regulation (FAR) mandated Web site that contains both current and archived wage determinations. Users can search for a determination or browse by state and county. Archived determinations are available from 2000 forward.
Hat tip: Carol Furnish.
Dennis Nolan sends a link to this New York Times review of the HBO documentary (Wednesday, 9 p.m. EST) The Curious Case of Curt Flood. Flood sued Major League Baseball in 1953 in an unsuccessful attempt to nuke the reserve clause.
House Hearing on FLSA
Tomorrow morning (Thursday, July 14 at 10:00 a.m.), the House Subcommittee on Workforce Protections will hold a hearing entitled, The Fair Labor Standards Act: Is It Meeting the Needs of the Twenty-First Century Workplace? The hearing will take place in room 2175 of the Rayburn House Office Building. A live webcast is available. Here's a description:
Enacted in 1938, the Fair Labor Standards Act (FLSA) sets forth employment rules concerning minimum wages, maximum hours, and overtime pay. The Department of Labor estimates more than 130 million workers are affected by the FLSA. Despite the broad impact of the law on the American workforce, it is largely outdated and does not accurately reflect the realities of modern technology or today’s economy. The law has also created an environment of uncertainty with employers facing a patchwork of conflicting interpretations of the law and employees facing difficulty understanding their rights under the law.
Eigen & Litwin on Impact of Workplace Dispute-Resolution Systems
Zev Eigen (Northwestern) and Adam Litwin (Johns Hopkins) have just posted on SSRN their article Ducks and Decoys: Revisiting the Exit-Voice-Loyalty Framework in Assessing the Impact of a Workplace Dispute Resolution System. Here's the abstract:
Until now, empirical research has been unable to reliably identify the impact of organizational dispute resolution systems (DRSs) on the workforce at large, in part because of the dearth of data tracking employee perceptions pre- and post- implementation. This study begins to fill this major gap by exploiting survey data from a single, geographically-expansive, US firm with well over 100,000 employees in over a thousand locations. The research design allows us to examine employment relations and human resource (HR) measures, namely, perceptions of justice, organizational commitment, and perceived legal compliance, in the same locations before and after the implementation of a typical, multistep DRS that begins with informal reporting to local managers and culminates with mandatory arbitration. Even after holding all time-constant, location-level variables in place, we find that introduction of the DRS is associated with elevated perceptions of informal procedural justice and interactive justice, but diminished perceptions of formal procedural justice. We also find no discernible effect on organizational commitment, but a significant boost to perceived legal compliance by the company, raising important questions about the tradeoff between voice and exit and formal versus informal aspects of dispute resolution mechanisms.
July 12, 2011
NLRB Lacks Jurisdiction Over Indian Casino, District Court Rules
Thanks to Matthew Fletcher (MSU) for forwarding word of Chickasaw Nation v. NLRB, decided yesterday, in which the U.S. District Court for the Western District of Oklahoma ruled that the NLRB lacks jurisdiction over tribal gaming facilities operated by the Chickasaw Nation. Several other courts have ruled the other way. The briefs are available at Turtle Talk.
Growth = Jobs
Ivan Kitov (Russian Academy of Sciences) has just posted on SSRN his timely article Okun’s Law Revisited: Is There Structural Unemployment in Developed Countries?. Here's the abstract:
Okun’s law for the biggest developed countries is re-estimated using the most recent data on real GDP per capita and the rate of unemployment. Our results show that the change in unemployment rate can be predicted with a high accuracy. The link needs the introduction of a structural break which might be caused by the change in monetary policy or/and in measurement units. Statistically, the link between the studied variables is characterized by the coefficient of determination between 0.40 (Australia) and 0.84 (the USA). The residual errors can be associated with measurement errors. The obtained results suggest the absence of structural unemployment in the studied developed countries.
In other words, we can't blame structural unemployment. If we want more jobs, we need real economic growth.
John Harkavy sends us the Fourth Circuit decision in Quesenberry v. Volvo, decided yesterday, in which the court ruled that the terms of an expired collective bargaining agreement prohibited Volvo from making unilateral changes to the health benefits of retirees. As John points out, the opinion contains a nice discussion of the different standards applicable to unilaterally promulgated and collectively bargained plans.
8th Cir. Vacates Preliminary Injunction Against NFL Lockout
The 8th Circuit, in a 2-1 decision, has recently vacated the district court's preliminary injunction against the NFL lockout. In short, the court held that the district court lacked power to issue the injunction because the lockout and dispute surrounding it constituted a labor dispute under the Norris-LaGuardia Act, even though the NFLPA decertified. The dissenting judge disagreed with that conclusion and would've held that the lack of a union was significant and, contrary to the majority, that the act does not apply to injunctions against employers. The court did hold that the act didn't bar an injunction against free agents and prospective players, who are not in any employment relationship. But, because the entire injunction did not comply with the act's procedural requirements, it was all vacated.
Given what looks like more movement towards a deal, this may be academic for the NFL. But it could obviously have a big impact in future disputes, both in the NFL and other sports (NBA, we're looking at you).
Hat Tip: Dennis Walsh
Recently Published Scholarship: BJELL
Berkeley Journal of Employment and Labor Law
Volume 31, Number 2 (2010)
- Kevin Barry, Toward Universalism: What the ADA Amendments Act of 2008 Can and Can't Do for Disability Rights, p. 203.
- Sachin S. Pandya, Detecting the Stealth Erosion of Precedent: Affirmative Action After Ricci, p. 285.
- David E. Feller Memorial Labor Law Lecture: Benjamin Sachs, Revitalizing Labor Law, p. 333
Symposium: Paving the High Road: Labor Standards and Procurement Policy in the Obama Era, p. 349.
Symposium Response Pieces:
- Dr. David Madland & Karla Walter, Uncle Sam's Purchasing Power: How to Leverage Government Spending to Promote Good Jobs, p. 425.
- Ken Jacobs & Dave Graham-Squire, Labor Standards for School Cafeteria Workers, Turnover and Public Program Utilization, p. 447.
- Paul K. Sonn & Tsedeye Gebreselassie, The Road to Responsible Contracting: Lessons from States and Cities for Ensuring That Federal Contracting Delivers Good Jobs and Quality Services, p. 459.
- Paul K. Sonn & Annette Bernhardt, Government Paves the Way: A Decent-Work Agenda for the Obama Administration, p. 489
July 11, 2011
Yamada: Harsh Words for Some Employer-Side Lawyers
David Yamada (Suffolk) posts over on Minding the Workplace about When bad employers retain thuggish employment lawyers. Here's an excerpt:
[T]he legal universe somehow has a way of matching some of the worst employers with some of the most thuggish employment lawyers....
[O]nce they put on their lawyer suits, they are utterly heartless. Because they have superior numbers and resources to defend claims against their clients, they exercise their power with an iron fist.
They distort, intimidate, and delay. They take a worker’s minor faults or mistakes and elevate them into major deficiencies. They help their clients sweep horrible behaviors and actions under the rug. They use legal process to deplete, torture, and humiliate everyday workers.
Some of them appear to harbor an eliminationist mindset, at least in the way they casually destroy another’s livelihood and well-being. They regard a complainant – whether a clerk at a retail store or a mid-level executive — as the disruptive Other, a troublemaker who threatens the client who pays them so handsomely and — by extension — challenges The System in which they’ve succeeded.
I have a trio of responses to this:
- Employer-side attorneys have no monopoly on inappropriate litigation tactics, though they generally do have considerably more resources, and they (and their clients) start from a much more privileged position of power, than recently-fired employees.
- The view of what seems like egregious misconduct seldom is taken from a neutral perspective. I've seen (and participated in) several cases in which each side believed -- sincerely -- that the other side was represented by an attorney like the ones David describes.
- The best attorneys can see their cases "from both sides now". They are problem-solvers rather than fighters. They advocate for their clients, but also can talk civilly to opposing counsel, and can relate to the beliefs/feelings/emotions of the opposing client. They are the kind of attrorneys who attorneys on the other side of the aisle would happily choose as a mediator or arbitrator in the next case, because they have a strong reputation for empathy and fairness. In my experience, clients get far more bang for their buck by hiring this kind of attorney rather than the one David describes.
Senn on Discriminatory Paternalism
Craig Senn (Loyola - New Orleans) has just posted his article (58 UCLA L. Rev. 947) Fixing Inconsistent Paternalism Under Federal Employment Discrimination Law. I saw his abstract last November, and have been looking forward to the opportunity to read the entire article. It was worth the wait. Here's the abstract:
At present, our federal employment discrimination laws fail to provide uniform and consistent legal protection when an employer engages in applicant-specific paternalism – the practice of excluding an applicant merely to protect that person from job-related safety and/or health risks uniquely attributable to his or her federally-protected characteristic(s). Under Title VII of the Civil Rights Act of 1964, the courts and the EEOC reject such paternalism, demanding that the applicant alone decide whether to pursue (and accept) a job that poses risks related to his or her sex, race, color, religion, or national origin. In contrast, under the Americans with Disabilities Act of 1990, the courts and the EEOC allow applicant-specific paternalism, thereby permitting an employer to seize decision-making power from a disabled applicant.
Consequently, the validity of an excluded applicant’s employment discrimination claim regrettably depends on a single factor or variable: the at-issue protected characteristic. The "favored" characteristic (i.e., a Title VII characteristic) yields a viable claim. But, the "disfavored" characteristic (i.e., an ADA disability) produces a losing claim.
This Article proposes a new approach – termed “informational paternalism” – that brings needed uniformity and consistency of legal protection in the area of applicant-specific paternalism. This middle-ground approach has two features: a blanket prohibition of applicant-specific paternalism, and a job-related risk notification requirement. Together, these two features are justified because they: (a) reflect a longstanding philosophy of both Congress and the Supreme Court that rejects an employer’s applicant-specific protective purpose as an unacceptable basis for excluding an applicant; (b) serve to fully advance federal anti-discrimination policy; and (c) embrace a philosophy shared by Congress and the Occupational Safety and Health Administration that seeks to protect workers by providing them with information relevant to their employment-related decisions (rather than by seizing their decision-making power).
Landing on Your Feet After a Law Firm Meltdown
Christopher I. Rider (Emory Business) concludes that attorneys who lose their jobs after a law firm dissolution should look for new employment first at firms where other attorneys in the dissolved firms are going, rather than at firms at which the job-loser has law school alumni contacts. His article is Networks, Hiring, and Inter-Organizational Mobility: Evidence from Law Firm Dissolutions; here's the abstract:
Social networks are widely believed to facilitate the matching of individual job candidates and employing organizations. Causal effects of various network contacts on hiring and attainment are unclear, though, because networks probably influence both the likelihood that an individual changes employers and the quality of the position they attain. Leveraging the unexpected dissolutions of six U.S. law firms as an exogenous shock to mobility, this study examines how prior education and employment networks structure individuals’ inter-organizational mobility opportunities and chances of attaining greater intraprofessional status. Specifically, I investigate how law school alumni and co-worker networks influence the matching of individuals to employers. Analyses of 1,426 lawyers’ transitions to subsequent employers demonstrate that both alumni and co-worker contacts influence organizational hiring but that individual status attainment is aided more by co-workers than by alumni. Implications for studies of networks and inequality are discussed.