Thursday, September 20, 2012

Low Wage Workers Survey

Greene on Categorical Discrimination

Doris-Wendy-Green-newWendy Greene (Cumberland) has posted on SSRN her new article, Categorical Discrimination. From the abstract:

Fairly recently, the Pew Research Center conducted a survey of 3000 people in which 18 percent of the respondents stated that they believed President Barack Obama to be Muslim even though repeatedly he has expressly declared that he is Christian. This misclassification of President Obama’s religious identity underscores a common occurrence arising in contemporary workplaces: misperceptions of an employee’s religious, ethnic, and racial identity. As a result of these misperceptions, employees are alleging that they have suffered what this Article deems “categorical discrimination” — invidious, differential treatment — on the basis of religion, race, ethnicity and color in violation of Title VII of the 1964 Civil Rights Act. However, this Article exposes an alarming, inconspicuous movement within antidiscrimination law: a band of federal district courts are denying such individuals Title VII protection. Per these courts, a plaintiff, for example, who self-identifies as Christian, yet who is misperceived as Muslim and is harassed or terminated because of her employer’s misperception and related animus, cannot assert an actionable discrimination claim under Title VII. Though Title VII expressly bars discrimination on the basis of religion among other traits, courts have held that such a plaintiff’s claim of “categorical discrimination” is beyond Title VII’s scope. Accordingly, Title VII protection would only be extended if she is “actually” Muslim or if she brings forth allegations of invidious, differential treatment based upon her “actual” Christian identity. This Article delineates that, in so holding, courts have imposed an onerous and puzzling “actuality requirement” in Title VII intentional discrimination cases which engenders the unfathomable: plaintiffs suffering invidious, differential treatment animated by either their self-ascribed or misperceived protected status will be denied statutory protection against and relief for discrimination if they fail to “prove” their “actual” religious, color, ethnic, racial or gender identity when challenged. 

With Title VII’s golden anniversary on the horizon, “Categorical Discrimination” is of great import, as it illustrates that courts’ imposition of an “actuality requirement” denotes the birth of an unorthodox interpretation of Title VII’s reach and meaning nearly 50 years after its enactment — an interpretative methodology this piece is first to describe as “anti-anticlassificationist.” This Article investigates the express as well underlying justifications for courts' idiosyncratic actuality requirement. Moreover, it highlights two unexamined, yet critically important implications of courts’ anti-anticlassificationist interpretation of Title VII: the emergence of a minimalist “actuality defense” for employers to appropriate and the reemergence of identity determination litigation in all intentional discrimination cases. "Categorical Discrimination" illuminates that courts’ excessively restrictive interpretation and attendant actuality requirement, indeed, resuscitate age-old trials of racial determination. Accordingly, this Article aims to quell the traction of courts’ actuality requirement in all cases of categorical discrimination and in doing so, breaks important ground by proffering intra-statutory support for the proposition that a showing of actuality is not required for Title VII plaintiffs to benefit from statutory protection. Notably, this Article also maintains that the Supreme Court’s recent opinion in Thompson v. North American Stainless, LP postulates a more cohesive conceptualization of Title VII protection for all individuals alleging categorical discrimination at the hands of covered employers on the basis of race, color, sex, national origin, and religion. Regardless of whether a plaintiff claims that the invidious, differential treatment suffered derives from her “actual” or “mistaken” religious, gender, ethnic, racial or color identity, Title VII protection and potential relief should be afforded. Either framing of an intentional discrimination claim unequivocally “falls within the zone of interests” Title VII seeks to protect. Moreover, a plaintiff under either circumstance is an “intended victim” of an employer’s invidious, differential treatment, and thus, is a “person aggrieved” by an employer’s alleged categorical discrimination on the basis of Title VII’s proscribed characteristics.

Timely and interesting!


September 20, 2012 in Commentary, Employment Discrimination, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 19, 2012

Federal Whistleblower Protections Report

CrsJon Shimabukuro and Paige Whitaker, both legislative attorneys for the Congressional Research Service, have posted online Whistleblower Protections Under Federal Law: An Overview.  Here's the abstract:

Legal protections for employees who report illegal misconduct by their employers have increased dramatically since the late 1970s when such protections were first adopted for federal employees in the Civil Service Reform Act of 1978. Since that time, with the enactment of the Whistleblower Protection Act of 1989, Congress has expanded such protections for federal employees. Congress has also established whistleblower protections for individuals in certain private-sector employment through the adoption of whistleblower provisions in at least 18 federal statutes. Among these statutes is the Sarbanes-Oxley Act, the FDA Food Safety Modernization Act, and the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act).

In general, claims for relief under the 18 federal statutes follow a similar pattern. Complaints are typically filed with the Secretary of Labor, and an investigation is conducted. Following the investigation, an order is issued by the Secretary, and a party aggrieved by the order is generally permitted to appeal the Secretary’s order to a federal court. However, because 18 different statutes are involved in prescribing whistleblower protections, some notable differences exist. For example, under the Department of Defense Authorization Act of 1987, individuals employed by defense contractors who engage in whistleblowing activities file complaints with the Inspector General rather than the Secretary of Labor. Under some of the statutes, including the Commercial Motor Vehicle Safety Act and the Dodd-Frank Act, the Secretary’s preliminary order will become a final order if no objections are filed within a prescribed time period.

This report provides an overview of key aspects of the 18 selected federal statutes applicable to individuals in certain private-sector industries. It focuses on the protections provided to employees who believe they have been subject to retaliation, rather than on how or where alleged misconduct should be disclosed. In addition, the report also includes an overview of the Whistleblower Protection Act. While state law may also provide whistleblower protections for employees, this report focuses only on the aforementioned federal statutory provisions.

Hat tip: Carol Furnish.


September 19, 2012 in Government Reports | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 18, 2012

Gear Rich on Racial Commodification in the Era of Elective Race

Rich_Camille_10Camille Gear Rich (USC Gould School of Law) has posted on SSRN her new piece entitled: Racial Commodification in the Era of Elective Race: Affirmative Action and the Lesson of Elizabeth Warren.

Here is the abstract:

This Essay uses the current controversy over the racial self-identification decisions of former Harvard Law Professor Elizabeth Warren as an occasion to explore incipient cultural and legal anxieties about employers’ ability to define race under affirmative action programs. The Essay characterizes Warren’s racial self-identification decisions as proof of what I call “elective race,” a contemporary cultural trend encouraging individuals to place great emphasis on their “right” to racial self-identification and a related desire for public recognition of their complex racial identity claims. I argue that our failure to attend to the importance placed on racial self-identification by Americans today places persons with complex racial identity claims at special risk for racial commodification. The Essay further suggests that the Warren controversy gives us an opportunity to rethink the way we conceptualize racial diversity. I argue that we must shift away the current model, which conflates race and cultural difference, toward a model that assumes racial diversity initiatives are sampling for employees that can teach us about the diverse ways that race is actualized and experienced. The Essay suggests that diversity initiatives that stress race’s use value as a source of insight into the social process of racialization avoid the cultural commodification risks posed by current affirmative action programs, reorient employers away from thin concepts of diversity, and give employers a basis for making principled distinctions between employees’ racial identification claims. The Essay concludes by identifying and defending a three-part inquiry that can be used to identify proper beneficiaries of diversity-based affirmative action programs.

It would be hard to think of a more timely and relevant topic given that oral arguments in the Fisher U.S. Supreme Court affirmative action case are right around the corner.  Additionally, Camille's piece is a must-read for those interested in the future of affirmative action in the employnment law context in the United States.


September 18, 2012 in Employment Discrimination, Scholarship | Permalink | Comments (0) | TrackBack (0)

Call for Papers: NKLR Symposium on Labor/Employment Law & Informatics

InformThe Northern Kentucky Law Review and Salmon P. Chase College of Law seek submissions for the Law + Informatics Symposium on February 15, 2013. The focus of the conference is to provide an interdisciplinary review of issues involving privacy, data aggregation, security, communications, social media management, and related topics affecting the legal and business practices involving labor and employment law.

The symposium is an opportunity for academics, practitioners, consultants, and students to exchange ideas and explore emerging issues in informatics law as it applies to working conditions and employment practices. Interdisciplinary presentations are encouraged. Authors and presenters are invited to submit proposals on topics such as the following:


  • Application of the Americans with Disabilities Act
  • Federal/state employment regulations regarding privacy
  • HIPAA, FERPA, COPPA, GLBA & other sector-specific privacy issues
  • EU & global privacy laws & policies
  • Bioinformatics in the workplace
  • Data mining of employee information
  • Social media and political change

Collective Bargaining

  • Use of informatics tools for collective bargaining
  • Collective bargaining positions on internet usage, data aggregation and social media
  • Online dispute resolution
  • Ownership of databases & data
  • Contracting & enforcement of agreements over sharing of data
  • Assessment of significant commercial expansions of informatics practices affecting public expectations & norms

Social Media

  • Employee discipline for internet and social media use
  • NLRB responses to social media
  • Use of social media in employee screening
  • Implications for privacy and discrimination lawsuits

Training and Security

  • Gamification in training
  • Computer security
  • Data protection & obligations regarding data breaches
  • Data reliability, including people’s rights to review & correct collected data
  • Retraining and employee obsolecense

Other Issues

  • Discrimination and access to public and semi-public information
  • Employee ownership of intellectual property and data information
  • Post-termination obligations of employers and employees
  • Employee contracting and end user license agreements
  • Global issues for similarly situated employees in multiple jurisdictions

Submissions & Important Dates:

  • Please submit materials to
  • Submission Deadline for Abstracts: October 1, 2012
  • Submission Deadline for Articles: February 1, 2013
  • Symposium Date: February 15, 2013

If you have any questions, feel free to drop me a note.


September 18, 2012 in Conferences & Colloquia, Scholarship, Workplace Trends | Permalink | Comments (0) | TrackBack (0)

Monday, September 17, 2012

Recently Published Scholarship


  • Katie R. Eyer, That's Not Discrimination: American Beliefs and the Limits of Anti-Discrimination Law, 96 Minn. L. Rev. 1275 (2012).
  • Carl Engstrom, What Have I Opted Myself Into? Resolving the Uncertain Status of Opt-In Plaintiffs Prior to Conditional Certification in FLSA Litigation, 96 Minn. L. Rev. 1544 (2012).
  • Adam Reinke, Reversing the Perversion: Interpreting ERISA to Protect Employees Who Report Violations of Federal Law to Their Managers, 61 Emory L.J. 1287 (2012).
  • Elizabeth D. De Armond, To Cloak the Within: Protecting Employees from Personality Testing, 61 DePaul L. Rev. 1129 (2012).
  • Lauren Kaplin, When Money Changes Hands: "Unwelcomeness" in Sex for Money, 33 Women's Rights Law Reporter 43 (2011).


September 17, 2012 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Wexler on Corporate Whitewashing

WexlerLesley Wexler (Illinois) has just posted on SSRN her article (presented at last weekend's Colloquium) Extra-Legal White Washes.  Here's the abstract:

Do class action and other high profile lawsuits change corporate social behavior and create corporate social responsibility? While the answer is decidedly mixed, the litigation literature focuses on measures of legal compliance. Yet compliance is only one piece of the puzzle. In addition to choosing a compliance strategy, corporate actors can also deploy extra-legal behavior to respond to high profile litigation. This extra-legal behavior, by which I mean action taken in the shadow of the law, deserves additional scrutiny. Many have written about how litigation or regulation or the threat thereof can spark self regulation, but corporations manage a large toolbox of extra-legal tools of which self regulation is only one. This article identifies and investigates a different extra-legal response- the white wash.

To take up this challenge of theorizing corporations’ extra-legal toolbox, this paper begins by briefly explaining the interaction of reputation and corporate wrongdoing. I then provide a multi-element definition of an extra-legal white wash. As no uniform definition of “washing” yet exists, this article offers a useful focal point to unite the disparate studies across disciplines and substantive legal areas. In order to explore the underpinnings of a specific type of a white wash, this article highlights Wal-Mart’s response to the Dukes class action litigation as a potential example of an extra-legal white wash. This includes a critical look at some recently undertaken policies and practices in the areas of hiring, promotion, and women’s issues more generally.

Finally, this paper addresses the normative implications of extra-legal white washing. If one believes an underlying grievance is legitimate, then extra-legal white washing seems inherently problematic. When such extra-legal white washing ultimately succeeds in changing the conversation, the hypocrisy may constitute an additional, though non-legally cognizable, harm to the aggrieved. Notwithstanding these very real harms, this paper also identifies some conditions under which normatively desirable extra-legal white washing is possible and may even grow to address the underlying grievances. The paper concludes by noting the role law has to play in not only instigating extra-legal white washes, but in regulating them as well. It speaks to the larger potential of and need for access to robust substantive law to identify and remedy grievances.


September 17, 2012 in Employment Discrimination, Scholarship | Permalink | Comments (0) | TrackBack (0)

Support for the CA Domestic Workers Bill of Rights

CadomesticNoah Zatz (UCLA) writes to tell us of a petition being circulated by academics in California in support of the Domestic Workers Bill of Rights there. Here is the note about the letter being circulated with links to it and to the letter of support from non-academics.

Dear Colleagues,

Thank you for agreeing to be one of the sixty-one original signatories to the Letter from Academics to Governor Brown in Support of The Domestic Workers Bill of Rights. Y/our names all appear following the text of the letter, which has now gone live online so that we may invite more colleagues to sign on as well. This is a much appreciated contribution to the campaign and if it is all you can do at this time, thank you! If you do a little more...

The California Domestic Workers Coalition will be delivering our letter to Governor Brown's office next Monday, so if you are willing to forward the link to other interested colleagues, please do so as soon as you are able and they will be added to the letter the Governor receives.

And, finally, if you have time to go to the site yourself and click "sign this petition" online, it will help us track the running tally. This also may in turn make it even easier for you to forward the letter to other colleagues via email, Facebook and Twitter.

Should you know others hoping to sign a petition on this matter, who are not scholars with related interests, please refer them instead to the general petition in support of AB889

In Gratitude for your Solidarity,

Kathleen Coll, Stanford & Eileen Boris, UC Santa Barbara


September 17, 2012 in Employment Discrimination, Labor and Employment News, Wage & Hour, Workplace Safety | Permalink | Comments (0) | TrackBack (0)

Sunday, September 16, 2012

Work Stoppage Updates

NFLWe've had a few work stoppages developing, with a couple just this week.  Here's a status report.

  • The NFL referees are still not working and it's not clear whether negotiations are proceeding positively.  But performance of the replacement refs are still a concern, especially after today.
  • Not to de outdone by the NFL, the NHL has locked out hockey players.  Again.  Different year, same story:  a fight over money.  After getting concessions in the last CBA, the teams want more and the players are pushing back.  Who knows how long this will take.
  • It was looking like Chicago teachers might return to work this week after a framework of a new agreement was reached.  But after a meeting with union delegates, the union is refusing to call of the strike until the membership can look at the agreement more and possibly continue negotations on some matters (note the interview in the story with a teacher from "Gompers Elementary School").  I've got to give credit to a teacher I met Saturday on the Chicago subway who was returning from a rally (I was leaving my hotel, the Hilton, which happened to be where the negotiations were being held.)  She said that at that point, the teachers only knew what they had seen in the news and that she had heard that it was likely that they would continue on strike the following week.  Looks like she was right.

September 16, 2012 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)