October 25, 2012
Jury Splits on Political Discrimination Case against Iowa
You may have read about Theresa Wagner's lawsuit against the University of Iowa Law School for discrimination against her for her political affiliations. Wagner applied for a position as a tenure-track legal writing professor and was denied. She is currently the assistant director of the writing center, a part time position, not on the tenure track. She also applied for several adjunct positions and was denied. Wagner alleged that the reason was because of her activism in pro-life causes. While the trial court had originally dismissed her claim, the Eight Circuit reinstated it, and it went to trial this month.
Some faculty testified on Wagner's behalf, one of whom has now alleged that he has been retaliated against for doing so. Others testified that the decision was made because of a comment Wagner made at her job talk, suggesting that as a legal writing professor she would not be teaching analysis. The jury came back with a finding for the University on Wagner's First Amendment claim, but deadlocked on her equal protection claim. Wagner has asked for a retrial on both issues.
This is an interesting case and very much a cause celebre for some conservatives who believe that the vast majority of universities are biased against conservatives. For more on the jury's verdict and the details, see here and here. As an Iowa alum, I'm comforted that a jury found at least partially that the faculty was not motivated by Wagner's politics.Having taught legal research, analysis, and writing, I'm glad that the faculty realized that teaching analysis is part of what legal writing professors do. But finally, having graduated with Wagner, I hope that the University thinks about offering some sort of settlement that would allow everyone to move forward in a constructive way, if that's possible.
October 24, 2012
Last month we were contacted by the plaintiff in a particularly interesting case involving tenure at a religious institution. While we don't ordinarily want to be a forum for disappointed litigants, the decision in Kant v. Lexington Theological Seminary by the Kentucky Court of Appeals is pretty interesting. Essentially, the issue was the effect of a declaration of financial exigency on tenure rights, with the twist that the tenure-granting institution was a seminary. The outcome was adverse to the plaintiff and, although the issues in the cases are very different, it's interesting that this is the second decision in the last few months that seem to undercut the historic protections of academic tenure. The earlier case was, of course, the Sixth Circuit's decision in Branham v. Thomas Cooley, which basically held that tenure at that law school meant a one-year contract.
Although given the Supreme Court's recent decision in Hosanna-Tabor, one might have expected deference to a religious-oriented employer, particularily a seminary, it's also true that the LTS case was one in which the problems of entanglement were at a minimum -- the issue was whether the tenure contact allowed for financial exigency modification and the ministerial exception was not obviously apposite since a contract right was at stake and Professor Kant was a Jewish faculty member at a Christian school -- not exactly the sort of "minister" involved in Hosanna-Tabor.
Nevertheless, the appellate court had little trouble in concluding that it could not resolve the dispute without intruding too far into church matters. The decision suggests that, despite the Supreme Court's refusal in Hosanna-Tabor to opine as to the effect of the now-established "ministerial exception" on tort or contract cases, the doctrine is likely to continue to expand. Further, Kant suggests the strong possibility of the expansion without regard to traditional concerns about avoiding court entanglement with religion.
October 23, 2012
Women in the Legal Profession: More Bad News
The 2012 Report of the National Association of Women Lawyers paints, yet again, a bleak picture of the status of women in the legal profession. Here, via Above the Law, is a summary from Vivia Chen over at The Careerist:
- That cursed 15 percent figure again. Women make up barely 15 percent of equity partners, and just 26 percent of nonequity partners.
- There’s no shortage of women in lower-status positions. Women represent 46 percent of associates, 35 percent of counsel, and 70 percent of staff attorneys.
- A big wage gap exists between women and men in median compensation. The worst gap is among equity partners, where women make about 89 percent of what men make.
- Women associates get smaller bonuses. Although nearly 50 percent of all associates are women, they receive only 40 percent of the bonuses.
- Women lag behind in business. “Women partners are credited with a smaller median book of business than men, even though their business development efforts may be substantial,” reads the report.
- Compensation decisions are made in a black box. “The gap between the median compensation of male and female equity partners cannot be explained by differences in billable hours, total hours, or books of business.”
- Women partners lack clout. Women hold only 20 percent of the positions on a firm’s highest governance committee, and only 4 percent of firms have a firmwide female managing partner.
Indian Law News
- The scope of 703(i) ("preferential treatment ... to any individual because he is an Indian living on or near a reservation");
- Employment preferences predating the enactment of Title VII (when was the last time you saw one of these?!); and
- A case pitting two federal agencies against each other: EEOC v. Interior.
EEOC Guidance on Title VII, the ADA, and Domestic Violence, Sexual Assault, Stalking
The EEOC has issued a new fact sheet explaining how employment decisions related to employees who are victims of domestic violence, sexual violence, or stalking might violate Title VII or the ADA. From the fact sheet:
Because [Title VII and the ADA] do not prohibit discrimination against applicants or employees who experience domestic or dating violence, sexual assault, or stalking as such, potential employment discrimination and retaliation against these individuals may be overlooked. The examples provided in this publication illustrate how Title VII and the ADA may apply to employment situations involving applicants and employees who experience domestic or dating violence, sexual assault, or stalking.
The examples cover ways that treating victims in a particular way might constitute either disparate treatment, disparate impact, or retaliation. It's a good summary.
h/t Marcy Karin (ASU)
"Dying on the Job" about Workplace Violence
Ronald D. Brown sends us word about his new and timely book: Dying on the Job: Murder and Mayhem in the Workplace (press release flyer here).
From the press release:
Dying on the Job is the first book on workplace violence to focus exclusively on workplace murder. While some perpetrators are certainly mentally impaired, many workplace murders are committed by people considered to be “normal.” Brown explores the various motives and drives that spark workplace murder, and answers hundreds of questions that are usually asked only after a workplace murder rampage has already occurred.
Are men or women more likely to commit workplace homicide? How can people more easily spot those likely to commit workplace murder? What are some of the warning signs? How often is "suicide" used as workplace revenge? The answers to these questions and more are based on more than 350 actual cases of workplace murder, and the answers are often surprising.
Brown also addresses different areas of prevention, counseling, and rehabilitation, and analyzes different approaches to gun control for both management and employees to make their job a safer place to work.
The praise that this book has received from top names in the labor and employment law field like Bill Gould, Cindy Estlund, and Lance Liebman, strongly suggest that it is a book well worth a read. Check it out!
Exploiting Au Pairs and Domestic Workers
Janie Chuang (American U.) has just posted on SSRN her article (forthcoming 36 Harv. J. L. & Gender (2013)) The U.S. Au Pair Program: Labor Exploitation and the Myth of Cultural Exchange. Here's the abstract:
The Article exposes how the legal categorization of au pairs as “cultural exchange participants” is strategically used to sustain – and disguise – a government-created domestic worker program to provide flexible, in-home childcare for upper-middle-class families at below-market prices. The “cultural exchange” subterfuge has created an underclass of migrant domestic workers conceptually and structurally removed from the application of labor standards and the scrutiny of labor institutions. On the one hand, the “cultural exchange” rubric enables the U.S. government to house the program under the Department of State rather than Labor, and to delegate oversight of this government program to private recruitment agencies that have strong financial incentives to overlook and even hide worker exploitation. On the other hand, the “cultural exchange” rhetoric used in the au pair program regulations and practice reifies harmful class, gender, racial biases and tropes that feed society’s stubborn resistance to valuing domestic work as work worthy of labor protection. Together these dynamics render au pairs vulnerable to abuse, and threaten to undermine the tremendous gains otherwise being made on behalf of domestic workers’ rights. The Article concludes with a proposal to reform the au pair program with an eye to promoting decent working conditions for all domestic workers.