January 12, 2013
My Kind of Discrimination
Recently Published Scholarship
- Garrett R. Broshius, Deterrring Opportunism Through Clawbacks: Lessons for Executive Compensation from Minor League Baseball, 57 St. Louis U.L.J. 185 (2012).
- Jonathan L. Serafini, The Deception of Concepcion: Saving Unconscionability after AT&T Mobility LLC v. Concepcion, 48 Gonzaga L. Rev. 187 (2012-13).
- James W. Crooks, Fair Labor Fraud: The Peculiar Interplay of Civil RICO and the Federal Minimum Wage Act, 112 Columbia L. Rev. 2153 (2012).
Law Prof Sues Law School in Reverse Harassment Case
Ohio Northern University Law School put Professor Vernon Traster on unpaid leave for "sexually harass[ing] a student at his home and a staff member at her home." Traster now has sued ONU, claiming "the university took inappropriate steps to get rid of him because he was at the top of the pay scale." Above-the-Law, via Lima News, has all the [moderately] salacious details.
January 9, 2013
Solis to Resign
I just saw a breaking story at the Washington Post stating that Hilda Solis is planning to resign. Obviously, now is the time when officials look to leave, so it's not a total surprise.
Congratulations to Secretary Solis for her work during the first term and let the speculation on the new secretary begin. Perhaps our former colleague and current DOL Deputy Secretary, Seth Harris? I, for one, would welcome that.
Kramer Sued over Law Review Article
Zachary Kramer (Arizona State) wrote a law review article describing an employment discrimination case in which a bank executive allegedly equated vegetarianism with homosexuality and taunted/harassed an employee on the basis of both. Now the bank executive is suing Kramer for defamation and invasion of privacy. The executive also is suing Washington University Law because its law review published the article, and Western New England College of Law because Kramer presented his article there.
Kramer's article is Of Meat and Manhood. The discussion of the underlying discrimination case begins at page 305. The article describes in detail the facts as alleged in the plaintiff's complaint that had been filed in a New York State court; the footnotes clearly indicate that Kramer's source is the complaint itself and that Kramer was not claiming an independent source of knowledge of the facts giving rise to the discrimination claim.
A plaintiff's recitation of facts in a complaint are of course subject to an absolute judicial privilege from defamation suits. Kramer's republication of those facts, in a context in which he makes it clear that he is claiming no independent source of knowledge of the facts, should be similarly privileged. A ruling to the contrary would stifle not only academic debate, but would preclude newspapers from reporting on just about any type of case filed in just about any type of court. 12(b)(6)?
On the upside: at least we know someone is reading our articles!
Thank you for the warm welcome Charlie! I am delighted to be joining the Workplace Prof Blog as a Guest Blogger – I have long been a reader and admirer (since my non-Proffy days as a litigator), so it is a particular pleasure to join the (temporary) ranks. During my stint here as a guest blogger I am hoping to do a series of posts about recent developments in LGBT employment law as well as some of my recent mental meanderings about psychological research on perceptions of discrimination.
Starting off with the latter, much of my recent work (see here and here) has been informed by the body of psychological research on how and why people perceive particular events as discrimination. What that research tends to show is that most people are reluctant to characterize all but the most extreme and explicit fact patterns as discrimination, that these tendencies are causally related to certain common American background beliefs (discrimination is rare, hard work gets you ahead in life, discrimination is an explicit and narrow phenomenon), and that these background beliefs are remarkably resistant to change.
As I have moved this fall into the world of tenure-track teaching, this research has weighed in the back of my mind in trying to think through my role as a teacher. As a teacher of discrimination law, should I teach about “discrimination”? Does it make a difference whether it is in a standard doctrinal class vs. a seminar? (I.e., a “Discrimination Law” class, rather than a “Discrimination and the Law” class?). If it is appropriate to teach this subject in a law class, how is it best done?
My initial instinct was a “yes” – To the extent (as I have no doubt is true) there are students entering my class who fundamentally believe discrimination is an aberrant or historical phenomenon, it troubles me to think that such students might go out into practice without a richer understanding of the contemporary landscape. Ample evidence abounds (both rigorous social science and anecdotal evidence) that discrimination is far from a phenomenon of the past. Nor is all discrimination today simply of the “structural” or “subtle” variety (although there is no doubt also much of that). It seems a disservice to students, both those who will do defense and plaintiff-side work, to leave open the possibility that they are educated in the law but lack an understanding of what they will go out and apply the law to.
[Note here I am not suggesting that all discrimination lawsuits are somehow meritorious or that students should be taught to view them as such, but rather about the background knowledge that discrimination – including old fashioned bias – continues to exist].
But when I think of concrete ways to bring this into my classroom, I am reminded of the many conversations I have had about this issue both professionally and personally over the years. Those who already believed that discrimination remains robust, believed – and those who didn’t, didn’t. Whether discrimination exists is not simply a neutral factual issue open for academic discussion; it is a powerful belief that people (on both sides) take as an article of faith. I therefore worry that “teaching” discrimination might achieve little, while perhaps having real costs.
So what are your experiences teaching “discrimination” in a law class? Have you done it? How? Did you feel it was successful?
January 8, 2013
Recently Published Scholarship
- Michael H. LeRoy, Federal Jurisdiction in Sports Labor Disputes, 2012 Utah L. Rev. 815.
- Eugene Volokh, Private Employees' Speech and Political Activity: Statutory Protection Against Employer Retaliation, 16 Tex. Rev. L. & Politics 295 (2012).
- Paul Harpur, Ben French, & Richard Bales, Australia's Fair Work Act and the Transformation of Workplace Disability Discrimination Law, 30 Wisconsin Int'l L.J. 190 (2012).
- Crystal Roberts, Far from a Harmonious Society: Employment Discrimination in China, 52 Santa Clara L. Rev. 1531 (2012).
- Noah Yavitz, The Right to Trial by Jury under the WARN Act, 79 U. Chicago L. Rev. 1629 (2012).
January 7, 2013
The Next Big Wal-Mart Class Action Wave?
Wage and hour litigation against Wal-Mart is not that unusual, and class actions have been not only brought but won, so maybe my title is a little misleading. Still, the group of workers bringing the class action is new-ish and the case may actually have bigger implications outside of Wal-Mart for other businesses.
Josh Eidelson at the Nation reports that earlier today District Court Judge Christina Snyder issued a "tentative ruling" that she intends to grant a request to add Walmart as a named defendant in a federal class action lawsuit over wage and hour violations, or "wage theft," and at a California distribution center and retaliation for filing a suit about those violations. Judge Snyder is hearing arguments this afternoon, but apparently signaled that unless she hears something pretty compelling, she plans to rule that Wal-Mart is an employer of these employees and can be named as a defendant.
Unlike in the original Dukes litigation, the class is relatively small, so however this case proceeds, it won't present the same kind of problems the Supreme Court identified in its decision in that case. This class is made up of workers from just three warehouses. The interesting twist here, one that could impact Wal-Mart in a way the Dukes plaintiffs were trying to and one that may have very far reaching implications, involves the way Wal-Mart structures its distribution chain. The relationships are complicated. Wal-Mart subcontracts its distribution and storage. In this area it is to Schneider Logistics. Schneider, in turn, subcontracts the work in the warehouses to various subcontractors. Last fall, the District Court for the Central District of California ruled that Schneider was an employer of these workers, and they were not employed solely by the subcontractors. Now the question is whether Wal-Mart is also an employer.
The allegations about the level of control Wal-Mart exercised over the warehouses and the work are similar to the kinds of allegations that made up the Dukes' plaintiffs argument that everything was centralized with a common de facto policy. Here, though, that argument will likely have much more effect, since the issue is the level of control exercised by Wal-Mart over the day-to-day work of these employees.
Logistics warehouse working conditions and efforts by retail giants to keep costs low by using temporary workers or subcontractors have garnered some attention in recent years. We'll have to watch as the case develops.
h/t Matt Dimick (SUNY)
Introducing Guest Blogger Katie Eyer
Although Katie is new to Rutgers-Camden Law School this year, where she teaches Civil Procedure as well as employment-related subjects, she made a name for herself while at Penn where she was a Research Scholar and Lecturer in Law. She is already well-published, having appeared in the Minnesota Law Review, the Yale Law & Policy Review and the Administrative Law Review.
And she has already achieved distinction. A work-in-progress, Constitutional Colorblindness and the Family, was Honorable Mention in the AALS 2013 AALS Scholarly Papers Competition, where it was described by the selection committee as "saying something new and compelling about constitutional colorblindness."
Not to mention being recognized in Jotwell for her Minnesota piece. To borrow from myself last year in commenting on That’s Not Discrimination: American Beliefs and the Limits of Anti-Discrimination Law,
One might question the wisdom of a young, not-yet-on-the-market, scholar basically arguing that most of us in her field—including me—have been wrong in important ways. But wise or not,[the article] is a remarkable piece of research and exposition. She has an ability to deal with complicated issues in a lucid and spritely prose style. I almost enjoyed being informed how wrong I was!
Like our other recent guest blogger, Charlotte Garden, Katie is a strong new voice in the labor and employment wing of the academy, and I speak for Paul, Rick, Jeff, and Marcia in welcoming her to Workplace Prof.
January 6, 2013
NHL Is Back
The NHL and the NHLPA announced that they reached a tentative deal today, ending the lockout. The deal would be for 10 years, with an 8-year opt-out option. The players' share of NHL revenue--a major part of the negotiations--will drop from 57% to 50%. Also among the provisions are a new salary cap and 7- or 8-year limit on player contracts.
Assuming the agreement is ratified, play is expected int he next couple of weeks for something around a 50-game season.