January 18, 2013
Recently Published Scholarship
- Daniel Belke, Blitzing Brady: Should Section 4(A) of the Norris-LaGuardia Act Shield Management from Injunctions in Labor Disputes?, 113 Columbia L. Rev. 53 (2013).
- Kathleen Cornelsen, Doubly Protected and Doubly Discriminated: The Paradox of Women with Disabilities After Conflict, 19 Wm & Mary J. Women & L. 105 (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).
Call for Papers: Work and Vulnerability Conference at Emory Law
The Vulnerability and the Human Condition Initiative the Feminism and Legal Theory Project at Emory Law School has put out a call for papers for their Work and Vulnerability Conference which is due to take place on April 5th and 6th at Emory Law School in Atlanta, Georgia.
Topics may include, among others:
**To the extent that the social contract addresses our shared vulnerability, what specific aspects directly address labor and employment?
**What are the specific vulnerabilities of employees? Employers? How do their distinct vulnerabilities interrelate?
**What are the legal and political implications of the identification of Labor-Rights with Human-Rights across nations?
**To what extent should the state and public concerns be involved in regulating the private workplace outside of basic health and safety issues?
**Can we still talk about "employees" as a generality? Or should we distinguish between categories and groups of workers? If so, how?
**How might the idea of the union or social collective be redefined and how can the entities that emerge (traditional or reinvented) gain support to, not only be tolerated, but facilitated in the 21st century?
All the details of the conference and how to submit a paper can be found here.
AALS Employment Discrimination Officers
I think my last responsibility as outgoing chair of the Employment Discrimination Section of AALS is to let people know who the new officers and executive committee are. ...
The 2013-14 officers for the AALS Employment Discrimination Section are: Deb Widiss (chair); Angela Onwuachi-Willig (vice chair); and Bradley Areheart (secretary). The executive committee is Michael Green, Wendy Greene, Marcia McCormick, Veronica Root, and Erika Kelsaw.
January 17, 2013
An Upcoming Supreme Court Section 302 Case?
The Supreme Court this week asked for the Solicitor General's views on a cert. petition that raises an LMRA Section 302 issue. As we've noted before, courts have typically rejected arguments that an employer's neutrality promise to a union constitutes an unlawful provision of something "of value" to a union under Section 302. However, in Mulhall, the case under review, the 11th Circuit stated that a neutrality agreement could violate Section 302 if the employer intends to improperly influence the union, such as part of a bribery or extortion attempt.
The Court rejected a similar cert. petition in 2009, so it's a bit curious why there's more attention this time around. It could be simply that Mulhall presents a circuit split. Or, the Court may be more interested in expanding the traditional scope of Section 302, which could be a big deal for unions. But, at this point, it's anyone's guess. Stay tuned.
Hat Tip: Joshua Glick
Washburn Symposium: LEL in the 21st Century
Joe Mastrosimone sends us word of Washburn School of Law's upcoming symposium Employment and Labor Law in the 21st Century: Changes in the Arenas of Conflict. The symposium will be held on Thursday, February 28, 2013. It will feature three panels: (1) Technology, Social Media, and Privacy Issues in Employment and Labor Law; (2) The Landscape of Private Sector Labor Law in the 21st Century; and (3) The Landscape of Public Sector Law in the 21st Century.
A keynote address will be given by Former Chairman and Member of the National Labor Relations Board Peter Schaumber.
The panelists and moderators include a number of labor and employment law scholars:
- Associate Dean Aïda Alaka (Washburn University School of Law),
- Associate Dean Rafael Gely (University of Missouri School of Law),
- Prof. Robert Sprague (University of Wyoming College of Business),
- Prof. Michael Duff (University of Wyoming College of Law),
- Prof. Joseph Mastrosimone (Washburn University School of Law),
- Prof. John Raudabaugh (Ave Maria School of Law),
- Prof. Stephen Befort (University of Minnesota Law School),
- Prof. Joseph Slater (University of Toledo College of Law).
The panelists and moderators also include a number of practitioners:
- Terry Mann, Partner Martin Pringle Attorneys at Law,
- Lisa Jones, Washburn University Counsel and Secretary to the Washburn Board of Regents,
- Martin Walter, General Counsel, Carpenters District Council of Greater St. Louis & Vicinity, and
- W. Terrence Kilroy, Partner Polsinelli Shughart PC, Kansas City.
January 16, 2013
NYC School Bus Driver Strike
Today, 8,000 schol bus drivers and monitors went on strike in New York City, leaving over 100,000 students to find another way to school. At the heart of the dispute is the city's attempt to save money by bidding out bus contracts. The city states that it wants to include job security for union employees which have long existed with its previous no-bid contracts, but a recent state court decision held that they can't include such a provision for competitive bids. The union doesn't want the contract to be bid out, but no word on whether there is any movement in negotiation.
The New York Times has a good background on the difficulties the city has had with its bus routes.
Hat Tip: Michael Duff
Choice and Equality
Equality and individual decision-making have long had a fraught relationship in our national history. One of the more fascinating recent developments in psychological research on discrimination has been to begin to explore the ways that choice may instinctively cause us to temper our views on equality. Thus, for example, recent psychological research has shown that simply causing respondents to think about choice in a mundane setting (e.g., a person going about their morning routine) can cause them to show significantly lower levels of support for equality in completely unrelated contexts. Simply thinking about choice causes us to be less likely to support affirmative action, more likely to believe that gender discrimination no longer exists, and more willing to view substantial wealth disparities as normatively benign.
I have been exploring the implications of this research for recent proposals to turn towards constitutional Due Process / liberty claims as a vehicle for equality arguments. In that context, I tend to think the psychological research suggests a greater need for caution—a greater recognition that liberty and equality may not always be viewed by adjudicators as complimentary—than has been recognized by many recent scholars.
But I also think (although I have not seen any full exploration of these issues to date) that employment law may be equally helpfully informed by this psychological research. Might this help us understand why, as Vicki Schultz has documented, the “lack of interest” defense has been so robust in cases involving severe statistical disparities in women’s employment? Might it help us to understand why our response to continuing substantial pay disparities between men and women has been so muted– a sense that this is, after all, the result of women’s choices? If in fact simply thinking about choices causes us to see less discrimination, and to tolerate more inequality, it seems that employment discrimination contexts where choice is a possible explanation for observed disparities will be particularly vulnerable to failure.
It also suggests a reason why rhetoric regarding “employment at will” may have a real impact on outcomes in employment discrimination cases, despite the fact that it does no doctrinal “work” (since if the employer discriminated, they are liable whether or not employment at will exists as a background norm, whereas if they did not discriminate, the background norm of employment at will again does not matter). If simply causing someone to think about choice in a totally neutral setting causes them to embrace a less pro-equality viewpoint (as the psychological experiments have demonstrated), it would be unsurprising if “employment at will” rhetoric—which emphasizes precisely the freedom of employers to choose to terminate employment for any reason—has similar “equality reducing” effects on adjudicators.
In short, this is an area in which it seems to me there are many potential avenues of interesting exploration, for both law and psychology scholars. As we better understand the contours of the choice/equality divide, we may be able to begin to think about practical ways to constrain undesirable spill-over effects where they exist.
January 15, 2013
Sperino on the Tort Label
Sandra Sperino (Cincinnati) has a new article, another great addition to her series on the importation of tort law into anti-discrimination laws: The Tort Label. From her abstract:
Courts and commentators often label federal discrimination statutes as torts. Since the late 1980s, the courts increasingly applied tort concepts to these statutes. This Article discusses how courts placed employment discrimination law within the organizational umbrella of tort law without examining whether the two areas share enough theoretical and doctrinal affinities.
While discrimination statutes are torts in some general sense that they do not arise out of criminal law and are not solely contractual, it is far from clear that these statutes are enough like traditional torts to justify the reflexive and automatic use of tort law. Employment discrimination statutes created large exceptions to common law ideas of at-will employment, and strong textual arguments militate against prioritizing tort law as source of meaning.
The tort label not only exaggerates the affinity between tort law and employment discrimination, it also overestimates the work that tort law can adequately perform in statutory interpretation. Tort law generally does not have independent descriptive power. It does not cohere around a narrow enough set of theoretical or doctrinal concepts to provide an answer or even a small subset of answers to many statutory questions. Over time, tort law responds to changing factual and legal landscapes, often while outwardly maintaining the same language.
To date, courts have failed to appreciate the complexity of tort law. Courts use cursory descriptions of tort law that characterize tort doctrine as narrower, more stable, and more consistent than it actually is. They have not considered whether tort concepts can and should be unmoored from the common law tradition, which anticipates that concepts can subtly change over time to fit new situations.
The federal courts view tort law as possessing narrow conceptions of causation and harm. Using this narrow tort frame leads to discrimination law that is primarily concerned with individual remedies, rather than a broader response to societal discrimination. The move to tort law is thus part of a broader story about the privatization of discrimination law that can be seen in the greater acceptance of private arbitration and the move away from systemic discrimination claims.
The primary problem of the tort label is its effect on discourse about fundamental questions regarding employment discrimination law. The prioritizing of a narrow view of tort law removes textually supportable options from statutory analysis without meaningful discussion about why the courts narrowed the potential statutory landscape. The courts never consider whether their narrow notions of tort causation and harm are reflected in the discrimination statutes’ text, intent or purpose. The primary aim of this Article is to urge courts to respect the complexity of the judgments at issue by resisting the simple, but also simplistic, allure of the reflexive use of tort law.
I've said it before and I'll say it again: this is important stuff, and I hope the courts are listening.
Wong on Arbitration, Intent, and Intellectual Dishonesty
The U.S. Supreme Court’s jurisprudence interpreting the Federal Arbitration Act (FAA) is incoherent insofar as it relies on the concept of the parties’ “intent.” on the matter. To illustrate this distorting influence of "intent," the Article dissects Supreme Court opinions in two broad sections of the FAA case law, both of which illustrate vividly the deforming effect of intent on it. The first concerns the carving up of jurisdiction between courts and arbitrators that goes to the foundations of the FAA, namely, the question of which decisionmaker — court or arbitrator — should determine whether the underlying dispute is arbitrable. The second is a controversy of more recent provenance that already has striking implications for all manner of consumer and employment contracts, specifically, the question concerning the availability of class arbitration. The result of this confused exercise is a tottering FAA case law built on ever more rarefied abstractions of “intent” that are little anchored in reality, but yet impact in a very real way a broad range of contracts, including countless consumer and employment agreements. Thus, a complete and accurate account of the Court’s jurisprudence under the FAA is not possible without a close scrutiny of the role of “intent,” a concept that is ultimately wanting.
This is a terrific article. Though this is far from the first article to argue that the Supreme Court’s FAA jurisprudence reasons backwards from the Court's strong policy preference for bilateral arbitration, it is the first article to rigorously analyze the Court’s shifting meaning of intent and to posit that this is the (or at least a) mechanism by which the Court does so. The article is extraordinarily timely, having been written shortly after the Court’s recent Concepcion opinion began sending up howls of disbelief, and just before the Court seems ready to do it all again in Italian Colors (see here and here).
January 13, 2013
Estreicher on "Right to Work"
Sam Estreicher recently published an essay in the National Law Journal, entitled "Right to Work is a Misnomer." In the essay, Estreicher provides a nice, brief explanation of why the right to work rhetoric is off base. Most readers are aware of the problem, but it's nice to see an explanation that clearly explains it for non-labor experts. The concluding paragraph is particular apt:
"When opponents insist on a right to free ride on union representation, they have seized the rhetorical high ground of liberty and job growth to conceal a more prosaic, and often politically partisan, motive — to deprive unions of a justifiable funding mechanism so that they no longer can play a useful collective-bargaining role in our society."