February 8, 2013
Porter on Women and Unions
Improving the working conditions of all American workers must include considering the voices of one group traditionally underrepresented in union ranks and leadership — women. In this paper, I explore the interrelationship between women, unions, and women’s willingness to negotiate. Despite the tumultuous history of women’s involvement in the unionized labor market, women’s participation in unions is increasing relative to men. Recent studies also reveal that women significantly benefit from union representation, even more significantly than men. One reason for this disparity is that many women have not been very successful in negotiating on their own behalf. For many reasons explored in this paper, many women have been socialized to be uncomfortable negotiating for what they deserve. Thus, women benefit by participating in unions, where the negotiation is done on their behalf, and we should be encouraging women’s involvement in unions. Furthermore, women are still grossly underrepresented in union leadership roles. Because studies show that women are more likely to join a union when there are more women leaders, increasing the number of female union leaders should lead to an increase in women’s participation in unions. More women in leadership roles also has the potential to improve the overall success of the union, garner more attention to issues important to women, and bring a new perspective to union/management negotiation. Even though the negotiation literature suggests that women are often unwilling to negotiate on their own behalf, this paper will demonstrate they are very willing to and effective at negotiating on behalf of others. Finally, I will demonstrate how effective women can be as leaders and advocates when they work together to reach a common goal.
February 7, 2013
The EEOC on Lesbian/Gay Employees and Sex Discrimination
In my last post here, I discussed recent developments in the EEOC’s (and the courts’) treatment of sex discrimination claims by transgender workers under Title VII. In this post, I want to take up the related issue of discrimination against lesbian and gay employees as a form of sex discrimination under Title VII.
Traditionally, sex discrimination claims brought by lesbian and gay employees under Title VII have not fared particularly well. Courts have tended to be deeply skeptical of what they perceive as efforts to “bootstrap” anti-discrimination protections for sexual orientation into Title VII, and have granted dismissals (on both summary judgment and motions to dismiss) at very high rates.
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) improved things somewhat for lesbian and gay employees. After Price Waterhouse, many courts recognized—at least in theory—that gender stereotyping claims should be available to lesbian and gay employees, where they are treated differently because of a perceived failure to conform to gender stereotypes. Although courts have continued to dismiss the sex discrimination claims brought by lesbian and gay workers at fairly high rates, there has been a meaningful, if limited, expansion in the availability of sex discrimination claims to gay and lesbian workers post-Price Waterhouse. See, e.g., Prowel v. Wise Business Forms, 579 F.3d 285 (3d Cir. 2009) (reversing award of summary judgment on a gay employee’s sex discrimination claim).
Unlike in the gender identity context, however, these post-Price Waterhouse decisions in the sexual orientation context have generally stayed far away from any suggestion that sexual orientation may be per se sex discrimination. Instead, courts have closely cabined the circumstances in which a successful sex discrimination case can be brought by lesbian and gay workers, allowing cases only where there is clear evidence that an employee was targeted because of classic gender stereotyping—behaving or appearing insufficiently masculine (as a man) or insufficiently feminine (as a woman).
Two recent EEOC decisions have taken a substantial step away from this limited approach and towards a per se rationale for treating sexual orientation discrimination as a form of sex discrimination.In the two recent cases, Veretto v. Donahoe and Castello v. Donahoe, the EEOC found that it constitutes gender stereotyping for an employer (or co-worker) to target an employee because of societal expectations that men should have romantic relationships exclusively with women and women should have romantic relationships exclusively with men. As the EEOC put it in Castello:
“Complainant has argued that MDO was motivated by the sexual stereotype that having relationships with men is an essential part of being a woman…[W]e find that Complainant’s allegation is sufficient to state a viable [sex discrimination/hostile work environment] claim under Title VII.”
Veretto and Castello, unlike the EEOC’s decision in Macy, are not precedential, and thus do not necessarily constitute the official policy of the agency. Nevertheless, they are a striking departure from the restrained approach that has been taken to date by adjudicators to approaching Title VII sex discrimination claims on behalf of lesbian and gay employees. If they are endorsed by the federal courts (or by the EEOC as a matter of broad policy), they could radically transform the legal landscape for lesbian and gay workers.
The doctrinal formalist (and LGBT advocate) in me wants to believe this is possible. Sexual orientation discrimination is no doubt deeply steeped in stereotypes about how men and women should behave, and in particular, who is an appropriate partner for a person of a particular sex. From a formal doctrinal (and from a social realist) perspective it strikes me as profoundly sensible to treat sexual orientation discrimination as a form of sex discrimination in most, if not all, circumstances. (Cf. DeSantis v. Pacific Tel. & Tel. Co., 608 F.2d 327 (9th Cir. 1979) (rejecting the argument that sexual orientation discrimination is associational sex discrimination and thus covered by Title VII)).
But the realist in me sees little hope that the courts will in fact adopt this type of a broad per se approach. Whatever the reasons, courts have long been dedicated to policing the boundary between sex and sexual orientation discrimination—and to declaring the two non-coextensive. It seems unlikely to me that the courts will be willing to move away from that position, at least in the near term, although transformation in the LGBT rights area has often moved faster than one might expect.
What do you think? Could the EEOC’s decisions in this area become the leading edge of a doctrinal shift towards treating sexual orientation discrimination as per se sex discrimination under Title VII?
Denver Law Symposium on Ann Scales
A flyer with links to the full agenda and online registration can be found here.
The symposium is being co-sponsored by the Workplace Law Center at Denver and a few employment law people are speaking at it (including Ann McGinley and Nicole Porter). This ia great symposium for people with an overlapping interest in employment law and feminist legal theory.
February 6, 2013
IALLJ Call for Papers
Steve Willborn, current president of the International Association of Labour Law Journals, writes to let us know about the IALLJ's call for papers for presentation at its upcoming meeting on June 6-7, in Bordeaux, France. The topic is "Access to Justice" and the topics include both diversification and activation of social justice. More info on the call for papers, as well as the tentative program for the meeting is available here (scroll down for the English section): Download IALLJ Meeting.
If you're interested, note that the deadline for abstract submissions is March 1.
February 5, 2013
Goldberg on Noel Canning Recess Appointment Decision in Labor Notes
Michael Goldberg (Widener (Wilmington)) has posted a brief analysis in Labor Notes on the DC Circuit's recent decision in Noel Canning, which found the 2012 recess appointments to the NLRB by President Obama to be unlawful.
After discussing the decision, Michael points out that the combination of the lack of filibuster reform in the Senate and the narrow reading of what it means for there to be a "recess," means that the Board will have a exceedingly difficult time having its orders enforced until it has at least three Senate-confirmed members or the Noel Canning decision is overturned by en banc or US Supreme Court review.
This is because Section 10(f) of the NLRA allows any employer to appeal an adverse Board decision to the DC Circuit (which will find such orders to be null and void) and because it is unlikely that Senate Republicans will permit any NLRB nominee through, regardless of their merits, since they can effectively shut down a federal agency they have no love for by not confirming anyone.
Labor relations law in the United States has reached Kafka-esque proportions.
In any event, read Michael's entire Labor Notes piece.
Zimmer and Sperino Amicus Brief in Mixed Motives Retaliation Case
Michael Zimmer (Loyola-Chicago) and Sandra Sperino (Cincinnati) are currently drafting an amicus brief to be filed in University of Texas Southwestern Medical Center v. Nassar. This case addresses mixed motive issues in Title VII retaliation cases, and it is a pretty important issue. Michael and Sandra are interested in hearing from anyone who would like to comment on drafts of the amicus or who would be interested in signing or considering signing on to the finished brief. Please email Sandra at email@example.com if interested.
Final FMLA Rule on Military and Flight Crews Expansion to Be Published Tomorrow
Kenneth Shiotani (National Disability Rights Network) gives us the news that the Department of Labor will be publishing its final rule on the recent amendments to the FMLA that expanded coverage to flight crews and family members of those in the military--for a refresher on those expansions, see here, here and here.
February 5, 2013 in Beltway Developments, Disability, Employment Discrimination, Labor and Employment News, Pension and Benefits, Public Employment Law, Worklife Issues | Permalink | Comments (0) | TrackBack
Happy 20th Anniversary FMLA
And for some reform links, from the add paid leave camp: National Partnership for Women and Families Agenda for the 113th Congress. And from the reform abuse of leave camp: The U.S. Chamber of Commerce's Absence abuse and Medical Leave.
February 4, 2013
Estreicher & Eigen on Employment Dispute Forums
Sam Estreicher and Zev Eigen have just had their chapter, "The Forum for Adjudication of Employment Disputes,"published in the book, Reseach Handbook on the Economics of Labor and Employment Law. You can get the final chapter here ( Download Estreicher-Eigen Chapter ); the abstract from their earlier version on SSRN:
This chapter focuses on the appropriate design of the forum for adjudication of employment disputes. By the term “adjudication,” we refer to the resolution of “rights” disputes – disputes over the application of a contract or the application of a statutory or regulatory rule to a particular factual situation. We are not referring to “interests” disputes – disputes over the substantive content of an initial contract or renewal agreement. In considering the design question, we assume that all involved actors, (employees, employers, unions, etc.) retain whatever endowments they currently possess in terms of intelligence, energy, income, occupational status, access to resources, union representation, and statutory and contractual rights. Holding these endowments constant, we ask what institutional arrangements for adjudicating rights disputes would do the best job of resolving those disputes in a fair, efficient manner for workers, managers and the public generally.
On the legislative front, we oppose current efforts in Congress to amend the Federal Arbitration Act to prohibit predispute arbitration agreements. At least if applied in the employment context, this is a case of throwing out the baby with the bath water. Employment arbitration, if it is properly structured and regulated, improves the likelihood that employees, and most especially those who are relatively low-paid, will be able to obtain an adjudication on the merits of their rights disputes with the employer. Abolition of employment arbitration simply relegates those employees to the courts to fare as best they can on their own in a complex, formal litigation environment.
Based on what is practically and politically feasible as of this writing, employer-promulgated ADR should be the basis of an employment adjudication system that supplements the work of courts, administrative agencies and, in the union sector, the grievance and arbitration process. We say this because unless adequate resources are provided to administrative agency adjudicators or courts to handle responsibly the vast increase in self-represented employee claims – which we think unlikely – the appropriate legislative response, even for critics of employer-promulgated ADR, is to develop safeguards that help minimize their concerns without driving employers to abandon the process entirely.
If we were starting from scratch, we would be inclined to consider a system similar to Great Britain’s. The UK approach started as a wrongful dismissal statute and over time also assumed adjudicatory authority over discrimination claims. The UK system mixes government-supplied mediation services with a tripartite government-funded, public adjudication. The system supersedes any common law cause of action for breach of the employment agreement and employment statutes; employment disputes that go to the regular civil courts are limited to libel and slander, certain torts and claims for injunctive relief for breach of restrictive covenants. Class actions are not authorized.
There may be some institutional features of the UK approach that are difficult to replicate here. One such feature is the tripartite adjudicatory structure used in England. With our low union density in private companies and the fact that employers tend not to form representative associations in the employment law field, it will take some ingenuity to develop a regularized procedure for selecting employer- and employee-side adjudicators.
The more difficult question is whether there is any political will to adopt something like the UK system. Lawyers representing employees would not necessarily oppose such legislation if they could remove all caps on recovery and retain their ability to bring lawsuits (including class actions) in the courts. Employers might support such legislation, if it did not include abolition of employment at-will and there was some institutional guarantee of modest awards of the UK variety. Most employees, we believe, would be best off under the UK approach but we cannot get there politically. Therein lies the dilemma for law reform.
We do believe, however, that working with what is in place at many companies, much can be done to improve employer-promulgated ADR to pick up many of the desirable features of the UK approach but in an American flavor responsive to U.S. legal and popular culture.
This is obviously a major issue in employment law and both the authors have written extensively on it, so it's definitely worth a look.
Recently Published Scholarship
- Pnina Alon-Shenker, The Duty to Accommodate Senior Workers: Its Natuer, Scope and Limitations, 38 Queen's L.J. 165 (2012).
- Lisa M. Durham Taylor, The Pro-Employee Bent of the Roberts Court, 79 Tenn. L. Rev. 803 (2012).
- Jennifer K. Wagner, Sidelining GINA: The Impact of Personal Genomics and Collective Bargaining in Professional Sports, 12 Virginia Sports & Entertainment L.J. 81 (2012).
- Alexander C. Krueger-Wyman, Collective Bargaining and the Best Interests of Basketball, 12 Virginia Sports & Entertainment L.J. 171 (2012).