February 13, 2013
NLRB Members Renominated
Today, the White House renominated Sharon Block and Richard Griffin to the NLRB (as well as Richard Cordray to the Bureau of Consumer Financial Protection). Those appointees, of course, were the subject of the D.C. Circuit's recent Noel Canning decision, which held that the President's power to make recess appointments is severely limited. It's good to see an attempt to remove the cloud over those members' appointments, although I'd still like to see nominees for the other two empty seats. I don't know whether the holdup on those is the White House or Republicans (who would normally play a large role in naming the appointees for those two, Republican, seats), but it's ridiculous that a federal agency constantly has to deal with not only being understaffed at its leadership level but having its ability to carry out its most basic functions constantly in doubt.
Speaking of which, the House Republican leadership and related committee chairs have sent the White House a letter urging appointees for all open Board seats, and citing the importance of having a full Board. Although I have some doubts about their sincerity--especially because the main purpose of the letter is to emphasize their support for the Noel Canning limits on the President's appointment power, not to mention that House Republicans haven't shown much support for the NLRB in the past--the language stressing the Board's role in the workplace is nice. Oh, and in case there's any doubt that they are more concerned with the appointments process than anything else, the same leaders also sent a letter to the Board urging them to stop issuing decisions until the Supreme Court decides the issue or the Senate confirms more members. No word on whether the Republicans leaders sent their Senate counterparts a letter urging them to work on getting new members appointed.
Hat Tip: Joshua Glick, Patrick Kavanagh, and others.
LawAsia Employment Law Conference
The 8th Annual LawAsia Employment Law Conference will be held 24-25 May 2013 in Siem Reap, Cambodia. The theme is Workplace Law in the Asia Pacific: The Issues and Challenges in 2013. I'll be there, co-presenting on labor outsourcing with Pak Cornel Juniarto of Jakarta.
Biagi Conference in Modena Italy
The Eleventh Conference in commemoration of prof. Marco Biagi, organized by the Marco Biagi Foundation, will take place in Modena (Italy) on 18 and 19 March 2013. The Conference is entitled The Transnational Dimension of Labour Relations: a New Order in the Making?.
Porter on Disability & Caregiving
Nicole Porter (Toledo; visiting Denver) has been busy -- she's just posted to SSRN her second article within a week. Her newest is Mutual Marginalization: Individuals with Disabilities and Workers with Caregiving Responsibilities. Here's the abstract:
This paper explores the marginalization of two groups of employees — individuals with disabilities and workers with caregiving responsibilities. One might argue that these two groups have little in common. In fact, however, while not perfectly aligned, these two groups of individuals have much in common in the workplace. First, these employees are unable to consistently meet their employers’ expectations of an “ideal worker.” Thus, they often must seek adjustments or modifications in the workplace to accommodate for their failure to conform to the ideal worker norm. This causes both groups of employees to suffer from “special treatment stigma,” which manifests itself in resentment by co-workers because of the special benefits these employees receive and in employers’ reluctance to hire individuals belonging to these groups because of the real or perceived increased costs of employing such individuals. Despite these similarities, the law has dealt with these two groups of employees very differently. Individuals with disabilities are entitled to broad protection in the workplace, including the rather unique reasonable accommodation provision in the Americans with Disabilities Act. On the other hand, despite some laws protecting some aspects of pregnancy and caregiving, workers with caregiving responsibilities do not enjoy the same broad protection as individuals with disabilities.
In this paper, I will explore why the law treats these groups of employees differently. I will address many of the concepts that are thought to distinguish individuals with disabilities and workers with caregiving responsibilities and are therefore used to justify their different treatment under the law. But I will ultimately conclude that these distinctions, once unpacked, do not justify the law’s different treatment of these two groups. Moreover, these differences are not as significant as the similarity that binds these two groups together — the special treatment stigma. Thus, I will explore whether a combined legal and theoretical approach to eliminating the special treatment stigma is feasible and defensible. Specifically, I seek to provide theoretical justification for the reasonable accommodation provision under the ADA and argue that the same justification can be used to support an accommodation mandate for workers with caregiving responsibilities.
What Workplace Law Scholarship Do You Like Lots?
I wanted to conclude my guest blogging stint here at Workplace Prof Blog by opening up a thread I’ve always been interested in seeing here: specifically, a chance for contributors and readers of the blog to list particular workplace/anti-discrimination/labor law articles or books that they’ve particularly enjoyed (or that they think are particularly worthy of a read). As a scholar who is relatively new to academia, I am acutely aware that there is much excellent scholarship that I have not yet read (because it is outside of my specific focus, or older, or not in the databases I ordinarily search), and I thought the collection of readers and contributors here would make for a particularly good crowdsourcing of good work.
Think of it as JOTWELL lite – An opportunity to say what we like lots, without all of the work of writing an essay.
To get us started, after the jump I list a few of my own all-time favorites (with the caveat that this is a dramatically under-inclusive list):
Ralph Richard Banks & Richard Thompson Ford, (How) Does Unconscious Bias Matter?: Law, Politics and Racial Inequality, 58 Emory L. J. 1053 (2009), available at http://www.law.emory.edu/fileadmin/journals/elj/58/58.5/Banks_Ford.pdf.
Michael Selmi, Was the Disparate Impact Theory a Mistake?, 53 UCLA L. Rev. 701 (2006), available at http://ssrn.com/abstract=881606.
Samuel Bagenstos, The Structural Turn and the Limits of Anti-Discrimination Law, 94 Cal. L. Rev. 1 (2006), available at http://ssrn.com/abstract=701265.
What I like lots: All three of the above articles I think provide really profound critiques (from a civil rights-advancing perspective) of doctrinal or theoretical developments that have been largely embraced by most of the liberal academic community as cornerstones of solutions to contemporary anti-discrimination law. In some cases (albeit not all) the pieces go further than I personally would endorse, but I do think that any scholar writing in any of the areas these authors address should take seriously the challenge of responding to the array of very serious concerns they raise.
Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 Stan. L. Rev. 1161 (1995), available at http://www.law.berkeley.edu/faculty/krieger/publications.htm.
Russell Robinson, Perceptual Segregation, 108 Colum. L. Rev. 1093 (2008), available at http://ssrn.com/abstract=1106483.
What I like lots: Both of these pieces do a wonderful job of opening up a conversation about a world of discrimination law-relevant psychology research. There are certainly others in this vein as well that provide fantastic insights—and I think there are many other areas of psychology research that could benefit from this type of treatment—but these are two I thought were emblematic of the value of this type of research.
Sandra Sperino, Rethinking Discrimination Law, 110 Mich. L. Rev. 69 (2011), available at http://www.michiganlawreview.org/assets/pdfs/110/1/sperino.pdf.
What I like lots: With a title like “Rethinking Discrimination Law” it would be easy for an article to fall short. But this piece delivers—it illustrates the ways that discrimination doctrine as it is currently formulated obscures rather than illuminates the core issues of anti-discrimination law, and causes profound distortions in the process. And the solution it gives us—abandoning the existing frameworks in favor of first principles—takes us outside our usual frames of thinking. Whether or not one agrees, it is surely thought provoking.
So, what workplace/anti-discrimination/labor scholarship do you like lots? Why?
And thanks to all for the wonderful welcome here at the Blog! It’s been a pleasure blogging here.
February 10, 2013
Recently Published Scholarship
- Jessica L. Waters, Testing Hosanna-Tabor: The Implications for Pregnancy Discrimination Claims and Employees' Reproductive Rights, 9 Stanfard J. Civ. Rts. & Civ. Liberties 47 (2013).
- Jeanette Cox, Pregnancy as "Disability" and the Amended Americans with Disabilities Act, 53 B.C. L. Rev. 443 (2012).
- Dustin Stark, Just Say No: Foreclosing a Cause of Action for Employees Seeking Reasonable Accommodation Under the New Jersey Compassionate Use Medical Marijuana Act, 43 Seton Hall L. Rev. 409 (2013).