Saturday, October 14, 2017
Over at Indisputably, Sarah Cole has a great post about the Fifth Circuit's rejection of a preliminary injunction by the NFL Players' association that would have prevented the suspension of Cowboy running back Zeke Elliott. As Sarah points out, the arbitration clause that the NFL and the Players' Association agreed to is bizarre, but the Players' Association must follow the procedure it agreed to before challenging the outcome in court.
In other news, an unfair labor practice charge has been filed against the Cowboys (and owner Jerry Jones) for threatening to bench players who kneel during the national anthem to protest race discrimination and violence. As Ben Sachs points out over at onlabor, this is a possible ULP for interfering with the players' protected concerted activity under the NLRA. In a separate onlabor post, Noah Zatz makes a convincing case that any benching would violate the opposition clause of Title VII's anti-retaliation provision.
Monday, October 9, 2017
Hi fellow Employment and Labor scholars:
I am excited to share California Western School of Law’s Call for Proposals for an innovative Gender Sidelining Symposium to be held in San Diego on April 26 & 27, 2018. As detailed in the attached Call for Proposals, we are seeking individuals both to serve as primary presenters in various “salons,” as well as to serve as commentators on these presentations. Please see the attached Call for Proposals for more information.
We are thrilled that our keynote speaker will be Dean Camille Nelson from American University Washington College of Law, a widely published and well-respected scholar. We further are excited to be hosting a “Judge’s Panel” on the opening night of the Symposium – including Justice Judith Haller (Associate Justice, CA 4th Dist. Court of Appeals) and Judge Margaret McKeown (U.S. Court of Appeals, 9th Cir.) – during which these respected jurists will discuss issues related to our Symposium topic.
We hope that you will strongly consider submitting a proposal to join us at the Symposium this April.
The call for proposals gives more details, also:
The Symposium will begin with a panel discussion that will provide the relevant context and background for the concept of Gender Sidelining, followed by a dinner and remarks by a panel of highly respected judges who will provide their thoughts and insights regarding this topic. The second day will include lunch and a keynote address by American University Washington College of Law Dean Camille Nelson, a well-respected and widely published scholar who focuses on gender inequality. The second day will also include three salon-style sessions, in which a primary anchor will discuss their work in conjunction with others who will provide commentary and response. Finally, the Symposium will conclude with a final reception and rap session, where participants will be encouraged to share their reflections in an open discussion.
In seeking to explore this Gender Sidelining phenomenon, we invite proposals for three interactive salon-style sessions surrounding the themes of Employment, Entrepreneurship/Business, and Popular Culture. Interested participants also are free to suggest other salon session topics that are consistent with the Symposium’s broader theme. Each individual submitting a proposal should indicate the following: (1) whether you would like to serve as a primary anchor for one of the themed salon-style sessions or (2) have an interest in providing commentary in one of the themed salons.
Proposals should be submitted to firstname.lastname@example.org no later than November 17, 2017, and include an abstract that indicates the specific themed salon session of interest, the presenter’s proposed role (primary anchor or commentator), a description of the presenter’s research/expertise, and a CV. We also welcome proposals that are fully developed in terms of a primary anchor and commentators. Please include “Gender Sidelining Symposium” in your email subject line. Please use Microsoft Word or the equivalent, but do not use PDF. By submitting an application, you are agreeing that you will be present at the symposium to present your work. Questions should be directed to Prof. Jessica Fink at email@example.com.
Read the whole call for proposals for more complete descriptions of the salon sessions: Download CFP-Revised.doc It looks really interesting.
Tuesday, September 12, 2017
A huge congratulations to Joe Seiner (South Carolina) on the publication this week by Cambridge University Press of his book The Supreme Court's New Workplace: Procedural Rulings and Substantive Worker Rights in the United States. Here's the publisher's description:
The US Supreme Court has systematically eroded the rights of minority workers through subtle changes in procedural law. This accessible book identifies and describes how the Supreme Court’s new procedural requirements create legal obstacles for civil-rights litigants, thereby undermining their substantive rights. Seiner takes the next step of providing a framework that practitioners can use to navigate these murky waters, allowing workers a better chance of prevailing with their claims. Seiner clearly illustrates how to effectively use his framework, applying the proposed model to one emerging sector - the on-demand industry. Many minority workers now face pervasive discrimination in an uncertain legal environment. This book will serve as a roadmap for successful workplace litigation and a valuable resource for civil-rights research. It will also spark a debate among scholars, lawyers, and others in the legal community over the use of procedure to alter substantive worker rights.
Friday, September 8, 2017
The Eleventh Circuit issued an important opinion yesterday in Hicks v. Tuscaloosa, affirming a jury verdict for a former police officer who was demoted to patrol duty just eight days after her return from maternity leave and then denied accommodations for breastfeeding, forcing her to quit.
The Fifth Circuit had previously held that lactation is a medical condition related to pregnancy so that terminations based on a woman’s need to breastfeed would violate Title VII as amended by the Pregnancy Discrimination Act. But it is the first circuit court opinion to apply the Supreme Court's decision in Young v. UPS to the accommodation issue. As the court noted, a reasonable jury could find that Hicks' request for accommodation--here reassignment to a desk job where she wouldn't have to wear a bulltproof vest that would be painful and could cause infection--was a request that she be treated the same as other officers. The department routinely assigned officers with injuries to desk jobs.
The court's analysis is fairly short and straightforward; it wastes little time concluding that lactation is related to pregnancy and thus sex under Title VII and that breastfeeding employees need to be accommodated the same way that other employees are accommodated. And the court summed up its decision concisely: "We find that a plain reading of the PDA covers discrimination against breastfeeding mothers. This holding is consistent with the purpose of PDA and will help guarantee women the right to be free from discrimination in the workplace based on gender-specific physiological occurrences."
Friday, August 25, 2017
Congratulations to our friend Wendy Greene (visiting at Iowa), whose most recent "hair piece" has just been published by the Miami Law Review: Splitting Hairs: The Eleventh Circuit’s Take on Workplace Bans Against Black Women’s Natural Hair in EEOC v. Catastrophe Management Solutions. From the abstract:
What does hair have to do with African descendant women’s employment opportunities in the 21st century? In this Article, Professor Greene demonstrates that Black women’s natural hair, though irrelevant to their ability to perform their jobs, constitutes a real and significant barrier to Black women’s acquisition and maintenance of employment as well as their enjoyment of equality, inclusion, and dignity in contemporary workplaces. For nearly half a century, the federal judiciary has played a pivotal role in establishing and preserving this status quo. The Eleventh Circuit Court of Appeal’s recent decision in EEOC v. Catastrophe Management Solutions exacerbates what Professor Greene calls employers’ “hyper-regulation of Black women’s bodies via their hair.” This Article considers how federal courts and namely the Eleventh Circuit have issued hair splitting decisions in race-based “grooming codes discrimination cases” that decree: federal anti-discrimination law protects African descendants when they are discriminated against for adorning afros but statutory protection ceases once they grow their naturally textured or curly hair long or don it in braids, twists, or locks. Professor Greene explains that courts’ strict application of a “legal fiction” known as the immutability doctrine—and the biological notion of race that informs it—have greatly contributed to this incoherency in anti-discrimination law, which triggers troubling, tangible consequences in the lives of Black women.
This article is a great addition to Wendy's prior work and the work of others on how cultural norms of white femininity burden Black women. Wendy's work, along with the work of several other scholars, had been cited by the Eleventh Circuit in the case in a discussion about whether cultural or behavioral aspects of identity ought to be part of what Title VII protects. I can't wait to read this.
Monday, August 14, 2017
David Yamada (Suffolk) has a post worth reading over at Minding the Workplace on Can an employer fire a publicly-avowed white supremacist? The answer: almost certainly yes for private-sector employers; yes with some free-speech caveats for public-sector employers.
Also worth reading is Dean Dad's post today on When Neutrality Isn't an Option. Those of us in higher-ed administration need to be able to work with folks of widely varying political stripes -- so long as we can find "common ground ... in the name of helping the students and the community." But
[p]ublic higher education is for the entire public. A movement that denies that there even is such a thing -- that assumes a better and a worse public, whether by race, religion, or whatever else -- is an existential threat to our mission. We need to be willing to treat it accordingly.
That means not “teaching the controversy,” or pretending that there are “many sides” to this one. Anti-semitism, for instance, doesn’t really lend itself to a “pro or con” analysis. It’s wrong. It’s just flat wrong. White supremacist terrorism is wrong. And that’s not just a personal view, although it is also that; it’s a precondition for doing the work we do every single day.
Wednesday, August 9, 2017
Yesterday, Jeff posted on Google Engineer Files NLRB Complaint Regarding Post-Memo Termination. Today's Wall Street Journal quotes Susan Bisom-Rapp (TJSL) and Matt Bodie (SLU) extensively on the viability of the engineer's claims. Here's an excerpt:
Thomas Jefferson School of Law Prof. Susan Bisom-Rapp, who researches employment discrimination law, said while she disagreed with Mr. Damore’s views, she could envision potential legal arguments he could make to invoke the NLRA.
That Mr. Damore’s letter doesn’t appear to be drafted in concert with other Google employees doesn’t in itself mean the law cannot be invoked. Protections can be triggered by a single employee trying to rally colleagues around a wider workplace issue.
Mr. Damore could try to argue that he’s “protected in expressing himself in an effort to engage in dialogue with co-workers about Google’s diversity efforts,” said Prof. Bisom-Rapp.
However, “an employee gripe or complaint standing alone, without that call to fellow employees to gather together, is not enough,” said Julie Totten, an employment defense lawyer with Orrick, Herrington & Sutcliffe LLP in Sacramento.
Labor law also forbids employers from firing a worker for alleging an unfair labor practice, making the timing of Mr. Damore’s formal complaint potentially relevant in a legal dispute, said Prof. Bisom-Rapp.
Legal experts said federal antidiscrimination law could offer Mr. Damore another possible, albeit narrow, legal avenue. His memo suggested Google is engaging in reverse discrimination, citing “special treatment for ’diversity’ candidates.” Title VII of the 1964 Civil Rights Act bans employers from retaliating against workers for complaining about unlawful workplace discrimination.
“You would have to show what Google is doing is illegal. That would be difficult,” said Prof. Matt Bodie, an employment law scholar at Saint Louis University Law School and a former NLRB field attorney.
The NLRB generally doesn’t impose remedies beyond reinstatement of employment and back pay, Mr. Bodie said.
The full WSJ article is available at Jacob Gershman & Sara Randazzo, Fired Engineer Likely to Face Obstacles in Challenging Google, WSJ 8/9/17.
Sunday, July 16, 2017
A district court in Minnesota recently held that retaliation against a prospective hire for requesting an accommodation wasn’t actionable under §704(a). At issue in EEOC v. N. Mem'l Health Care was a claim on behalf of an applicant whose conditional offer of employment was revoked after she requested an accommodation, even though she later indicated she was willing to meet the employer’s requirements.
The court gave short shrift to both the participation and opposition clauses of §704(a). There had been no filing before the revocation of the offer, so participation was not implicated. As for the opposition clause, the court reasoned that the statute required opposition to what the plaintiff in good faith believed to be unlawful discrimination, and there was no evidence that the applicant believed that North Memorial was acting unlawfully: “In other words, merely requesting a religious accommodation is not the same as opposing the allegedly unlawful denial of a religious accommodation.” The court cited several other district court decisions to similar effect.
It dismissed ADA authority to the contrary on the basis of differences between the statute, especially 42 U.S.C.S. § 12203(b) (which declares it unlawful “to coerce, intimidate, threaten, or interfere” with the exercise or enjoyment of any right under the statute). But, in the process, it cited Eighth Circuit dicta to the effect that, even under the parallel language of the ADA, “it might be thought that [plaintiff’s claim of retaliation for requesting an accommodation] never gets out of the starting gate.” Kirkeberg v. Canadian Pac. Ry., 619 F.3d 898, 907 (8th Cir. 2010).
In short, Memorial Health Care may be more than a one-court anomaly and but may reach beyond Title VII’s duty of religious accommodation to threaten what many view as the core protection of the ADA.
One response to this is the Supreme Court’s decision in Robinson v. Shell Oil Co., 519 U.S. 337 (1997), which read “employee” in the statute to bar retaliation in job references against a “former employee,” in part “because to hold otherwise would effectively vitiate much of the protection afforded by § 704(a).” Similarly, since employers are generally said not to have a duty to accommodate unless the employee requests one, to permit discharge of individuals for requesting accommodation would essentially read the duty out of both statutes. Interesting, Robinson wasn’t cited in either North Memorial or Kirkeberg.
But it’s also true that Justice Thomas’s opinion for the Court in Robinson looked to larger purposes and consequences only after finding “employee” to be ambiguous to begin with. So a committed textualist might find no ambiguity in the reach of the retaliation proscription and so deem irrelevant the resultant torpedoing of the duty of accommodation.
Maybe the whole problem under Title VII can be avoided by not looking to retaliation law in the first place. The conditional employee’s offer was rescinded after she had indicated that she would “make it work” by coming in on Friday night if she could not find a replacement. That would seem to fit directly within the definition of religious discrimination announced by the Court in EEOC v. Abercrombie & Fitch: “an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.” Thus, an employer that fires someone (or revokes an offer) for asking for an accommodation would seem to be guilty of discrimination in the first place under Title VII. (For unexplained reasons, the EEOC denied the applicant’s claim of religious discrimination and pursued only the retaliation one). Similar reasoning might apply to the ADA although another way out of the textualist box under that statute is the hitherto underutilized § 12203(b).
Hat tip to my RA, Henry Klimowicz, Seton Hall Law ’19
Wednesday, July 12, 2017
A few weeks ago, Missouri’s governor signed SB43. That law amends the State’s employment law, including the Missouri Human Rights Act (MHRA), its anti-discrimination statute—mostly in employer-friendly ways. (For media reports on the legislative politics, see, e.g., here, here, and here.) Among the many changes, I’ll highlight (1) MHRA’s new causation requirement and (2) a remarkably broad preemption provision.
- But-For Causation
Most have rightly focused on how MHRA will now require but-for causation. The legislature amended the MHRA to use “because of” to denote causation and by adding these definitions:
(2) "Because" or "because of ", as it relates to the adverse decision or action, the protected criterion was the motivating factor
. . .
(19) "The motivating factor", the employee's protected classification actually played a role in the adverse action or decision and had a determinative influence on the adverse decision or action.
By these definitions, especially the word “determinative” (and “the” in “the motivating factor”), the legislature overrode Daugherty v. City of Maryland Heights, 231 S.W.3d 814, 819 (Mo. 2007). There, the court had read MHRA not to require “a plaintiff to prove that discrimination was a substantial or determining factor in an employment decision; if consideration of age, disability, or other protected characteristics contributed to the unfair treatment, that is sufficient.”
By adopting but-for causation, the MHRA will become more stringent than section 703 of Title VII, see 42 U.S.C. § 2000e-2(m), while matching up more with how the US Supreme Court reads the federal age-discrimination statute and Title VII’s retaliation provision.
- Preemption of Common Law Claims
SB43 also substantially preempts common-law employment claims, in two ways. First, MHRA now includes this: “This chapter, in addition to chapter 285 and chapter 287, shall provide the exclusive remedy for any and all claims for injury or damages arising out of an employment relationship.” The phrase “arising out of an employment relationship” is not further defined.
Second, a new "Whistleblower’s Protection Act" contains this provision: “This section is intended to codify the existing common law exceptions to the at-will employment doctrine and to limit their future expansion by the courts. This section, in addition to chapter 213 and chapter 287, shall provide the exclusive remedy for any and all claims of unlawful employment practices.” (The Act then declares what counts as an “unlawful employment practice” under the Act.)
Courts must usually read statutes to give meaning to all their terms, and cannot read them to make certain provisions superfluous. So, what more does the MHRA preemption provision cover than the whistleblower preemption provision?
If we read “arising out of an employment relationship” broadly, that provision seems to cover all Missouri common law claims predicated on an employment relationship. That would include all the ones that apply to conduct that might not violate the new whistleblower statute (e.g., tortious interference with contract, negligent hiring, intentional infliction of emotional distress, defamation, fraud). That’s because neither chapter 287 (workers’ compensation) nor chapter 285 (miscellaneous) expressly provide for a way to bring all employment-related claims under Missouri common law.
But, does that mean that the MHRA preemption provision covers common-law contract claims for breach of an employment contract? Such claims certainly “aris[e] out of the employment relationship” and entail some allegation of “injury or damages.” It’s unlikely that Missouri’s legislators wanted to stop, for example, an employer who sues for breach of an employment contract. And yet, the text of the MHRA preemption provision doesn’t distinguish between contract and tort claims. It simply covers “any and all claims for injury or damages arising out of an employment relationship.”
SB43 goes into effect on August 28.
Wednesday, July 5, 2017
When teaching the adverse employment action doctrine, I often ask my class whether an employer would be liable if it painted the workspaces of its female workers pink while painting those of its male workers blue. Objectionable as that would be to the cause of equality in the workplace, the adverse employment action doctrine might well allow it: absent some additional provable harm, the décor would not be sufficient to violate the statute.
That law school hypothetical manifested in the real world in the recent Seventh Circuit case EEOC v. Autozone, Inc. where Stuckey, a black employee claimed that his employer, Autozone, violated Title VII by transferring him from one store to a new location with the motive of keeping the store “predominantly Hispanic.” The panel held that summary judgment was appropriate for Autozone: the EEOC failed to provide sufficient evidence showing that the transfer adversely affected Stuckey’s employment status since there was no reduction in his compensation or responsibilities.
The panel was obviously skeptical of the claim to begin with but, given Stuckey’s testimony that his district manager explained to him the reason for the transfer, it assumed a triable issue on that point.
At first blush, the decision is unremarkable as a straightforward application of the adverse employment action doctrine since Stuckey suffered no diminishment in pay or responsibilities. Section 703(a)(1)’s reference to discrimination in “compensation, terms, conditions, or privileges” of employment has led to the rule that an employee has to show meaningful harm in order to state a claim. A “lateral transfer” (one without reduction in pay) has been the quintessential example of no harm/no foul. Pink offices/blue offices. Whether that result casts doubt on the whole adverse employment action doctrine is another question.
But the EEOC tried an end run around the doctrine in Autozone by invoking § 703(a)(2), which declares it unlawful “to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee” because of the prohibited grounds. “Segregating” would seem to be exactly what Autozone was alleged to have been doing. The panel, however, rejected that argument, reading (a)(2), similar to (a)(1), to also require the EEOC to demonstrate that the transfer deprived Stuckey of meaningful employment opportunities. In short, segregating employees by race is not necessarily a statutory violation.
The court rejected the EEOC’s argument that proof of racial segregation should trigger automatic liability. Looking to the section’s phrasing, it found that the Commission reading “leaves much of the statutory text with no meaningful work to do. If it's not necessary to show that the challenged employment action ‘deprive[d] or tend[ed] to deprive’ the employee of employment opportunities ‘or otherwise adversely affect[ed] his status as an employee,’ what is the point of this statutory language?”
The panel did offer one piece of comfort to the EEOC, stressing that “(a)(2) does cast a wider net than subsection (a)(1),” because it speaks in terms of an action that “has only a tendency to deprive a person of employment opportunities” while (a)(1) addresses actions that actually "discriminate against any individual." It may be that some lateral transfer immune from (a)(1) nevertheless are actionable under (a)(2) because of their tendency to deprive the employee of opportunities. Still, the dramatic new possibilities for (a)(2) envisioned by Professor Sperino in Justice Kennedy’s Big New Idea are unlikely to be meaningfully realized if other courts take the Autozone approach.
However, to return to a point mentioned above, maybe cases like Autozone suggest a reconceptualization of the whole adverse employment action doctrine. After all, to permit racial (and other kinds of) segregation flies in the face of the antidiscrimination project, making a textual analysis that leads down this path surely suspect. Maybe more to the point, I am not the first to note that the adverse employment action doctrine is not very firmly wedded to the text of (a)(1). Where one works is surely a “term, condition, or privilege” of employment as those terms are usually used and as the first two were interpreted under the National Labor Relations Act. Ironically, maybe a textualist reading would make (a)(1) broader than (a)(2)! Finally, perhaps the courts should think more seriously about the structure of the statute. Title VII famously has a bona fide occupational qualification defense, and equally famously, it does not reach race. Autozone permits exactly the result that the BFOQ would allow, without all the messy restrictions of that doctrine.
Thanks to my research assistant Henry Klimowicz, Seton Hall Law ’19
Wednesday, June 21, 2017
Sophie Mitra (Fordham Dep't Econ.) and Douglas Kruse (Rutgers - Management & Labor) have just published a significant new empirical study of the impact of disability on employment. The article is Are Workers with Disabilities More Likely to be Displaced?, and unfortunately their answer is "yes". The article is published at International Journal of Human Resource Management, Vol. 27(4), pp. 1550-1579, 2016; here's the abstract:
The literature on employment and disability has been relatively silent regarding the job loss experience of persons with disabilities. We document the gap in job displacement rates across disability status in the United States over the 2007–2013 period using data from the 2010, 2012 and 2014 Displaced Worker Supplements of the Current Population Survey. We find that men and women with disabilities are, respectively, 75 and 89% more likely to experience an involuntary job loss than men and women without disabilities in the United States over the 2007–2013 period, with gaps in displacement rates of eight and seven percentage points for men and women, respectively. A significant gap is found in most occupation-education subsamples. Using a logit decomposition, we find that differences in observable characteristics do not explain the gap in the job loss rate across disability status. Longitudinal tests following workers over a one-year period point to a causal effect of disability on the likelihood of displacement. While the disability gap may be due to unobservable characteristics, job mismatch and employer discrimination are also possible explanations, highlighting the potential importance of employer and public policies in improving the job security of workers with disabilities.
Wednesday, June 7, 2017
Friends of the blog Susan Bisom-Rapp (Thomas Jefferson) and Urwana Coiquaud (HEC Montreal) have posted their latest paper on SSRN. This comparative law collaboration, examining the actions of the state in undermining the standard employment relationship and increasing nonstandard work, is called The Role of the State towards the Grey Zone of Employment: Eyes on Canada and the United States. Here is the abstract:
In most countries, precarious working is on the rise and nonstandard forms of work are proliferating. What we call the “grey zone” of employment is generated by transformations at and with respect to work both in standard and nonstandard forms of working. Focusing on legal and policy regulation, and on the role of the state in the creation and perception of the grey zone, our contribution explains the way the government acts or fails to act, and the consequences of that activity or inactivity on the standard employment relationship. Examining and juxtaposing conditions in our two countries, Canada and the United States, our thesis is that the state plays a paradoxical role in the growth of nonstandard work and increasing precariousness. To assist the analysis, we construct a matrix for understanding the efforts or inertia on the part of the government. We conclude that there are seven ways in which to comprehend the role played by the government vis-à-vis the grey zone.
Susan and Urwana note that their analysis is both descriptive, in that it reveals the government’s complicity in the rise of employment insecurity, and normative, because it provides a mechanism for applauding or indicting the actions of the state in the face of changing work relations in the 21st century.
Tuesday, May 30, 2017
TaxProf Blog and Leiter Law School Reports have been covering the complaint by Columbia Law professor, George Fletcher. Very briefly, he alleges that Columbia discriminated against him based on his age by refusing to allow him to teach a required LLM course (Columbia cited poor evaluations), which among other things, might mean that he falls below the required number of teaching hours for the year. Among the other factors that threaten his teaching load is his desire to maintain his tradition of working a full semester in Israel and the fact that the elective course he was assigned to teach is at risk of being cancelled for low enrollment.
I obviously don't know what's really going on here, but I've got to say that the former Academic Affairs Dean in me sees several red flags about his teaching that makes me less inclined to be sympathetic to his claim. That's not to mention the fact that part of the problem is that he expects to be able to leave for half the year, every year.
Monday, May 29, 2017
Decades ago, the Supreme Court read Title VII's ban on employment discrimination because of “national origin” not to cover employment discrimination because of citizenship or immigration status. Espinoza v. Farah Mfg. Co., 414 U.S. 86 (1973). There, the Court relied on, among other things, the sparse legislative history, and that Congress had already required some federal employees to be citizens: “[W]e cannot conclude Congress would at once continue the practice of requiring citizenship as a condition of federal employment and, at the same time, prevent private employers from doing likewise.” Id. at 91.
In a newly-posted working paper (“Immigrant Workers and Workplace Discrimination: Overturning the Missed Opportunity of Title VII under Espinoza v. Farah”), Maria Ontiveros argues that Espinoza---by reading "national origin" in Title VII to only cover country-of-origin discrimination----got it wrong and should now be overruled. Here's the abstract:
This essay argues the Supreme Court decision Espinoza v. Farah Mfg. Co. should be overturned because of its incorrect definition of national origin discrimination under Title VII. The essay argues that Espinoza v. Farah's holding that discrimination based on citizenship status, immigration status or migrant status is not national origin discrimination under Title VII's disparate impact or disparate treatment theories is incorrect from both theoretical and doctrinal standpoints. To bolster its analysis, the essay presents a social and political history of discrimination against Latinos at the time of the decision, as well as the litigation strategy behind Espinoza to illustrate how discrimination based on citizenship status, migrant status and immigration status is discrimination based on national origin. It then shows how two lines of cases — Title VII discrimination cases brought by H1B guest workers on the basis of national origin discrimination and EEOC trafficking cases alleging discrimination based on national origin and/or sex — have begun to erode the analysis underlying Espinoza. It concludes with an argument, based on current Supreme Court standards, that Espinoza should be overturned.
The paper is forthcoming in the Berkeley Journal of Employment and Labor Law.
Monday, May 22, 2017
Caroline Mala Corbin (Miami) has just posted a new essay on SSRN that hits several of the workplace social issues sweet spots connected with LGBTQ rights and claims of conscience: A Free Speech Tale of Two County Clerk Refusals, forthcoming in the Ohio State Law Journal. Here's the abstract:
The ever-expanding Free Speech Clause has made possible claims that would have been unthinkable until recently. This symposium Essay examines the compelled speech claims of two hypothetical county clerks who believe that marriage should be limited to unions between one man and one woman, and who argue that forcing them to issue marriage licenses to gay and lesbian couples compels them speak in favor of same-sex marriage in violation of the Free Speech Clause.
When a government employee such as a county clerk speaks, she may not be speaking as just a private individual. She may also be speaking as the government. This governmental component affects each side of the speech versus equality analysis. First, the Free Speech Clause interests in speech are weaker (sometimes to the point of extinguishment) when the speech is not purely private. Second, to the extent the government employee’s conduct is the government’s, then it amounts to state action, and the Equal Protection Clause is triggered.
Part I addresses the free speech claims of a county clerk who is terminated after she informs a same-sex couple that by reason of her beliefs, she cannot grant them a marriage license. The outcome here is straightforward: she loses. Because her refusal will be treated as the government’s own, her individual free speech interests are at their lowest while the government’s equal protection interests are at their highest. Part II addresses the free speech claims of a clerk who has found a coworker willing to cover for her, but her supervisor declines to accommodate her and instead fires her for refusing to do her job. The analysis here is more complicated, as it raises questions about expressive conduct, official duties, and expressive harms.
I'm looking forward to reading this.
Sunday, May 21, 2017
Michael Green has been burning the midnight scholarship oil recently. He has posted two articles to SSRN in the last month: The Audacity of Protecting Racist Speech under the National Labor Relations Act, forthcoming 2017 U. Chicago Legal Forum, and Can NFL Players Obtain Judicial Review of Arbitration Decisions on the Merits When a Typical Hourly Union Worker Cannot Obtain This Unusual Court Access?, forthcoming NYU J. Legislation and Public Policy. He also has a forthcoming paper in SMU Law Review on Racial Prejudice in ADR in the Workplace (SSRN post coming soon). Congrats, Michael!
Christine Duffy (Senior Staff Attorney, ProBono Partnership, photo left) has provided this guest post on Blatt v. Cabela’s Retail, Inc.
Seventeen months after oral argument in Blatt v. Cabela’s Retail, Inc., No. 5:14-cv-04822-JFL (E.D. Pa., filed Aug. 15, 2014), Judge Joseph Leeson issued a six-page decision on whether a person suffering with gender dysphoria is covered by the ADA. Judge Leeson said “yes.” The opinion is at .
Judge Leeson agreed with the DOJ’s 11/16/15 Second Statement of Interest (SSOI), that the court should avoid the equal protection argument made by Blatt (and earlier by me in Chapter 16 of Gender Identity and Sexual Orientation Discrimination in the Workplace: A Practical Guide). Sachin Pandya [previously] discusse[d] the DOJ’s SSOI.
Wednesday, May 17, 2017
On Monday, the Supreme Court asked the Solicitor General to weigh in on the issue presented for cert. in Clark v. Virginia Department of State Police, 292 Va. 725 (2016): whether Congress can use its war powers to abrogate state sovereign immunity. This case involves a police officer who alleged that he was denied a promotion because of his service in the U.S. Army Reserves, in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA is the current version of earlier military employment protections originally enacted in 1940 and expanded and modified many times in the intervening years. Among other things, USERRA prohibits employment discrimination against individuals because of their military service and guarantees reemployment rights following such service (for those interested in family leave reform, USERRA provides an example of more robust protections, including periods of just cause protection and promotion rights).
In 1998, Congress enacted an amendment to USERRA expressly permitting private rights of action against state employers in state court. This was an understandable reaction to the Supreme Court's 1996 Seminole Tribe of Florida v. Florida decision, where it held that Congress' attempt to abrogate states' 11th Amendment sovereign immunity against private rights of action for monetary remedies was invalid. It was largely assumed at the time that because the 11th Amendment only spoke of federal jurisdiction state courts could still be used, but the Court in Alden v. Maine (1999) later gave states immunity in their own courts, explaining that state sovereign immunity was part of the Constitution's design and not limited to the text of the 11th Amendment. USERRA's amendment, therefore, was then called into question and resulted in several court rulings finding it unconstitutional. These rulings, in my opinion, are wrong.
I wrote directly about this issue in Can Congress Use its War Powers to Protect Military Employees from State Sovereign Immunity?, 34 Seton Hall L. Rev. 999 (2004). In the article, which also provides an overview of USERRA and a now-dated survey of state-law military employment protections, I argue that Supreme Court precedent allows for USERRA's abrogation of state sovereign immunity. The very brief version of my argument is that courts have misread some admittedly loose language by the Supreme Court suggesting that Congress can never use Article I to abrogate state sovereign immunity. By delving into the history of state sovereign immunity and the federal war powers under the plan of the Constitution, I argued that not only can Congress use its war powers to abrogate, but the case is particularly strong in this area, despite being under Article I. This argument was subsequently validated in part by Central Virginia Community College v. Katz (2006), in which the Court held that states "agreed in the plan of the Convention not to assert any sovereign immunity defense they might have had in proceedings brought pursuant to 'Laws on the subject of Bankruptcies.'” My argument, very simply, is that if Congress can use its bankruptcy power to abrogate then surely it can use its war powers as well.
By asking for the Solicitor General's views in Clark, it appears that some Justices agree that the issue is not as straightforward as the Virginia Supreme Court in Clark, and other courts, have suggested. This is an important issue. We have sent many military personnel into active duty across the world over the last several years and have numerous others who are members of the Reserves or National Guard. Many of these military individuals are employed by states that do not allow private military employment discrimination actions for monetary damages (the police officer in Clark is a typical example). Hopefully, the Court will grant cert. and clarify this issue.
Saturday, May 13, 2017
Job applicants with criminal records are much less likely than others to obtain legitimate employment, a problem that recent legislation, including Ban the Box, has attempted to address. The success of any remedial strategy depends on why hiring firms impose a hiring penalty and whether their concerns are founded on an accurate view of how ex-offenders behave on the job if hired. Little empirical evidence now exists to answer these questions. This paper attempts to fill this gap by examining firm-level hiring practices and worker-level performance outcomes. Our data indicate that the typical employee with a criminal record has a psychological profile different from other employees, with fewer characteristics that are associated with good job performance outcomes. Despite these differences, individuals with criminal records have an involuntary separation rate that is no higher than that of other employees and a voluntary separation rate that is much lower. Employees with a criminal record do have a slightly higher overall rate of discharge for misconduct than do employees without a record, although we find increased misconduct only for sales positions. We also find that firms that do not use information about criminal backgrounds seem to compensate by placing more weight on qualifications that are correlated with a criminal record, such as low educational attainment.
Thursday, May 11, 2017
Matthew Knepper (U.S. Bureau of Economic Analysis) has just posted on SSRN his article (forthcoming J. Labor Econ.) When the Shadow Is the Substance: Judge Gender and the Outcomes of Workplace Sex Discrimination Cases. Here's the abstract of this important article, which quite literally takes research on implicit bias to a completely different level:
The number of workplace sex discrimination charges filed with the Equal Employment Opportunity Commission (EEOC) approaches 25,000 annually. Do the subsequent judicial proceedings suffer from a discriminatory gender bias? Exploiting random assignment of federal district court judges to civil cases, I find that female plaintiffs filing workplace sex discrimination claims are substantially more likely to settle and win compensation whenever a female judge is assigned to the case. Additionally, female judges are 15 percentage points less likely than male judges to grant motions filed by defendants, which suggests that final negotiations are shaped by the emergence of the bias.