Sunday, February 18, 2018
I just posted a short piece on SSRN ruminating on the relationship of artificial intelligence to current doctrine. The abstract's below, and the full text will be available shortly. I'll post the link when it is.
Imagine that, today or in the not-so-distant-future, a company desires to take full advantage of the developments of artificial intelligence by effectively delegating all its hiring decisions to a computer. It gives the computer only one instruction: “Pick good employees.” Taking “Big Data” to the logical extreme, the computer is also provided with all the employer’s available data and empowered to find whatever data it might consider relevant on the web.
Thought experiments, such as this one, can be useful not only in exploring new concepts but also in bringing interesting perspectives to bear on old problems. “People analytics,” perhaps someday leading to use of artificial intelligence in selecting and managing employees, offers an opportunity to do both.
One disturbing conclusion from analyzing this scenario is that the current disparate treatment paradigm does not seem to reach even the explicit use of race, sex, or other “protected classes” as selection criteria when deployed by artificial intelligence. That sheds some interesting light on the limitations of current law, entirely apart from actual developments in AI.
Equally important, applying disparate impact theory to artificial intelligence’s use of correlations between any of a number of variables and various measures of job performance poses challenges for long-standing ways of viewing the job relation/business necessity defenses to a showing that a particular employment practice has a disparate impact.
Friday, February 2, 2018
There’s been considerable fuss recently about age-based targeting of social media job advertisement, in a variety of media, including the New York Times and NBC. The short version of the story is that the ads were shown to a younger demographic, thus giving such workers a considerable leg up in the job hunt, maybe even a monopoly on many openings.
It’s not at all clear that the practice is illegal under current federal law. While the ADEA does reach advertisements, the language of § 623(e) bars only expressing an age preference, and these ads do not do that. Indeed, they don’t need to because older workers never see the ads in the first place. Maybe Facebook can be viewed as an “employment agency,” as one suit argues, but it’s still somewhat of a textualist stretch to reach this particular kind of conduct. And maybe state laws, especially those with aiding and abetting prohibitions, fill the gap although many seem to track the ADEA’s phrasing.
The reality is that current laws did not envision a world in which employers could market openings to niche groups of potential employees, and none of the current legal paradigms is a very good fit for the problem. And that’s true even if we all agree that such targeting is contrary to the goals of the ADEA because people outside of the specified age range will often be effectively shut out from participation in the recruitment and hiring process.
Maybe public outcry will address the concerns? The Times reports that, while Google does not prevent advertisers form displaying ads based on the user’s age, LinkdIn has changed its system to prevent such targeting. And one could imagine an amendment to the ADEA that proscribed that conduct. Senators Collins (R) and Casey (D), seem concerned.
But would either a shift by social media or a statutory amendment be effective? The ads in question were tailored to an age demographic, and prohibiting that precise conduct might be easy. But would it solve the problem or would employers simply shift to other methods of targeting desired workers? Social media outlets allow advertisers to aim at other groups, say “recent college graduates” or maybe “active Facebook users.” Such targeting might be a pretty good proxy for age while avoiding a formal age classification.
How would we even think about that? Disparate treatment because a particular employer shifted from a facially discriminatory policy to a proxy? But what about an employer who never used age targeting but starts looking for recent grads? Or disparate impact because the target group is facially neutral even though heavily youth-centric? And if we go the latter route, might the ads be justified by a reasonable factor other than age, given that likely applicants for entry level jobs are probably younger and targeted ads may be more cost-effective? Of course, the latter possibility depends on how Facebook, Google, or LinkedIn charge advertisers – a per click rate might obviate cost concerns.
All in all, quite a challenge for the antidiscrimination project.
Hat tip to Charles Mueller Seton Hall ’18 for his research assistance.
Sunday, January 28, 2018
This guest post is courtesy of Jack Harrison (NKU-Chase):
On Thursday, January 25, 2018, the United States Court of Appeals for the First Circuit upheld a 2016 jury verdict of more than $700,000, plus $184,000 in legal fees, in a Title VII case involving Lori Franchina, a lesbian firefighter for the City of Providence, Rhode Island. This case is important because it represents yet another decision by one of the Courts of Appeals calling into question precedents in the circuit holding that sexual orientation discrimination is not prohibited by Title VII’s prohibition of discrimination “because of sex.” While Franchina was decided on a sex-plus theory, rather than a sexual orientation theory, the “plus” in the case was Franchina’s sexual orientation.
The Court of Appeals described the horrendous treatment that Franchina had endured in the workplace as follows:
‘Cunt,’ ‘bitch,’ ‘lesbo’: all are but a smattering of the vile verbal assaults the plaintiff in this gender discrimination case, Lori Franchina, a former lieutenant firefighter, was regularly subjected to by members of the Providence Fire Department (‘the Department’). She was also spit on, shoved, and — in one particularly horrifying incident — had the blood and brain matter of a suicide-attempt victim flung at her by a member of her own team.
The First Circuit flatly rejected the city’s argument “that under a sex-plus theory, plaintiffs are required to identify a corresponding sub-class of the opposite gender and show that the corresponding class was not subject to similar harassment or discrimination.” In rejecting this argument, the First Circuit seemed to embrace the broader comparator analysis adopted by the Seventh Circuit in its decision in Hively, finding that sexual orientation discrimination was, indeed, discrimination “because of sex” prohibited by Title VII. The First Circuit also indicated that nothing in its prior decision addressing sexual orientation discrimination, Higgins v. New Balance Athletic Shoe Inc., “forecloses a plaintiff in our Circuit from bringing sex-plus claims under Title VII where, in addition to the sex-based charge, the ‘plus’ factor is the plaintiff's status as a gay or lesbian individual.” The discussion by the court of this precedent appears to call into question the court’s commitment to the position held in Higgins. Such questioning is certainly consistent with language used by other Courts of Appeals in decisions over the last year, including decisions by the Seventh, Eleventh, and Second Circuits, addressing the reach of Title VII in the sexual orientation discrimination context.
Currently, the en banc United States Court of Appeals for the Second Circuit is considering Zarda v. Altitude Express, a case that, like Hively, squarely asks the question of whether Title VII’s prohibition against discrimination “because of sex” includes discrimination based on sexual orientation. Oral argument was held in Zarda on September 26, 2017. While scheduled for only one hour, the arguments actually lasted for almost two hours. The questions asked and the tone of the oral argument would suggest that the Second Circuit is likely to follow the lead of the Seventh Circuit in Hively, concluding that the prohibition against discrimination “because of sex” found in Title VII includes a prohibition against discrimination based on sexual orientation. The Supreme Court recently rejected a petition for certiorari in a case from the Eleventh Circuit that raised this question, but with a decision in Zarda expected any day, the Supreme Court may ultimately have to address this issue.
Wednesday, January 17, 2018
Lynne Bernabei (founding partner) and Kristen Sinisi (senior associate), Bernabei & Kabat in D.C., have published in Law 360 The Legal Case Against Weinstein’s Suppression Efforts. With permission of the authors and of Law360, I am reproducing their article here in full:
For decades, disgraced film producer Harvey Weinstein succeeded in silencing his victims. Authorities in three different countries are now considering whether to bring criminal charges against him, but will he have the same success burying information in the courts as he did on the job?
More than eighty women have spoken up publicly about Weinstein’s pattern of sexual assault spanning more than three decades. A recent report from The New Yorker substantiated the fear Weinstein’s victims faced in coming forward. The Hollywood mogul did not limit his retribution to empty threats. Weinstein engaged private intelligence companies — Kroll and Black Cube — to dig up dirt on his sexual accusers and the media members who threatened to air victims’ stories. Weinstein leveraged the information to keep his victims quiet, and until recently, it worked.
An alarming number of victims have come forward about the sexual assault and harassment they faced at the hands of Weinstein, but questions remain about the judicial system’s ability to serve justice. In the United States, many of the public claims against Weinstein are likely time-barred. Authorities in London who are investigating Weinstein with respect to nearly a dozen victims there may fare better, given that it does not have a strict statute of limitations for serious sex crimes.
Another question about the limits of the judicial system concerns evidence that prosecutors may be able to collect from Weinstein’s former attorney, David Boies. Initially, Boies’ involvement with Weinstein was thought to be limited to helping him negotiate a new employment contract with The Weinstein Company when his contract came up for renewal in 2015. At that time, Boies negotiated terms that enabled Weinstein to keep his job despite his criminal misdeeds (in the absence of a criminal indictment or verdict or fraud against the company).
As if that weren’t enough, The New Yorker’s report revealed that Boies’ involvement in the Weinstein web ran deeper than previously known. In July 2017, as The New York Times, then another Boies client in unrelated litigation, prepared to release a story about the allegations against Weinstein, Boies took steps to bury the stories.
He personally executed an agreement retaining the services of Black Cube, a business intelligence company comprised of a “select group of veterans of elite units in the Israeli intelligence community,” on behalf of Weinstein. The agreement’s primary objectives included “[p]rovid[ing] intelligence which will help [Weinstein]’s efforts to completely stop the publication of a new negative article in a leading NY newspaper.”
Black Cube defined “success,” entitling it to a $300,000 “success fee,” as “stop[ping] the Article from being published at all in any shape or form.” Although Boies released a statement in which he said that he engaged Black Cube merely to vet the accuracy of the Times’ article, the express contract provisions he signed contradict that claim.
Boies went on to say that he declined to represent Weinstein with respect to the alleged sexual assaults for which Weinstein hired other counsel and that he told Weinstein “the Times story could not be stopped through threats or influence.” Boies further stated that Weinstein and the counsel he engaged selected private investigators to assist him and drafted a contract, which Weinstein asked Boies to sign. Although Boies signed the agreement, he denied selecting the investigators or directing or controlling their work, tasks which Weinstein and his lawyers did, according to Boies.
This sets out another problem for Weinstein and Boies: can Boies be compelled to provide evidence about his communications with Weinstein because this contract had nothing to do with providing legal advice?
Friday, January 12, 2018
Sexual harassment claims reached the federal judiciary when Judge Alex Kozinski was accused of sexual misconduct a few weeks ago. He has since resigned. As Tessa wrote here yesterday, one thing that kept some clerks from coming forward to report this misconduct was the policy of strict confidentiality that clerks must uphold while in chambers with their judges. Some judges, like Kozinski, may further rigidly enforce this pact as well, making it very difficult for clerks or other judicial employees to make reports.
In rapid response to this concern the Federal Judicial Center amended the Federal Law Clerk Handbook yesterday to read:
In a section of the clerk handbook that proclaimed “law clerks owe judges complete confidentiality as to case-related matters,” two boldfaced sentences were added:
“However, nothing in this handbook, or in the Code of Conduct, prevents a clerk, or any judiciary employee, from revealing misconduct, including sexual or other forms of harassment, by their judge or any person. Clerks are encouraged to bring such matters to the attention of an appropriate judge or other official.”
Concurrently, a signature campaign has been circulated to former law clerks and others urging for clarification on the confidentiality rules. It seems at least with regard to the Handbook, the amendment above may be sufficient to ensure judicial personnel feel comfortable making reports. The letter is due to be delivered on Thursday, December 21, 2017, to "Third Circuit Judge Anthony Scirica, chair of the Judicial Conference’s Committee on Judicial Conduct and Disability, Judge Jeremy Fogel, director of the Federal Judicial Center, James Duff, director of the Administrative Office of the U.S. Courts, and Chief Justice John Roberts Jr. in his capacity as presiding officer of the Judicial Conference." The United States Supreme Court is not governed by the Judicial Conference, and the letter makes no recommendations to the Court.
The letter can be found here and will remain open for signature.
Sunday, December 17, 2017
Thanks to Paul Harpur (TC Beirne - Queensland) for sending word of this disability case currently pending in Ohio:
On December 15, 2017, Denoewer, an adult individual with intellectual and developmental disabilities who is autistic, non-verbal, and epileptic, sued his employer of 7.5 years for disability discrimination and has joined his employer’s client claiming it was an accessory to the discrimination. The claim is available here.
Denoewer pleaded he experienced disability discrimination at the hands of his employer, Uco, a 501(c)(3) non-profit that exists to employ individuals with disabilities in a setting that is purportedly integrated (essentially a sheltered workshop). He contends that Uco breached the ADA and Ohio Rev. Code through treating him less favourably than workers without disabilities. He is seeking compensation for an amount between his actual rate of pay, and pay-related benefits, and the amounts earned and accrued by workers performing tasks that Denoewer was not permitted to perform, even though he claims he could complete, due to his impairment.
The aspect of this case which is novel is the move to sue Uco’s customer, HONDA of America MFG., Inc., for being an accessory to Uco’s disability discrimination. Honda’s accessorial liability is based upon 2 key grounds:
First Honda exercised significant economic power so as to ensure that UCO’s labor costs were lower than were lawfully possible.
Second, Honda’s specific production demands also determined which of UCO’s Production Associates would be permitted to work on the line. As a result, in some instances, non-disabled individuals were placed on the line instead of individuals with disabilities, such as Denoewer, in order to meet Honda’s specific demands.
As a consequence Denoewer is arguing that Honda aided and abetted UCO’s discriminatory conduct.
Wednesday, December 13, 2017
Charlotte Garden (Seattle) has just posted on Take Care Blog that there were plenty of red flags at Judge Kozinski's confirmation hearings -- and that the Senate ignored them. She provides extensive excerpts from the Senate record, then concludes:
It is impossible not to read the Senate record on Kozinski’s time at the MSPB as a precursor to last week’s Post story and subsequent reports about his behavior. That is, disturbing reports about Judge Kozinski are not just an open secret – they are also a matter of congressional record.
With the benefit of hindsight, we should ask whether the Senate failed in executing its responsibility to assess nominees’ temperament to serve, thereby failing the clerks and other employees who have now come forward reporting abusive behavior. There is a lesson here: The Senate’s confirmation process should be attentive to warning signs about nominees’ managerial temperaments; if a nominee’s track record shows a pattern of abusive intra-office behavior, the Senate should not confirm.
Monday, December 11, 2017
The Supreme Court denied cert today in Evans v. Georgia Reg'l Hosp. (ScotusBlog page); Lambda Legal had filed a cert petition from the Eleventh Circuit's decision. The Eleventh Circuit had held that it was bound by prior circuit authority that Title VII did not prohibit sexual orientation discrimination, and the full court had denied rehearing en banc. There is something of a circuit split on the issue. The Seventh Circuit, en banc in Hively v. Ivy Tech, held that Title VII did prohibit sexual orientation discrimination, and the Second Circuit is considering the issue en banc right now (here's the audio of the argument).
It's hard to read too much into the denial--it's entirely possible that the Court didn't take the case because the respondent took no position on either the grant of cert or the Eleventh Circuit's opinion, arguing that it had never been served with process. It had not participated in the case below. The case file is a good preview of the stakes, though. The lineup of amici had 76 major companies and several states urging the Court to take cert. To read more, see this Daily Report posting by Marcia Coyle and the ScotusBlog posting by Amy Howe.
Friday, December 8, 2017
Stephanie Bornstein (Florida) has just posted to SSRN her article Equal Work (forthcoming Maryland L. Rev.), which discusses how existing law allows both racial and gender pay gaps to persist. Here's the abstract:
Most Americans have heard of the gender pay gap and the statistic that, today, women earn on average 80 cents to every dollar men earn. Far less discussed, there is an even greater racial pay gap. Black and Latino men average only 71 cents to the dollar of white men. Compounding these gaps is the “polluting” impact of status characteristics on pay: as women and racial minorities enter occupations formerly dominated by white men, the pay for those occupations goes down. Improvement in the gender pay gap has been stalled for nearly two decades; the racial pay gap is actually worse than it was 35 years ago. Both pay gaps exacerbate growing income inequality in the United States. While demographic differences contribute to pay disparities (in hours worked and childbearing time off for women and in education and experience levels for minority workers), economists now find that fully one-third to one-half of both pay gaps is caused by two other factors: occupational segregation—meaning the unequal distribution of women and racial minorities across job fields—and discrimination. To what extent are these factors due to stereotypes about the value of women and racial minorities’ work, and what, if anything, can antidiscrimination law do to respond?
Wednesday, November 29, 2017
In the flood of harassment news the last few weeks, one of the themes that has emerged is that the guys involved got away with bad behavior for a really long time. For at least some of them, the lecherous behavior was something of an open secret in their workplaces or communities. There are a number of reasons that this conduct went on for so long, but one that isn't being addressed as much is how the legal threshold for actionable harassment leaves room for so much bad conduct. This is why the fantastic editorial in the New York Times, Boss Grab your Breasts? That's Not (Legally) Harassment by Sandra Sperino (Cincinnati) and Suja Thomas (Illinois) is so important and timely.
Sandra and Suja trace the development of the severe or pervasive standard the Court adopted in Meritor Savings Bank v. Vinson, through the lower courts, noting the margins--what is clearly actionable and what is clearly inactionable--leave a large middle ground. In that middle ground, courts lean towards dismissal. This is just one more important way that Sandra and Suja are documenting how the legal rules governing discrimination claims have moved to systematically disadvantage workers.
Thursday, November 2, 2017
Melissa Hart (Colorado) sends word that the Berkeley Journal of Employment and Labor Law is calling for law review articles for a special symposium issue commemorating the 50th anniversary of the ADEA. The Symposium, titled "The Age Discrimination in Employment Act at 50: Silver Anniversary of Midlife Crisis?", will take place November 17th, 2017.
First drafts of papers should be submitted by March 15th, 2018. Once accepted, authors will have until August 10th, 2018 to submit a final draft. The Journal's editorial staff will then work with authors to edit the article throughout late summer and fall. BJELL's selection team will use the following criteria to select papers:
- Relevance to the ADEA or age discrimination generally
- Originality/novelty of claims, analysis, or argument
- Quality of analysis and thought
- Potential to be useful to practitioners, the development of academic dialogue, and/or policy advocacy
- Degree of completeness (papers should be roughly 10,000-20,000 words with strong footnote source support)
Tuesday, October 24, 2017
Congratulations and kudos to Suja Thomas (Illinois) and David Lopez (EEOC General Counsel) on their article published yesterday in the San Francisco Chronicle on the persistence of sexual harassment in the workplace. Here's an excerpt; the full article is at Why Judges Routinely Dismiss Sexual Harassment Cases:
The scandals involving Harvey Weinstein, Silicon Valley and Fox News have shone a spotlight on corporate tolerance of sexual harassment by executives. The U.S. Supreme Court recognized people could sue for such harassment more than 30 years ago. But at least 25 percent of women say that they are still harassed in the workplace. So, why does sexual harassment persist? A surprising part of the story lies with federal judges. Despite coverage under the law, when an employee alleges sexual harassment, a judge will likely dismiss the case.
Let’s look at the facts of some dismissed cases: co-workers and a supervisor engaged in conduct toward a female employee, such as making comments about the worker’s breasts, requesting to lick whipped cream and wine off of her, and rubbing her shoulder, arms and rear end; a supervisor asked a female worker to go to hotel room and spend the night with him, asked her for a sexual favor, constantly referred to her as “Babe,” and unzipped his pants and moved the zipper up and down in front of her; a supervisor told a worker she had been voted the sleekest posterior in the office and on another occasion deliberately touched her breasts with some papers he held in his hands.
In deciding whether to dismiss a case, a judge examines the paper records of the evidence — a written account of what the witnesses will say and relevant documents. Using this information, if the judge thinks a reasonable jury could not find for the employee, then the case is dismissed. When employers request dismissal of discrimination claims, including harassment claims, more than 70 percent are dismissed in whole or in part, according to a 2007 federal study.
This high dismissal rate should give us pause to consider whether judges are making the right decisions. Judges are not supposed to dismiss cases based on their own opinions of the evidence. But, their own opinions are all they have, and a judge’s opinion may differ from a jury’s.
Sunday, October 22, 2017
Congratulations to Minna Kotkin (Brooklyn) on her fine article in today's Washington Post on how confidentiality clauses in settlement agreements undermine the enforcement of Title VII's prohibition of sexual harassment. Here's an excerpt:
A secret about sexual harassment on the job is finally coming to light. It’s not that harassment is still rampant in some industries, recalling the worst of the “Mad Men” days. Or that networks of women quietly help to protect their co-workers from the worst offenders. The real secret is that our regulatory and judicial systems are complicit in protecting harassers from public exposure and opprobrium. Recent revelations about Bill O’Reilly, Roger Ailes and Harvey Weinstein show that they confidentially settled harassment claims in the millions of dollars over decades, using legal maneuvers to keep their conduct under the radar. How common is this?
Since 1986, when the Supreme Court first recognized that sexual harassment is a form of discrimination, employers and their attorneys have generally insisted that victims who receive financial settlements as a result of harassment allegations sign confidentiality agreements. In my three decades of research and litigation on harassment claims, corporate officials have always insisted that unless settlements are confidential, firms will be overwhelmed by a deluge of accusations, with every disgruntled employee looking for a payout.
A typical confidentiality clause prohibits the employee not only from revealing the amount paid to her but also from discussing the facts and allegations relating to the underlying events. Often, these clauses contain a “liquidated damages” provision: If the facts are revealed, the employee automatically owes the employer some astronomical sum. Liquidated damages generally include the amount paid in the settlement and sometimes much more, especially if the settlement amount was small. This keeps many victims of harassment from making their experiences known to others who might face the same dangers.
For the entire article, see How the Legal World Built a Wall of Silence Around Workplace Sexual Harassment.
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.