Wednesday, November 26, 2014
Over a week ago, the President extended “deferred-action” status to millions of people who faced deportation for residing in the US in violation of federal immigration law. (He then defended his legal authority to do so.) Around the same time, in Juarez v. Northwestern Mutual Life Insurance Co., No. 14-cv-5107 (S.D.N.Y., filed July 9, 2014), US District Judge Katherine Forrest ruled that 42 U.S.C. § 1981 protects people with “deferred-action” immigration status from employer alienage discrimination.
In federal immigration law, extending “deferred action” status to someone is an exercise of administrative discretion to temporarily defer his or her removal for being unlawfully present in the US. Deferred action status doesn’t confer any legal right to remain in the US—it just signals the decision to temporarily delay that person’s deportation. Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 484 (1999).
But, someone with deferred-action status can get from the Department of Homeland Security the authorization to be employed in the US. See 8 CFR § 274a.12(c)(14) (authorizing grant of a work permit to “[a]n alien who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment”). Such work authorization can be terminated or revoked at any time because of, among other things, a pre-set expiration date, or for good cause. See 8 CFR § 274a.14(a)-(b).
With such a work permit, a person with deferred-action status is no longer an “unauthorized alien” that employers must not knowingly employ, see 8 USC § 1324a(a), because an “unauthorized alien” can’t be someone who is “authorized to be so employed by this chapter or by the Attorney General,” 8 USC § 1324a(h)(3). The work permit itself, however, doesn’t change a person’s immigration status with respect to their eligibility to be admitted into the US. See Guevara v. Holder, 649 F.3d 1086, 1092 (9th Cir. 2011) (“There is no language in the statute or regulations that suggests aliens, not previously admitted, become ‘admitted,’ when they are granted employment authorization under 8 C.F.R. § 274a.12(c).”).
Employer Alienage Discrimination
What ifemployers refuse to hire or otherwise discriminate against a person because of his or her deferred-action immigration status? Discrimination based on a person’s citizenship status is called alienage discrimination. Title VII of the Civil Rights Act of 1964 does not expressly prohibit alienage discrimination. 42 U.S.C. § 2000e-2(a)-(c). Federal immigration law does prohibit alienage discrimination, 8 U.S.C. § 1324b(a)(1)(B), but only for US citizens, lawful permanent residents, refugees, and asylum grantees, see 8 U.S.C. § 1324b(a)(3). Even with a work permit, a person with deferred-action status falls outside that class of protected individuals. See Letter from Seema Nanda, Deputy Special Counsel, US Department of Justice, to David Burton, General Counsel, National Small Business Administration, dated Sep. 10, 2012.
Enter section 1981: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens . . . .” 42 U.S.C. § 1981(a) (emphasis added). Originally enacted by the Reconstruction Congress after the Civil War as part of the Civil Rights of 1870, section 1981 today expressly extends to “impairment by nongovernmental discrimination,” 42 U.S.C. § 1981(c), and has been read to prohibit alienage discrimination by employers, see Anderson v. Conboy, 156 F.3d 167 (2d Cir. 1998); Duane v. GEICO, 37 F.3d 1036 (4th 1994). However, an employer does not violate section 1981 by knowingly refusing to hire someone who is an “unauthorized alien” under 8 U.S.C. § 1324a(a) (for example, a deferred-action recipient without a work permit). In such a case, “that employer is discriminating on the basis not of alienage but of noncompliance with federal law.” Anderson, 156 F.3d at 180.
In Juarez v. Northwestern Mutual Life Insurance Co., Juarez alleged the following: He was a Mexican national living in New York. In 2012, he obtained deferred-action status, and then, as that status allows, he got a federal work permit and a Social Security number. During a job interview with Northwestern Mutual, Juarez was asked whether he was a US citizen or a legal permanent resident. He explained that he had deferred-action status. Northwestern Mutual refused to hire him, because it had a policy of refusing to hire anyone who is neither a US citizen nor a permanent resident.
Juarez sued, alleging alienage discrimination in violation of 42 USC 1981. On its motion to dismiss, Northwestern Mutual argued that Juarez had no section 1981 claim: Since its policy permitted employment of a US legal permanent resident as well as a US citizen, Northwestern Mutual refused to hire Juarez because he lacked a green card, not because he lacked US citizenship.
On November 14, 2014, District Judge Katherine Forrest denied the motion to dismiss. Judge Forrest concluded that section 1981 extends “to all lawfully present aliens, whether or not they have a green card.” An employer can’t escape section 1981 liability for discriminating against a member of a protected class simply by showing that it did not discriminate against every member of that class. And here, since the employer’s alleged policy discriminated on its face against “lawfully present aliens without green cards—a protected subclass,” Juarez had stated a claim under section 1981 by alleging that Northwestern Mutual had rejected him pursuant to that policy. For further support, Judge Forrest also discussed precedent interpreting the Equal Protection Clause to invalidate State laws because they discriminated against certain subclasses of lawfully-present aliens.
Hat tip: Jon Bauer
Tuesday, November 25, 2014
Richard Ford (Stanford) has just posted on SSRN his article (forthcoming Stanford L. Rev. 2014) Bias in the Air: Rethinking Employment Discrimination Law. Here's the abstract:
Employment discrimination jurisprudence assumes that key concepts such as “discrimination,” “intent,” “causation,” and the various prohibited grounds of discrimination refer to discrete and objectively verifiable phenomena or facts. I argue that all of these concepts are not just poorly or ambiguously defined; most are not capable of precise definition. Drawing on familiar developments in private law, such as the legal realist critique of objective causation in torts, I argue that, in practice, the central concepts in antidiscrimination law do not describe objective phenomena or facts at all; instead, they refer to social conflicts between employer prerogatives and egalitarian goals. Ironically, at its best, employment discrimination law does not really prohibit discrimination; instead it imposes a duty of care on employers to avoid decisions that undermine social equality. This suggests that attempts to improve employment discrimination law by making it more attentive to “the facts” — for instance, refining causation in mixed-motives cases using quantitative empirical methods or defining discriminatory intent according to innovations in social psychology—are unlikely to be successful, because these facts are not really at the center of the dispute. Instead, we could better improve employment discrimination law — making it more successful as an egalitarian intervention and less intrusive on legitimate employer prerogatives — if we abandoned attempts to precisely define concepts such as “objective causation” and “discriminatory intent” and instead focused on refining the employer’s duty of care to avoid antiegalitarian employment decisions.
Thanks to Phil Sparkes for sending us a note about this gem. From yesterday's Atlanta Journal-Constitution:
Atlanta Fire Chief Kelvin Cochran has been suspended without pay for one month because of authoring a religious book in which he describes homosexuality as a “sexual perversion” akin to bestiality and pederasty.
Mayor Kasim Reed’s spokeswoman Anne Torres said the administration didn’t know about “Who Told You That You Are Naked?” until employees came forward with complaints last week. In addition to suspending Cochran, Reed’s office has now opened an investigation to determine whether the chief’s actions violated the city policies or discriminated against employees.
Cochran has been ordered to undergo sensitivity training and has been barred from distributing copies of the book on city property after a number of firefighters said they received them in the workplace.
Reed said he was “deeply disturbed” by the sentiments Cochran expressed in his book and will “not tolerate discrimination of any kind” in his administration.
Wednesday, November 19, 2014
Stephanie Greene and Christine Neylon O'Brien (both Boston College - Mgmt.) have just posted on SSRN their article (forthcoming 119 Penn St. L. Rev.) Judicial Review of the EEOC's Duty to Conciliate. Here's the abstract:
Fifty years after the enactment of Title VII of the Civil Rights Act of 1964, the federal courts remain unsettled on a variety of issues involving the Equal Employment Opportunity Commission’s pre-suit obligations. Courts currently disagree on: whether the EEOC’s conciliation efforts are subject to judicial review; what the standard of judicial review should be; what the remedy should be if a court finds the EEOC failed to fulfill its pre-suit obligations; and whether the EEOC may bring suit on behalf of unidentified individuals under Section 706. In EEOC v. Mach Mining, LLC, the Court of Appeals for the Seventh Circuit was the first circuit court of appeals to hold that conciliation efforts are a matter of agency discretion and are not subject to judicial review. Other courts have reviewed the conciliation process and have required that the EEOC demonstrate at least good faith efforts to conciliate. On June 30, 2014, the Supreme Court granted Mach Mining’s petition for certiorari and a decision is expected in the upcoming term. The Court’s decision will resolve some of the differences between the circuits and may indicate how courts should resolve related issues. This article maintains that the Supreme Court should affirm the Seventh Circuit’s decision. Supreme Court precedent emphasizes that the EEOC’s efforts should be focused on resolving the merits of discrimination claims and supports the conclusion that judicial review should be denied because it results in delays and distractions from Title VII’s objectives. If the Court decides that judicial review of the conciliation process is required, the EEOC will face a new landscape that will disturb Title VII’s mandate that the conciliation process be informal, confidential, and a matter of agency discretion.
Monday, October 6, 2014
The Southeastern Association of Law Schools holds its annual meeting every summer at the end of July/beginning of August, and planning for next year's programming has started. For the past several years, a workshop for labor and employment law has taken place over several of the days. Michael Green (Texas A & M) is helping to organize the workshop for next summer. If you are interested in participating, feel free to get in touch with him: firstname.lastname@example.org. Some suggestions already made include panels or discussion groups on whistleblowing, joint employer issues, termination for off-duty conduct (including recent NFL scandals), disability and UPS v. Young, and a junior scholars workshop.
One additional piece of programming already proposed is a discussion group on attractiveness issues in Employment Discrimination cases. Wendy Greene is helping to organize it, so get in touch with her if you are interested in participating on that topic.
And regardless of whether you get in touch with Michael or Wendy, you should think about proposing programming for the annual meeting if you are at all interested and regardless of the topic. The meeting is surprisingly (because of the lovely environs) substantive, and the environment is very relaxed and is designed to be egalitarian. Here are the details:
The SEALS website www.sealslawschools.org is accepting proposals for panels or discussion groups for the 2015 meeting which will be held at the Boca Raton Resort & Club http://www.bocaresort.com/ Boca Raton, Florida, from July 27 to Aug. 2. You can submit a proposal at any time. However, proposals submitted prior to October 31st are more likely to be accepted.
This document explains how to navigate SEALS, explains the kinds of programs usually offered, and lays out the rules for composition of the different kinds of programming: Download Navigating submission. The most important things the Executive Director emphasizes are these: First, SEALS strives to be both open and democratic. As a result, any faculty member at a SEALS member or affiliate school is free to submit a proposal for a panel or discussion group. In other words, there are no "section chairs" or "insiders" who control the submissions in particular subject areas. If you wish to do a program on a particular topic, just organize your panelists or discussion group members and submit it through the SEALS website. There are a few restrictions on the composition of panels (e.g., panels must include a sufficient number of faculty from member schools, and all panels and discussion groups should strive for inclusivity). Second, there are no "age" or "seniority" restrictions on organizers. As a result, newer faculty are also free to submit proposals. Third, if you wish to submit a proposal, but don't know how to reach others who may have an interest in participating in that topic, let Russ Weaver know and he will try to connect you with other scholars in your area.
October 6, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty News, Faculty Presentations, International & Comparative L.E.L., Labor Law, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching, Wage & Hour, Workplace Trends | Permalink | Comments (0) | TrackBack (0)
Thursday, October 2, 2014
The Supreme Court granted cert in a number of cases today as a result of its long conference, including EEOC v. Abercrombie & Fitch. The cert question is this:
Whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer's actual knowledge resulted from direct, explicit notice from the applicant or employee.
The district court had denied A & F's motion for summary judgment and granted the EEOC's, holding that, as a matter of law, A & F had failed to reasonably accommodate the religious practices of an applicant for employment. The Tenth Circuit reversed, remanding and ordering the district court to enter summary judgment for A & F. The applicant, a young Muslim woman, wore a hijab, a head covering, and although the store manager recommended she be hired, a district manager decided that because she wore the hijab, she should not. He determined that the hijab would not comply with the company's "Look Policy."
The Tenth Circuit held that summary judgment for A & F was proper because the applicant "never informed Abercrombie prior to its hiring decision that she wore her headscarf or 'hijab' for religious reasons and that she needed an accommodation for that practice, due to a conflict between the practice and Abercrombie’s clothing policy." Interestingly, the store manager assumed that the applicant wore her hijab for religious reasons and never raised the issue during the interview. She also did not suggest that there might be a conflict between that practice and the "Look Policy," which the applicant otherwise could easily comply with.
The Court also granted cert in another case that might have implications for employment discrimination. The question in Texas Dep't of Housing and Community Affairs v. The Inclusiveness Project is whether disparate impact claims are cognizable under the Fair Housing Act. The Fifth Circuit did not consider that question in the case. Instead, it followed its prior precedent that they were cognizable, and held that the legal standard to be used should be the regulations adopted by the Department of Housing and Urban Development.
So, overall, this term is shaping up to be another blockbuster for employment and labor. Here is a roundup.
Cases that directly deal with employment and labor questions:
- Department of Homeland Security v. MacLean, a whistleblower/retaliation case
- Integrity Staffing Solutions, Inc. v. Busk, whether time spent in security screenings is compensable under the FLSA as amended by the Portal to Portal Act.
- M&G Polymers v. Tackett, a case about presumptions related to interpretation of CBAs on retiree health benefits under the LMRA.
- Mach Mining v. EEOC, whether and to what extent the courts can enforce the EEOC's duty to conciliate before filing suit.
- Tibble v. Edison, Int'l, an ERISA case involving the duty of prudence and the limitations period for bringing claims.
- Young v. UPS, whether light duty accommodations only for on-the-job injuries violates Title VII as amended by the Pregnancy Discrimination Act.
And there is one additional case that might have implications for religious accommodations in the workplace. Holt v. Hobbs, which concerns whether a department of corrections policy that prohibits beards violates the Religious Land Use and Institutionalized Persons Act insofar as it prohibits a man from growing a one-half-inch beard in accordance with his religious beliefs.
October 2, 2014 in Beltway Developments, Employment Discrimination, Labor and Employment News, Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Wage & Hour, Worklife Issues | Permalink | Comments (0) | TrackBack (0)
Monday, September 29, 2014
Thanks to Matthew Fletcher (Michigan State) for forwarding a link to his Turtle Talk post about EEOC v. Peabody Western Coal Co. (9th Cir. 9-26-14), holding that tribal preferences (as opposed to Indian preferences generally) are not national-origin classifications prohibited by Title VII. Here's the syllabus:
The panel affirmed the district court’s summary judgment against the Equal Employment Opportunity Commission with respect to its claim that Title VII of the Civil Rights Act of 1964 prohibited the tribal hiring preference contained in Peabody Western Coal Co. leases with the Navajo Nation.
The panel held that the Navajo hiring preference in the leases was a political classification, rather than a classification based on national origin, and therefore did not violate Title VII. The panel concluded that the district court correctly granted summary judgment to defendants Peabody Western Coal Company and Navajo Nation, and third-party defendant Secretary of the Interior....
Friday, September 26, 2014
Must a court read Ricci v. DeStefano, 557 U.S. 557 (2009), to apply to Title VII challenges to affirmative action plans? That’s part of the fight in Shea v. Kerry, a case—now on appeal before the D.C. Circuit (No. 13-5153)—involving a Title VII challenge to the US State Department Foreign Service’s Mid-Level Affirmative Action Plan. (The briefs are in. Oral argument hasn’t yet been scheduled.)
In Ricci itself, the (mostly white) plaintiffs hadn’t challenged an affirmative action plan. Rather, they’d argued that their employer—the City of New Haven— had violated Title VII, section 703(a), by refusing to certify the results of promotion tests. Their employer argued that it had feared that, given the race disparity in those test results, certifying them would subject it to Title VII disparate-impact liability. In ruling that the plaintiffs deserved summary judgment, the Ricci Court described its holding this way: “We hold only that, under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.”
In Shea, the plaintiff is now represented by lawyers from the Pacific Legal Foundation (PLF). They read Ricci to have overruled United Steelworkers of America v. Weber, 443 U.S. 193 (1979), and Johnson v. Transportation Agency, 480 U.S. 616 (1987)—the Supreme Court precedent on when Title VII permits employers making training, promotion, or other employment decisions to consider race or sex pursuant to valid affirmative action plans---and to place the burden on the State Department to justify its affirmative action plan under Ricci’s strong-basis-in-evidence standard. For support, they point to, among other things, Justice Ginsburg’s dissent in Ricci, and their conclusion that “[n]early all scholarship on Ricci's applicability” supports their reading (citing, as examples, Corrada (2011) and Harris & West-Faulcon (2010)).
In response, the State Department’s lawyers read Ricci to apply only “after an employer invalidates the selection that resulted from a ‘fair opportunity process.’” Ricci doesn’t apply, they argue, because the State Department neither invalidated the results of “an established testing process” nor made any “mid-stream change” to the mid-level placement criteria. Affirmative action plans—including the State Department’s plan—are “governed by Johnson and Weber,” not Ricci, because in adopting such plans, “the employer acts ex ante and ‘in the light of past discrimination,’ and ‘establishes hiring or promotion procedures designed to promote equal opportunity and eradicate future discrimination.’”
Among other replies, Shea’s lawyers criticize this view as “not useful”: Ricci “could just as easily be described as a forward-looking (ex ante) case. The City of New Haven threw out the test results in order to avoid a future disparate impact.” Besides, Ricci’s strong-basis-in-evidence standard “applies irrespective of whether an employer is ‘avoiding or remedying’ illegal conduct . . . ‘avoiding’ would be forward-looking (ex ante) and ‘remedying’ would be backward looking (ex post). Ricci applies to both.”
Which reading of Ricci will prevail? Which reading should prevail? Which reading(s) of Ricci did both sides miss? (Discuss!) In theory, lower courts aren’t supposed to treat US Supreme Court precedents (here, Weber and Johnson) as implicitly overruled (for discussion, see Shannon 2009). Accordingly, Shea’s PLF lawyers have also asked that if the DC Circuit feels bound to apply Johnson and Weber, that court should “invite” the US Supreme Court to review Johnson and Weber and to “clarify its decision in Ricci.”
Thursday, September 11, 2014
Solon Barocas and Andrew D. Selbst have posted "Big Data's Disparate Impact," which focues on the relationship between big data mining and Title VII. Here's the abstract:
Big Data promises to replace faulty intuitions with facts, granting employers, advertisers, manufacturers, and scientists access to richer, more informed, and less biased decisionmaking processes. But where data mining is used to aid decisions, it has the potential to reproduce existing patterns of discrimination, inherit the prejudice of prior decisionmakers, or simply reflect the widespread biases that persist in society. Sorting and selecting for the best or most profitable candidates means generating a model with winners and losers. If data miners are not careful, that sorting can create disproportionately adverse results concentrated within historically disadvantaged groups in ways that look a lot like discrimination.
This Article examines the operation of anti-discrimination law in the realm of data mining and the resulting implications for the law itself. First, the Article steps through the technical process of mining data and points to different places where a disproportionately adverse impact on protected classes may result from what may seem like innocent choices on the part of the data miner. Decisions such as how to transform a problem into one that a computer can solve, how much data to collect and where to collect it, and how to label examples of "good" and "bad" outcomes, are all decisions that can render data mining more or less discriminatory. Alternatively, in a hypothetical case of perfectly executed data mining, enough information will be revealed so as to accurately sort according to pre-existing inequities in society. A disparate impact resulting from this second option would merely reflect an unequal distribution of the sought-after traits in the world as it stands as of the time of data collection.
From there, the Article analyzes the disproportionate impacts due both to errors and reflections of the status quo under Title VII. The Article concludes both that Title VII is largely ill equipped to address the discrimination that results from data mining. It further finds that, due to problems in the internal logic of data mining as well as political and constitutional constraints, there is no clear way to reform Title VII to fix these inadequacies. The article focuses on Title VII because it is the most well developed anti-discrimination doctrine, but the conclusions apply more broadly as they are based on our society’s overall approach to anti-discrimination.
A related working paper by Sarocas, "Data Mining and the Discourse of Discrimination," is available here.
Monday, August 25, 2014
Susan Bisom-Rapp (Thomas Jefferson) and Malcolm Sargeant (University of Middlesex Business School) have posted on SSRN the page proofs for their article, It’s Complicated: Age, Gender, and Lifetime Discrimination Against Working Women – The United States and the U.K. as Examples, forthcoming at 22 Elder L.J. 1 (2014). From the abstract:
This article considers the effect on women of a lifetime of discrimination using material from both the U.S. and the U.K. Government reports in both countries make clear that women workers suffer from multiple disadvantages during their working lives, which result in significantly poorer outcomes in old age when compared to men. Indeed, the numbers are stark. In the U.S., for example, the poverty rate of women 65 years old and up is nearly double that of their male counterparts. Older women of color are especially disadvantaged. The situation in the U.K. is comparable.
To capture the phenomenon, the article develops a model of Lifetime Disadvantage, which considers the major factors that on average produce unequal outcomes for working women at the end of their careers. One set of factors falls under the heading “Gender-based factors.” This category concerns phenomena directly connected to social or psychological aspects of gender, such as gender stereotyping and women’s traditionally greater roles in family caring activities. A second set of factors is titled “Incremental disadvantage factors.” While these factors are connected to gender, that connection is less overt, and the disadvantage they produce increases incrementally over time. The role of law and policy, in ameliorating or exacerbating women’s disadvantages, is considered in conjunction with each factor, revealing considerable incoherence and regulatory gaps. Notably, the U.K.’s more protective legal stance toward women in comparison with the U.S. fails to change outcomes appreciably for women in that country.
An effective, comprehensive regulatory framework could help compensate for these disadvantages, which accumulate over a lifetime. Using the examples of the U.S. and the U.K., however, the article demonstrates that regulatory schemes created by “disjointed incrementalism” – in other words, policies that tinker along the margins without considering women’s full life course – are unlikely to vanquish systemic inequality on the scale of gender-based lifetime discrimination.
Tuesday, August 5, 2014
Are unpaid interns protected by American employment law? The latest chapters in this ongoing story come to us from Wisconsin and New York.
In a July 22 decision, Masri v. State of Wisconsin Labor and Industry Review Commission, the Wisconsin Supreme Court ruled that it was reasonable for Wisconsin’s Labor and Industry Review Commission to conclude that uncompensated interns are not entitled to the anti-retaliation protections of that State’s health care worker protection statute. The plaintiff was a doctoral student who worked as an unpaid intern at a medical college and, she alleged, was fired for reporting “clinical/ethical concerns.” The statute bans certain health care employers from taking “disciplinary action against . . . any person” who in good faith reports violations of state or federal law, and further defines “disciplinary action” as "any action taken with respect to an employee," but does not define the term “employee.” The Court discussed the text of the statute and related provisions, their purpose, and public policy arguments raised by both sides. The Court’s upshot: The statute applies only to employees, and “the ordinary meaning of ‘employee’ is someone who works for compensation or tangible benefits.”
Meanwhile, also on July 22, New York’s Governor signed into law a bill that amends New York’s employment-discrimination statute to expressly cover unpaid interns. Back in October 2013, a federal district court, in Wang v. Phoenix Satellite Television, Inc., No. 13 Civ. 218 (S.D.N.Y. Oct. 3, 2013), had dismissed an unpaid intern’s sexual harassment claim under that statute. That claim required her to be an “employee.” Although she had argued that, though unpaid, she was still an “employee” under the statute. The district judge concluded, however, that remuneration was a necessary condition for an employment relationship.
The newly-amended New York statute—now in effect—defines a new category of worker—an “intern”—and then separately declares “unlawful employment practices” with respect to interns that parallel the “unlawful employment practices” already identified by the statute. This drafting strategy slightly differs from Oregon’s law, Or. Stat. § 659A.350. Passed last year, Oregon’s law similarly defines “intern” but provides that an intern “is considered to be in an employment relationship with an employer for the purposes of the employee protections provided under” certain specified employment protections in Oregon’s code.
Friday, August 1, 2014
Brad Areheart (Tennessee) and Michael Stein (William & Mary) have posted a new article on SSRN: The Disability/Employability Divide: Bottlenecks to Equal Opportunity, forthcoming in the Michigan Law Review. From the abstract:
Joseph Fishkin’s new book, Bottlenecks, reinvigorates the concept of equal opportunity by simultaneously engaging with its complications and attempting to simplify its ambitions. Fishkin describes bottlenecks as narrow spaces in the opportunity structure through which people must pass if they hope to reach a range of opportunities on the other side. A significant component of the American opportunity structure that is largely unexplored by Bottlenecks relates to people with disabilities. This review applies Fishkin’s theory to explore how disability law and its regulations create and perpetuate bottlenecks that keep people with disabilities from a greater degree of human flourishing. In particular, the opportunity structure of disability policy features a conceptual employability/disability divide that ultimately prevents people with disabilities from passing into a wider array of opportunities. Fishkin’s book, in concert with this review, prompts new and inventive ways of reimagining and implementing structural solutions to these bottlenecks.
Looks like a good read.
Monday, July 21, 2014
Illinois is the latest State to enact “ban the box” legislation, i.e., legislation that restricts when an employer can ask a job applicant about his or her criminal history. (The “box” is the one on a job application to answer the question “Have you ever been convicted of a crime?”) Twelve States now have such legislation on the books, as will over sixty counties and cities.
The Illinois legislation—which takes effect next year—provides that, absent certain exceptions, an employer “may not inquire about or into, consider, or require disclosure of the criminal record or criminal history of an applicant until the applicant has been determined qualified for the position” and the employer either has told the applicant that it has selected her for an interview or has made her a conditional offer of employment. The Illinois Department of Labor is the enforcer here—there’s no provision in the bill for a private right of action.
Meanwhile, the District of Columbia’s city council has also passed a “ban the box” bill and sent it to the mayor for his signature. That bill prohibits employers from asking about, or asking a job applicant to reveal, "any arrest or criminal accusation made against the applicant, which is not then pending against the applicant and or which did not result in a conviction." Employers can ask about criminal convictions but only after making a conditional offer of employment. Like the Illinois legislation, the D.C. bill makes the D.C. Office of Human Rights the exclusive enforcer here—there’s no private right action.
Among its other features, the D.C. bill provides that if the employer extends a conditional offer, checks the applicant’s criminal history, and then rescinds that offer, and if the applicant believes that the employer did that “on the basis of a criminal conviction,” the applicant can, upon request, get from the employer, within thirty days, “a copy of “any and all records procured by the employer in consideration of the applicant or employee, including criminal records.” In June, the bill had also required that employer to give the applicant a written “statement of denial” that identified the employer’s “legitimate business reason” for its action. Failing to provide that statement would have triggered a rebuttable presumption that the employer had no “legitimate business reason” for its action. The D.C. Chamber of Commerce opposed this provision, and in mid-July, the bill was amended to remove it.
Since 2012, the EEOC has opined that, under some circumstances, employer use of a job applicant’s criminal history may violate Title VII of the Civil Rights Act. For an entry point into the research on how much a job applicant’s criminal history matters, see, for example, Devah Pager, Bruce Western, and Naomi Sugie, “Sequencing Disadvantage: Barriers to Employment Facing Young Black and White Men with Criminal Records,” Annals of the American Academy of Political and Social Sciences 623 (May 2009): 195-213.
The next puzzle on the horizon: Figuring out how and how much these “ban the box” statutes actually affect employer hiring.
Hat tip: R. Michael Fischl
Thursday, July 17, 2014
Although hiring discrimination by employers is infrequently litigated, audit studies—using fictional resumes—continue to show that it persists. A recent contribution to this literature focuses on religious affiliation: Michael Wallace, Bradley R.E. Wright, and Allen Hyde, “Religious Affiliation and Hiring Discrimination in the American South: A Field Experiment,” Social Currents 1(2) (2014): 189-207 (here). Here’s the abstract:
This article describes a field experiment in which we sent fictitious résumés to advertised job openings throughout the American South. We randomly altered the résumés to indicate affiliation in one of seven religious groups or a control group. We found that applicants who expressed a religious identity were 26 percent less likely to receive a response from employers. In general, Muslims, pagans, and atheists suffered the highest levels of discriminatory treatment from employers, a fictitious religious group and Catholics experienced moderate levels, evangelical Christians encountered little, and Jews received no discernible discrimination. We also found evidence suggesting the possibility that Jews received preferential treatment over other religious groups in employer responses. The results fit best with models of religious discrimination rooted in secularization theory and cultural distaste theory. We briefly discuss what our findings suggest for a more robust theory of prejudice and discrimination in society.
For a companion study, see Bradley R.E. Wright et al., “Religious Affiliation and Hiring Discrimination in New England: A Field Experiment,” Research in Social Stratification and Mobility 34 (Dec. 2013): 111-126.
Wednesday, July 16, 2014
In the most recent issue of The New Yorker, Louis Menand has this essay on how “sex” got added to the list of protected characteristics in Title VII of the Civil Rights Act of 1964. The standard story: The “sex” amendment was an unsuccessful attempt to defeat the entire bill—a failed poison pill. In contrast, Menand emphasizes how that amendment was partly the result of vigorous efforts by women activists—in particular, Alice Paul of the National Women’s Party—and some female House representatives, especially Michigan Democrat Martha Griffiths.
Menand is openly borrowing here from scholars, including Carl Brauer, “Women Activists, Southern Conservatives, and the Prohibition of Sex Discrimination in Title VII of the 1964 Civil Rights Act, “ Journal of Southern History 49(1) (1983): 37-56, and Jo Freeman, We Will Be Heard: Women’s Struggles for Political Power in the United States (Rowan & Littlefield, 2008) (chapter 12). On the origins and durability of the “failed poison pill” story, see Rachel Osterman, “Origins of a Myth: Why Courts, Scholars, and the Public Think Title VII’s Ban on Sex Discrimination Was an Accident,” Yale Journal of Law and Feminism 20 (2009): 409-440. In the courts, a fleeting recent reference to this literature appears in Nelson v. James H. Knight DDS, 834 N.W.2d 64, 74 n.8 (Iowa 2013) (Cady, J., concurring specially).
Thursday, July 3, 2014
Post-Hobby Lobby, Court Says Religious Non-Profit Need Not Notify Insurer that It Objects to Coverage
The Court has taken a number of actions already since issuing its decision in Hobby Lobby that suggest future directions on the issue in that case. First, the Court acted on six cert. petitions. As Lyle Denniston notes on ScotusBlog, the court remanded three cases to the courts of appeal, and denied cert in three. All six cases involved employers who objected to coverage for all forms of contraception, as well as sterilization for women, and pregnancy counselling. In the three won by employers, the Court denied cert. In the three won by the government, the Court ordered the courts of appeal to reconsider in light of the Hobby Lobby decision.
And today, the Court issued an additional order. In Wheaton College v. Burwell, the Court granted an injunction to this religious educational institution against enforcement of the women's preventive care provisions objected to, absolving the College from filling out the government's form and delivering notice to its insurer. The government's brief in opposition is here.
Particularly notable was a dissent by Justice Sotomayor, joined by Justices Ginsburg and Kagan. In it, the three justices note that the Court had indicated in Hobby Lobby that the accommodation which required an employer to notify its insurer that it objected to certain coverage was less restrictive, implying that it would satisfy RFRA. As Justice Sotomoayor noted,
After expressly relying on the availability of thereligious-nonprofit accommodation to hold that the contraceptive coverage requirement violates RFRA as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might . . . , retreats from that position. That action evinces disregard for even the newest of this Court’s precedents and undermines confidence in this institution.
The whole dissent is worth a read.
Wednesday, July 2, 2014
Last week, the California Supreme Court decided Salas v. Sierra Chemical. In Salas, that Court declared that the Immigration Reform and Control Act of 1986 (IRCA) preempted California employment law remedies to a limited extent. It also concluded that the doctrines of after-acquired-evidence and unclean-hands do not preclude liability, but do restrict otherwise available remedies, under the California Fair Employment and Housing Act (FEHA). Here, I’ll describe the opinion. Later, I’ll offer some guesses on how Salas will affect employment litigation.
The facts: In 2007, plaintiff Vicente Salas sued his former employer, Sierra Chemical, under FEHA. He alleged that (1) when employed there, Sierra had failed to reasonably accommodate his disability—multiple back injuries suffered when he had previously worked for Sierra—and (2) after a layoff, Sierra had not rehired Salas because he was disabled and to retaliate for his filing of a workers compensation claim. After the trial date was set, in one of his motions in limine, Salas stated that he would testify at trial and assert his Fifth Amendment privilege against self-incrimination if asked about his immigration status. And he asked for permission to “assert the privilege outside the jury’s presence and that the court and counsel not comment at trial on his assertion of the privilege.”
Thereafter, Sierra sought summary judgment on the ground that Salas had used another man’s Social Security number and card to get his past job with Sierra. This misconduct, Sierra argued, defeated FEHA liability, because of the after-acquired-evidence and unclean hands doctrines. In support, Sierra submitted a North Carolina man’s declaration that it was his Social Security number that Salas had submitted when he had applied for a job with Sierra. Sierra’s president also declared that Sierra had “a long-standing policy” of not hiring people that federal law would not let work in the US and of immediately firing any employee discovered to have provided false information or documents to establish work eligibility in the US. In opposing the motion, Salas submitted, among other things, his declaration that Sierra’s production manager, “after learning that several employees had supplied incorrect Social Security numbers, assured them they would not be terminated as long as the company’s president was satisfied with their work.” The trial court ultimately granted summary judgment, and the California Court of Appeals affirmed.
The California Supreme Court reversed and remanded. First, the Court considered a federal preemption challenge to California Senate Bill No. 1818 (SB 1818). Enacted in 2002 in the wake of Hoffman Plastics, SB 1818 added, among other provisions, this one: “All protections, rights and remedies available under state law . . . are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state.” Cal. Gov't Code § 7285(a) (emphasis added).
The Salas Court found conflict preemption on the ground that it was “impossible” for an employer to comply with SB 1818 and IRCA, albeit only to the extent that SB 1818 allows for an award for lost wages for any time after the employer knew of the employee’s unauthorized immigration status (the “post-discovery” period). Under IRCA, once an employer “know[s]” that its employee is an “unauthorized alien”—ineligible to work in the US—that employer may not “continue to employ” that employee. 8 U.S.C. § 1324a(a)(2); 8 C.F.R. § 274a.3. That prohibition, the Salas Court reasoned, “directly conflicts” with “any state law award that compensates an unauthorized alien worker for loss of employment during the post-discovery period . . . . Such an award would impose liability on the employer for not performing an act (continuing to employ a worker known to be an unauthorized alien) expressly prohibited by federal law.”
In contrast, the Court concluded, federal immigration law does not prohibit an employer from paying an employee wages for employment “wrongfully obtained by false documents, so long as the employer remains unaware of the employee’s unauthorized status.” Accordingly, to the extent SB 1818 “allow[s] lost wages” for the pre-discovery period---the time the employer did not yet know of the employee’s unauthorized status— it is “not impossible” to comply with immigration law and SB 1818.
Moreover, the Salas Court rejected conflict-preemption on the ground that allowing lost wages for the pre-discovery period would unduly frustrate IRCA’s purposes. SB 1818 at best only “minimal[ly]” encourages unauthorized aliens to seek a job in the US or use false documents to get a job. “[T]he typical unauthorized alien wage earner is not familiar with the state law remedies available for unlawful termination and . . . job seekers rarely contemplate being terminated in violation of the law.” And even if they did, they would know that by pursuing such State law remedies, “they would risk discovery of their unauthorized status,” and with that, prosecution and deportation. If undocumented workers could not recover even pre-discovery lost wages, the Salas Court reasoned, employers in effect would enjoy immunity when they illegally discriminate, retaliate, or commit illegal wage-and-hour practices against undocumented workers, thereby undermining IRCA’s goal of “eliminating employers’ economic incentives to hire such workers.” (In a separate “concurring and dissenting” opinion, Justice Baxter disagreed with this ruling, relying on Hoffman Plastics to conclude that if Salas is an unauthorized alien, IRCA preempts any State law award to compensate him for the loss of employment.)
Second, the Court declared that the after-acquired-evidence defense from McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995), “applies with equal force to” FEHA claims. McKennon was a lawsuit under the federal Age Discrimination in Employment Act (ADEA) for an illegal firing. The defendant-employer discovered---during a deposition—that the plaintiff had stolen confidential company documents while she was on the job. The US Supreme Court held that this misconduct did not defeat her ADEA claim, but that Court also read the ADEA to require taking “due account of the lawful prerogatives of the employer in the usual course of its business and the corresponding equities that it has arising from the employee’s wrongdoing.” Accordingly, it declared, if the defendant-employer proves that the plaintiff-employee’s misconduct was so severe that “the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge,” then the plaintiff cannot get certain remedies in its ADEA suit: reinstatement and front pay, as well as any back pay otherwise owed for the time after the employer in fact discovered the employee’s misconduct. The trial judge could then further adjust the back pay award based on “extraordinary equitable circumstances that affect the legitimate interests of either party.”
However incomplete and incoherent its reasoning, many appellate courts have read McKennon into other employment discrimination statutes. In Salas, the California Supreme Court joined this herd by reading McKennon’s defense into FEHA. This, in turn, required a remand. The McKennon defense demands that Sierra show that, had it rehired Salas, it would have subsequently fired him once Sierra learned that “his name did not match the Social Security number he had provided.” This was a triable issue of fact, the Court concluded, because some evidence suggested that Sierra “deliberately chose to look the other way when put on notice of [other] employees’ unauthorized status,” and thus would have likely done the same for Salas.
Similarly, the Court concluded that although unclean hands doctrine was not a “complete defense” to Salas’s FEHA claims, “equitable considerations may guide the court in fashioning relief in cases involving a legislatively expressed public policy.” In support, the Court referred to cases applying equitable principles “to reduce ordinary tort damages imposed for violation of antidiscrimination laws.” It did not explain how, if at all, these equitable considerations differ from the McKennon defense.
Coming up next—four guesses about the world after Salas.
Tuesday, July 1, 2014
The analyses here of yesterday's decisions, Jeff's in Harris v. Quinn and Charlie's in Burwell v. Hobby Lobby were spot-on and highlighted many of the legal implications of the cases going forward. There were some interesting facets that they did not discuss that I would like to think through a bit more.
One of the things that struck me about both decisions is their effect on women and particularly women of color. The workforce at issue in Harris is primarily female and heavily women of color. Similarly, lack of contraceptive access affects women most directly, and has larger impacts on women of color. Nearly half of the pregnancies in this country are unintended (a higher rate than other developed nations), and result in a large number of abortions and poorer health and economic, workplace-related consequences for the women who choose to continue their pregnancies and the children they deliver. The rates of unintended pregnancies among African American and Hispanic women are significantly higher than for white women because of lack of access to low cost, highly reliable contraception. And the health risks of pregnancy are significantly greater for women of color -- African American women are four times more likely to die in childbirth than are white women. Easy access (financially and logistically), reduces these effects significantly.
Unionization has been good, in general, for the home health care workers in Illinois. These are workers not covered by safety net statutes like the Fair Labor Standards Act and the Occupational Safety and Health Act, nor are most covered by anti-discrimination statutes like Title VII. They are not covered by the National Labor Relations Act, either, which is one reason that these workers have had little luck bargaining for better wages or working conditions. These workers who were allowed to organize in Illinois and to bargain with the state have seen their wages increase significantly, nearly tripling for some (from as low as $3.35 to now over $11 and set to reach $13 by the end of the year). They also have health insurance and other workplace benefits. The result has been good for the majority of those women, although the named plaintiff, a woman who cared for her own son at home, perceived the deduction from her paycheck as a reduction in medicaid benefits for her son. Overall, most people who need in home care, like the elderly -- who again, are disproportionately women, although white women, based on aggregate life expectancy data -- and people with disabilities, also benefitted by being able to retain workers long-term who can be reliable (able to rely on this as their primary income and not look for other or better paying work) and better trained. Those people who need care could remain in their homes and not have to live in institutional settings.
To the extent that the gender pay gap and the racial pay gap (and the racialized gender pay gap) are driven by horizontal labor force segregation, organization seemed the most promising force for change. The decision in Harris seems to minimize the effects of that progress. To the extent that these pay gaps are driven by either horizontal or vertical workplace segregation that results from pregnancy and caregiving responsibilities, or by the higher cost of health care for one sex, easy access to contraception seems a way to reduce those indirect and direct effects. The decision in Hobby Lobby seems to threaten that. If insurers do not continue to agree to absorb the costs of contraceptives, who will? And finally, aside from the effects on individuals (workers, those who need home health care, and the families of both), to the extent that these pay gaps lead to wealth disparities, health outcomes disparities, and an inability to live independently, the states face greater expenses in supporting those who need help.
The Court's opinion in Hobby Lobby contained some additional food for thought on the interaction of RFRA and other federal laws. The Court stated in the early part of its opinion that the decision was confined in a number of ways, including that it was confined to the contraceptive mandate of the ACA. But the logic of the opinion and the language in the bulk of it has few bounds. As Justice Ginsburg's dissent pointed out, the logic of the opinion would allow any corporation, regardless of it's organization or corporate purposes, to challenge any federal law of general applicability, including, for example, Title VII. While the majority explained that Title VII's prohibition on racial discrimination in hiring was the least restrictive means to ensure equal opportunity in employment on the basis of race, the court left its analysis at that. Title VII also prohibits classifying and segregating employees in any way that would tend to deprive them of opportunities based on race. Is that narrowly tailored enough? Is the way that language has been interpreted to include disparate impact narrowly tailored enough?
Moreover, what about the other classes protected by Title VII? Sex is notably absent from that language. Is the Court anticipating the Title VII action brought by Hobby Lobby's female employees or the EEOC itself challenging a lack of access to contraception as sex discrimination? Such a suit could be a ways off if insurers will go along with the accommodation worked out for nonprofit religious entities and religious organizations in this context. However the process to take advantage of that opt-out is also currently being challenged. And based on the Court's decision, the Eleventh Circuit has suggested that it thinks that process will definitely fail. Yesterday, just hours after the Court's decision, the Eleventh Circuit granted the Eternal Word Television Network an injunction against complying with the opt-out because signing or indicating to an insurer or the government in any way that the Network would refuse to comply with the mandate would trigger that coverage to be provided in another way, thus facilitating the Network's employees in possibly engaging in acts the Network finds immoral--including having sex for any reason other than for procreation. Judge Pryor's concurrence quoted the majority's language at length, stating that it was clear the requirement would violate RFRA. It is no real stretch to extend that to for-profit corporations as well.
Moreover, what of the burgeoning case law on sex as including gender identity and sexual orientation at least when what is at issue is gender nonconforming behavior by the employee? Is that cut off at the knees for any company asserting that it finds gender nonconformity immoral for religious reasons?
These are just some preliminary thoughts of the additional effects of the two cases--and I didn't even get into the government efficiency, corporate law, corporate personhood, or issues of religion also running through the one or the other decisions I'd love to hear thoughts on any of this in the comments or follow-up posts.
Monday, June 16, 2014
Talk has been swirling for months that, while ENDA stalls in Congress, the President would sign an executive order barring LGBT discrimination for federal contractors. Today, the White House announced that he will sign the order. No word on when it will occur.
One interesting aspect of this is that the majority of the biggest federal contractors already ban such discrimination. Of course, the order is important for workers of the other contractors. It also has major symbolic significance and, hopefully, is a step towards ENDA's passage. It seems inevitable that it will pass at some point, but unclear how long it will take.
Hat Tip: Patrick Kavanagh
Thursday, June 12, 2014
Just a friendly reminder from conference organizers, Melissa Hart and Scott Moss at the University of Colorado Law School, that the deadline to register to attend, and/or present a paper at, the 9th Annual Labor and Employment Scholars Colloquium is Friday, August 1, 2014. The Colloquium is scheduled in Boulder between September 11-13, 2014.
You can register and submit a paper proposal at this link:
June 12, 2014 in About This Blog, Arbitration, Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty Presentations, International & Comparative L.E.L., Labor Law, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0) | TrackBack (0)