Wednesday, June 21, 2017
Sophie Mitra (Fordham Dep't Econ.) and Douglas Kruse (Rutgers - Management & Labor) have just published a significant new empirical study of the impact of disability on employment. The article is Are Workers with Disabilities More Likely to be Displaced?, and unfortunately their answer is "yes". The article is published at International Journal of Human Resource Management, Vol. 27(4), pp. 1550-1579, 2016; here's the abstract:
The literature on employment and disability has been relatively silent regarding the job loss experience of persons with disabilities. We document the gap in job displacement rates across disability status in the United States over the 2007–2013 period using data from the 2010, 2012 and 2014 Displaced Worker Supplements of the Current Population Survey. We find that men and women with disabilities are, respectively, 75 and 89% more likely to experience an involuntary job loss than men and women without disabilities in the United States over the 2007–2013 period, with gaps in displacement rates of eight and seven percentage points for men and women, respectively. A significant gap is found in most occupation-education subsamples. Using a logit decomposition, we find that differences in observable characteristics do not explain the gap in the job loss rate across disability status. Longitudinal tests following workers over a one-year period point to a causal effect of disability on the likelihood of displacement. While the disability gap may be due to unobservable characteristics, job mismatch and employer discrimination are also possible explanations, highlighting the potential importance of employer and public policies in improving the job security of workers with disabilities.
Wednesday, June 7, 2017
Friends of the blog Susan Bisom-Rapp (Thomas Jefferson) and Urwana Coiquaud (HEC Montreal) have posted their latest paper on SSRN. This comparative law collaboration, examining the actions of the state in undermining the standard employment relationship and increasing nonstandard work, is called The Role of the State towards the Grey Zone of Employment: Eyes on Canada and the United States. Here is the abstract:
In most countries, precarious working is on the rise and nonstandard forms of work are proliferating. What we call the “grey zone” of employment is generated by transformations at and with respect to work both in standard and nonstandard forms of working. Focusing on legal and policy regulation, and on the role of the state in the creation and perception of the grey zone, our contribution explains the way the government acts or fails to act, and the consequences of that activity or inactivity on the standard employment relationship. Examining and juxtaposing conditions in our two countries, Canada and the United States, our thesis is that the state plays a paradoxical role in the growth of nonstandard work and increasing precariousness. To assist the analysis, we construct a matrix for understanding the efforts or inertia on the part of the government. We conclude that there are seven ways in which to comprehend the role played by the government vis-à-vis the grey zone.
Susan and Urwana note that their analysis is both descriptive, in that it reveals the government’s complicity in the rise of employment insecurity, and normative, because it provides a mechanism for applauding or indicting the actions of the state in the face of changing work relations in the 21st century.
Tuesday, May 30, 2017
TaxProf Blog and Leiter Law School Reports have been covering the complaint by Columbia Law professor, George Fletcher. Very briefly, he alleges that Columbia discriminated against him based on his age by refusing to allow him to teach a required LLM course (Columbia cited poor evaluations), which among other things, might mean that he falls below the required number of teaching hours for the year. Among the other factors that threaten his teaching load is his desire to maintain his tradition of working a full semester in Israel and the fact that the elective course he was assigned to teach is at risk of being cancelled for low enrollment.
I obviously don't know what's really going on here, but I've got to say that the former Academic Affairs Dean in me sees several red flags about his teaching that makes me less inclined to be sympathetic to his claim. That's not to mention the fact that part of the problem is that he expects to be able to leave for half the year, every year.
Monday, May 29, 2017
Decades ago, the Supreme Court read Title VII's ban on employment discrimination because of “national origin” not to cover employment discrimination because of citizenship or immigration status. Espinoza v. Farah Mfg. Co., 414 U.S. 86 (1973). There, the Court relied on, among other things, the sparse legislative history, and that Congress had already required some federal employees to be citizens: “[W]e cannot conclude Congress would at once continue the practice of requiring citizenship as a condition of federal employment and, at the same time, prevent private employers from doing likewise.” Id. at 91.
In a newly-posted working paper (“Immigrant Workers and Workplace Discrimination: Overturning the Missed Opportunity of Title VII under Espinoza v. Farah”), Maria Ontiveros argues that Espinoza---by reading "national origin" in Title VII to only cover country-of-origin discrimination----got it wrong and should now be overruled. Here's the abstract:
This essay argues the Supreme Court decision Espinoza v. Farah Mfg. Co. should be overturned because of its incorrect definition of national origin discrimination under Title VII. The essay argues that Espinoza v. Farah's holding that discrimination based on citizenship status, immigration status or migrant status is not national origin discrimination under Title VII's disparate impact or disparate treatment theories is incorrect from both theoretical and doctrinal standpoints. To bolster its analysis, the essay presents a social and political history of discrimination against Latinos at the time of the decision, as well as the litigation strategy behind Espinoza to illustrate how discrimination based on citizenship status, migrant status and immigration status is discrimination based on national origin. It then shows how two lines of cases — Title VII discrimination cases brought by H1B guest workers on the basis of national origin discrimination and EEOC trafficking cases alleging discrimination based on national origin and/or sex — have begun to erode the analysis underlying Espinoza. It concludes with an argument, based on current Supreme Court standards, that Espinoza should be overturned.
The paper is forthcoming in the Berkeley Journal of Employment and Labor Law.
Monday, May 22, 2017
Caroline Mala Corbin (Miami) has just posted a new essay on SSRN that hits several of the workplace social issues sweet spots connected with LGBTQ rights and claims of conscience: A Free Speech Tale of Two County Clerk Refusals, forthcoming in the Ohio State Law Journal. Here's the abstract:
The ever-expanding Free Speech Clause has made possible claims that would have been unthinkable until recently. This symposium Essay examines the compelled speech claims of two hypothetical county clerks who believe that marriage should be limited to unions between one man and one woman, and who argue that forcing them to issue marriage licenses to gay and lesbian couples compels them speak in favor of same-sex marriage in violation of the Free Speech Clause.
When a government employee such as a county clerk speaks, she may not be speaking as just a private individual. She may also be speaking as the government. This governmental component affects each side of the speech versus equality analysis. First, the Free Speech Clause interests in speech are weaker (sometimes to the point of extinguishment) when the speech is not purely private. Second, to the extent the government employee’s conduct is the government’s, then it amounts to state action, and the Equal Protection Clause is triggered.
Part I addresses the free speech claims of a county clerk who is terminated after she informs a same-sex couple that by reason of her beliefs, she cannot grant them a marriage license. The outcome here is straightforward: she loses. Because her refusal will be treated as the government’s own, her individual free speech interests are at their lowest while the government’s equal protection interests are at their highest. Part II addresses the free speech claims of a clerk who has found a coworker willing to cover for her, but her supervisor declines to accommodate her and instead fires her for refusing to do her job. The analysis here is more complicated, as it raises questions about expressive conduct, official duties, and expressive harms.
I'm looking forward to reading this.
Sunday, May 21, 2017
Michael Green has been burning the midnight scholarship oil recently. He has posted two articles to SSRN in the last month: The Audacity of Protecting Racist Speech under the National Labor Relations Act, forthcoming 2017 U. Chicago Legal Forum, and Can NFL Players Obtain Judicial Review of Arbitration Decisions on the Merits When a Typical Hourly Union Worker Cannot Obtain This Unusual Court Access?, forthcoming NYU J. Legislation and Public Policy. He also has a forthcoming paper in SMU Law Review on Racial Prejudice in ADR in the Workplace (SSRN post coming soon). Congrats, Michael!
Christine Duffy (Senior Staff Attorney, ProBono Partnership, photo left) has provided this guest post on Blatt v. Cabela’s Retail, Inc.
Seventeen months after oral argument in Blatt v. Cabela’s Retail, Inc., No. 5:14-cv-04822-JFL (E.D. Pa., filed Aug. 15, 2014), Judge Joseph Leeson issued a six-page decision on whether a person suffering with gender dysphoria is covered by the ADA. Judge Leeson said “yes.” The opinion is at .
Judge Leeson agreed with the DOJ’s 11/16/15 Second Statement of Interest (SSOI), that the court should avoid the equal protection argument made by Blatt (and earlier by me in Chapter 16 of Gender Identity and Sexual Orientation Discrimination in the Workplace: A Practical Guide). Sachin Pandya [previously] discusse[d] the DOJ’s SSOI.
Wednesday, May 17, 2017
On Monday, the Supreme Court asked the Solicitor General to weigh in on the issue presented for cert. in Clark v. Virginia Department of State Police, 292 Va. 725 (2016): whether Congress can use its war powers to abrogate state sovereign immunity. This case involves a police officer who alleged that he was denied a promotion because of his service in the U.S. Army Reserves, in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA is the current version of earlier military employment protections originally enacted in 1940 and expanded and modified many times in the intervening years. Among other things, USERRA prohibits employment discrimination against individuals because of their military service and guarantees reemployment rights following such service (for those interested in family leave reform, USERRA provides an example of more robust protections, including periods of just cause protection and promotion rights).
In 1998, Congress enacted an amendment to USERRA expressly permitting private rights of action against state employers in state court. This was an understandable reaction to the Supreme Court's 1996 Seminole Tribe of Florida v. Florida decision, where it held that Congress' attempt to abrogate states' 11th Amendment sovereign immunity against private rights of action for monetary remedies was invalid. It was largely assumed at the time that because the 11th Amendment only spoke of federal jurisdiction state courts could still be used, but the Court in Alden v. Maine (1999) later gave states immunity in their own courts, explaining that state sovereign immunity was part of the Constitution's design and not limited to the text of the 11th Amendment. USERRA's amendment, therefore, was then called into question and resulted in several court rulings finding it unconstitutional. These rulings, in my opinion, are wrong.
I wrote directly about this issue in Can Congress Use its War Powers to Protect Military Employees from State Sovereign Immunity?, 34 Seton Hall L. Rev. 999 (2004). In the article, which also provides an overview of USERRA and a now-dated survey of state-law military employment protections, I argue that Supreme Court precedent allows for USERRA's abrogation of state sovereign immunity. The very brief version of my argument is that courts have misread some admittedly loose language by the Supreme Court suggesting that Congress can never use Article I to abrogate state sovereign immunity. By delving into the history of state sovereign immunity and the federal war powers under the plan of the Constitution, I argued that not only can Congress use its war powers to abrogate, but the case is particularly strong in this area, despite being under Article I. This argument was subsequently validated in part by Central Virginia Community College v. Katz (2006), in which the Court held that states "agreed in the plan of the Convention not to assert any sovereign immunity defense they might have had in proceedings brought pursuant to 'Laws on the subject of Bankruptcies.'” My argument, very simply, is that if Congress can use its bankruptcy power to abrogate then surely it can use its war powers as well.
By asking for the Solicitor General's views in Clark, it appears that some Justices agree that the issue is not as straightforward as the Virginia Supreme Court in Clark, and other courts, have suggested. This is an important issue. We have sent many military personnel into active duty across the world over the last several years and have numerous others who are members of the Reserves or National Guard. Many of these military individuals are employed by states that do not allow private military employment discrimination actions for monetary damages (the police officer in Clark is a typical example). Hopefully, the Court will grant cert. and clarify this issue.
Saturday, May 13, 2017
Job applicants with criminal records are much less likely than others to obtain legitimate employment, a problem that recent legislation, including Ban the Box, has attempted to address. The success of any remedial strategy depends on why hiring firms impose a hiring penalty and whether their concerns are founded on an accurate view of how ex-offenders behave on the job if hired. Little empirical evidence now exists to answer these questions. This paper attempts to fill this gap by examining firm-level hiring practices and worker-level performance outcomes. Our data indicate that the typical employee with a criminal record has a psychological profile different from other employees, with fewer characteristics that are associated with good job performance outcomes. Despite these differences, individuals with criminal records have an involuntary separation rate that is no higher than that of other employees and a voluntary separation rate that is much lower. Employees with a criminal record do have a slightly higher overall rate of discharge for misconduct than do employees without a record, although we find increased misconduct only for sales positions. We also find that firms that do not use information about criminal backgrounds seem to compensate by placing more weight on qualifications that are correlated with a criminal record, such as low educational attainment.
Thursday, May 11, 2017
Matthew Knepper (U.S. Bureau of Economic Analysis) has just posted on SSRN his article (forthcoming J. Labor Econ.) When the Shadow Is the Substance: Judge Gender and the Outcomes of Workplace Sex Discrimination Cases. Here's the abstract of this important article, which quite literally takes research on implicit bias to a completely different level:
The number of workplace sex discrimination charges filed with the Equal Employment Opportunity Commission (EEOC) approaches 25,000 annually. Do the subsequent judicial proceedings suffer from a discriminatory gender bias? Exploiting random assignment of federal district court judges to civil cases, I find that female plaintiffs filing workplace sex discrimination claims are substantially more likely to settle and win compensation whenever a female judge is assigned to the case. Additionally, female judges are 15 percentage points less likely than male judges to grant motions filed by defendants, which suggests that final negotiations are shaped by the emergence of the bias.
Monday, May 8, 2017
Congratulations to Sandra Sperino (Cincinnati) and Suja Thomas (Illinois) on the publication of their new book Unequal: How America’s Courts Undermine Discrimination Law (Oxford Univ. Press May 2017). Here's a description of this critical and timely book:
It is no secret that since the 1980s, American workers have lost power vis-à-vis employers. Along with the well-chronicled steep decline in private sector unionization, American workers alleging employment discrimination have fared increasingly poorly in the courts. In recent years, judges have dismissed scores of cases in which workers presented evidence that supervisors referred to them using racial or gender slurs. In one federal district court, judges dismissed more than 80 percent of the race discrimination cases filed over a year. And when juries return verdicts in favor of employees, judges often second guess those verdicts, finding ways to nullify the jury's verdict and rule in favor of the employer.
Most Americans assume that that an employee alleging workplace discrimination faces the same legal system as other litigants. After all, we do not usually think that legal rules vary depending upon the type of claim brought. As the employment law scholars Sandra A. Sperino and Suja A. Thomas show in Unequal, though, our assumptions are wrong. Over the course of the last half century, employment discrimination claims have come to operate in a fundamentally different legal system than other claims. It is in many respects a parallel universe, one in which the legal system systematically favors employers over employees. A host of procedural, evidentiary, and substantive mechanisms serve as barriers for employees, making it extremely difficult for them to access the courts. Moreover, these mechanisms make it fairly easy for judges to dismiss a case prior to trial. Americans are unaware of how the system operates partly because they think that race and gender discrimination are in the process of fading away. But such discrimination remains fairly common in the workplace, and workers now have little recourse to fight it legally. By tracing the modern history of employment discrimination, Sperino and Thomas provide an authoritative account of how our legal system evolved into an institution that is inherently biased against workers making rights claims.
Monday, April 24, 2017
Deborah Widiss (Indiana) has a new paper on SSRN (forthcoming in the UC Davis Law review): The Interaction of the Pregnancy Discrimination Act and the Americans with Disabilities Act after Young v. UPS. From the abstract:
Pregnant women sometimes ask employers for accommodations – such as being able to sit on a stool or avoid heavy lifting – to permit them to work safely and productively. In 2015, in Young v. United Parcel Service, the Supreme Court held that the Pregnancy Discrimination Act (PDA) requires courts to scrutinize carefully denial of such requests. The facts in Young arose prior to the effective date of the ADA Amendments Act of 2008 (ADAAA); accordingly, the Court did not address how the ADAAA, which expanded the range of health conditions that qualify as disabilities, affects claims for accommodations under the PDA. This Article fills that gap, updating analysis from an earlier article I wrote on this subject to incorporate the Court’s holding in Young and to discuss how lower courts are applying Young.
The PDA mandates that pregnant employees be treated “the same” as other employees “similar in their ability or inability to work.” Young established that employees who receive accommodations pursuant to the ADA or workers’ compensation laws may be used as comparators in PDA analysis, rejecting lower court decisions to the contrary. The Court stated that evidence that an employer routinely accommodates other health conditions but refuses to provide support for pregnancy is strong circumstantial evidence of discriminatory bias.
The ADAAA magnifies the importance of this holding; it also largely resolves the Young Court’s concern that the PDA not be interpreted to confer a “‘most-favored-nation’ status” on pregnant employees. Under the ADAAA and its implementing regulations, employers must provide reasonable accommodations for impairments that substantially limit an individual’s ability to lift, bend, walk, or stand, even on a temporary basis. Thus workplace accommodations for health conditions that cause limitations like those caused by pregnancy should now be commonplace (and many conditions associated with pregnancy may qualify as disabilities themselves). Robust enforcement of the PDA’s “same treatment” mandate does not create a danger that pregnant employees will be treated better than other employees; rather, it helps ensure that pregnant employees are not consistently treated less well than other employees.
This is a great follow-up to Deborah's earlier work, and looks to be a good read.
Tuesday, April 18, 2017
As a follow-up to last week's post on Perry v. MSPB, Howard Wasserman (FIU) has analyzed the oral arguments in that case over at ScotusBlog and PrawfsBlawg. As a bonus (apart from the merits of the MSPB case) he also discusses Justice Gorsuch's participation in the argument. Howard suspects that Justice Gorsuch may be dissenting solo on this one.
Monday, April 17, 2017
Although the decision is marked unpublished, the majority opinion is a detailed signed one by Judge Wilkinson, with Judge Motz concurring. And, there is a partial dissent by Judge Diaz protesting dismissal of plaintiff's sexual harassment claim. The Court affirmed a summary judgment for the employer notwithstanding what appears to be a genuine, plausible and material factual dispute about some fairly gross sexual harassment of the plaintiff. I do not understand why the decision is not a published one. In light of Judge Diaz' partial dissent, I would not be surprised to see a petition for rehearing en banc.
Thanks for sending this, Jon.
Tuesday, April 11, 2017
In 2012, in Kloeckner v. Solis, the court appeared to resolve the question of the appropriate forum for federal civil-service employees appealing decisions of the Merit Systems Protection Board in “mixed cases” (cases alleging an adverse employment action that also violated a federal anti-discrimination statute), holding that those decisions must be challenged in federal district court. But in Perry v. Merit Systems Protection Board, to be argued April 17, the court returns to the issue to decide whether, as the U.S. Court of Appeals for the District of Columbia Circuit held, the answer is different when the MSPB rejects the employee’s claim for lack of jurisdiction because the adverse employment action is not appealable, rather than on the merits or on some procedural ground.
Sunday, April 9, 2017
One of the advantages of being around a discipline for a long time is the irony of seeing once “extreme” arguments become accepted. In the first edition of our Employment Discrimination casebook in 1982, we made the (obvious) argument that discrimination on the basis of sexual orientation was sex discrimination because an employee, say, male, was being adversely treated for actions (sex with a male) that would draw no objection were the employee female.
Fast forward to 2017, and that’s now the law of the land, at least in the Seventh Circuit thanks to Hively v. Ivy Tech Community College of Indiana. And that simple switch-the-sexes comparison was one of the two prongs of the majority opinion (the other being transference to the gender context of Loving v. Virginia’s holding that discrimination on the basis of the race of one’s partner is race discrimination).
While the prevailing side in Hively garnered two other opinions adding additional routes to the same result (including a radical attack on the whole concept of original public meaning in statutory interpretation by Judge Posner), I was most taken with the simple logic of the majority’s “comparative” approach, i.e., if we switch the sexes and the result is not the same, it’s sex discrimination.
Why did it take more than 35 years for this logic to prevail? More to the point, why was that argument viewed as naïve, hopelessly technical for most of Title VII’s history? The obvious answer is that, to quote Holmes, the life of the law is not logic, it’s experience, and even those favoring LGBT rights may have found the straightforward logic too sterile and rarified in a system that favors more nuance in statutory interpretation.
But there’s another perspective from the law’s encounter with logic in this arena that may be of some interest. Judge Sykes, writing for three judges, dissented, largely drawing from “original public meaning” theory. In a passage that captures the essence of his objection, he wrote:
Is it even remotely plausible that in 1964, when Title VII was adopted, a reasonable person competent in the English language would have understood that a law banning employment discrimination "because of sex" also banned discrimination because of sexual orientation? The answer is no, of course not.
I do understand, and agree, that if that question were asked of proponents of Title VII in 1964, they would have said no. So in that sense, the original public meaning of “sex” doesn’t reach sexual orientation.
But how does that analysis fit with the logical argument made by the majority? Are we assuming that the “person competent in the English language” is “reasonable” but not logical? That he or she is incapable of working out the implications of statutory language beyond the most intuitive meaning of the words? Another way to ask the question is whether the reasonable person is presumed to competent in English but not competent in simple logic.
I don’t know if there are good answers to these questions, but I do think they raise even more problems for original public meaning advocates, problems thrust into national attention by Hively.
Tuesday, April 4, 2017
As I told my employment discrimination students last Thursday when we talked about sexual orientation and gender identity issues under Title VII, things are moving very fast in the courts on these issues. The Seventh Circuit, en banc, ruled today in Hively v. Ivy Tech, that sexual orientation discrimination was sex discrimination under Title VII. There were two concurrences, one by Judge Flaum and the other by Judge Posner, and a dissent by Judge Sykes.
I'm still digesting the opinion, but the court relied primarily on the two grounds advanced by the plaintiff--but for her sex, her affectional preferences would not have resulted in an adverse employment action, and that adverse employment actions taken because of the protected class of those the employee associates with or is romantically involved with, here sex, violate Title VII. The latter kind of associational claim has long been recognized for race. The court additionally drew support from the observation of the Supreme Court in Oncale that statutes often go beyond the principal evil they were primarily intended to address and the scenario in Price Waterhouse v. Hopkins, where but for the plaintiff's sex, her behavior would have been applauded. There is more to the analysis, including discussion of Romer v. Evans and the same sex marriage cases.
This en banc decision follows a panel decision issued last summer in which the court had agreed with much of the same reasoning but rejected Hively's claim because the panel felt bound by prior precedent to do so. The Eleventh Circuit recently issued a similar decision in Evans v. Georgia Reg'l Hosp., although it did not analyze the issue in the same depth as the Seventh Circuit had. And a panel at the Second Circuit, in Christiansen v. Omnicom Group, Inc., just allowed a gay plaintiff's claim to proceed on a gender stereotyping theory even though it could not reconsider the court’s earlier decision holding that sexual orientation discrimination claims were not cognizable under Title VII. In that case, as Joe noted when the decision came out, Judge Katzmann wrote a concurrence urging the Circuit to find that sexual orientation discrimination violated Title VII.
This marks the first Circuit Court to agree with at least some of the EEOC's arguments on this issue. And given the speed with which these cases are being decided, it seems fairly certain to be headed to the Supreme Court.
Friday, March 10, 2017
Last week's The Economist ran a couple of stories on how "gender budgeting" can help persuade governments to pay more than lip service to women's rights. Below is an excerpt from the summary Making Women Count; an extended-play version is Tax is a Feminist Issue: Why National Budgets Need to Take Gender into Account.
... [S]ome policymakers have embraced a technique called gender budgeting. It not only promises to do a lot of good for women, but carries a lesson for advocates of any cause: the way to a government’s heart is through its pocket.
At its simplest, gender budgeting sets out to quantify how policies affect women and men differently. That seemingly trivial step converts exhortation about treating women fairly into the coin of government: costs and benefits, and investments and returns. You don’t have to be a feminist to recognise, as Austria did, that the numbers show how lowering income tax on second earners will encourage women to join the labour force, boosting growth and tax revenues. Or that cuts to programmes designed to reduce domestic violence would be a false economy, because they would cost so much in medical treatment and lost workdays.
Partly because South Korea invested little in social care, women had to choose between having children, which lowers labour-force participation, or remaining childless, which reduces the country’s fertility rate. Gender budgeting showed how, with an ageing population, the country gained from spending on care. Rwanda found that investment in clean water not only curbed disease but also freed up girls, who used to fetch the stuff, to go to school. Ample research confirms that leaving half a country’s people behind is bad for growth. Violence against women; failing to educate girls properly; unequal pay and access to jobs: all take an economic toll.
Wednesday, March 1, 2017
While a number of concerns have been raised about the on-demand economy, evidence of discrimination has been especially noted and publically condemned. Airbnb, for instance, came under fire when a Harvard Business School study showed that property owners were less likely to accept those with black-sounding names as renters and non-black hosts were able to charge approximately 12% more than black hosts. Similarly, in an October 2016 working paper conducted by the National Bureau of Economic Research, researchers looking at taxi-services Uber and Lyft showed that the cancellation rate for those with black-sounding names was more than twice as high as for those with white-sounding names. At the same time, largely in other parts of the country, many condemn not discrimination but the antidiscrimination laws designed to curb it, especially laws aimed at shielding those within the LGBTQ community from discrimination. Debates about discriminatory immigration policies dominate national headlines. 70% of the country is aware of the Black Lives Matter movement. We are, in short, in the midst of an important conversation about discrimination, the likes of which we have not seen since the Civil Rights Movement. Legal theorists and philosophers have taken note, arguing for changes to our current antidiscrimination law regime. But while these theorists have disagreed about the proper scope of antidiscrimination law, they have widely agreed in one crucial respect: namely, that any expansion of antidiscrimination law beyond their preferred scope is problematic on autonomy grounds.
The centrality of “autonomy” in these debates should come as no surprise. Throughout our history of racial conflict, all sides have claimed the ideal of autonomy as an ally to their cause. This is possible because of the concept’s flexibility. “Autonomy” can support a range of positions, depending on the presuppositions it’s packaged with. But when scholars invoke “autonomy” in a way that simply deploys these underlying presuppositions, instead of making these presuppositions explicit, situating them against reasonable rivals, and defending them, they fail to have what scholars at this point in time most crucially need: perspective. These scholars seem to neither notice nor understand why those who take different positions on questions of autonomy, or on specific legal interventions, do so, because the real bases of disagreement – which resides within these presuppositions – remain hidden. As a result, their rejection of certain antidiscrimination law regimes and support of others do little to move the debate about the proper scope of antidiscrimination law forward. Antidiscrimination law scholars are trapped in an ongoing cycle of autonomy assertions and as a result, the important debate about the proper scope of antidiscrimination law remains stalled. We cannot afford this.
My aim in this Essay is one of illumination and aid. I attempt to show why the mere assertion that a certain antidiscrimination law “violates autonomy” hides from view the true basis of disagreement and, in so doing, both fails to engage the relevant arguments while also failing to provide readers any reason to adopt the author’s preferred antidiscrimination law regime. I will do this by illuminating the presuppositions underpinning the two main conceptions of autonomy that are invoked in the antidiscrimination law literature. I then situate these presuppositions alongside rival possibilities. My hope is that this project will aid the development of more fruitful antidiscrimination law scholarship moving forward.
Heather has said that she would love to hear any comments on the essay that readers may have, so check it out.
Tuesday, February 21, 2017
My colleague Dallan Flake (ONU) has just posted on SSRN his article When Should Employers Be Liable for Factoring Biased Customer Feedback into Employment Decisions? Here's the abstract:
In today’s customer-centric business environment, firms seek feedback from consumers seemingly at every turn. Firms factor such feedback into a host of decisions, including employment-related decisions such as whom to hire, promote, and fire; how much to pay employees; and what tasks to assign them. Increasingly, researchers are discovering that customer feedback is biased against certain populations, such as women and racial minorities. Sometimes customers explicitly declare their biases, but more often their prejudices are harder to detect — either because they intentionally hide their biases in their ratings or because the customers do not realize their implicit biases have skewed their perceptions, and consequently their ratings, of service exchanges.
When firms rely on tainted customer feedback to make employment decisions, they indirectly discriminate against employees. Although the law makes clear that employers cannot discriminate against employees based on customers’ discriminatory preferences, it has yet to address whether and to what extent employers are liable for factoring biased customer feedback into employment decisions. I argue that employers should not get a free pass to discriminate simply because it is the customers rather than themselves who bear the discriminatory animus; but nor should employers be liable in every instance where customer feedback is shown to be biased.
To strike an appropriate balance, employers should be held to a negligence standard whereby their liability for using tainted feedback depends on whether they knew or reasonably should have known the data was compromised and if so, whether they acted reasonably in response by taking appropriate preventive or corrective measures. A major advantage of this framework is that it works in both the easy and the hard cases by tying employer liability to the ease with which customer bias can be detected. If bias is explicit, the law would hold employers to a heightened duty in terms of both knowledge and response, whereas if bias is implicit, and thus harder to detect, employers would be held to a lower standard.