Wednesday, September 21, 2016
Congratulations to our friend Susan Bisom-Rapp (Thomas Jefferson) whose book (with Malcolm Sargeant, Middlesex Univ., London), Lifetime Disadvantage, Discrimination and the Gendered Work Force is available to pre-order from Cambridge University Press. It will be out September 30. From the press release:
In many countries, including the United States, women are significantly more likely to fall into poverty in retirement than are men. Understanding why this is so and what can be done about it is the aim of this new book.
"Susan Bisom-Rapp's scholarship tackles some of the most pressing real world challenges facing the modern workplace," said Thomas Jefferson School of Law Dean and President Thomas F. Guernsey. "I am delighted about the publication of her latest book."
Beginning in girlhood and ending in advanced age, "Lifetime Disadvantage, Discrimination and the Gendered Workforce" examines each stage of the lifecycle and considers how law attempts to address the problems that inhibit women's labor force participation. Using their model of lifetime disadvantage, Professor Bisom-Rapp and her British co-author Malcolm Sargeant show how the law adopts a piecemeal and disjointed approach to resolving challenges with adverse effects that cumulate over time.
"The problem unfolds over the working lives of women," said Bisom-Rapp. "Women's experiences with education, stereotyping, characteristics other than gender like race and age, caregiving, glass ceilings, occupational segregation, pay inequality, part-time work, and career breaks over a lifetime make it difficult to amass the resources necessary for a dignified retirement."
In order to achieve true gender equality, Bisom-Rapp and her co-author recommend a more holistic approach. Employing the concept of resiliency from vulnerability theory, the authors advocate changes to workplace law and policy, which acknowledge yet transcend gender, improving conditions for women as well as men.
"One must know the end goal – decent work and dignified retirement – and monitor progress towards it in order effectively address the problem," noted Bisom-Rapp.
The book is the culmination of nearly a decade of collaboration between Professor Bisom-Rapp and Professor Sargeant, who teaches at Middlesex University Business School in London. Beginning with a project that examined the plight of older workers during the global economic crisis, they have been struck by differences in workplace law and protections in their respective countries; the United Kingdom is far more protective.
Equally noticeable, however, are similarities in outcomes, including women's economic disadvantages in retirement. By examining why more protective law in one country coexists with comparable outcomes to the other country, the book reveals lessons for understanding a problem that is global in nature. At a time in which an aging population makes a retirement crisis a distinct possibility, and employment has become increasingly insecure, they recommend a regulatory approach that would enhance work life and retirement for all.
Susan and Malcolm have published a few articles related to these topics in the last few years in the Employee Rights Employment Policy Journal, the Elder Law Journal, and the Loyola University Chicago Law Journal. I can't wait to read more of their work.
September 21, 2016 in Books, Employment Common Law, Employment Discrimination, International & Comparative L.E.L., Labor Law, Pension and Benefits, Scholarship, Wage & Hour, Worklife Issues | Permalink | Comments (0)
Friday, September 16, 2016
Congratulations to friend of the blog, Wendy Greene (Samford) whose article, Title VII: What’s Hair (and Other Race-Based Characteristics) Got to Do With It? was cited today by the Eleventh Circuit in EEOC v.Catastrophe Management Solutions. Wendy's article was cited for its discussion of the socially constructed nature of race.
Wendy describes the case:
In this case, CMS, an insurance processing company in Mobile, Alabama, rescinded an African American woman’s job offer to handle phone calls related to customer service support because she refused to cut off her locked hairstyle. Essentially, the employer made "no locks" a condition of employment for the applicant, though she was deemed qualified, interviewed and was offered the job with the hairstyle. And, apparently CMS’ human resources manager considered her hair well-groomed at the time of hire, yet remarked that the applicant’s locks might eventually become “messy.” The HR manager told the applicant she would be unable to hire her if she did not cut off her hair; the applicant refused do so, returned her initial paperwork as requested, and left the premises. The Birmingham office of the EEOC filed a Title VII intentional race discrimination case against CMS. In doing so, the EEOC attempted to overturn over 30 years of legal precedent affirming the legality of natural hairstyle bans (except those involving afros). Largely drawing upon legal scholarship of U.S. employment discrimination and race and law scholars, one of the EEOC's primary arguments centered around the immutability doctrine; the EEOC advanced that a biological notion of race, which treats race as an “immutable” characteristic, should no longer be employed when interpreting Title VII’s prohibitions against race discrimination. Rather, the notion of race should be expanded to include both immutable and mutable characteristics. Thus, a grooming policy prohibiting natural hairstyles, like locks, braids, twists, etc., which are associated with African descendants—in law and society—constitutes unlawful race discrimination.
Ultimately, the 11th Circuit declined to abolish the immutability doctrine in EEOC v. Catastrophe Management Solutions and held that CMS’ “no locks” mandate did not violate Title VII, as the EEOC would be unable to produce evidence that all individuals who adorn locks are Black or that only individuals who adorn locks are Black. Though the court did not rule in the EEOC’s favor, it did engage in a fairly lengthy dialogue about the meaning of race and competing arguments of notable race and law scholars. Aside from the exploration of race, this opinion may be of interest to proceduralists and those interested in the application of the Supreme Court’s decision in Young v. UPS, the (purported) demarcation between disparate treatment and disparate impact theories of liability, and statutory interpretation more generally.
The opinion relied very heavily on legal scholarship for its analysis. In addition to citing Wendy, the opinion cites Ian Haney Lopez, Camille Gear Rich, Sharona Hoffman, Barbara Flagg, Richard Ford, Annelise Riles, Kenji Yoshino, Juan Perea, and Rhonda Magee Andrews in its discussion of what race is. Ultimately the court relied on what it believed Congress thought race was in 1964--a set of immutable physical characteristics--and its prior precedent. But the court's analysis went a bit further, too, considering the legal scholarship. The opinion expressed some concern about including cultural or behavioral practices as part of the identity protected by Title VII because those practices might vary by individual and change over time. The court was very uncomfortable with the idea that courts would have to decide what was an "authentic" part of a racial group's culture and what was not. Despite the court's reluctance to agree with many of the scholars it cited, the fact that the opinion considers this work so carefully is heartening.
Thursday, September 15, 2016
The ex-dean of UC-Berkeley’s law school has accused the university of racial bias in its aggressive response to sexual harassment allegations once they were aired publicly.
In a federal lawsuit filed Thursday in Oakland, lawyers for Sujit Choudhry argue that Berkeley has a long history of letting sexual harassment slide when white professors were involved. By contrast, the university has made Choudhry a “pariah” on campus, the suit alleges.
“By targeting Professor Choudhry, who is of South Asian descent and a non-U.S. citizen, the university hopes to deflect attention from its failure to meaningfully punish Caucasian faculty and administrators who were found to have committed appalling sexual misconduct,” the complaint says.
Friday, September 9, 2016
Terry Smith (DePaul) has a thoughtful piece at Huffington Post on the dissonance between the sexual harassment claims of some of the women and Fox News and their commentary in the past about discrimination against white men and race more broadly. As he notes, their claims are only recognized as legal harms because harassment was recognized as a form of discrimination in the race context first. He urges them and all of us to have greater empathy for victims of discrimination to make the law more fair.
If you have not been keeping up with the allegations and want to read more about the harassment claim brought by Gretchen Carlson against Roger Ailes, which was settled when Fox News apologized and paid her about half of what it paid Ailes to leave, you might read this and this. If you want to know more about the toxic environment there, read just about any of these articles by Gabriel Sherman at New York Magazine. Finally, if you are wondering what "feminist hero Susan Estrich [is] doing representing Roger Ailes," you are not alone.
Jon Harkavy (Patterson Harkavy) has just posted on SSRN his annual (30th?) review of the Supreme Court's work in the employment area. The article will be presented at a seminar in late October at the Grove Park Inn in Asheville, NC. Here's the abstract:
This article, the author's longstanding annual review of the Supreme Court's work in the employment area, examines in detail every decision of the 2015-2016 term relating to employment and labor law, with commentary on each case and additional observations about the Court's work in this term and the upcoming one. In particular, the author uses the latest term's decisions as a lens for examining broader aspects of the Court's jurisprudence, particularly in light of disruptive changes in the nature of the employment relationship and in the composition of the Court itself.
Sunday, September 4, 2016
Sam Estreicher (NYU) has posted on SSRN his article Achieving Antidiscrimination Objectives through 'Safe Harbor' Rules. Kudos to Sam proposing something designed to create job opportunities for the heretofore nearly unemployable; I hope this helps move the discussion forward. Here's Sam's abstract:
This paper urges government agencies responsible for enforcing antidiscrimination laws to use existing authority to promulgate “safe harbor” rules to encourage employment of individuals who are unlikely to obtain employment because of the risks to employers of an erroneous hiring, coupled with the improbability of enforcement. Such perennially frustrated job seekers include individuals aged 65 and over, individuals with obvious disabilities whose employment entails significant accommodation costs, and individuals convicted of serious crimes.
Without detracting from traditional education and enforcement activities, the responsible administrative agencies should promulgate “safe harbors” for employers willing to hire individuals from these categories of high employment risk. The safe harbor would be in the form of a regulation, promulgated after notice and opportunity for public comment, that individuals from these categories may be hired as probationary employees for a defined, say three-year, period, during which they may be discharged without cause or consequence for the employer. (Other provisions of the antidiscrimination laws would be unchanged). If such employees are retained beyond the probationary period, they would be treated the same as other employees in all respects, including the full force of the antidiscrimination laws.
The benefit of the safe-harbor approach is that it directly addresses the concerns that motivate the employer’s non-hiring decision. The employer is given a relatively cost-free opportunity to evaluate whether engaging the employee from the high-risk category will in fact entail the predicted risks or whether an employee’s actual performance will belie the predicted concern.
This is a preliminary look at the potential benefits of a “safe harbor” approach to antidiscrimination goals. Creation of carefully cabined regulatory safe harbors for hiring employees from high-risk categories has the potential to spur improved utilization of such employees with limited harm to the moral force of the antidiscrimination regime.
Friday, August 26, 2016
Chrissy Shu Jien Chong (San Francisco) has just posted on SSRN her article (21 Asian Pacific American L.J. (2016)) Where are the Asians in Hollywood? Can §1981, Title VII, Colorblind Pitches, and Understanding Biases Break the Bamboo Ceiling? Here's an excerpted abstract:
Despite America's recent diversity craze, the bamboo ceiling appears stronger than ever in Hollywood. The entertainment industry's lack of racial diversity is disappointing, but the legal system's failure to protect minorities from Hollywood's discriminatory hiring practices is even more depressing. ... [W]hites hold 84% of on-screen acting roles and 94% of behind-the-cameras positions. Asian Pacific Americans only held 3% of on-screen acting roles and 0.8% of behind-the-cameras positions.
[This article] argues that the dramatic under-representation of Asian Pacific Americans in Hollywood is caused by racially discriminatory practices that are fueled by implicit and explicit biases. ... [The article] discusses an array of industry solutions, such as diversity and debiasing programs, colorblind pitches and casting, more Asians in the arts, self regulation, and organizing with other minorities. But the article ultimately determines the best solution to Hollywood's diversity problem is legislative action.
The Center for Applied Feminism (Baltimore) has a call for papers that will be of interest to some of our readers:
CALL FOR PAPERS
APPLIED FEMINISM AND INTERSECTIONALITY:
EXAMINING LAW THROUGH THE LENS OF MULTIPLE IDENTITIES
The Center on Applied Feminism at the University of Baltimore School of Law seeks paper proposals for the Tenth Anniversary of the Feminist Legal Theory Conference. We hope you will join us for this exciting celebration on March 30-31, 2017.
This year, the conference will explore how intersecting identities inform -- or should inform -- feminist legal theory and justice-oriented legal practice, legal systems, legal policy, and legal activism. Beginning in 1989, Kimberlé Crenshaw identified the need for law to recognize persons as representing multiple intersecting identities, not only one identity (such as female) to the exclusion of another (such as African American). Intersectionality theory unmasks how social systems oppress people in different ways. While its origins are in exploring the intersection of race and gender, intersectionality theory now encompasses all intersecting identities including religion, ethnicity, citizenship, class, disability, and sexual orientation. Today, intersectionality theory is an important part of the Black Lives Matter and #SayHerName movements. For more information, see https://www.washingtonpost.com/news/in-theory/wp/2015/09/24/why-intersectionality-cant-wait/.
We seek submissions of papers that focus on the topic of applied feminism and intersecting identities. This conference aims to explore the following questions: What impact has intersectionality theory had on feminist legal theory? How has it changed law and social policy? How does intersectionality help us understand and challenge different forms of oppression? What is its transformative potential? What legal challenges are best suited to an intersectionality approach? How has intersectionality theory changed over time and where might it go in the future?
We welcome proposals that consider these questions from a variety of substantive disciplines and perspectives. As always, the Center’s conference will serve as a forum for scholars, practitioners and activists to share ideas about applied feminism, focusing on connections between theory and practice to effectuate social change. The conference will be open to the public and will feature a keynote speaker. Past keynote speakers have included Nobel Laureate Toni Morrison, Dr. Maya Angelou, Gloria Steinem, Senators Barbara Mikulski and Amy Klobuchar, NOW President Terry O’Neill, EEOC Commissioner Chai Feldblum, and U.S. District Judge Nancy Gertner.
To submit a paper proposal, please submit an abstract by Friday October 28, 2016 to email@example.com. Your abstract must contain your full contact information and professional affiliation, as well as an email, phone number, and mailing address. In the “Re” line, please state: CAF Conference 2017. Abstracts should be no longer than one page. We will notify presenters of selected papers in November. About half the presenter slots will be reserved for authors who commit to publishing in the annual symposium volume of the University of Baltimore Law Review. Thus, please indicate at the bottom of your abstract whether you are submitting (1) solely to present or (2) to present and publish in the symposium volume. Authors who are interested in publishing in the Law Review will be strongly considered for publication. For all presenters, working drafts of papers will be due no later than March 3, 2017. Presenters are responsible for their own travel costs; the conference will provide a discounted hotel rate as well as meals.
We look forward to your submissions. If you have further questions, please contact Prof. Margaret Johnson at firstname.lastname@example.org. For additional information about the conference, please visit law.ubalt.edu/caf.
August 26, 2016 in Conferences & Colloquia, Employment Common Law, Employment Discrimination, Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Scholarship, Wage & Hour, Worklife Issues, Workplace Safety | Permalink | Comments (0)
Saturday, August 20, 2016
This is a follow-up to Marcia's post immediately below. Christine Duffy (Senior Staff Attorney, ProBono Partnership, photo left) posted a comment to Marcia's post that I found particularly enlightening, so I phoned her yesterday and asked if I could copy the comment to the blog as a guest post. As we spoke, she indicated that there was more she'd like to add, so I suggested she do so and then I would turn that into a guest post. So ... here it is. Many thanks to Christine for this.
Although I concur with Marcia McCormick’s observation that the August 2016 opinion in EEOC v. R.G & G.R. Funeral Homes, Inc. is an interesting decision and will be appealed to the Sixth Circuit, I’m not as disheartened by it. The decision has a number of very positive aspects.
I already knew from an April 2015 opinion that the district court judge had rejected the reasoning of the EEOC’s Macy decision, which held that discrimination based on gender identity or transgender status is sex discrimination. So reading that again in the latest opinion was not unexpected.
Both district court opinions wrongly state that the EEOC is trying to expand Title VII to include gender identity and transgender status as protected classes. Rather, the EEOC and a number of courts have come to understand that discrimination based gender identity or transgender status (or sexual orientation for that matter) inherently involves sex discrimination.
Thursday, August 18, 2016
The District Court for the Eastern District of Michigan issued a decision today on cross motions for summary judgment in EEOC v. R.G & G.R. Funeral Homes, Inc., granting summary judgment for the funeral home. The funeral home terminated an employee after that employee announced an intention to transition to female. The transwoman employee intended to abide by the the funeral home's dress code for women, which was that women wear skirt suits. Men were required to wear pantsuits (and if that sounds weird to you, too it's because this gender norm is so entrenched, we only call women's clothing pantsuits). The funeral home also provided men with a clothing allowance, but did not provide the same for women. The court held that enforcing Title VII was not the least restrictive means to reach the argued-for compelling governmental interest of prohibiting sex discrimination in the form of sex stereotyping.
The opinion is long and an interesting mashup of sex stereotyping, dress codes, LGBTQIA discrimination, RFRA, and Hobby Lobby. I haven't thoroughly analyzed it yet, but it seems a very troubling decision for a wide variety of reasons, not least of which is that it seems to import a sort of ministerial exemption on steroids into the private sector. The sense I get from my first read of the opinion is that the court reasoned to get to this point primarily because it disagreed with one of the claims made by the EEOC, which was that gender identity is sex for purposes of Title VII. That proposition has been accepted by a number of courts, but had been rejected by this judge.
This case is one to watch because it's certain to be appealed to the 6th Circuit.
Tuesday, August 16, 2016
Illinois became the sixth state to adopt a Domestic Workers Bill of Rights when Governor Rauner signed the bill last Friday. Domestic workers there will be covered by the state minimum wage laws, guaranteed rest periods, meals, and one day off a week, protected from discrimination including harassment, and protected from being paid "an oppressive and unreasonable wage." These protections are especially important because domestic workers are excluded from federal protections under the FLSA, the NLRA, OSHA, and other laws. Moreover working conditions for childcare workers contribute to poverty and may impair the care those workers can give. According to the National Domestic Workers Alliance, Illinois joins New York, Hawaii, California, Massachusetts, and Oregon. Connecticut also has extended some protections to domestic workers, although not passed the full-blown model bill of rights. The Illinois law will take effect Jan. 1, 2017.
Thursday, July 28, 2016
The Seventh Circuit issued a decision today in Hively v. Ivy Tech Community College, relying on prior circuit precedent to hold that Title VII does not forbid discrimination on the basis of sexual orientation. The opinion was written by Judge Rovner and joined by Judge Bauer. Judge Ripple concurred in the judgment and only that part of the opinion referring to the prior circuit precedent.
The opinion is the first circuit court opinion to be issued on the subject since the EEOC's decision in Baldwin v. Foxx last year, holding that sexual orientation discrimination is per se sex discrimination because: 1. but for the sex of the person, the romantic partner's sex would not be objectionable; 2. penalizing a person for the sex of their romantic partners is associational sex discrimination; and 3. requiring men to date or marry women and women to date or marry men is a core gender stereotype. In Baldwin, the EEOC had taken many circuit courts to task, pointing particularly at the Seventh Circuit for parroting its prior precedents without considering their foundation.
The line of precedent in the Seventh Circuit is particularly problematic. It started with the decision in Ulane v. Eastern Airlines that Title VII did not protect a pilot who was fired for undergoing gender transition because Title VII did not prohibit discrimination on the basis of "transsexualism." This was was one of the first decisions on an LGBTQ issue under Title VII. The decision in Ulane has been pretty thoroughly undermined by the Supreme Court's decision in Price Waterhouse v. Hopkins, which recognized that gender stereotyping can be sex discrimination. In recent cases, most courts have considered Price Waterhouse to have essentially overruled Ulane and have held that gender identity discrimination is sex discrimination.
Relying on a line of precedent with Ulane at its base aside, Judge Rovner's opinion is remarkable for the thoughtfulness of what follows a description of the circuit's precedent. She discusses Baldwin and quite thoroughly analyzes the cases relevant to whether there is some distinction between sex, sex stereotyping, and sexual orientation. Over and over, she acknowledges the lack of rational distinctions and the difficulties courts have had drawing lines to justify treating sexual orientation as something different from sex. She also lays out the paradox that the more stereotypically gay or lesbian the plaintiff, the more likely the case will be indistinguishable from a sex stereotyping case, and thus cognizable. Judge Rovner highlights the fact that associational discrimination claims have long been cognizable in race cases as another paradox or inconsistency in the precedent. Finally, she discusses the Supreme Court decisions on sexual orientation and the equal protection principles behind protection of LGBTQ individuals.
In the end, though, Judge Rovner says she is bound by prior circuit precedent for two main reasons. Congress failed to amend Title VII to include sexual orientation in the definition of sex despite a number of legislative efforts between 1975 and 1982, nor did it pass the Employment Non-Discrimination Act in any of its prior incarnations between 1994 and 2013. And the Supreme Court has not yet held that sexual orientation discrimination is a violation of Title VII.
Moving forward, she points out that many district courts --"laboratories on which the Supreme Court relies to work through cutting‐edge legal problems" -- currently considering the issue are agreeing with the EEOC, suggesting, perhaps, that the Court act sooner rather than later. She also suggests that within the Seventh Circuit, some sexual orientation discrimination cases will be cognizable under Title VII because the context of the discrimination will be so intertwined with sex stereotyping that the issues cannot be untangled. But where stereotypes about the person are clearly linked with sexual orientation rather than sex, there will be no cognizable claim. In her words:
Harassment may be based on prejudicial or stereotypical ideas about particular aspects of the gay and lesbian “lifestyle,” including ideas about promiscuity, religious beliefs, spending habits, child‐rearing, sexual practices, or politics. Although it seems likely that most of the causes of discrimination based on sexual orientation ultimately stem from employers’ and co‐workers’ discomfort with a lesbian woman’s or a gay man’s failure to abide by gender norms, we cannot say that it must be so in all cases.
The opinion is an interesting mix of roadmap to finding that sexual orientation is part of sex for purposes of Title VII and hand-wringing that Congress and the Supreme Court haven't made that clear yet. Maybe a circuit split in the next year or so will set the stage. I'm not as confident that the membership of Congress will change in this election to allow for any movement on the Equality Act, but that is another possibility.
Tuesday, July 19, 2016
Congratulations to Miriam Cherry (Saint Louis), Marion Crain (Washington University) and Winifred Poster (Washington University, Sociology) whose book Invisible Labor has just hit the shelves. The book is a collection of chapters by authors from, primarily, sociology and law, exploring types of labor that are unpaid and unseen. From the synopsis:
Across the world, workers labor without pay for the benefit of profitable businesses—and it's legal. Labor trends like outsourcing and technology hide some workers, and branding and employer mandates erase others. Invisible workers who remain under-protected by wage laws include retail workers who function as walking billboards and take payment in clothing discounts or prestige; waitstaff at “breastaurants” who conform their bodies to a business model; and inventory stockers at grocery stores who go hungry to complete their shifts. Invisible Labor gathers essays by prominent sociologists and legal scholars to illuminate how and why such labor has been hidden from view.
The collection brings together what previously seemed like disparate issues to show common threads among the ways labor can be invisible, and the breadth of contributions is impressive. I had the chance to attend a symposium set up by the editors to flesh out these ideas a couple of years ago and found the topics fascinating then. I can't wait to read the book!
July 19, 2016 in Books, Disability, Employment Common Law, Employment Discrimination, International & Comparative L.E.L., Scholarship, Wage & Hour, Worklife Issues, Workplace Trends | Permalink | Comments (1)
Monday, July 4, 2016
The North Carolina legislature has passed a bill that repeals the portion of HB2 that denies a right to sue to enforce that State’s employment discrimination statute (the North Carolina Equal Employment Practices Act, or EEPA). For press reports, see, e.g., here. But that bill also reduces the time available to file such actions to one year. And it does not repeal or otherwise change the rest of HB2 currently at issue in a US Department of Justice lawsuit.
Although EEPA itself has no real enforcement mechanism, some judges had let plaintiffs use the common-law tort of wrongful discharge to sue for violation of EEPA’s expressed public policy against certain kinds of employment discrimination. (For more, see here.) HB2 had supplanted this law by adding this sentence to EEPA: “This Article does not create, and shall not be construed to create or support, a statutory or common law private right of action, and no person may bring any civil action based upon the public policy expressed herein.” The legislature’s bill, passed last Friday, amends EEPA by removing the sentence that HB2 had added. By itself, that would have restored EEPA law to pre-HB2 days.
But that bill also amends the one-year limitations-period statute, N.C. Gen. Stat. § 1-54, to have it cover a claim for “wrongful discharge in violation of the public policy set forth in G.S. 143-422.2.” This change will reduce the limitation period for wrongful-discharge tort claims enforcing EEPA from three years, see Winston v. Livingstone College, 210 N.C. App. 486, 488 (2011), down to one year. The text of this change, however, might also be taken to show the legislature has finally and expressly accepted the common-law tort of wrongful discharge as a viable way to enforce EEPA.
Wednesday, June 29, 2016
A data revolution is transforming the workplace. Employers are increasingly relying on algorithms to decide who gets interviewed, hired or promoted. Proponents of the new data science claim that automated decision systems can make better decisions faster, and are also fairer, because they replace biased human decision-makers with “neutral” data. However, data are not neutral and algorithms can discriminate. The legal world has not yet grappled with these challenges to workplace equality. The risks posed by data analytics call for fundamentally rethinking anti-discrimination doctrine. When decision-making algorithms produce biased outcomes, they may seem to resemble familiar disparate impact cases, but that doctrine turns out to be a poor fit. Developed in a different context, disparate impact doctrine fails to address the ways in which algorithms can introduce bias and cause harm. This Article argues instead for a plausible, revisionist interpretation of Title VII, in which disparate treatment and disparate impact are not the only recognized forms of discrimination. A close reading of the text suggests that Title VII also prohibits classification bias — namely, the use of classification schemes that have the effect of exacerbating inequality or disadvantage along the lines of race or other protected category. This description matches well the concerns raised by workplace analytics. Framing the problem in terms of classification bias leads to some quite different conclusions about how the anti-discrimination norm should be applied to algorithms, suggesting both the possibilities and limits of Title VII’s liability focused model.
Sunday, June 19, 2016
While mandatory arbitration agreements have gotten the most attention as methods of shielding employers from court suits, other employers have made a different choice -- using contracts with their employees to shorten the otherwise applicable limitations periods for bringing court suit. By and large (by which I mean in purely private disputes over the underlying contract claim), courts have seen little problem with such provisions. Without much analysis, they allow the parties to agree to a shorter period to being suit subject only to the condition that the period so provided be "reasonable," and are pretty permissive as to what satisfies that condition.
Where such agreements --typically imposed as a condition of employment --involve abbreviating the time provided for bringing suit under antidiscrimination and other worker-protective statutes, the considerations are significantly different, at least so it seemed to the New Jersey Supreme Court. Last week, in Rodriguez v. Raymours Furniture Co, the Court struck down a provision in an employment agreement that set a 6 month outer limit on bringing suit when the governing Law Against Discrimination provided a two-year limitations period.
Much of the opinion deals with aspects peculiar to New Jersey (for example, the two year limitations period is not found explicitly in LAD, and the state has alternative administrative and judicial avenues to pursue a LAD claim), but the overarching message of the opinion is that discrimination claims have a public aspect which counsels against approving private attempts to shorten the controlling limitations period. Writing for the Court, Justice LaVecchia summarized:
The cause of action that plaintiff brings is factually premised on his employment relationship, but it is not a simple private claim. Plaintiff alleges an LAD violation -- a law designed for equal parts public and private purposes.
The LAD plays a uniquely important role in fulfilling the public imperative of eradicating discrimination. One searches in vain to find another New Jersey enactment having an equivalently powerful legislative statement of purpose, along with operative provisions that arm individuals and entities with formidable tools to combat discrimination not only through their use but also by the threat of their use. There is a huge incentive for employers to thoroughly investigate and respond effectively to internal complaints in order to limit or avoid liability for workplace discrimination. Responsible employers are partners in the public interest work of eradicating discrimination, but such responsible behavior takes time. A shortened time frame for instituting legal action or losing that ability hampers enforcement of the public interest.
The court cited decisions to like effect in Kansas and California, but the New Jersey decision is likely to be especially influential. Its most salient contribution is drawing the line between private contract disputes and litigation over statutory claims. In the future, we can expect courts at least to avoid reflexively validating such agreements and come to grips with the public policy implications of enforcing them.
Tuesday, June 14, 2016
The Supreme Court issued two employment discrimination decisions in May, which were mostly met in the academy by yawns. Admittedly, neither is groundbreaking and one is something only a proceduralist could love. But both have points of interest.
The earlier decision, CRST Van Expedited v. EEOC, resolved the question of whether a defendant could be said to have "prevailed" for purposes of a fee award by obtaining a dismissal for the EEOC procedural failures, as opposed to having won on the merits. Whether the agency's conduct in pursuing the claims at issue was frivolous was not before the Court, which might have generated a more interesting opinion, but the decision clearly opened the path to more attorney awards against losing plaintiffs -- and not merely where the EEOC is the plaintiff.
In the case itself, the defendant had prevailed because the EEOC had failed to adequately investigate a number of the individual claims it wished to pursue on behalf of female employees of CRST. That's obviously not applicable to private suits, but one can easily imagine a defendant pursuing attorneys' fees against a plaintiff whose case is, say, tossed out of court for failure to meet one of Title VII's limitations periods. However, the Court did not decide whether a defendant has to obtain a preclusive judgment in order to "prevail," which may somewhat limit the effects of the decision.
The more recent is Green v. Brennan, which held that the time for resort to administrative remedies in a constructive discharge case runs from the time the employee gave notice of his resignation, not from the last employer act that created the intolerable conditions that would convert such a resignation into a constructive firing. The case involved federal employment, which has somewhat different procedures, but there is little doubt that it applies to the more common situation involving the private sector where an employee normally has 300 days to file a charge of discrimination with the EEOC.
The opinion is clearly pro-employee, but may not have much real world impact. That's because the whole concept of constructive discharge requires discriminatory employer conduct that creates "intolerable" working conditions. The longer an employee tolerates what he claims is an intolerable situation, the less likely a court is to view those conditions are truly intolerable. But it is true that courts will now be forced to focus on the merits of such claims rather than dismissing them on timeliness grounds.
Justice Alito concurred, in a somewhat tortured opinion. He was concerned that, by looking to the date of resignation the Court was shifting the focus from the employer's act (which rendered continued work intolerable) to the employee's conduct and thus undercutting a long line of cases that refused to measure timeliness from the present effects of a past act of discrimination. That would seem to suggest a dissent rather than a concurrence, but Alito argued that when an employee intended the resignation (which was a triable issue here), the time could run from that resignation. Why, say, that wouldn't undercut Ricks v. Delaware State -- where the employer gave a terminal contract that must have intended Ricks's termination a year later -- isn't so clear.
Friday, May 13, 2016
It's too bad that law school finals are over because this situation has all of the labor and employment bases covered. The ACLU and the Colorado law firm of Holwell Shuster & Goldberg have filed charges with the EEOC on behalf of four pilots who argue that the airline's policies discriminate against women by failing to provide accommodations related to pregnancy and breast feeding. You can download the charges from that link if you are interested in the details.
Essentially, the charges allege that pregnant pilots are forced to take unpaid leave beginning as early as 10 weeks before their due dates and are then allowed up to 120 days after delivery of unpaid leave. Those who are nursing when they return are not accommodated at the airports nor allowed to express milk during flights, according to the charges. Three of the four women suffered mastitis as a result of the lack of accommodations. The pilots have proposed a number of accommodations like temporary non-flying assignments that would allow women to work longer before delivery and to allow for easier accommodation of milk expression, extension of maternity leave for women who want it, and designated places where the women could pump in airports Frontier uses and on the plane when necessary. According to NPR, the airline asserts that there are locations for expressing milk in airports that comply with federal and state law.
Although the charges themselves really only deal with Title VII (although they also mention Colorado's Fair Employment Practices Act and Colorado's Workplace Accommodation of Nursing Mothers Act), the lack of accommodations may also violate the FLSA (as amended by the Patient Protection and Affordable Care Act). In addition, the workplace is governed by a collective bargaining agreement, which has rules setting out non-flying reassignments, but only for on-the-job injuries.
If the charge does not lead to a settlement, the subsequent lawsuit will give a court the chance to apply the Supreme Court's framework for accommodations set out in Young v. UPS. This case is similar as it relates to pre-delivery leave, but it's also different. It is not clear that the women must take pre-delivery leave because of any medical reason. The policy requires that pilots take leave once they are no longer "medically authorized to fly," or at 32 weeks, whichever is earlier. For healthy women, doctors generally don't suggest limits on flying until 36 weeks, mostly because of the possibility of early labor. Because Frontier, requires leave by the 32d week of pregnancy, (and some women don't deliver until the 42d week), there might be several weeks where the pilot could work, but is prohibited. This requirement looks like the one struck down in Cleveland Bd. of Educ. v. LaFleur, which required pregnant school teachers to take leave before it was medically required.
The case is also somewhat different on the accommodations for milk expression. The situation Peggy Young found herself in at UPS would likely be taken care of by the ADA as amended. Her lifting restriction, imposed to prevent miscarriage or premature activity, would be found an impairment of a major life activity, most likely. And transfer to a vacant position, likely a reasonable accommodation that would not pose an undue hardship, since UPS provided that accommodation for a number of other reasons. Here, lactation itself isn't an impairment but an extension of the normal physiological processes of pregnancy and delivery. Lactation isn't impairment of normal breast function; it is normal breast function. So these accommodations may only be protected by Title VII and not by the ADA.
In any event, it will be interesting to see how this one plays out and whether remedies under other laws that might provide relief are pursued.
Wednesday, May 4, 2016
As the primary season transitions more solidly into the presidential election, our thoughts in the labor and employment world naturally turn to workplace captive audience speeches. WPB emeritus Paul Secunda (Marquette) is probably the country's expert on the subject. He has an important piece out in the UCLA Law Review Discourse with Alexander Hertel-Fernandez (doctoral candidate in government and social policy, Harvard), who has been engaged in empirical work to study the scope of employer political intimidation. The article, Citizens Coerced: A Legislative Fix for Workplace Political Intimidation Post-Citizens United summarizes some of Hertel-Fernandez's empirical findings and recommends that Congress amend Title VII to prohibit discrimination on the basis of political affiliation or belief.
The article lays out a compelling case and a workable solution. It finishes with this powerful exhortation:
As the country enters into a highly-contested and polarizing presidential election cycle, it is imperative that Congress act quickly to end political coercion in the workplace. Consistent with longstanding principles of freedom of speech, expression, association, and political affiliation, private-sector employees, just as much as their public-sector counterparts, have the right to engage (or not engage) in political activities without fear of retribution or disadvantage from their employer. It is one thing to provide corporations with expanded free speech rights in the electoral process. It is quite another to permit companies to coerce workers in their political expression. We should not tolerate the latter encroachment on worker autonomy.
The article is a great read, and I highly recommend it.
Friday, April 15, 2016
Meanwhile, back in North Carolina, there is still no private right of action for employment discrimination under North Carolina law—except now, North Carolina Governor Pat McCrory says he wants to “restore” it. There is, however, a third way.
By now, you’ve heard the story: On a single day (March 23), the North Carolina House and Senate passed, and the Governor signed, HB2 into law. Many have blasted HB2’s bathroom provisions as motivated by prejudice against transgender people and as unconstitutional, too. HB2 also preempts local anti-discrimination ordinances, including those that had covered sexual orientation and gender identity, as well as local wage and hour laws.
But as a few quickly noticed, HB2 had also supplanted existing law affording a private right of action to enforce the North Carolina Equal Employment Practices Act (EEPA). Before HB2, EEPA had declared:
It is the public policy of this State to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of race, religion, color, national origin, age, sex or handicap by employers which regularly employ 15 or more employees.
As originally passed in 1977, EEPA had declared such a “public policy” but afforded no real enforcement mechanism. Years later, however, some judges began letting plaintiffs use the common-law tort of wrongful discharge to sue for violation of EEPA’s expressed public policy. Not everyone was happy with this. For example, Cohen (1995, p. 55) complained that, by letting plaintiffs use the tort of wrongful discharge to enforce EEPA, judges had changed EEPA “from a toothless legislative compromise into an apparently limitless source of employment discrimination claims”—something the legislators that originally passed EEPA in 1977 wouldn’t have wanted.
Then came HB2, which supplanted the existing legal grounds for private tort suits to enforce EEPA by adding this to EEPA itself:
This Article does not create, and shall not be construed to create or support, a statutory or common law private right of action, and no person may bring any civil action based upon the public policy expressed herein.
So, now to our latest episode, in which Governor McCrory issues an Executive Order No. 93, dated April 12, 2016, which includes this statement: “I support and encourage the General Assembly to take all necessary steps to restore a State cause of action for wrongful discharge based on unlawful employment discrimination.” And from the Governor’s accompanying video statement: “I will immediately seek legislation in the upcoming short session to reinstate the right to sue for discrimination in North Carolina state courts.” Who put HB2’s no-civil-action sentence in there in the first place? The Governor didn’t say, and no one else is talking—for now, that’s an unsolved mystery.
What will North Carolina’s legislators do now? Repeal HB2’s no-civil-action sentence? Do nothing? There is a third way. Amend HB2’s no-civil-action sentence like this:
This Article does not create, and shall not be construed to create or support, a statutory or common law private right of action, and no any person may bring any civil action based upon the public policy expressed herein.
Instead of just restoring the law to pre-HB2 days, now—almost forty years after North Carolina passed EEPA as a “toothless legislative compromise”— maybe it’s finally time for EEPA to get some teeth of its own.