Workplace Prof Blog

Clarke on Causal Coherence In Disparate Treatment Doctrine

Brian Clarke (Charlotte) has posted on SSRN his forthcoming piece in the Rutgers Law Review entitled: "A Better Route Through The Swamp: Causal Coherence In Disparate Treatment Doctrine."

Here is the abstract:

Disparate treatment doctrine has long been a swamp and it is getting deeper and murkier. The various judicially and legislatively created routes through the swamp – proof schemes – are poorly marked and, at best, imperfect. Critically, the routes through the swamp have become unmoored from the critical cause-in-fact inquiry they were ostensibly designed to illuminate.

Disparate treatment doctrine has long been a swamp and it is getting deeper and murkier. The various judicially and legislatively created routes through the swamp – proof schemes – are poorly marked and, at best, imperfect. Critically, the routes through the swamp have become unmoored from the critical cause-in-fact inquiry they were ostensibly designed to illuminate.

Focusing on cause-in-fact, this article seeks to establish causal coherence in disparate treatment doctrine by applying – for the first time – modern cause-in-fact theory, including the necessary element of a sufficient causal-set (“NESS”) standard articulated in the Restatement (Third) of Torts, across the various individual disparate treatment statutes and theories. In order to implement this new-found causal coherence, this article proposes a better route through the swamp in the form of a unified proof scheme for use in all individual disparate treatment cases regardless of statute or theory that is rooted in this conception of causal necessity based on the ubiquitous McDonnell Douglas proof scheme.

As Brian himself points out, there could hardly be a more relevant topic these days in employment discrimination law.  The issue of cause-in-fact in disparate treatment is again before the Supreme Court in UTSWMC v Nassar.  Brian's pieces touches on some of the broader issues that the Court should be looking at in Nassar – instead of just throwing around terms like “but for causation” without any conception of what that really means.

Check it out!

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Minding the Gap Conference Friday at FIU

Thanks to Howard Wasserman over at PrawfsBlawg for word that this Friday, FIU Law Review will host Minding the Gap: Reflections on the Achievement Gap between Men and Women in the Workplace in 2013. The conference is organized by Kerri Stone. Here is the stellar list of speakers:

• Ann C. McGinley
• Sandra F. Sperino
• Nicole Porter
• Michael J. Zimmer
• Nancy Leong
• Brenda Smith
• Henry L. Chambers Jr.
• Joyce Sterling
• Nancy Reichman
• Marcia L. McCormick
• June Carbone
• Naomi R. Cahn
• Kingsley Browne
• Wendy Greene
• Lauren Sudeall Lucas

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Recently Published Scholarship

• V. Blair Druhan, Severe or Pervasive: An Analysis of Who, What and Where Matters When Determining Sexual Harassment, 66 Vanderbilt L. Rev. 355 (2013).

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Widiss on the PDA and ADA Interplay

Deborah Widiss (Indiana--Bloomington) has posted a new article on SSRN: Gilbert Redux: The Interaction of the Pregnancy Discrimination Act and the Amended Americans with Disabilities Act. Here is the abstract:

Pregnancy -- a health condition that only affects women -- raises complicated questions regarding the interaction of employment policies addressing sex discrimination and those addressing disability. The Pregnancy Discrimination Act (PDA), enacted in 1978, mandates that employers “shall” treat pregnant employees “the same for all employment-related purposes” as other employees “similar in their ability or inability to work.” Despite the clarity of this language, courts regularly permit employers to treat pregnant employees less favorably than employees with other health conditions, so long as the employer does so pursuant to a “pregnancy-blind” policy such as accommodating only workplace injuries or disabilities protected under the Americans with Disabilities Act (ADA). Under this reasoning, recent amendments expanding the scope of disabilities covered by the ADA could have the perverse effect of decreasing employers’ obligations to pregnant employees. This Article argues that these decisions misinterpret the PDA. The same treatment clause creates a substantive, albeit comparative, accommodation mandate. Rather than focusing on the presence or absence of discriminatory intent, courts should simply assess whether the employer has, or under the ADA would be required to, accommodated limitations like those caused by pregnancy. This approach appropriately incorporates consideration of the costs that accommodations impose on employers but insulates that inquiry from still persistent misconceptions regarding pregnant women’s capacity and commitment to work.

This Article is the first to consider in depth how the 2008 amendments to the ADA interact with the PDA. In addition to providing textual analysis, the Article provides historical context that helps confirm that the PDA means what it says. Commentary on the PDA generally characterizes the statute’s same treatment language as a response to some feminists’ concerns that requiring “special” accommodations for pregnancy would increase the risk of discrimination or backlash against women generally. This Article contributes to the historical literature on the PDA by identifying a distinct — complementary but largely overlooked — benefit of the PDA’s same treatment language: it came on the heels of an extraordinary expansion of employer and government support for health conditions other than pregnancy. Thus, although the PDA does not itself require specific pregnancy accommodations, its enactment required many employers to provide far more robust support for pregnancy than they had previously. This historical context has direct relevance for contemporary doctrine, since it is closely analogous to the recent expansion of the ADA. The unduly narrow conception of comparators currently used by many courts interpreting the PDA risks relegating pregnancy once again to the basement.

Timely and important--particularly since the EEOC is currently evaluating its guidance on the interaction of Title VII, the ADA, and the FMLA.

MM

Porter on Disability & Caregiving

Nicole Porter (Toledo; visiting Denver) has been busy -- she's just posted to SSRN her second article within a week.  Her newest is Mutual Marginalization: Individuals with Disabilities and Workers with Caregiving Responsibilities.  Here's the abstract:

This paper explores the marginalization of two groups of employees — individuals with disabilities and workers with caregiving responsibilities. One might argue that these two groups have little in common. In fact, however, while not perfectly aligned, these two groups of individuals have much in common in the workplace. First, these employees are unable to consistently meet their employers’ expectations of an “ideal worker.” Thus, they often must seek adjustments or modifications in the workplace to accommodate for their failure to conform to the ideal worker norm. This causes both groups of employees to suffer from “special treatment stigma,” which manifests itself in resentment by co-workers because of the special benefits these employees receive and in employers’ reluctance to hire individuals belonging to these groups because of the real or perceived increased costs of employing such individuals. Despite these similarities, the law has dealt with these two groups of employees very differently. Individuals with disabilities are entitled to broad protection in the workplace, including the rather unique reasonable accommodation provision in the Americans with Disabilities Act. On the other hand, despite some laws protecting some aspects of pregnancy and caregiving, workers with caregiving responsibilities do not enjoy the same broad protection as individuals with disabilities.

In this paper, I will explore why the law treats these groups of employees differently. I will address many of the concepts that are thought to distinguish individuals with disabilities and workers with caregiving responsibilities and are therefore used to justify their different treatment under the law. But I will ultimately conclude that these distinctions, once unpacked, do not justify the law’s different treatment of these two groups. Moreover, these differences are not as significant as the similarity that binds these two groups together — the special treatment stigma. Thus, I will explore whether a combined legal and theoretical approach to eliminating the special treatment stigma is feasible and defensible. Specifically, I seek to provide theoretical justification for the reasonable accommodation provision under the ADA and argue that the same justification can be used to support an accommodation mandate for workers with caregiving responsibilities.

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Zimmer and Sperino Amicus Brief in Mixed Motives Retaliation Case

Michael Zimmer (Loyola-Chicago) and Sandra Sperino (Cincinnati) are currently drafting an amicus brief to be filed in University of Texas Southwestern Medical Center v. Nassar.  This case addresses mixed motive issues in Title VII retaliation cases, and it is a pretty important issue.  Michael and Sandra are interested in hearing from anyone who would like to comment on drafts of the amicus or who would be interested in signing or considering signing on to the finished brief.  Please email Sandra at sandra.sperino@uc.edu if interested.

MM

Final FMLA Rule on Military and Flight Crews Expansion to Be Published Tomorrow

Kenneth Shiotani (National Disability Rights Network) gives us the news that the Department of Labor will be publishing its final rule on the recent amendments to the FMLA that expanded coverage to flight crews and family members of those in the military--for a refresher on those expansions, see here, here and here.

And here is the final rule itself. 

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Happy 20th Anniversary FMLA

The Family and Medical Leave Act was signed into law twenty years ago today. In celebration, here are some interesting links for your lunch hour:

The Family and Medical Leave Act, An Overview (Cong'l Res. Serv.)

Women and Low-Skilled Workers, Other Countries' Practices (Gov't Accountability Office)

Family and Medical Leave Act Regulations: A Report on the Department of Labor's Request for Information (DOL)

And for some reform links, from the add paid leave camp: National Partnership for Women and Families Agenda for the 113th Congress. And from the reform abuse of leave camp: The U.S. Chamber of Commerce's Absence abuse and Medical Leave.

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Ban on Women in Combat Positions To Be Lifted

Outgoing Secretary of Defense Leon Panetta and Army General Martin Dempsey, Chairman of the Joint Chiefs of Staff are apparently going to announce tomorrow that they are lifting the ban on women serving in combat positions with a goal towards integration by 2016. In November, four servicemembers represented by the ACLU sued to lift the ban, arguing that women were already serving in most combat roles but just weren't getting recognized for it. Advancement to the highest levels of military service depends on service in combat.

This move comes via a recommendation from the Joint Chiefs of Staff, which earlier this month issued a "Women in Service Implementation Plan" calling for this change; that memo stated in part, "[t]he time has come to rescind the direct combat exclusion rule for women and to eliminate all unnecessary gender-based barriers to service."

For more information see the news stories here, here, here, and here. Mandatory regisration with the Selective Service Administration does not appear to be addressed by the recommendation; perhaps that is not widely enough seen to be a gender-based barrier to service. 

This is a big step forward potentially for sex equality in the military, although full implementation will take some time. I hope that part of that implementation involves addressing the serious problem of sexual violence in the military as part of a comprehensive plan. I also think that the effect of this change in policy does a lot to expand women's rights more broadly in this country. To the extent that military service is one of the responsibilities of full citizenship, and I think most people agree that it is in at least some cirumstances, allowing women to serve the same way men do solidifies our claim to citizenship and authority to set national policy.

MM

Maslanka on Nassar

Mike Maslanka has a nice post at Work Matters on the importance of the retaliation case the Supreme Court has just accepted certiorari on, Nassar v. University of Texas Southwestern Medical Center.  Here's an excerpt:

Why is this case a big deal? The but-for instruction is pro-employer: The judge tells the jury that a retaliatory motive must be the reason for the adverse employment action. By contrast, the mixed-motive instruction is pro-employee: The judge instructs the jury that an improper motive need be only one of multiple reasons for the adverse employment action.  ...  My prediction? I want to read the merits briefs, but I think 5-4 for mixed-motive.  SCOTUS, over the last several years, has been big on protecting employees’ rights to be free of retaliation when they complain.

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SCOTUS grants cert in retaliation mixed motives case

On Friday, the Supreme Court granted cert in University of Texas Southwestern Medical Center v. Nassar to address mixed motives in retaliation cases. Here is the question cert was granted for:

Whether the retaliation provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), and similarly worded statutes require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action).

The SCOTUSblog file with links to documents is here. 

MM

AALS Employment Discrimination Officers

Sandra Sperino (Cincinnati) sends us this note:

I think my last responsibility as outgoing chair of the Employment Discrimination Section of AALS is to let people know who the new officers and executive committee are. ...

The 2013-14 officers for the AALS Employment Discrimination Section are: Deb Widiss (chair); Angela Onwuachi-Willig (vice chair); and Bradley Areheart (secretary).  The executive committee is Michael Green, Wendy Greene, Marcia McCormick, Veronica Root, and Erika Kelsaw.

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Sperino on the Tort Label

Sandra Sperino (Cincinnati) has a new article, another great addition to her series on the importation of tort law into anti-discrimination laws: The Tort Label. From her abstract:

Courts and commentators often label federal discrimination statutes as torts. Since the late 1980s, the courts increasingly applied tort concepts to these statutes. This Article discusses how courts placed employment discrimination law within the organizational umbrella of tort law without examining whether the two areas share enough theoretical and doctrinal affinities. 

While discrimination statutes are torts in some general sense that they do not arise out of criminal law and are not solely contractual, it is far from clear that these statutes are enough like traditional torts to justify the reflexive and automatic use of tort law. Employment discrimination statutes created large exceptions to common law ideas of at-will employment, and strong textual arguments militate against prioritizing tort law as source of meaning. 

The tort label not only exaggerates the affinity between tort law and employment discrimination, it also overestimates the work that tort law can adequately perform in statutory interpretation. Tort law generally does not have independent descriptive power. It does not cohere around a narrow enough set of theoretical or doctrinal concepts to provide an answer or even a small subset of answers to many statutory questions. Over time, tort law responds to changing factual and legal landscapes, often while outwardly maintaining the same language.

To date, courts have failed to appreciate the complexity of tort law. Courts use cursory descriptions of tort law that characterize tort doctrine as narrower, more stable, and more consistent than it actually is. They have not considered whether tort concepts can and should be unmoored from the common law tradition, which anticipates that concepts can subtly change over time to fit new situations.

The federal courts view tort law as possessing narrow conceptions of causation and harm. Using this narrow tort frame leads to discrimination law that is primarily concerned with individual remedies, rather than a broader response to societal discrimination. The move to tort law is thus part of a broader story about the privatization of discrimination law that can be seen in the greater acceptance of private arbitration and the move away from systemic discrimination claims.

The primary problem of the tort label is its effect on discourse about fundamental questions regarding employment discrimination law. The prioritizing of a narrow view of tort law removes textually supportable options from statutory analysis without meaningful discussion about why the courts narrowed the potential statutory landscape. The courts never consider whether their narrow notions of tort causation and harm are reflected in the discrimination statutes’ text, intent or purpose. The primary aim of this Article is to urge courts to respect the complexity of the judgments at issue by resisting the simple, but also simplistic, allure of the reflexive use of tort law.

I've said it before and I'll say it again: this is important stuff, and I hope the courts are listening.

MM

My Kind of Discrimination

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Law Prof Sues Law School in Reverse Harassment Case

Ohio Northern University Law School put Professor Vernon Traster on unpaid leave for "sexually harass[ing] a student at his home and a staff member at her home."  Traster now has sued ONU, claiming "the university took inappropriate steps to get rid of him because he was at the top of the pay scale."  Above-the-Law, via Lima News, has all the [moderately] salacious details.

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Kramer Sued over Law Review Article

Zachary Kramer (Arizona State) wrote a law review article describing an employment discrimination case in which a bank executive allegedly equated vegetarianism with homosexuality and taunted/harassed an employee on the basis of both.  Now the bank executive is suing Kramer for defamation and invasion of privacy.  The executive also is suing Washington University Law because its law review published the article, and Western New England College of Law because Kramer presented his article there.

Kramer's article is Of Meat and Manhood.  The discussion of the underlying discrimination case begins at page 305.  The article describes in detail the facts as alleged in the plaintiff's complaint that had been filed in a New York State court; the footnotes clearly indicate that Kramer's source is the complaint itself and that Kramer was not claiming an independent source of knowledge of the facts giving rise to the discrimination claim.

A plaintiff's recitation of facts in a complaint are of course subject to an absolute judicial privilege from defamation suits.  Kramer's republication of those facts, in a context in which he makes it clear that he is claiming no independent source of knowledge of the facts, should be similarly privileged.  A ruling to the contrary would stifle not only academic debate, but would preclude newspapers from reporting on just about any type of case filed in just about any type of court.  12(b)(6)?

On the upside: at least we know someone is reading our articles!

Here's the complaint; here's a detailed story in the ABA Journal; here's a note from Brian Leiter. 

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Teaching Discrimination

Thank you for the warm welcome Charlie! I am delighted to be joining the Workplace Prof Blog as a Guest Blogger – I have long been a reader and admirer (since my non-Proffy days as a litigator), so it is a particular pleasure to join the (temporary) ranks. During my stint here as a guest blogger I am hoping to do a series of posts about recent developments in LGBT employment law as well as some of my recent mental meanderings about psychological research on perceptions of discrimination.

Starting off with the latter, much of my recent work (see here and here) has been informed by the body of psychological research on how and why people perceive particular events as discrimination. What that research tends to show is that most people are reluctant to characterize all but the most extreme and explicit fact patterns as discrimination, that these tendencies are causally related to certain common American background beliefs (discrimination is rare, hard work gets you ahead in life, discrimination is an explicit and narrow phenomenon), and that these background beliefs are remarkably resistant to change.

As I have moved this fall into the world of tenure-track teaching, this research has weighed in the back of my mind in trying to think through my role as a teacher. As a teacher of discrimination law, should I teach about “discrimination”? Does it make a difference whether it is in a standard doctrinal class vs. a seminar? (I.e., a “Discrimination Law” class, rather than a “Discrimination and the Law” class?). If it is appropriate to teach this subject in a law class, how is it best done?

My initial instinct was a “yes” – To the extent (as I have no doubt is true) there are students entering my class who fundamentally believe discrimination is an aberrant or historical phenomenon, it troubles me to think that such students might go out into practice without a richer understanding of the contemporary landscape. Ample evidence abounds (both rigorous social science and anecdotal evidence) that discrimination is far from a phenomenon of the past. Nor is all discrimination today simply of the “structural” or “subtle” variety (although there is no doubt also much of that). It seems a disservice to students, both those who will do defense and plaintiff-side work, to leave open the possibility that they are educated in the law but lack an understanding of what they will go out and apply the law to.

[Note here I am not suggesting that all discrimination lawsuits are somehow meritorious or that students should be taught to view them as such, but rather about the background knowledge that discrimination – including old fashioned bias – continues to exist].

But when I think of concrete ways to bring this into my classroom, I am reminded of the many conversations I have had about this issue both professionally and personally over the years. Those who already believed that discrimination remains robust, believed – and those who didn’t, didn’t. Whether discrimination exists is not simply a neutral factual issue open for academic discussion; it is a powerful belief that people (on both sides) take as an article of faith. I therefore worry that “teaching” discrimination might achieve little, while perhaps having real costs.

So what are your experiences teaching “discrimination” in a law class? Have you done it? How? Did you feel it was successful?

ADA Amendments Retroactivity

There's a recent ADA case from the Fourth Circuit of note. In Reynolds v. American Red Cross, the court joins most of the other circuit courts in holding that the ADA Amendments do not apply retroactively—an issue that is on its way to being mooted by the passage of time. One interesting issue that was effectively mooted by that holding was the district court's willingness to aggregate defendants the American Red Cross and the relevant local affiliate for purposes of meeting the ADA's minimum number of employees.  That's obviously significant for many larger entities, so we'll have to stay tuned for the court's take on this issue.

Hat Tip:  Jonathon Harkavy

-JH

Henson: T7 Is a Balancing Act

Chuck Henson (Missouri - Columbia) has just posted on SSRN his provocative article (2 University of Miami Race & Social Justice Law Review 41 (2012)) Title VII Works – That's Why We Don't Like it.  Here's the abstract:

In response to the universal belief that Title VII of the Civil Rights Act of 1964 is not fulfilling its purpose, this Article presents a different perspective on the reality of this federal employment discrimination law. Title VII is fulfilling the purpose of the Congress that created it. The purpose was not the eradication of all discrimination in employment. The purpose was to balance the prohibition of the most obvious forms of discrimination with the preservation of as much employer decision-making latitude as possible. Moreover, the seminal Supreme Court decision, McDonnell Douglas v. Green, accurately implemented this balance. This Article argues that State law provides the best opportunity to seek the eradication of employment discrimination.

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Attorney Fees in T7 Cases

Michael Maslanka has a nice post over at Work Matters on the split among the federal circuit courts on whether a district court judge, in awarding attorneys fees to a successful Title VII plaintiff, can consider evidence that the plaintiff rejected a pretrial settlement offer that significantly exceeded the jury award. 

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