Monday, December 16, 2013
Zak Kramer (Arizona State) has a new paper on SSRN that I can't wait to read. The New Sex Discrimination is an attempt to rationalize our view of sex discrimination, taking into account the reality that people perform their gender identities in different ways. From the abstract:
Sex discrimination law has not kept pace with the lived experience of discrimination. In the early years of Title VII of the Civil Rights Act, courts settled on idea of what sex discrimination looks like — formal practices that exclude employees based on their group membership. The problem is that sex discrimination has become highly individualized. Modern sex discrimination does not target all men or all women, nor does it target subgroups of men or women. The victims of modern sex discrimination are particular men and women who face discrimination because they do not or cannot conform to the norms of the workplace. These employees have been shut out of a sex discrimination regime that still expects employees to anchor their claims to a narrative of group subordination.
This paper proposes a new regime for sex discrimination law. The model for the new sex discrimination regime is religious discrimination law. Unlike other areas of employment discrimination law, religious discrimination law offers a dynamic conception of identity and a greater array of different theories of discrimination. Sex discrimination law can and should work this way, too. On a broader level, the paper recalibrates sex discrimination law’s vision of equality. Difference is universal; no two people are the same, and this is a good thing. Thus the central task of sex discrimination law should be to better recognize — and in turn protect — the distinctive ways in which employees express their maleness and femaleness. It is these differences, after all, that shape the way employees experience modern sex discrimination.
Provocative and timely.
Susan Bisom-Rapp (Thomas Jefferson) and Malcolm Sargeant (Middlesex U. Business School, UK) have just posted on SSRN a working draft of their new paper, It's Complicated: Age, Gender, and Lifetime Discrimination Against Working Women—The U.S. and the U.K. as Examples. Susan presented this at the 8th Annual Colloquium on Recent Labor and Employment Law Scholarship held by our friends at UNLV. From the abstract:
This paper considers the effect on women of a lifetime of discrimination using material from both the U.S. and the U.K. Government reports in both countries make clear that women workers suffer from multiple disadvantages during their working lives, which result in significantly poorer outcomes in old age when compared to men. Indeed, the numbers are stark. In the U.S., for example, the poverty rate of women 65 or older is nearly double that of their male counterparts. Older women of color are especially disadvantaged. The situation in the U.K. is comparable. One study, analyzing gender and age group, found that women in the U.K. were at a greater risk of poverty throughout their working lives. That study revealed a significant statistical difference in poverty risk between men and women under the age of 50, which decreased for the 50-64 age group, and then increased dramatically for those 65 and older, resulting in a poverty gap that was more than twice the average for the whole population in the UK.
To capture this phenomenon, this paper develops a model of "Lifetime Disadvantage," which considers the major factors producing unequal outcomes for working women at the end of their careers. One set of factors falls under the heading "Gender-Based Factors." This category concerns phenomena directly connected to social or psychological aspects of gender, such as gender stereotyping and women’s traditionally greater roles in family caring activities. A second set of factors is titled "Incremental Disadvantage Factors." While these factors are connected to gender, that connection is less overt, and the disadvantage they produce increases incrementally over time. The role of law and policy in ameliorating or exacerbating women’s disadvantages is considered in conjunction with each factor, revealing considerable incoherence and regulatory gaps.
An effective and comprehensive regulatory framework could help compensate for these gender-based disadvantages, which accumulate over a lifetime. Using the examples of the U.S. and the U.K., however, we demonstrate that regulatory schemes created by "disjointed incrementalism" (policies that tinker along the margins without considering women’s full life course) are unlikely to vanquish systemic inequality on the scale of gender-based lifetime discrimination.
Really interesting work.
Friday, December 13, 2013
Early yesterday morning, Chai Feldblum was re-confirmed to another 5-year term at the EEOC. Congratulations, and great news for the EEOC, which will remain fully staffed. Chai has been a great resource for the Commission, having been instrumental in negotiating the ADA and ADAAA, an expert on ENDA, and a voice for cooperation and public outreach with Commissioner Lipnic.
Tuesday, November 19, 2013
Theodore Eisenberg (Cornell), who has been studying trends in civil rights and employment litigation for nearly thirty years, has just posted on SSRN his article Four Decades of Federal Civil Rights Litigation. Here's the abstract:
Civil rights cases constitute a substantial fraction of the federal civil docket but that fraction has substantially declined from historic peaks. Trial outcomes, as in other areas of law, constitute a small fraction of case terminations and have changed over time. The number of employment discrimination trials before judges has been in decline for about 30 years, a trend also evident in contract and tort cases. The number of employment trials before juries increased substantially after the enactment of the Civil Rights Act of 1991 but has been in decline since 1997. In constitutional tort cases, the number of judge trials has been declining for about 30 years; the number of jury trials has been reasonably constant over that time period. Civil rights plaintiff win rates at trial have been steady in both judge trials and jury trials for at least a decade. The success of civil rights litigation, as measured by trial win rates and settlement rates, has been quite low compared to contract and tort cases. Median awards in civil rights trials have increased more than the rate of inflation but median trial awards in both constitutional tort cases and employment cases are below the awards in contract cases and tort cases.
Thursday, November 14, 2013
Cunningham-Parmeter on Men at Work, Fathers at Home: Uncovering the Masculine Face of Caregiver Discrimination
Despite their many workplace advances, women remain constrained by an enduring social expectation that they will manage their families’ domestic lives. Women will not achieve full workplace equality until men do more at home, and men will not enter the domestic sphere if they face employment retaliation for doing so. Men at Work, Fathers at Home addresses this problem by critically evaluating the legal challenges that fathers and other male caregivers face in proving claims of workplace discrimination. Drawing from Supreme Court precedent and gender theory, the Article explains how masculine norms deter men from asserting their caregiving needs at work, while undermining their ability to prosecute discrimination claims in court. By examining how these men can combat biases against male caregiving, the Article seeks to advance the goal of gender equality for both sexes.
Sunday, November 10, 2013
While Justice Scalia's caution that Title VII is not "a general civility code" has been repeatedly invoked, it hasn't stopped the spread of employer civility codes. Such rules probably owe something to the desire to sanitize the workplace as a prophylactic against sexual or other harassment claims, but there also seems to be a deeper concern about, well, civility.
A quick Google search reveals warnings that swearing can get you fired, countered by claims that profanity improves productivity, and arguments that cursing will make you more popular. As is often the case, social science -- or at least the blogosphere -- seems to leave us with fewer answers than questions.
In any event, employers seem to be responding to the issue with policies that bar profanity, regardless of whether it has any connection to actionable harassment. Some how-to versions of the policy have their amusing side, including one source that sounds like a 12-Step program for recovering swearers and recommends coming up with socially-acceptable substitutes for profanity. Egad.
While "profanity" originally had very strong religious connotations, the term today is used in this context to embrace coarse or vulgar speech. Barring racial slurs or sexualized references obviously has a close connection to hostile work environment claims, and it's not hard to see how other terms can implicate such claims under age and disability antidiscrimination laws. That said, there really are coarse insults that are not gender specific nor especially sexual -- "asshole" comes to mind, as do common words for excretory functions.
But a recent district court case, Griffin v. City of Portland, raised yet another potential problem for some varieties of profanity -- this time reverting to in the term's original meaning of "desecrating what is holy or sacred." The claim was harassment on the basis of religion. While there was other evidence of hostility to plaintiff because of her Christian beliefs, a recurrent theme was her objections to others taking God's name in vain. One dramatic incident was triggered by her objections to the use of "Jesus Christ" as an expletive.
The court denied summary judgment to the City, but did so by finding a fact question of whether the references to God were because of plaintiff's religion. Presumably, proof that such usage was part of the speakers' normal speech patterns would avoid any liability. The court wrote:
For instance, it is unlikely that a coworker who used a curse word without knowing that the word offended Ms. Griffin for religious reasons used the word around Ms. Griffin because of her religion. Rather, such a coworker likely used the curse word without contemplating whether it would bother or offend anyone, merely because he or she was in the habit of using profanity. Evidence that the coworker quickly apologized and refrained from cursing in Ms. Griffin's presence thereafter would bolster the argument that that coworker had not cursed because of Ms. Griffin's religious beliefs, although such evidence is not necessary.
Makes sense, right? But what if the co-worker, when told of Ms. Griffin's objections, did not cease using such language? Not responding to a civil request to avoid offensive language might not be praiseworthy, but does continuing a preexisting speech pattern show intent to harass or just garden variety insensitivity? Or even, if we believe some of the commentary, an inability to change ingrained patterns.
Of course, an antiprofanity policy would tend to insulate employers from having to worry about these concerns -- although enforcing such a policy poses its own problems. Nevertheless, cases like Griffin might well add impetus to what already seems to be a growing phenomenon in many workplaces.
Wednesday, November 6, 2013
Congratulations to Susan Carle (American University Law) on the publication of her new book: Defining the Struggle: National Organizing for Racial Justice, 1880-1915 (Oxford University Press 2013).
From the Publisher:
Since its founding in 1910--the same year as another national organization devoted to the economic and social welfare aspects of race advancement, the National Urban League--the NAACP has been viewed as the vanguard national civil rights organization in American history. But these two flagship institutions were not the first important national organizations devoted to advancing the cause of racial justice. Instead, it was even earlier groups -- including the National Afro American League, the National Afro American Council, the National Association of Colored Women, and the Niagara Movement - that developed and transmitted to the NAACP and National Urban League foundational ideas about law and lawyering that these latter organizations would then pursue.
With unparalleled scholarly depth, Defining the Struggle explores these forerunner organizations whose contributions in shaping early twentieth century national civil rights organizing have largely been forgotten today. It examines the motivations of their leaders, the initiatives they undertook, and the ideas about law and racial justice activism they developed and passed on to future generations. In so doing, it sheds new light on how these early origins helped set the path for twentieth century legal civil rights activism in the United States.
A fascinating new look at the history of the civil rights movement, going well beyond the normal narrative of the 20th Century. A must read for any person who wants to learn more about the history of race relations and civil rights developments during the earlier parts of United States history.
Tuesday, November 5, 2013
After years of no news, it looks like there is suddenly movement on the Employment Non-Discrimination Act. The current version, introduced in both the House (H.R. 1755) and the Senate (S. 815) on April 25th of this year, was voted out of committee in July and then had stalled, when Monday, the Senate overwhelmingly voted to invoke cloture and move forward to a vote. The Senate version is expected to pass as early as this week.
John Boehner has apparently said that he'll oppose the bill in the house, arguing that it will lead to frivolous litigation and hurt small businesses. Another frequent critique of the legislation is that it will interfere with religious freedom, although it does not apply to religious organizations that are allowed to discriminate on the basis of religion under Title VII.
Interestingly, according to polls, most people support a ban on LGBTQ discrimination, and in fact 80% of those polled think this protection already exists. There are certainly arguments that Title VII's ban on sex discrimination prohibits at least some discrimination on the basis of sexual orientation and identity (see here, here, and here for some of the EEOC's views supporting that). But the courts have not always agreed, and according to this infographic, only 21 states (and DC) have a ban on sexual orientation discrimination while 16 states (and DC) ban discrimination on the basis of gender identity.
Sunday, November 3, 2013
Jon Harkavy sends us a copy of Arizona v. Asarco, LLC, a Ninth Circuit decision involving the relationship between a Title VII nominal compensatory damage award and a punitive damages award. Jon points out that the case seems an important application of BMW v. Gore, and that it's ironic that the result here is a "constitutional" limit of 125,000 to 1 for damages to a victim, whereas the courts routinely approve fee awards to attorneys in nominal damages cases that far exceed that ratio.
Wednesday, October 30, 2013
Friend of the blog Marcy Karin (ASU) writes to remind us of a symposium/CLE that readers of the blog will be interested in, especially those of you in the New York area. On Friday, Hofstra's Labor and Employment Law Journal will be holding a symposium on health legislation and the workplace. Forging a Path: Dissecting Controversial Health Legislation in the Workplace. The symposium will take place at Hofstra University Club, David S. Mack Hall, North Campus, Hofstra University, on Friday, November 1, 2013, from 9 am to 3 pm.
The lineup is impressive. Here are the details:
Keynote Speaker: Phyllis Borzi, Assistant Secretary for Employee Benefits Security, U.S. Department of Labor
Panel 1: The Evolution of Anti-Discrimination Disability Laws: Defining Reasonable Accommodation and Disability
- Rick Ostrove ’96, Partner, Leeds Brown Law, PC
- Keith Frank ’89, Partner, Perez & Varvaro
- Marcy Karin, Clinical Professor of Law and Director, Work-Life Policy Unit, Civil Justice Clinic, Sandra Day O’Connor College of Law at Arizona State University
- Jeffrey Schlossberg ’84, Of Counsel, Jackson Lewis LLP
- E. Pierce Blue, Special Assistant and Attorney Advisor, Office of Commissioner Chai Feldblum, U.S. Equal Employment Opportunity Commission
Panel 2: Workplace Uncertainties Under the ACA: Preparing the Employer and Employee for the Road Ahead
- Jill Bergman, Vice President of Compliance, Chernoff Diamond & Co., LLC
- Steven Friedman, Shareholder and Co-Chair, Employee Benefits Practice Group, Littler Mendelson P.C.
Panel 3: The FMLA 20 Years Later: What Have We Learned and Where Do We Go From Here?
- Robin Runge, Professorial Lecturer in Law, George Washington University Law School
- Rona Kitchen, Assistant Professor of Law, Duquesne University School of Law
- Joseph Lynett, Partner, Jackson Lewis LLP
- Nicole Porter, Professor of Law, The University of Toledo College of Law
Registration is $100 per person. Includes continental breakfast, lunch and CLE credits. Free for Hofstra University students, faculty, staff and administrators.
Sponsored by: Littler Mendelson P.C.
October 30, 2013 in Conferences & Colloquia, Disability, Employment Discrimination, Faculty Presentations, Pension and Benefits, Scholarship, Worklife Issues, Workplace Trends | Permalink | Comments (0) | TrackBack (0)
Monday, October 21, 2013
Bill Corbett's (LSU) essay, "Calling on Congress: Take a Page from Parliament's Playbook and Fix Employment Discrimination Law," was recently published in Vanderbilt En Banc. From the introduction:
The Supreme Court rendered two decisions addressing issues of federal employment discrimination law on June 24, 2013: University of Texas Southwestern Medical Center v. Nassar1 and Vance v. Ball State University. The opinions have many similarities: Both deal with analytical frameworks developed to prove and evaluate intentional discrimination claims; both were decided in a way that favors defendant employers over plaintiff employees; both were decided 5-4 with the same majorities and dissenters; both majority opinions stated that the decision was likely to result in fewer trials of discrimination claims; both majority opinions rejected the position of the Equal Employment Opportunity Commission (“EEOC”); and both dissents were authored by Justice Ginsburg and read from the bench. Furthermore, the two cases prompted Justice Ginsburg to conclude the dissenting opinions with a call to Congress to overturn the decisions, as she had done in 2007 in Ledbetter v. Goodyear Tire & Rubber Co. Apparently this strategy worked in Ledbetter, as President Obama signed the Ledbetter Fair Pay Act of 2009, overturning the legal principle articulated in that case. According to commentator Jeffrey Toobin, in Vance and Nassar Justice Ginsburg “ran her Ledbetter play again,” but he predicted it is less likely to succeed this time.
I, too, urge Congress to amend the employment discrimination laws, but not by running “the Ledbetter play” again. Congress should stop patching the employment discrimination laws by enacting statutes to change the law announced in specific cases. Such a nickel-and-dime approach to reform of the law is precisely what led to the sharply divided decision in Nassar. Instead, Congress should take a page from the playbook of the United Kingdom’s Parliament and undertake a comprehensive reform of employment discrimination laws, as Parliament did in the Equality Act of 2010.
An interesting and provocative piece--so check it out.
Sunday, October 20, 2013
In the religion context, what, exactly, triggers the duty to accommodate? Two recent contrasting opinions cast light – or maybe shadows – on the issue. In Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444, 450-51 (7th Cir. 2013), the court held, that, even though plaintiff’s religious beliefs and practices were not as familiar as others closer to the modern American mainstream, plaintiff’s request for leave to attend his father’s funeral gave sufficient notice of the religious nature of the request by referring to a “funeral ceremony,” a “funeral rite,” and animal sacrifice and describing his participation as “compulsory,” with the spiritual consequence of his absence being his own and family members' deaths. That triggered the employer’s duty to accommodate.
In contrast, EEOC v. Abercrombie & Fitch Stores, Inc., 11-5110, 2013 WL 5434809 (10th Cir. Oct. 1, 2013) (2-1), held an employer entitled to summary judgment because an applicant “never informed it prior to its hiring decision that her practice of wearing a hijab was based on her religious beliefs and (because she felt religiously obliged to wear it) that she would need an accommodation for the practice, because of a conflict between it and Abercrombie's clothing policy.” Even if the court were to adopt a broader view of “notice,” an employer need not guess or surmise from the circumstances that a particular practice is based on religion and that the plaintiff requires an accommodation for it.
The Abercrombie opinion is detailed, complex, and sophisticated – and wrong in major respects.
The facts are pretty clear: Ms. Elauf applied for a “model” (i.e., sales) job at Abercrombie while wearing a headscarf, but was turned down because it was assumed she was Muslim and her need to wear a hijab would conflict with the store’s Look Policy. Pretty straight religious discrimination claim, right? Refusal to hire based on the applicant’s religion; if the Look Policy was a BFOQ, maybe no liability, but not because the employer wasn’t discriminating on the basis of religion.
If the court is to be believed, things went wrong at the outset because the EEOC framed the case not as religious discrimination per se but rather as failure to accommodate. Posing the claim that way shifted the focus from whether Abercrombie discriminated on Elauf’s (assumed and actual) religion to whether she ever notified the store of the fact that she had a religious practice that required accommodation in the form of an exemption from the Look Policy. She didn’t, not explicitly, and the majority requires explicit notice. Case dismissed.
As a fallback position, the court also considered whether some kind of less direct notice might suffice, but, if so, the source of such notice “would need to provide the employer with sufficient information such that the employer would have actual knowledge that the conflicting practice of the particular applicants or employees is based upon their religious beliefs and that they need an accommodation for it.” In this case, the only basis for such knowledge was an Abercrombie manager’s assumption that the applicant wore the headscarf for religious reasons and would need some kind of accommodation. That isn’t the kind of “particularized, actual knowledge” that the applicant in question “and not some hypothetical Muslim female” required an accommodation.
The net result is that the employer could refuse to hire a worker because she appeared to be Muslim and was assumed to require an accommodation (both of which were found to be true by the trial court) with no liability under Title VII, entirely absent a finding of either BFOQ or undue hardship.
If the result can be justified, it’s only because the EEOC framed the case as a failure to accommodate claim rather than a plain vanilla discrimination one.
But looked at solely from an accommodation perspective, the Abercrombie opinion raises interesting issues. In fact, the majority turns the EEOC’s rules against itself. Looking to various EEOC guidances, the court stressed that employer should neither inquire into nor assume religious beliefs of their employees, which suggests that they should normally await requests for accommodation and, even then, conduct only the most minimal inquiry into beliefs necessary to decide whether a reasonable accommodation is possible.
According to the court, this is true even if an employer was “generally aware of the beliefs and observances traditionally associated with a particular religious group, and also knew that the applicant or employee displayed symbols associated with that group—or even that the applicant or employee specifically claimed to be a member of that group.” That is because “the employer would still not know whether the conflicting practice in question actually stemmed from religious beliefs unless the particular applicant or employee informed the employer, because . . . religion is a uniquely personal and individual matter.” At several points in the opinion, the court referred to expert testimony that “religious” practices sometimes were undertaken for “cultural” reasons, which meant that the wearing of the hijab did not necessarily reflect the applicant’s “religious” beliefs.
Finally, the court adopts a command-and-control view of religious accommodation. Even “particularized, actual knowledge” of the religious nature of “a particular applicant or employee” is not enough to trigger the duty to accommodate:
That is because the applicant or employee may not actually need an accommodation. In other words, an applicant or employee may not consider his or her religious practice to be inflexible; that is, he or she may not feel obliged by religion to adhere to the practice. If that is the situation, then there actually is no conflict, nor a consequent need for the employer to provide a reasonable accommodation
Abercrombie puts the ball squarely in the applicant’s court: to be entitled to an accommodation, the applicant must notify the employer directly and explicitly that she has a mandatory religious practice that conflicts with a workplace rule and so requires an accommodation. Since the applicant was never hired because she was assumed to need an accommodation, the court seems to think that the only way this action would have been actionable was if she had raised the need for an accommodation at her initial interview. A violation of the first rule of Interviewing 101.
One wonders if the plaintiff in Adeyeye would have satisfied such a standard when he asked for leave to attend his father’s funeral. Did the words “funeral ceremony,” or “funeral rite,” convey a religious, as opposed to a cultural compulsion? But maybe the information that the spiritual consequence of plaintiff’s absence would be his own and family members' deaths would do so, and maybe death would be sufficiently compulsory to satisfy the court’s last requirement.
There is much else in the Abercrombie opinion that is interesting and more than a little reason to believe that the court ruled the way it did because of what it perceived as a fundamental unfairness of the EEOC’s various pronouncements, which it believed put employers in the lose/lose situation: forbidding them from inquiring into employees’ religious beliefs while holding them responsible for accommodating those same beliefs. But the result is extraordinarily harsh and seems to ratify discrimination against Muslims (or at least those assumed to be Muslims).
Hearteningly, Judge Ebel issued a dissent. Although at points he seemed to be focusing on discrimination rather than accommodation, he agreed with the majority that “in the ordinary case” an employee must inform the employer of her need for an accommodation, but argued that that requirement made no sense in this setting. While Abercrombie didn’t hire the applicant in order to avoid the accommodation issue, the applicant was not even sure an accommodation would be necessary so long as any hijab she wore did not have to be black. The dissent particularly objected to the majority’s suggestion “that a job applicant must initiate a general discussion of her religious beliefs during the job interview just in case her religious beliefs and practices might conflict with some unstated policy or work rule of the employer.”
The apparent circuit split on what is necessary to trigger the duty to accommodate needs to be resolved, but one good start would be to stop viewing all religious discrimination cases through an accommodation lens. Had this been litigated as a straightforward case of discrimination against Muslims, the outcome might well have been different – and certainly the analysis would be. In that case, the focus would be how critical the Look Policy was to Abercrombie and whether some exceptions might co-exist with it. Not that such an inquiry might not have its own complications: hijab yes, burka, no?
P.S. Shortly before the 10th Circuit's decision, Abercrombie settled two other EEOC suits raising similar issues. Given that the retailer agreed to reform its policies concerning accommodations of its Look Policy, it may be that the case is more significant for the law that it establishes than for whatever may become of Muslim applicants at the store.
Friday, October 18, 2013
Sandra Sperino (Cincinnati) sends word that on November 15, 2013, The Ohio State Law Journal will host a symposium titled “Torts and Civil Rights Law: Migration and Conflict.” Here's a description:
Increasingly, courts and commentators have labeled federal statutory anti-discrimination claims “torts” or “tort-like” claims, without thoroughly discussing the implications of this classification. Particularly since the U.S. Supreme Court’s 2011 ruling applying the controversial concept of “proximate cause” to a claim of employment discrimination, the lower courts have stepped up their efforts to reshape a number of anti-discrimination doctrines to align with general tort concepts, often with the effect of limiting the scope of statutory civil rights protection. Thus, tort law is playing a more prominent role in statutory interpretation under Title VII, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA).
This symposium will explore the theoretical and doctrinal affinities and tensions between tort and anti-discrimination law, while fostering dialogue between tort and anti-discrimination scholars.
The symposium is co-hosted by Sandra and Martha Chamallas (OSU), and the cast of speakers is very impressive.
Tuesday, October 15, 2013
The Supreme Court today dismissed Madigan v. Levin, the first case to be argued this year, a case about whether the ADEA supplanted a remedy for unconstitutional age discrimination under 42 U.S.C. § 1983, as improvidently granted. Most people could see this coming from the oral argument, where the Justices focused on the procedural posture of the case and whether the Seventh Circuit had jurisdiction to answer the question accepted for certiorari--and if so, whether that jurisdiction should have been exercised. A group of federal courts professors had filed a brief amici curiae, arguing that the court had jurisdiction, but should not have exercised it for prudential reasons, and as the oral argument transcript shows, the Justices focused on that question and additional issues related to the fact that this was an interlocutory appeal from denial of summary judgment on qualified immunity grounds.
The case will go back to the district court for further procedings on the merits. Because the defendants were found not qualifiedly immune, this may be ripe to settle.
The Supreme Court did not vacate the Seventh Circuit's decision, so, as we noted before, the split seems to remain: the 1st, 4th, 9th, and 10th, have held that the ADEA implicitly forecloses bringing an age discrimination claim directly under the equal protection clause using § 1983 as a vehicle; the 7th has held that it has not.
Sunday, September 29, 2013
The article approaches critically the balancing between freedom of religion and the enforcement of disability anti-discrimination law followed by the Supreme Court in Hosanna-Tabor v. EEOC. Enforcing disability anti-discrimination law is a compelling interest, as it finds a very strong philosophical justification, making thus the result of the case contrary to the philosophical conception of a well-ordered society. Doing away with the social construct of disability is a compelling interest as it is a universalisable interest, an interest upon which there can be an over-lapping consensus independently of a person’s comprehensive, religious or not, vision of the good. Reference to the ministerial exception to justify exempting employers from the disability antiretaliation laws is of doubtful compatibility with Emp’t Div., Dep’t. of Human Resources of Or. v. Smith. Courts can distinguish between a doctrinal and a nondoctrinal issue and abstain from controlling the first while controlling the legality of nondoctrinal issues. If the case of a qualified minister is at stake, whose substantive qualifications the courts cannot control under the First Amendment, then disability anti-discrimination law should be enforced, as it is neutral law of general applicability.
Wednesday, September 25, 2013
Two unusual big wins have been buzzing around the news in the last few days--a settlement between the EEOC and Abercrombie and Fitch, and an order by an administrative law judge at the Department of Labor to pay almost $2.2 million to African American job seekers who the judge found had been discriminated against.
The EEOC settlement involved two cases brought against Abercrombie and Fitch, challenging the application of its "look policy" to muslim teens who wore hijabs for religious reasons. From the press release,
Clothing retailer Abercrombie & Fitch has agreed to pay $71,000 and to change its policies to settle two separate religious discrimination lawsuits on behalf of Muslim teens wearing hijabs (religious headscarves), the U.S. Equal Employment Opportunity Commission (EEOC) announced today. This settlement follows last week's ruling finding Abercrombie liable for religious discrimination in one case, and an April 2013 ruling dismissing its undue hardship claims in the other suit.
In an order issued Sept. 3, U.S. District Judge Yvonne Gonzalez Rogers found Abercrombie liable for religious discrimination when it fired a Muslim teenager from her "impact associate" (stockroom employee) position solely for refusing to remove her hijab. Abercrombie had claimed that the hijab violated its "Look Policy" and permitting employees to wear it would harm the Abercrombie brand. Observing that Umme-Hani Khan had been interviewed and hired while wearing the hijab and had worked without incident at Abercrombie's Hollister store at the Hillsdale Shopping Center in San Mateo, Calif., for four months, the court dismissed Abercrombie's argument as "not linked to any credible evidence." Khan intervened in the EEOC's lawsuit and was represented by the Legal Aid Society/Employment Law Center and the Council on American-Islamic Relations.
Similarly, in an April 2013 ruling on the EEOC's lawsuit on behalf of Halla Banafa, U.S. Judge Edward J. Davila also dismissed Abercrombie's undue-hardship claims on summary judgment, citing the "dearth of proof" linking store performance or the Abercrombie brand image to "Look Policy" compliance. The EEOC lawsuit alleged that the 18-year old Muslim applicant was asked about her headscarf and religion during her interview, then denied a job as an "impact associate" in Abercrombie's Great Mall outlet in Milpitas, Calif., for discriminatory reasons.
In a third lawsuit not part of this settlement, a district court in Tulsa, Okla., ruled on July 2011 that it was religious discrimination for Abercrombie not to hire a Muslim applicant for a sales position due to her hijab. That case is pending on appeal in the U.S. Court of Appeals for the 10th Circuit.
The OFCCP's action began in 1993 with a routine compliance review that culminated in a complaint filed by the Solicitor of Labor in 1997 for violation of the Executive Order that prohibits discrimination by federal contractors. From that press release:
U.S. Department of Labor Administrative Law Judge Linda S. Chapman has ordered Bank of America Corp. to pay 1,147 African American job applicants $ 2,181,593 in back wages and interest for race-based hiring discrimination at the company's Charlotte facility. In an earlier ruling, the judge determined that the bank applied unfair and inconsistent selection criteria resulting in the rejection of qualified African American applicants for teller and entry-level clerical and administrative positions. The ruling represents a major victory in a case that has spanned nearly two decades, during which Bank of America repeatedly challenged the authority of the department's Office of Federal Contract Compliance Programs. Bank of America is a federally-insured financial institution that provides a variety services and products, making it a federal contractor under the purview of OFCCP's regulatory requirements.
Both of these cases are noteworthy because of the systemic nature of the relief ultimately provided. Abercrombie is changing its look policy, and Bank of America has learned that it cannot systematically disadvantage African American applicants. Both too show the importance of agency enforcement to accomplish what individual actions might not. And the OFCCP case shows how employer reporting and agency compliance review (something the EEOC too can engage in) can be used to ensure that employers are following federal law.
Tuesday, September 24, 2013
Caroline Mala Corbin has posted a new article on SSRN. It's entitled Corporate Religious Liberty and it focuses on claims that corporations have made recently that their religious liberty requires that they be exempt from the contraception mandate instituted by the Obama Administration in accordance with the Affordable Care Act. Here is the abstract:
Do for-profit corporations have a right to religious liberty? This question is front and center in dozens of cases challenging the Obama administration’s “contraception mandate.” Whether for-profit corporations are entitled to religious exemptions is a question of first impression, and one the Supreme Court is likely to answer in the next few years. Most scholars writing on this issue argue, “yes,” they do have the right to religious liberty, especially after the Supreme Court recognized that for-profit corporations have the right to free speech in Citizens United.
This essay argues “no,” for-profit corporations do not and should not have religious liberty rights. As a matter of current law, neither the Free Exercise Clause nor the Religious Freedom Restoration Act recognizes the religious rights of for-profit corporations. Citizens United changes nothing in religious liberty jurisprudence, as its protection for corporate speech is based on the rights of audiences and not the rights of corporate speakers.
As a normative matter, for-profit corporations should not have free exercise rights. There is no principled basis for extending a purely personal right to profit-making corporations, and for-profit corporations cannot be equated to churches or other voluntary religious associations. Finally, granting religious exemptions to corporations risks trampling on the religious liberty of individual employees.
It looks like a very interesting read.
Friday, September 13, 2013
Nicole B. Porter (Toledo) has just posted on SSRN her symposium article (8 FIU L. Rev. 447, 2013) The Blame Game: How the Rhetoric of Choice Blames the Achievement Gap on Women. Here's the abstract:
In 2013, fifty years after the Equal Pay Act guaranteed women equal pay for equal work, almost fifty years since Title VII made discrimination based on sex unlawful, thirty-five years since the Pregnancy Discrimination Act made it unlawful to discriminate against women because of pregnancy, and nineteen years after the Family and Medical Leave Act provided twelve weeks of unpaid leave for some caregiving reasons, there is still a significant achievement gap between men and women in the workplace. Women still make less money, and rise more slowly and not as high in workplace hierar-chies. Why? The common narrative states that because these laws have given women access to formal equality for many years, the fact that women have not achieved equality in the workplace must be blamed on something else. Specifically, the “something else” relied upon by society, the media, employ-ers, and courts, is that women’s own choices are to blame for the achieve-ment gap. The blame game asserts that women’s relative lack of success in the workplace is caused by three interrelated choices: (1) women’s decision to not pursue high-pressure, high-status professions, or jobs that are seen as “men’s work”; (2) women’s unwillingness to negotiate on their own behalf; and (3) women’s decision to devote more time and effort to caregiving and homemaking tasks.
Wednesday, September 11, 2013
The NLRB has long held that policies against such discussions tend to chill the right to concerted action by those covered by the law, and several states previously enacted statutes protecting employees who engage in such discussions. Now NJ has one too -- but not a law that explicitly bars such policies or one which protects any discussion of compensation. Rather, the new statute amends the state's Law Against Discrimination to declare it unlawful
for any employer to take reprisals against any employee for requesting from any other employee or former employee of the employer information regarding the job title, occupational category, and rate of compensation, including benefits, of any employee or former employee of the employer, or the gender, race, ethnicity, military status, or national origin of any employee or former employee of the employer, regardless of whether the request was responded to, if the purpose of the request for the information was to assist in investigating the possibility of the occurrence of, or in taking of legal action regarding, potential discriminatory treatment concerning pay, compensation, bonuses, other compensation, or benefits.
That means the statute, read literally, bars reprisal for requesting information related to compensation -- but only if the purpose of the request is investigating or taking legal action against "potential discriminatory treatment concerning pay, compensation, bonuses, other compensation, or benefits." Idle inquiries are thus not protected, but it would be a foolhardy firm that tried to mind-read the intent of a worker seeking such compensation data in order to discharge him for having an unqualifying motive.
But while the statute protects workers who "ask," it doesn't seem to protect workers who "tell." Hence, the "ask but don't tell" title of this post. While there is explicit protection for those seeking certain information, there is no explicit protection for those who provide it. The closest the enactment comes is providing that it should not be construed "to require an employee to disclose such information about himself," which is fine as far as it goes but doesn't address the rights of an employee who chooses to disclose.
This would seem to allow employers to continue to promulgate policies barring an employee from disclosing his or her compensation -- so long as enforcement was taken against the discloser not the disclosee. Whether it would make any sense for a NJ employer to take this stance is another question since the state courts have tended to read LAD protections broadly and the policy might be invoked as proof that a terminated worker was really fired for asking.
Another oddity is that the statute also protects requests for information about the "gender, race ethnicity, military status, or national origin" of other employees. Not included are inquiries related to other protected categories, such as age, religion, disability, and sexual orientation. Does that mean that an employee seeking compensation information in order to, say, prove a case of age discrimination is not protected? Or is she only unprotected to the extent she asks other workers about their ages? Was the legislature trying to safeguard co-worker privacy interests for protected statuses that are not necessarily visisible -- disability, sexual orientation, and religion? If so, why is age not included. which is at least as apparent as most of the listed categories?
There's some legislative history, but none that sheds light on these issues. The law originated as an amendment to the state's Conscientious Employee Protection Act (where it would have protected both discloser and disclosee), was conditionally vetoed by Governor Christie because it more properly belonged in the Law Against Discrimination, and was re-passed by the legislature as an amendment to LAD. Why the current version emerged from the legislative mill is simply not apparent.
Thanks to Ed Hartnett for helping me parse this puzzling law.
Tuesday, September 3, 2013
Call for Participation
Symposium: Title VII at 50
Dates | Locations
Friday, April 4, 2014
Saturday, April 5, 2014
Invitation to Participate