Wednesday, May 28, 2014
The AALS is hosting a Workshop June 22-24 in Washington DC on Transnational Perspectives on Equality Law. The full program is here, and this is a summary:
Workshop on Transnational Perspectives on Equality Law
Sunday, June 22 - Tuesday, June 24, 2014
The Renaissance Mayflower Hotel
Antidiscrimination law is an American invention that has spread all around the world. During the American civil rights movement of the 1960s, antidiscrimination law promised radical social transformations towards equality for women and minorities in the workplace, in politics, and in education. But recent developments in Equal Protection and Title VII doctrine have paralyzed this trajectory. Meanwhile, the last decade has seen the unprecedented globalization of antidiscrimination law, as well as its expansion and alternative development outside the United States, catalyzed largely by the European Union's two directives in 2000, on race equality and on equal treatment in employment. Over the last few years, a new body of equality law and policy experimentation has emerged not only in the EU and in European countries, but also in South Africa, Canada, Latin America, and Asia. There is a range of public policies adopted to mitigate the disadvantages of vulnerable groups such as racial, ethnic, and religious minorities, women, the disabled, the elderly, and the poor, constituting an "equality law" that goes beyond norms prohibiting discrimination.
At the same time, antidiscrimination law in the United States seems to be changing. U.S. Supreme Court decisions over the last several years (Ricci v. DeStefano, Parents Involved in Community Schools v. Seattle School District, Wal-Mart v. Dukes, and Shelby County v. Holder) have signaled the end of antidiscrimination law as envisioned by the civil rights movement in the United States. In response, there is growing scholarly interest in finding new approaches to the persistent problem of structural inequality. Comparative reflection is a productive tool, particularly when energy and optimism surrounds the trajectory of antidiscrimination law and equality policy outside of the United States. Now that there is over a decade's worth of new antidiscrimination activity in the EU countries following the 2000 equality directives, the time is ripe for scholarly reflection and evaluation of these developments. From an intellectual, practical, and strategic perspective, antidiscrimination scholars in the United States can no longer ignore developments in antidiscrimination law in other countries.
While a growing number of American legal scholars are lamenting the limits of antidiscrimination law, the recent growth of this body of law outside of the United States has largely gone unnoticed. The central purpose of this mid-year meeting is to widen the comparative lens on U.S. equality law - its failures, its achievements, and its potential - across a variety of subject areas. The meeting will provide a unique and much-needed opportunity to bring together scholars from various fields - constitutional law, employment discrimination law, comparative law, comparative constitutional law, election law, education law - to deepen and enrich the scholarship and teaching of equality. The meeting will also provide a unique opportunity for U.S. scholars to interact with a wide, varied, and stimulating group of antidiscrimination scholars working around the world.
Additionally, law schools are increasingly making their curricula more transnational and comparative. This conference will assist teachers in integrating comparative perspectives to illuminate constitutional law, employment discrimination law, employment law, and other traditional subjects.
This Workshop will explore a number of critical questions including what is at stake in looking comparatively when doing equality law; how affirmative action is understood in other legal systems; understanding disparate impact, accommodation, and positive rights. There will be discussions of religion, profiling, and equality and social movements. Transnational perspectives on equality law will be a greater component of antidiscrimination scholarship going forward. This meeting should not be missed.
AALS Planning Committee for 2014 AALS Workshop on Transnational Perspectives for Equality Law
Timothy A. Canova, Nova Southeastern University Shepard Broad Law Center
Guy-Uriel E. Charles, Duke University School of Law, Chair
Richard T. Ford, Stanford Law School
Reva B. Siegel, Yale Law School
Julie C. Suk, Benjamin N. Cardozo School of Law Yeshiva University
May 28, 2014 in Conferences & Colloquia, Disability, Employment Discrimination, Faculty Presentations, International & Comparative L.E.L., Religion, Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)
Tuesday, May 20, 2014
Please welcome guest blogger Joseph Seiner from the University of South Carolina School of Law. Joe teaches Employment Discrimination, Principles of Labor Law, Individual Employment Law, a workshop in ADR in Employment Law, and a seminar in Comparative Employment Discrimination. From his faculty bio:
Joseph Seiner received his B.B.A., with High Distinction, from the University of Michigan in 1995, where he was an Angell Scholar. Professor Seiner received his J.D., Magna Cum Laude, Order of the Coif, from the Washington and Lee University School of Law, in 1998. Professor Seiner was a lead articles editor for the Washington and Lee Law Review.
Following law school, Professor Seiner clerked for the late Honorable Ellsworth Van Graafeiland of the U.S. Court of Appeals for the Second Circuit. After his clerkship, he practiced law with Jenner & Block, LLP, in Chicago, Illinois, where he focused on labor and employment matters. In September, 2001, Professor Seiner accepted a position as an appellate attorney with the U.S. Equal Employment Opportunity Commission in Washington, D.C., where he presented oral argument as lead counsel in the United States Courts of Appeals in employment discrimination cases.
Prior to joining the faculty at the University of South Carolina School of Law, Professor Seiner was an adjunct professor at the Georgetown University Law Center, where he developed and taught a seminar on comparative employment discrimination. Professor Seiner's articles have been selected for publication in numerous journals, including the Notre Dame Law Review, the Boston University Law Review, the Iowa Law Review, the Boston College Law Review, the William and Mary Law Review, the University of Illinois Law Review, the Hastings Law Journal, the Wake Forest Law Review, and the Yale Law and Policy Review. Professor Seiner's work has been featured in a number of media sources, including The Wall Street Journal. Upon invitation, Professor Seiner has submitted written testimony to committees in both the U.S. Senate and the U.S. House of Representatives. Professor Seiner teaches courses in the labor and employment law area.
Joe is also a prolific scholar. You might check out his most recent article, now on SSRN, The Issue Class. From the abstract:
In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), the Supreme Court refused to certify a proposed class of one and a half million female workers who had alleged that the nation’s largest private employer had discriminated against them on the basis of their sex. The academic response to the case has been highly critical of the Court’s decision. This paper does not weigh in on the debate of whether the Court missed the mark. Instead, this Article addresses a more fundamental question that has gone completely unexplored. Given that Wal-Mart is detrimental to plaintiffs, what is the best tool currently available for workers to pursue systemic employment discrimination claims?
Surveying the case law and federal rules, this paper identifies one little used procedural tool that offers substantial potential to workplace plaintiffs seeking to pursue systemic claims — issue class certification. Rule 23(c)(4)(A) of the Federal Rules of Civil Procedure permits the issue class, allowing common issues in a class case to be certified while the remaining issues are litigated separately. The issue class is typically used where a case has a common set of facts but the plaintiffs have suffered varying degrees of harm. This is precisely the situation presented by many workplace class action claims.
This paper explains how the issue class is particularly useful for systemic discrimination claims. The paper further examines why traditional class treatment often fails in workplace cases, and addresses how the plaintiffs in Wal-Mart could have benefited from issue class certification. Finally, this Article discusses some of the implications of using the issue class in employment cases, and situates the paper in the context of the broader academic scholarship. This paper seeks to fill the current void in the academic scholarship by identifying one overlooked way for plaintiffs to navigate around the Supreme Court’s decision.
May 20, 2014 in About This Blog, Employment Common Law, Employment Discrimination, Faculty News, International & Comparative L.E.L., Labor Law, Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)
Monday, April 28, 2014
A relatively rare thing is happening in St. Louis beginning today. A high profile sex discrimination trial begins. It's Katz v. Anheuser-Busch, which I posted about back in October of 2009 when the case was filed. Francine Katz, former Vice President of Communications and Consumer Affairs and part of the company's "Strategy Committee," is suing Anheuser-Busch for discrimination in compensation and support during her tenure at the company. She discovered that she was paid less than every man on the Strategy Committee when A-B was bought by InBev, an international company.
Katz has sued only under the Missouri Human Rights Act and not under Title VII. The MHRA has a standard more plaintiff friendly--protected status need only be a "contributing factor" to an employer's decision--and Missouri courts tend to let things get to trial more frequently. In fact, one of the reasons that this case has taken so long is because A-B sought to enforce an arbitration clause in Katz's contract. The Missouri Court of Appeals held that the arbitration provisions that A-B argued would apply were not in fact enforceable.
There has been more wrangling, including a request by local news to have a camera in the courtroom. As events unfold, I'll post any interesting developments and observations, but mostly I'm looking forward to getting to watch when my schedule permits.
Update: Local investigative reporters have been tweeting from the trial. Follow @leisazigman and @LisaBrownSTL if you are interested.
Thursday, April 24, 2014
From conference organizers Scott Moss and Melissa Hart, at the University of Colorado Law school comes word that registration is open for the Ninth Annual Colloquium on Labor and Employment Law Scholarship. The dates will be September 11th to the 13th in Boulder.
As many of you already know, this is a terrific opportunity to get to know colleagues in an informal setting and exchange ideas as we discuss works-in-progress. Past participants likely would agree that the friendly, low-key atmosphere and productive sessions, as well as the chance to socialize with our colleagues, make this gathering especially fun and valuable.
The Colloquium will follow the familiar format. We will workshop papers all day Friday through Saturday afternoon. Exact times TBD; check the event webpage for updates as the Colloquium approaches.
To register, click here.
April 24, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty Presentations, International & Comparative L.E.L., Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Scholarship, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0) | TrackBack (0)
Wednesday, April 23, 2014
The Sixth Circuit just handed a resounding defeat to the EEOC in its disparate impact challenge to Kaplan Higher Education Corp.'s use of credit history to select employees, including those who will have access to student financial information. The opening paragraph signals the result by noting that the EEOC itself "runs credit checks on applicants for 64 of the agency's 97 positions." Apparently, hypocrisy isn't an asset for a federal enforcement agency.
But that point, however interesting, isn't the most provocative aspect. That honor goes to the court's treatment of the expert report upon which the EEOC based its claim that use of credit checks screen out African American applicants at a greater rate than whites. Upholding the district court's findings that the expert report was inadmissible under Daubert, the Sixth Circuit affirmed the lower court's dismissal of the EEOC complaint: without the report, the EEOC couldn't prove the requisite disparity of impact.
As the case was presented, the Commission seemed to have data on all applicants screened by one of Kaplan's vendors, so it was a simple matter to identify the exclusionary effect of the credit checks by name of applicant. The catch was, of course, that the data did not identify race, which meant that racial impact remained to be proved.
The EEOC subpoenaed state driving license records. Eleven states identified the race of license holders, but 36 states responded by providing color copies of photographs of license holders. This is where expert Murphy (or maybe I should now call him non-expert Murphy) came in. He set up a procedure for "race rating" by five raters who were experienced in "multicultural, multiracial, treatment outcome research." If 4 of the 5 agreed on a particular race for each applicant, he or she was so classified. The raters were unable to reach such a 4/5's consensus on 11.7% of the photographs, but the remainder were rated.
Now there were some technical problems with the expert report. For example, Murphy provided applicant names to the raters, which could obviously have influenced their ratings. And the racially-identified individuals were drawn from only a sample of those subjected to credit checks by one vendor, which meant that other vendors' checks were simply excluded. Add to that, there was some objective reason to doubt that the sample was in fact representative -- although Murphy did do limited "anecdotal" cross-checking of his raters' identifications with racial data provided by a state DMV, finding a 95.7% agreement.
The Sixth Circuit, however, focused not only on these kinds of problems by finding neither peer review of the technique or theory Murphy employed nor standards controlling the technique's operation. The latter referred to Murphy's failure to provide the raters with any particular standard: "they just eyeballed the DMV photos." Since the Daubert test was failed, Murphy's report was excluded, and with him went the EEOC's disparate impact case.
While it's possible to dismiss the case as another EEOC litigation failure, that's too easy a reaction. Practically speaking, the disparate impact theory obviously depends on proof of impact on different races, which means that there has to be some way to identify the races of those affected. Putting aside genetic testing (which has its own conceptual problems not to mention being clearly infeasible), the only obvious ways are self-identification or appearance.
The 11 states that provided racial data were almost certainly providing self-identified race. I suppose the EEOC could have written to all the applicants in the other states and asked them what race they were. Not likely to get much of a response -- other than predictable howls of outrage.
In any event, if those states having racial identity data didn't generate enough cases to reach statistical significance, the EEOC's "race rating" technique seems not implausible, the problems with Murphy's study aside.
But this takes us to deeper questions as to who counts as black (or white or any other race). There's been some interesting scholarship on "regarded as" discrimination, and I concur with most of the writers (albeit not all courts) that, for purposes of Title VII disparate treatment liability, what matters is the perception of the putative discriminator, not the "real" race of the victim.
But we're talking about disparate impact, and regarded as analysis seems inapposite: no one is regarding anyone as of any race is a pure impact case. The only question is whether the challenged practice falls more heavily on one racial group than another. It would seem, then, that we'd need to figure out who belongs in which group, and, for that purpose, appearance is the obvious marker. It remains to be seen whether Kaplan will be an outlier or a precursor for what has rarely been a problem in the past: who counts as what for purposes of impact analysis.
Wednesday, April 16, 2014
Scott Bauries (Kentucky) has posted two new papers on TWEN. the first is Individual Academic Freedom: An Ordinary Concern of the First Amendment, which Scott says he views as Part I of what he sees as a three-part series directed at identifying a better constitutional “home” for academic freedom than the First Amendment. It is forthcoming in the Mississippi Law Journal, and here is the abstract:
This contribution to the Mississippi Law Journal's symposium on education law makes the case that individual academic freedom is not a "special concern of the First Amendment," as the Supreme Court has often said it is. The article tracks the academic freedom case law in the Court and establishes that, while the Court has often extolled the value and virtues of individual academic freedom in its opinion rhetoric, no case it has ever decided has depended for its resolution on a "special" individual right to speech or association that inheres only in academics. The article then fleshes out the implications of this claim for the speech rights of publicly employeed academics following the Court's decision in Garcetti v. Ceballos, concluding both that the decision is here to stay, and that recent efforts to craft exceptions to it are unavailing due to the underlying doctrinal structure of the First Amendment.
The second article is a short review of the labor and employment cases the Supreme Court decided in the last term that Scott did for the Louisville Law Review as a follow-up to his presentation on the same topic at the Warns Institute at Louisville this past June. It's entitled, Procedural Predictability and the Employer as Litigator: The Supreme Court's 2012-2013 Term, and here is its abstract:
In this contribution to the University of Louisville Law Review’s Annual Carl A. Warns Labor and Employment Institute issue, I examine the Supreme Court’s labor and employment-related decisions from the October Term 2012 (OT 2012). I argue that the Court’s decisions assisted employers as litigators — as repeat players in the employment dispute resolution system — in two ways. First, the Court established simple contract drafting strategies that employers may use to limit their exposure to employment claims. Second, the Court adopted bright-line interpretations of employment statutes. Both forms of assistance served a formalist interest in what I term “procedural predictability” — enhanced employer predictability and control of both the duration and costs of resolving employment disputes.
Great work, Scott!
Tuesday, April 15, 2014
Michelle Travis (San Francisco) has just posted on SSRN her article (forthcoming Denver L. Rev.) Disabling the Gender Pay Gap: Lessons from the Social Model of Disability. Here's the abstract:
As we celebrate the fiftieth anniversary of Title VII’s prohibition against sex-based compensation discrimination in the workplace, the gender wage gap remains robust and progress toward gender pay equity has stalled. This article reveals the role that causal narratives play in undermining the law’s potential for reducing the gender pay gap. The most recent causal narrative is illustrated by the "women don’t ask" and "lean in" storylines, which reveal our society’s entrenched view that women themselves are responsible for their own pay inequality. This causal narrative has also embedded itself in subtle but pernicious ways in antidiscrimination doctrine, which helps shield employers from legal liability for gender pay disparities.
The disability civil rights movement faced a similar challenge, however, and their [sic] response provides a potential path forward on gender pay issues. The causal narrative that erected barriers for disability rights was engrained in the medical model of disability, which also identified internal deficits as the source of individuals’ own limitations. The disability rights movement responded with a reconceptualized "social model," which explains disability instead as the result of the environment in which an individual’s characteristics interact. The social model of disability is an alternative causal narrative: one that shifts focus onto the role played by employer practices and organizational norms in producing inequality. This article explores how a social model approach to women’s compensation could help shift the causal focus away from the manner in which women negotiate, and onto the institutional practices that produce unequal results. In doing so, the social model may help resuscitate Title VII’s disparate impact theory to allow challenges to employment practices that base compensation on employees’ individual demands, thereby moving us toward more effective structural solutions to the gender pay divide.
Tuesday, April 8, 2014
(Photo credit The Individualist Feminist) Happy Equal Pay Day, the day that women's pay catches up to men's from last year. The gap is currently 77 cents for every dollar a man earns, but that does not account for racial differences. Black women only make 64 cents to every dollar a white man makes. For Latina women, it’s 54 cents. President Obama's new workplace orders are heartily applauded by those of us who think that something other than women's fully empowered and free choices are driving this gap.
Wednesday, April 2, 2014
Anjum Gupta (Rutgers - Newark) argues in Nexus Redux (forthcoming 90 Indiana L.J. (2015)) that in asylum cases in which individuals fear persecution in their home countries because of race, religion, nationality, membership in a particular social group, or political opinion, courts should adopt "a burden-shifting framework ... that is inspired by the frameworks for assessing causation in U.S. anti-discrimination law.... The article draws from the literature and jurisprudence surrounding intent in U.S. asylum law and anti-discrimination law, as well as from mixed motives jurisprudence."
Now, if the Supremes could just get the burden-shifting framework right ....
Tuesday, April 1, 2014
Friend of the blog, Mike Zimmer (Loyola Chicago) sends along news that Loyola University Chicago School of Law is organizing its fifth annual constitutional law colloquium in Chicago this fall. The dates are Friday, November 7 and Saturday, November 8. Here are the details:
Fifth Annual Constitutional Law Colloquium
Friday, November 7th and Saturday, November 8th
Loyola University Chicago School of Law is organizing a Constitutional Law Colloquium at the Philip H. Corboy Law Center, 25 East Pearson Street, Chicago, IL 60611.
This will be the fifth annual Loyola constitutional law colloquium. Once again, we hope to attract constitutional law scholars at all stages of their professional careers to discuss current projects, doctrinal developments in constitutional law, and future goals. The conference will bring together scholars to discuss their works-in-progress concerning constitutional issues, such as, but not limited to Free Speech, Substantive Due Process, Equal Protection, Suffrage Rights and Campaign Finance, Process Oriented Constitutionalism, Constitutional Interpretation, Constitutional Theory, National Security and Constitutional Rights, Due Process Underpinnings of Criminal Procedure, Judicial Review, Executive Privilege, Suspect Classification, Free Exercise and Establishment of Religion, and Federalism. As in years past, we will provide many opportunities for the vetting of ideas and for informed critiques. Submissions will be liberally considered, but participation is by invitation only. Presentations will be grouped by subject matter.
Erwin Chemerinsky, Dean and Distinguished Professor of Law at the University of California-Irvine School of Law, will be the keynote speaker.
Titles and abstracts of papers should be submitted electronically to firstname.lastname@example.org no later than June 15, 2014.
The Law Center is located on Loyola's Water Tower campus, near Michigan Avenue's Magnificent Mile, Lake Michigan, Millennium Park, the Chicago Art Institute, and Chicago Symphony Center.
Participants’ home institutions are expected to pay for their own travel expenses. Loyola will provide facilities, meals, and support.
There are numerous reasonably priced hotels within walking distance of the Loyola School of Law and Chicago's Magnificent Mile.
Heather Figus, ConstitutionLaw@law.edu
Loyola Constitutional Law Faculty:
Professor Diane Geraghty, A. Kathleen Beazley Chair in Child Law
Professor Barry Sullivan, Cooney & Conway Chair in Advocacy
Professor Juan F. Perea
Professor Alan Raphael
Professor Allen Shoenberger
Professor Alexander Tsesis
Professor Michael Zimmer
Looks likea great opportunity for those of us doing work at the intersection of labor, employment, and constitutional law.
April 1, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Labor Law, Public Employment Law, Religion, Scholarship | Permalink | Comments (0) | TrackBack (0)
Monday, March 31, 2014
There have been a number of relatively high profile cases lately, penalizing the EEOC in some way for its investigation or pursuit of a lawsuit. The decision in Mach Mining, the importance of which is discussed here, overturned one trial court's decision in this vein of cases. The most recent installment comes from the Fourth Circuit and involves attorneys fees.
In EEOC v. Propak Logistics, Inc., the EEOC had appealed a decision by the trial court that awarded the defendant attorneys fees after the court had dismissed the EEOC's action on the ground of laches. On appeal, the EEOC made two arguments: 1) that it would be unjust to award attorneys fees incurred in making a laches defense because such a defense is not available in an action brought by a federal agency; and 2) the district court improperly relied on its prior laches defense ruling and made erroneous factual findings related to the award. The court of appeals rejected both of these arguments. The court first refused to consider the argument that laches could not be used against a federal agency, holding that the EEOC had waived that argument by dismissing its appeal of the summary judgment. The court of appeals also rejected the second argument, ruling that the district court had relied on grounds separate from the laches defense in awarding fees and that its factual findings were not clearly erroneous.
The EEOC had brought this action against Propak Logistics, alleging that the company had discriminated in hiring against a class of non-Hispanics on the basis of race or national origin. The action came five and a half years after the initial charge had been filed with the EEOC, during which there had been long periods of inactivity, and after the company had closed the two locations at issue in the complaint. Relying on the standard articulated by the Supreme Court in Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), the court of appeals held that the decision to file this class claim was unreasonable because at the time it was filed, the EEOC had not identified individual class members and the relief requested could not be granted--the claim was moot.
Of particular note is the concurring opinion by Judge Wilkinson. Acknowledging that the EEOC is subject to a significant burden, given its administrative load and lack of resources, Judge Wilkinson noted that Congress and the Supreme Court had not exempted it from fees or created a standard different from that applicable to private parties. In fact, the power of the government and the costs to small and medium-sized businesses of complying with investigations and defending lawsuits along with the costs of delays to individuals injured by discrimination justified this treatment as a way to promote efficient agency action. Justice Wilkinson concluded by observing,
The story of this litigation is regrettable because the EEOC provides primary recourse to those victims of discrimination that persists in our society to an unfortunate extent. The reference to statutory goals and missions, however, cannot be divorced from the manner in which those purposes are implemented. . . . Surely [the delay and its consequences as acknowledged by the EEOC ] is not and must not become the norm. It is not far-fetched to believe that the nation’s deep commitment to combatting discrimination will be affected for good or ill by the esteem in which this important agency is held.
Interesting and thoughtful decision.
h/t Jonathan Harkavy
Friday, March 28, 2014
The Supreme Court's decision in Vance v. Ball State is typically viewed as an unalloyed victory for employers, and it certainly means that many more harassment cases under the federal antidiscrimination cases will have to be litigated as direct liability/negligence claims rather than absolute or presumptive liability. That necessarily follows from the Court's narrow definition of "supervisor" to reach only those who can take "tangible employment actions," such as hiring, firing, demoting, promoting, transferring, or disciplining subordinates. It is only such individuals who will trigger automatic employer liability (when they in fact do take such a tangible employment action) or presumptive liability subject to an affirmative defense (when they don't). All other harassment will be assessed under a negligence standpoint.
Is it possible that Vance went further to also negate what many viewed as at least a partial employee victory in Staub v. Proctor Hospital, a 2010 decision in which "supervisors" also featured prominently?
In Staub, two lower level managers -- whom the Court labeled as "supervisors" -- made reports which the jury found to have influenced the actual decisionmaker, one Buck, to fire Staub. The lower level "supervisors" had the motivation to discriminate against plaintiff (in that case, under USERRA) but no power to fire. Buck had the power to fire Staub but no discriminatory motivation. Adopting its version of the "cat's paw" theory, the Court found that the employer could be liable in such circumstances.
Rewind to Vance and the problem immediately presents itself: under the Vance analysis, Buck was the supervisor, and the other two low level supervisors apparently weren't -- after all, they couldn't cause an adverse employment action unless they influenced the actual decisionmaker. So if harassment were the claim, only Buck could trigger automatic or presumptive liability.
That's not per se inconsistent with Staub but the Staub majority went out of its way to make clear that the cat's paw theory it adopted applied only when "supervisors" influenced the decisionmaker.
Needless to say, the employer would be liable only when the supervisor acts within the scope of his employment, or when the supervisor acts outside the scope of his employment and liability would be imputed to the employer under traditional agency principles. We express no view as to whether the employer would be liable if a co-worker, rather than a supervisor, committed a discriminatory act that influenced the ultimate employment decision.
But Vance seems to mean that Staub was dealing with the null set: those who can't make an independent decision on hiring, firing, etc. are not supervisors and therefore there isn't anybody who can use the decisionmaker as a cat's paw. So Vance negates Staub, despite the fact that Scalia who wrote Staub was part of the majority in Vance.
There are various ways out of this conundrum. The most obvious is that there are two different definitions of "supervisor" for purposes of the two claims, although why that should be is beyond me.
Another possibility is that the Staub implicitly resolved the question the Court explicitly reserved: co-workers (the managers who were not Vance-style supervisors) can satisfy the cat's paw theory if they have the requisite motivation and proximately cause the adverse decision.
Yet another possibility looks to a passage in Vance that may be read to create a class of de facto supervisors:
[E]ven if an employer concentrates all decisionmaking authority in a few individuals, it likely will not isolate itself from heightened liability under Faragher and Ellerth. If an employer does attempt to confine decisionmaking power to a small number of individuals, those individuals will have a limited ability to exercise independent discretion when making decisions and will likely rely on other workers who actually interact with the affected employee. . . . Under those circumstances, the employer may be held to have effectively delegated the power to take tangible employment actions to the employees on whose recommendations it relies.
Maybe, but Scalia in Staub did not buy the delegation theory Alito suggested in concurring as the basis for subordiate bias liability under the antidiscrimination statutes.
It's true that the Tenth Circuit read the Vance delegation language to elevate to "supervisor" status those who have the power to recommend a tangible employment action: "Importantly, however, the Court explained that an employee need not be empowered to take such tangible employment actions directly to qualify as a supervisor. A manager who works closely with his or her subordinates and who has the power to recommend or otherwise substantially influence tangible employment actions, and who can thus indirectly effectuate them, also qualifies as a 'supervisor' under Title VII." Kramer v. Wasatch County Sheriff's Office (10th Cir. Feb. 25, 2014).
But wait, that may or may not be true, but it doesn't appear that the lower level managers in Staub were supervisors-by-delegation. Certainly, the majority opinion doesn't treat them that way. Further, while this might square Vance with Staub in a few cases, any broad application would effectively destroy the "easily workable" rule that the Vance Court was so intent on providing.
A final possibility might be that an individual is a supervisor under Vance because he or she has the power to take some tangible employment actions (like discipline), which would allow him to influence the decisionmaker under Staub to take a more severe action (such as discharge). There might be some basis for drawing that conclusion from the facts in Staub, but the opinion itself doesn't focus on it.
The Sixth Circuit noted, but did not resolve, the question of the relationship between the two cases in Shazor v. Prof'l Transit Mgmt., (6th Cir. Feb. 19, 2014).
A hat tip to student Justine Abrams for alerting me to Shazor and to my colleagues Ed Hartnett and Tim Glynn for sharing thoughts on the question.
Wednesday, March 26, 2014
The Supreme Court heard arguments yesterday in the companion cases of Sebelius v. Hobby Lobby and Conestoga Wood v. Sebelius, both dealing with whether the contraceptive mandate of the ACA violates the Religious Freedom Restoration Act if it applies to for-profit corporations that assert a religious objection to providing contraceptive coverage.
The oral argument transcripts show heavy questioning of the corporations' position by the three female justices, and heavy questioning of the Solicitor General by Justices Scalia, Alito. I won't try to read the tea leaves, because I'm almost always wrong, but I'll direct you to the commentary on the argument in ScotusBlog, Forbes, The New Yorker, Politico, The Wall Street Journal, Time, and Slate.
There are a number of scholarly works that address the issues, too. Some of them include this paper by Mal Harkins (SLU adjunct/Proskauer Rose, LLP), this article by Steven Willis (Florida), this article by Stephen Bainbridge (UCLA), this article by Jeremy Christiansen (Utah), this article by Edward Zelinsky (Yeshiva/Cardozo), this ACS issue brief and this article by Caroline Mala Corbin, this article by Matthew Hall (Georgia) and Benjamin Means (South Carolina), this article by Eric Bennett Rasmusen, this article by Priscilla Smith, this article by James Oleske, this article by Christopher Ross (Fordham), and this article by Elizabeth Sepper.
I do feel comfortable predicting that this is likely to be a 5-4 decision and likely not to be issued until June.
Monday, March 17, 2014
Back in January, Maria Shriver's organization "A Woman's Nation" issued its third report on fundamental challenges facing women in the U.S.: A Woman's Nation Pushes Back from the Brink. I have not had a chance to read the whole report, which focuses on financial insecurity of women and the children who depend on them, and the impact of that financial insecurity on our country's institutions and econonic futures, but the parts I have read have been very thought provoking. For more, see the Shriver Report's home page.
In connection with that report, Shriver and HBO created a documentary, Paycheck to Paycheck: The Life and Times of Katrina Gilbert, to personalize the struggles of low wage workers, most of whom are women. The documentary is streaming free at HBO Docs YouTube page this week only.
March 17, 2014 in Commentary, Employment Discrimination, Labor and Employment News, Labor/Employment History, Pension and Benefits, Wage & Hour, Worklife Issues | Permalink | Comments (0) | TrackBack (0)
Monday, March 10, 2014
The refusals, for religious reasons, of many men to shake hands with women has generated more than a little heat in the political arena over the years, for example, whether a Jewish candidate for the European parliament or an Iranian's refusal to shake Kate Middleton's hand. The NY Times Ethicist weighed in on the topic in 2002 suggesting that the appropriate response of an offended woman was to tear up a contract she had just signed. For Randy Cohen, it was OK not to shake hands because of religious belief, but the real estate broker who did so should have avoided discriminating on account of sex by not shaking hands with anyone.
Then there's the EEOC, which issued an Informal Discussion letter in 2010, which viewed the question as one of "undue hardship" and suggested an inquiry into "the actual disruptions that have occurred" when a new employee refused to shake hands with a woman. It also advised the employer to consider "whether the employee implements his "no handshake" practice in a neutral manner" or in a way that is hostile and demeaning to women. Which neatly dodges the question of whether refusing to shake a woman's hands. no matter how politely done, is inherently demeaning.
A recent blog posting at Seyforth Shaw raised the issue as a not-so-hypothetical hypothetical in which, at the end of an interview, a candidate refused to shake hands with the females interviewing him, "stating that he does not engage in that practice" but not invoking a religious reason.
One obvious question was whether the interviewers should infer a religious motivation -- absent that, refusing to hire a candidate who offended half the staff would not be problematic. In the hypo, there were indications on religious belief on the resume, which -- together with other signals -- seems sufficient to apprise the employer of his (probable) religion.
But could the employer ask? Inquiries into religion are obviously problematic, but might be permissible if the candidate is viewed as seeking an accommodation -- "excuse me from workplace etiquette norms because of my beliefs." Still, probably not advisable.
Assuming the employer is on notice of the religious basis of the refusal, and the candidate would otherwise be the top choice, what next? The blog suggests examining his "overall demeanor" as it relates to women: was he respectful or did he display any "sex-based animus." OK, but this "examination" is presumably triggered by his religiously-motivated practice, and it's the practice that is raising concerns about whether he will treat women in the workplace (or customers and vendors) appropriately. The blog goes on to ask about the position to be filled -- whether the successful candidate will work alone or in teams, whether the job is a sales position, etc. The goal is ask "whether the candidate's selective handshaking would cause any measurable impact in the workplace."
There's a noticeable lack of doctrine in the blog discussion, which may not be surprising because the scenario raises issues at the intersection of Title VII's prohibition on religious discrimination and its requirement of reasonable accommodation, not to mention the obvious tension between privileging religious observance at the potential risk of impairing gender equality.
Some of the blog's advice seems sound but rarely useful: if the job is a sales one, and someone who shakes hands only with men can't close half the deals, turning him down seems fine. Religion, needless to say, is subject to the bona fide occupational qualification exception and, however narrow that defense is, this would seem to qualify.
But that's a kind of easy observation because it's very unlikely that bfoq requirements can be met in these kinds of cases. And, further, the internal political problem probably arises from fear that the candidate will treat his female co-workers disrespectfully, not because of potential problems with outsiders. That fear may be more or less rational -- religious worldviews about the proper place of women that drive the no-touching norm may well suggest an antiequality attitude that could infect the workplace.
But Title VII may bar drawing such an inference -- no matter how rational it might be. To allow employers to do shift the focus from the individual by treating him or her as a member of a disfavored religion, whether Muslims or observant Jews. And I use the word "her" advisedly because it's not just males who might refuse to touch members of the opposite sex, which makes the sex equality issue even more complicated.
What about the possibility that the candidate should be viewed as seeking a reasonably accommodation for his religious practice? We all know that the bar's pretty low here for the employer: if there's more than a de minimis cost, no duty to accommodate. And surely this situation could be framed as involving more than de minimis costs -- in morale if not dollars. But the problem with this is that the employer seems to be discriminating on the basis of religion, not merely asking for an accommodation. And, as suggested, discrimination can be justified only by the bfoq defense.
That suggests a path out of the dilemma, but scarcely one that will be appealing to most employees: offer the candidate the job but require him to shake hands with everyone. No discrimination and no accommodation. The fly in this particular ointment is that the possibility of being sued over the decision has just skyrocketed, and maybe the courts would find the accommodation to be acceptable. After all, most workplaces don't feature regular handshaking marathons.
As is often the case when rights clash, there seem no good legal "answers."
Sunday, March 9, 2014
I'm looking for "hot topics" to recommend to my students for research projects. Circuit splits are welcome. If you have suggestions, please post a comment or email me directly.
This Article applies social psychology and antidiscrimination theories to the case of Muslim women of color in the workplace, an under-researched area in legal scholarship. I examine in detail the identity performance challenges and contradictions faced by Muslim women of color as "intersectionals" facing stereotypes against 1) Muslims as terrorists, violent, and disloyal; 2) Muslim women as meek, oppressed, and lacking individual agency; 3) women as sexualized, terminally second best to men, and uncommitted to their careers; 4) immigrants as forever foreign and undeserving of equal treatment; and 5) ethnic minorities from the Middle East and South Asia as barbaric, misogynist, and anti-American.I conclude that Muslim women of color are at risk of falling between the cracks of Title VII jurisprudence due to courts’ unwillingness to recognize the harms caused by coercive assimilationst pressures to conform one’s identity to comport to high status group norms, irrespective of the relevance to work performance.
Friday, March 7, 2014
- The NLRB will hold public meetings on its new election rules proposals. Requests to speak are due March 10 and the meetings are scheduled for April 10 & 11. The transcripts from the previous set of meetings, while containing a lot of the usual suspects, actually had some useful testimony, so it's not just a pro forma procedural hurdle.
- Here we go again. Apropos to the above entry, after the NLRB proposed again its original set of election rules, Republicans in Congress attack. This time a House hearing. The main objection appears to be faster elections (what they call "ambush elections"), although the claim that they could be held in as little as 10 days doesn't look accurate to me.
- I'm late on this one, but the NLRB is relocating. HQ is moving from the 14th & L location that I new so well to a building on the Capitol riverfront. At least they'll be able to catch more Nationals games.
- After the Scott Walker e-mail release, it became known that a state doctor was fired for having modeled thongs in the past. Jason Walta asks whether she might have a claim under the Wisconsin statute that protects the "use or nonuse of lawful products off the employer's
premises during nonworking hours." See the lengths we'll go to try to tease Paul, our emeritus Wisconsinite, back onto the blog?
Hat Tip: Patrick Kavanagh.
Wednesday, February 26, 2014
The EEOC has asked for public comments to its proposed revised management directive in federal sector proceedings. The EEOC acts as an adjudicator for federal sector claims. From the press release,
The U.S. Equal Employment Opportunity Commission (EEOC) has announced that it is seeking public comment on significant revisions to Management Directive 110 (MD-110), which provides federal agencies with EEO policies, procedures and guidance related to the newly revised 29 C.F.R. Part 1614 (federal sector EEO regulations). The full text of the proposed revisions is available on the Regulation.gov website at http://www.regulations.gov/#!docketDetail;D=EEOC-2014-0001.
These revisions represent the first major changes to MD-110 since 1999; they can be categorized into three areas:
- Implementation of Revised Regulations:
- new procedures for agencies to submit, and the EEOC to approve, requests to conduct pilot projects for processing complaints in ways other than those prescribed in Part 1614;
- revised procedure making an administrative judge's decision on the merits of a class complaint a final decision;
- a new compliance section;
- updated retaliation language in the dismissal section;
- notice to complainant when an agency is untimely in completing an investigation; and
- information on digital filings of appeals and complaint files.
- Conflict of Interest:
- addressing EEO director reporting relationship;
- EEO and HR conflicts;
- complaint processing of matters involving EEO officials or high-level agency officials; and
- conflicts between agency legal and EEO programs.
- General Updates & Clarification:
- revisions to the remainder of MD-110 to reflect current policies, procedures, laws and case precedents.
These revisions are a part of the EEOC's ongoing efforts to improve the federal sector process. The agency encourages interested parties to review these proposed changes and provide feedback for EEOC consideration. The agency specifically urges stakeholders to provide feedback on the conflict-of-interest section, as this is the EEOC's first attempt to provide clarity in this area, and stakeholder input will be valuable in determining the final approach.
Public comments on revisions to MD-110 should be provided through Regulation.gov (http://www.regulations.gov/#!docketDetail;D=EEOC-2014-0001) no later than April 25, 2014 for appropriate consideration.
Further information about EEOC is available on its website www.eeoc.gov. The EEOC's Office of Federal Operations also maintains a Twitter handle @EEOC_OFO for general news and information updates.
Friday, February 21, 2014
Last spring, the Wefel Center for Employment Law at Saint Louis University held a fantastic symposium on Teaching Employment and Labor Law. I can say that with appropriate modesty because I had very little to do with it. The symposium was organized by Tonie Fitzgibbon, my amazing colleague, who has been the Director of our center for twenty years, and who was the Assistant Director at its inception. I'm pretty sure it was my colleague Miriam Cherry's idea, and Matt Bodie, Elizabeth Pendo, and I all agreed it would be a good topic. In addition to us, Marion Crain and Pauline Kim (Wash. U.), Rachel Arnow-Richman (Denver), Laura Cooper (Minnesota), Marty Malin (Chicago-Kent), Nicole Porter (Toledo), Joe Slater (Toledo), and Kerri Stone (Florida International) all gave presentations.
The Saint Louis University Law Journal has just published the papers connected with the symposium, so now everyone can read about what we who were there got to hear. From the table of contents:
Teaching Employment and Labor Law Symposium
Susan A. FitzGibbon
Teaching Employment and Labor Law
A Holistic Approach to Teaching Work Law
Marion Crain & Pauline T. Kim
Employment Law Inside Out: Using the Problem Method to Teach Workplace Law
Teaching Employment Discrimination Law, Virtually
Miriam A. Cherry
A Proposal to Improve the Workplace Law Curriculum from a Compliance Perspective
Nicole Buonocore Porter
Teaching the Post-Sex Generation
Kerri Lynn Stone
You should check them out.
February 21, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty Presentations, Labor Law, Pension and Benefits, Public Employment Law, Scholarship, Teaching | Permalink | Comments (1) | TrackBack (0)