Workplace Prof Blog

Kramer Sued over Law Review Article

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

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

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

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

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

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Secunda Named to DOL's ERISA Advisory Council

Congratulations to our own Paul Secunda (Marquette).  Today Secretary of Labor Hilda Solis announced his appointment to the 2013 Advisory Council on Employee Welfare and Pension Benefit Plans – known as the ERISA Advisory Council.  Here's a description; Paul will be representing the public:

The 15-member council provides advice on policies and regulations affecting employee benefit plans governed by the Employee Retirement Income Security Act. By law, members of the council serve for staggered three-year terms. Three members are representatives of employee organizations (at least one of whom represents an organization whose members are participants in a multiemployer plan). Three members are representatives of employers (at least one of whom represents employers maintaining or contributing to multiemployer plans). Three members are representatives of the general public. There is one representative each from the fields of insurance, corporate trust, actuarial counseling, investment counseling, investment management and accounting.

Congrats, Paul!

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Call for Papers: Young Scholars Workshop, Biagi Foundation

Susan Bisom-Rapp (Thomas Jefferson), writes to tell us of an exciting workshop for newer scholars. Here is her note:

I am pleased to attach the Marco Biagi Foundation’s Call for Papers for its Young Scholars Workshop, which will be held during the afternoon of March 19, 2013 at the University of Modena in Modena, Italy.  In addition to PhD candidates and post-docs, JSD students are welcome.  The deadline for the submission of abstracts is November 3, 2012.  Presenters of papers will receive free admission to the Eleventh International Conference in Commemoration of Professor Marco Biagi, hotel accommodations from March 18-20 (two nights), and breakfast and other meals on March 18 -19.

Abstracts, papers and any questions about submissions should be sent to: iacopo.senatori@unimore.it

The 2012 workshop, featuring 10 papers presented by doctoral and post-doctoral students from two continents, and two poster sessions, was an exciting and successful event.  I was honored to participate in the event last year as an organizer and commentator, and found the workshop to be a highlight of the International Conference.  Please spread the word to potential participants.

This looks like an incredible opportunity. A few more details are in this call for papers:  Download Call YSW

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Call for Papers on Institutional Responsibility for Sex and Gender Exploitation

Friend of the blog, Nancy Levit (UMKC) sends along this call for papers likely of interest to your readers:

Call for Papers Announcement

AALS Section on Women in Legal Education

 “Institutional Responsibility for Sex and Gender Exploitation”

2013 AALS Annual Meeting

January 4-7, 2013

New Orleans, Louisiana

The AALS Section on Women in Legal Education will hold a program during the AALS 2013 Annual Meeting in New Orleans, with paper presentations on the topic of Institutional Responsibility for Sex and Gender Exploitation.  We have the below committed moderator and speakers, and are seeking paper submissions to fill the fifth speaker slot.  The papers will be published as a Symposium in the Iowa Journal of Gender, Race & Justice.

Moderator: Professor Cheryl Wade

Protection for Children in Club Sports (Professor Ellen Bublick)

Theories to Holding Insurance Companies Liable for Third Party Exploitation (Dean Jay Mootz)

Employer Liability for Family Responsibilities Discrimination (Professor Joan Williams)

Finding Institutional Tort Responsibility for Sex and Gender Exploitation (Professor Deleso A. Alford)

Submissions should be of scholarship relating to the topic of Institutional Responsibility for Sex and Gender Exploitation, but they can be on any dimension or strand of the general topic.  There is a maximum 25,000 word limit (inclusive of footnotes) for the submission. People submitting papers for consideration must be willing to have the paper published as part of the symposium, if the author is selected as the fifth speaker for the panel. Each professor may submit only one paper for consideration.

Papers will be reviewed anonymously. The manuscript should be accompanied by a cover letter with the author’s name and contact information. The manuscript itself, including title page and footnotes, must not contain any references that identify the author or the author’s school. The submitting author is responsible for taking any steps necessary to redact self-identifying text or footnotes.

To be considered, papers must be submitted electronically to Professor Kirsten Davis, Stetson University College  of Law, kkdavis@law.stetson.edu. The deadline for submission is Wednesday, August 1, 2012. The author of the selected paper will be notified by October 1, 2012.  The Call for Paper participant will be responsible for paying his or her own annual meeting registration fee and travel expenses.

Full-time faculty members of AALS member law schools are eligible to submit papers. Foreign, visiting (and not full-time on a different faculty), and adjunct faculty members, graduate students, and fellows are not eligible to submit.

Papers will be selected after review by an ad hoc committee composed of Section Executive Committee members.

Any inquiries about the Call for Papers should be submitted to:  Professor Kirsten Davis, Stetson University College of Law, kkdavis@law.stetson.edu, or 727-562-7877.

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Secunda on the Wisconsin Public Labor Dispute

Our own Paul Secunda (Marquette) will be speaking at the Centre for Labour Management Relations of Ryerson University in Toronto on April 16. From the school's website advertising the event:

The enactment in June 2011 of Wisconsin Act 10, legislation that eliminated most collective bargaining rights for most public employees in Wisconsin, did not necessarily follow from the economic conditions surrounding the global recession. The argument here is that it was a blatant power grab with political, social and economic implications. Governor Walker's claim that Act 10's anti-collective bargaining approach was required to balance Wisconsin's budget is belied by two unassailable facts.

First, there were a number of provisions in the law, including an annual union recertification requirement and an anti-dues checkoff provision, which had absolutely nothing to do with cost-savings.

Perhaps even more tellingly, when Act 10 was finally enacted by the State Legislature, Walker and his allies employed a legislative procedure which could only be utilized if Act 10 did not have any impact on state fiscal policy. In short, Governor Walker used the global economic crisis, and Wisconsin's budget situation more specifically, as a ruse to enact a punative bill against public sector unions.

Although unions and their allies have drafted, and continue to draft, procedural and substantive legal challenges to Act 10 based on state open meeting laws and constitutionally-based freedom of association and equal protections provisions, these legal challenges have so far been unsuccessful. If such efforts continue to be unsuccessful, it indeed may be a long time before any real public sector collective bargaining will be permitted in Wisconsin. The subsequent loss of workplace rights not only adversely impacts public sector workers, but also the citizens of Wisconsin who will be that much poorer for having to live in a society where internationally-recognized rights of association and collective bargaining are not taken seriously.

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DePaul Symposium: Class Action Rollback?

Next month, the DePaul Law Review will be hosting a symposium on class actions after the Supreme Court's Decision in Wal-Mart v. Dukes. The speakers and panelists look like a pretty interesting mix of folks, and I'm excited to be among them. I'm sure the day will give me lots to think about.

Here are the details:

Class Action Rollback? Wal-Mart v. Dukes and the Future of Class Action Litigation

 The 22nd Annual DePaul Law Review Symposium 
Friday, February 24, 2012, 9:00 am - 4:30 pm
DePaul Center 80051 E Jackson Blvd.Chicago, IL 60604

Registration and continental breakfast from 8:30 - 9:00 a.m. 

The morning session will begin at 9:00 am: Suja Thomas (Illinois) will deliver an opening presentation entitled Oddball Cases. Mark Perry (Gibson Dunn, Georgetown Adjunct), who represented Wal-Mart in the Dukes case, will next deliver a presentation entitled Defending Against Class Actions in the Post-Dukes Environment. Finally, Suzette Malveaux (Catholic) will deliver our Keynote presentation, The Power and Promise of Procedure: Examining the Class Action Landscape After Wal-Mart v. Dukes.

Our afternoon session will consist of three panel discussions on topics ranging from civil procedure to employment practices and practitioner strategies.

Confirmed Panelists: Marcia McCormick (St. Louis); William Hubbard (U. Chicago); Wendy Netter Epstein (Chicago Kent, Kirkland & Ellis); Lesley Wexler (Illinois); Steven Greenberger (DePaul); Tony Fata (Cafferty Faucher); Andrew Trask (McGuire Woods); Linda Friedman (Stonewell & Friedman); Naomi Schoenbaum (U. Chicago)

This event is approved for 5.5 hours of CLE credit.  A continental breakfast and lunch will be provided.
Please RSVP no later than February 17, 2012 to RSVP to Chris Burrichter at lawreview@depaul.edu

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WFRN Preliminary Conference Program Available

Friend of the blog Marcy Karin (Arizona State) writes to let us know that the Work and Family Researchers Network or WFRN (formerly the Sloan Work and Family Research Network) has released the program for its inaugural conference. The WFRN

is an international membership organization of interdisciplinary work and family researchers. The WFRN also welcomes the participation of policy makers and practitioners as it seeks to promote knowledge and understanding of work and family issues among the community of global stakeholders.

The WFRN facilitates virtual and face-to-face interaction among work and family researchers from a broad range of fields and engages the next generation of work and family scholars. As a global hub, we provide opportunities for information sharing and networking via our website, which includes the only open access work and family subject matter repository, the Work and Family Commons. 

The inaugural conference is this June in New York City and features over 600 speakers from thirty countries. a quick glance at the program reveals that amont them are Joan Williams (UC Hastings), Nina Pilard (Georgetown), Beth Burkstrand-Reid (Nebraska), Michelle Travis (San Francisco), Robin Runge (North Dakota), Keith Cunningham-Parmeter (Willamette), Deborah Widiss (Indiana-Bloomington), Melissa Hart (Colorado), Ruth Milkman (CUNY, Sociology) and Marcy Karin (Arizona State).

It looks like a great conference and a great organization to become involved with for anyone working on these work and family issues.

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Snapshot

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Thanks so much to everyone at the LEL Colloquium for tolerating my luncheon presentation and giving me all the terrific ideas for follow-up!  Please please please send those comments to me by email, or add a comment to this post.

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Williams Delivers Piper Lecture

Today, Chicago-Kent held its 32nd annual Kenneth M. Piper Lecture, always a great event. I can't find a link to the video yet, but when I do I'll post it.

Joan Williams (UC Hastings/Worklife Law Center) spoke on Family Responsibilities Discrimination in the Great Recession: Impact of EEOC Guidelines. Commenting were Deidra Byrd (Walgreens) and Stephen Moldof (Cohen, Weiss & Simon LLP). It was a great discussion, focusing in large part on the trends detailed in the Worklife Law Center's report of earlier this year.

One of the most interesting things, from my perspective, on family responsibilities discrimination litigation is the very varied forms the litigation takes. While over sixty municipalities and several states prohibit this kind of discrimination explicitly, the majority of jurisdictions don't have this carved out in their antidiscrimination statutes. So some cases are brought under Title VII, particularly the Pregnancy Discrimination Act provision, but others are brought under the EPA, ADA, ERISA, and various state tort causes of action, to name a few. The success rate for these cases is relatively high: about 50%, in large part because penalizing people for taking care of others rubs most judges and juries the wrong way. It's an interesting case study on how activists and ordinary people, both employees and management, begin to shape the law and workplace norms in new ways.

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ABA Section on Labor and Employment Law Ethics Committee Meeting

The ABA Section on Labor and Employment Law Ethics and Professional Responsibility Committee will be meeting this weekend in Coronado California for a midwinter meeting.  Among myriad other speakers will be:

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• Gwen Handelman (Nova Southeastern), moderating a panel on Attorney-Client Privilege in Employee Benefits Practice: Who's Your Client and When?
• Michael Green (Texas Wesleyan), moderating a panel on The Allure of Electronic Communications: Forgetting Your Professional Responsibilities When Involved with Email, Facebook, Twitter, and Blogging.
• Ruben Garcia (Cal Western), moderating a panel on The Role of Attorneys in Policing Professionalism.

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CLE on Plausibility in Labor and Employment Cases

The ABA Section of Labor and Employment Law and Center for Continuing Legal Education are presenting a CLE program (teleconference and live audio webcast) on the effect of Iqbal and Twombly on labor and employment cases. According to the program description:

The pleading standard for a viable cause of action, as defined by the Federal Rules of Civil Procedure, requires “a short and plain statement of the claim showing that the pleader is entitled to relief.”  In 2007, the United States Supreme Court’s Twombly v. Bell Atlantic Corp., 550 U.S. 544 (2007),decision re-examined the pleading standard and rejected Conley v. Gibson’s “no set of facts” test. 

In 2009, the Supreme Court expanded Twombly’s reach in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), holding Rule 8’s newly-crafted pleading standard applies to all civil cases. No matter your focus and no matter who your client is, the Court’s decision in Iqbal marks an abrupt shift in pleading standards, and that shift has affected all labor and employment cases.  Hear from our panel of employment law experts, who will cover such critical areas as: 

• The impact of Iqbal on labor and employment law cases to date;
• How labor and employment practitioners are adjusting to the new pleading standard;
• What the future trend in labor and employment adjudications holds; and
• The proposed legislation to overturn Iqbal.

Panelists include Suja Thomas (Illinois), Josh Civin (NAACP LDF), and Jonathan Youngwood (Simpson & Thatcher), and the moderator is Samuel Miller (Outten & Golden). It should be an interesting discussion.

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St. Antoine to Speak on Employment Arbitration

Ted St. Antoine (Michigan) will speak next Thursday (November 19) at Case Western Reserve University School of Law on the topic Mandatory Employment Arbitration: Keeping It Fair, Keeping It Lawful.  He'll be giving the Rush McKnight Labor Law Lecture presented by the Center for the Interdisciplinary Study of Conflict and Dispute Resolution.  Here's a preview:

Agreements requiring employees to arbitrate all disputes with their employers, including statutory claims, instead of taking them to court, have become highly controversial. As a condition of getting or keeping a job, employees must waive their right to go before a judge and jury to pursue their cases. Yet in addition to saving the employer high litigation costs and devastating jury awards, so-called mandatory arbitration may give ordinary lower-paid employees the only practical means of enforcing their job rights. Courts are increasingly insisting on due process safeguards in these systems. Practitioners in the employment field should know about the pros and cons of mandatory arbitration agreements, and about the fast-moving legal developments concerning their validity.

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Estlund on Regulating Self-Regulation

CCH Work Week reports:

As union representation has declined and employment law regulations that offer no collective representation have proliferated, employees must find different ways to assert themselves in the workplace to make sure their rights are protected, according to Cynthia A. Estlund, the Catherine A. Rein professor or law at New York University School of Law. As employers implement internal compliance programs to deflect employment regulations and potential litigation and employees are shut out of those self-regulatory schemes, there will be no workplace democracy, Estlund argued, speaking on "Corporate Self-Regulation and the Future of Workplace Governance" at Chicago-Kent College of Law.

I agree with Cindy and would take her point one step further. Cindy has argued for procedural due process rights which would act as a right to expression in the workplace. I think we should be careful of depending too much on such due process rights, especially where such process is given by an employer in a perfunctory manner. This can be especially problematic in a politicized public employment environment, but in the private sector as well.

So pushing for due process-type rights in the workplace is part of the response to this self-regulation movement/self-governance movement, but other responses are necessary, including introducing  corrective legislation on the federal and state level and fashioning arguments to overcome employee-unfriendly, judicially-made law.

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Reminder: Registration Deadline for Labor/Employment Conference is Approaching

Monday is the deadline for registering for the Second Annual Colloquium on Current Scholarship in Labor/Employment Law, which will be held Sept. 28-29 at U. Denver and U. Colorado.  I didn't make it last year and wish I had; I'll be attending and presenting this year.  Scott Moss reports that registrations are way up from last year, which itself was quite an impressive collection of scholars.  Scott also requests:

Please pass this information on to others, especially those who may be new to, or completely outside, legal academia.  Last year, it was nice that word of the event somehow reached a lot of aspiring profs, non-profs, and others who really needed the work-in-progress audience more than those of us who already have been prof'ing for a few years. I hope we can draw a similar amount of new blood to this year's event.

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Parental Leave and Other Embarrassments

Saul Levmore, Dean at Chicago, will lecture next Tuesday at Case Western on why the United States has one of the least generous parental leave policies in the world.  Here's a preview:

"It is not simply that we choose to have less of a welfare state," says Levmore, who has served as law dean at the University of Chicago since 2001.  "Many developing nations offer little in the way of safety nets, but much more than our laws do for the typical employee occupied with childbirth.  The right to parental leave is new to American workers; it covers one-half of the private sector workforce and is relatively short and unpaid.  By contrast, other nations offer universal, paid leaves of 10 months or more."

Levmore will focus on parental leave policies and particularly the sustainability of current parental leave policies by private employers, such as high-end law firms, who often find a much higher dropout rate among the very employees their leave policies were meant to encourage.  He also will discuss the adoption of universal extended paid parental leave as well as how to help parents cover more child care costs and improve the quality of child care.

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Estlund to Speak on Workplace Self-Governance

Cynthia Estlund will speak February 28 at Case Western School of Law on the issue: Is workplace self-governance a New Deal idea whose time has passed, or is it a solution to pressing contemporary problems?  Her talk will focus on the relationship between the workplace and democracy.  As union representation and collective bargaining have declined, employment regulations, rights and litigation have proliferated, and employees must assert themselves to make sure their rights are protected, says Estlund.  "In response, firms have put in place internal compliance and dispute resolution systems that aim to, and sometimes do, deflect regulation and litigation.  If employees continue to be shut out of these self-regulatory systems, the result may be a disguised form of deregulation.  But if employees can gain an effective voice in these systems, the result could be improved regulation and a revival of workplace self-governance."

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John Langbein to Speak on Death of Private Pension Plan

John Langbein (Yale) will speak tomorrow at U. Texas on “Understanding the Death of the Private Pension Plan in the United States.”  For more details, see the U.T. press release.

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Australian Labor Law

The University of Illinois College of Law Program in Comparative Labor & Employment Law will host Dr. Colin Fenwick, who will speak on "Of Corporations and Enterprise Workers: An Introduction to Australia's New Labor Laws."  Dr. Fenwick is Director of the Centre for Employment and Labor Relations Law at the Melbourne Law School.  The presentation will be Friday, February 24, at noon.

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Gender Influences on Law Firm Hiring, Part 2

From Elizabeth Gorman, whose presentation at the University of Virginia I blogged yesterday:

[T]he excerpt in the blog stops with the mention of male partners' ingroup preference, when actually the bulk of the talk--and my description of my own research--focused on bias due to schema-based thinking, which can affect both male and female partners.  For example, I discussed my article in the American Sociological Review, which found that firms that use more stereotypically masculine hiring critera have higher proportions of men among their new hires, while firms that use more stereotypically feminine hiring criteria have higher proportions of women among their new hires.  Schema- and stereotype-biased thinking is the more pervasive and subtle process and probably has more extensive effects on women lawyers' careers (and on those of other professionals and managers).

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Gender Influences on Law Firm Hiring

Law firms that have greater proportions of male partners and that value stereotypically male characteristics may be less likely to hire and promote female candidates, according to U.Va. sociology professor Elizabeth Gorman, who spoke at a talk sponsored by Virginia Law Women Feb. 15.

According to November 2005 data provided by the National Association for Law Placement, women comprise approximately 48 percent of law students, almost 48 percent of summer associates, and about 44 percent of associates, but only 17 percent of partners.  In analyzing this discrepancy, Gorman said she wanted to evaluate the allocation of opportunities, including getting hired, receiving work assignments as an associate, and making partner.

  Gorman identified three processes “that can tend to produce an advantage for men in obtaining opportunities.”  The first process is based on individual lawyers’ decisions and self-selection, rather than firm-based choices.  “In other words, one reason that women might not be hired as often as men, might not get the same assignments or as good assignments as men, might not be promoted to partner at the same rate as men is that the[ women] themselves are opting not to seek those opportunities.”

Second, men may actually be better lawyers.  However, there is little evidence that men have stronger  skills or abilities out of school.  “In fact if anything, it looks the other way—in recent years women have had higher law school grades on average than men,” she said.

The third process involves partners’ cognitive biases in perceiving and evaluating associates.  According to Gorman, psychologists have identified two relevant types of biases: in-group preference and schema-based thinking. In-group thinking is an us-versus-them mentality based on characteristics including gender, race, nationality, and more. Laboratory work has found that people tend to feel more comfortable with members of their in-group, finding them more trustworthy and cooperative.  “If we apply that then to the law-firm context, all that suggests that partners who are men may tend to show some favoritism towards male associates,” Gorman said.  “It may not be conscious, it may not be deliberate at all, it may be just at automatic feeling of being more comfortable with them, and this might be especially true if whatever opportunity is being allocated involves working together.”

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