Friday, August 25, 2017

Greene on Catastrophe Mgmt.: Splitting Hairs

Greene-WendyCongratulations to our friend Wendy Greene (visiting at Iowa), whose most recent "hair piece" has just been published by the Miami Law Review: Splitting Hairs: The Eleventh Circuit’s Take on Workplace Bans Against Black Women’s Natural Hair in EEOC v. Catastrophe Management Solutions. From the abstract:

What does hair have to do with African descendant women’s employment opportunities in the 21st century? In this Article, Professor Greene demonstrates that Black women’s natural hair, though irrelevant to their ability to perform their jobs, constitutes a real and significant barrier to Black women’s acquisition and maintenance of employment as well as their enjoyment of equality, inclusion, and dignity in contemporary workplaces. For nearly half a century, the federal judiciary has played a pivotal role in establishing and preserving this status quo. The Eleventh Circuit Court of Appeal’s recent decision in EEOC v. Catastrophe Management Solutions exacerbates what Professor Greene calls employers’ “hyper-regulation of Black women’s bodies via their hair.” This Article considers how federal courts and namely the Eleventh Circuit have issued hair splitting decisions in race-based “grooming codes discrimination cases” that decree: federal anti-discrimination law protects African descendants when they are discriminated against for adorning afros but statutory protection ceases once they grow their naturally textured or curly hair long or don it in braids, twists, or locks. Professor Greene explains that courts’ strict application of a “legal fiction” known as the immutability doctrine—and the biological notion of race that informs it—have greatly contributed to this incoherency in anti-discrimination law, which triggers troubling, tangible consequences in the lives of Black women.

This article is a great addition to Wendy's prior work and the work of others on how cultural norms of white femininity burden Black women. Wendy's work, along with the work of several other scholars, had been cited by the Eleventh Circuit in the case in a discussion about whether cultural or behavioral aspects of identity ought to be part of what Title VII protects. I can't wait to read this.

MM

August 25, 2017 in Employment Discrimination | Permalink | Comments (0)

Tuesday, August 22, 2017

Bornstein on Discrimination

Bornstein-Photo-June-2016-Web

Friend-of-Blog Stephanie Bornstein has just published her great article, Reckless Discrimination, in the California Law Review.  From the abstract:

"If there are known, easily adopted ways to reduce bias in employment decisions, should an employer be held liable for discriminatory results when it fails to adopt such measures? Given the vast amount we now know about implicit bias and the ways to reduce it, to what extent is an employer who knowingly fails to do so engaging in intentional discrimination? This Article theorizes a “recklessness” model of discrimination under Title VII, arguing for liability where an employer acts with reckless disregard for the consequences of implicit bias and stereotyping in employment decisions. Legal scholars have argued that Title VII should, and in some ways does, reflect a negligence model under which an employer may be held liable for failing to meet a duty of care to prevent discrimination at work. Yet the law of Title VII disparate treatment requires “intentional” discrimination — a term that courts have interpreted more broadly than a conscious purpose to discriminate, but more narrowly than a mere failure to prevent “societal” discrimination. This Article is the first to propose recklessness as the bridge between the theory of negligence and the requirement of intent as defined by Title VII jurisprudence.

In doing so, the Article seeks to revive the importance of social science research on bias — research that was limited in its evidentiary role by the U.S. Supreme Court’s 2011 decision in Wal-Mart v. Dukes. Decades of scientific research have documented how implicit bias and automatic stereotyping affect decision making in discriminatory ways. Years of efforts by employers to reduce bias and increase diversity in their workforces have demonstrated what interventions work. Most recently, technology has allowed some employers to easily and dramatically reduce the biasing effects of subjectivity from their hiring decisions by, for example, using algorithms instead of people to screen applicants. This vast body of research and experience developed over a half-century has shifted the baseline knowledge about the risks of bias infecting employment decisions, this Article contends. Today, an employer who continues to rely on unchecked subjective decision making that leads to disproportionate employment outcomes by race or gender is acting so recklessly that its behavior amounts to intentional disparate treatment under Title VII."

As many of you will recall, this article was selected as a winner of the 2017 Southeastern Association of Law Schools (SEALS) Call for Papers competition.  Definitely take a look at this paper if  you have the chance.

-- Joe Seiner

August 22, 2017 | Permalink | Comments (0)

Thursday, August 17, 2017

Corbin on Government Employees and Religion

Caroline%20Mala%20Corbin

Friend-of-Blog Caroline Mala Corbin (Miami) has just posted on SSRN a wonderful new article on the intersection of government employees and religion.  From the Abstract of "Government Employee Religion":

"Picture a county clerk who refuses to issue a marriage license to an LGBT couple or a city bus driver who insists on wearing a hijab. The clerk is fired for failing to fulfill job responsibilities and the bus driver for violating official dress codes. Both claim that their termination violates the First Amendment speech and religion clauses.

There is a well-developed First Amendment government employee speech jurisprudence. Less developed is the doctrine and literature for First Amendment government employee religion. The existing Free Exercise Clause jurisprudence usually does not specifically account for the government employee context. This Article attempts to fill that gap by developing a government employee religion doctrine based on the existing government employee speech doctrine.

Part I summarizes government employee speech doctrine. Part II imagines a parallel government employee religion doctrine and applies it to the opening hypotheticals. It concludes that government employees who are religiously opposed to an aspect of their job would lose their religion claims for multiple reasons. In contrast, employees who wish to wear religious garb have much stronger claims. Part III addresses two concerns with my proposed government employee religion doctrine. One criticism is that government employee speech doctrine is too flawed to serve as a model. Another is that speech and religion are too dissimilar to base one on the other."

Congratulations to Caroline on this great piece, and I hope that you will all add it to your end-of-summer reading list!

- Joe Seiner

August 17, 2017 | Permalink | Comments (0)

Monday, August 14, 2017

Hacked Employment Law

AlexanderTippettCharlotte Alexander (Georgia State) and Liz Tippett (Oregon) have just posted on SSRN their article (forthcoming Missouri L. Rev.) The Hacking of Employment Law. Here's the abstract of this timely (pun intended!) article:

Employers can use software in ways that erode employment law, through noncompliance and avoidance. The software exploits outdated regulations that do not anticipate the scale and precision with which employers can manage and manipulate the work relationship. Consequently, employers can implement systems that are largely consistent with existing laws, but violate legal rules on the margin. Employers can also use software to engage in lawful workaround tactics that avoid triggering some or all of the costs of complying with employment law. However, such tactics can cause harm to workers beyond the loss of the specific workers' rights or protections being avoided. Avoidance can create new norms about what work looks like that can degrade wages and working conditions across the labor market. Finally, when employers use software to avoid the employer-employee relationship entirely, employment law itself is weakened, as more workers operate in spaces beyond the law's reach, and employment rights are left only for a privileged few. The result is a weakened employment law regime, where legal rules struggle to keep up with employers’ software-enabled innovations in noncompliance, or are rendered irrelevant as employers innovate in spaces that regulation simply does not reach. We conclude by suggesting ways that regulators can better adapt to workplaces where employers implement their decisions and define the structure of work through software.

rb

August 14, 2017 in Employment Common Law, Scholarship, Wage & Hour | Permalink | Comments (0)

Firing Nazis

CharlottesvilleDavid Yamada (Suffolk) has a post worth reading over at Minding the Workplace on Can an employer fire a publicly-avowed white supremacist?  The answer: almost certainly yes for private-sector employers; yes with some free-speech caveats for public-sector employers.

Also worth reading is Dean Dad's post today on When Neutrality Isn't an Option. Those of us in higher-ed administration need to be able to work with folks of widely varying political stripes -- so long as we can find "common ground ... in the name of helping the students and the community." But

[p]ublic higher education is for the entire public. A movement that denies that there even is such a thing -- that assumes a better and a worse public, whether by race, religion, or whatever else -- is an existential threat to our mission. We need to be willing to treat it accordingly.

That means not “teaching the controversy,” or pretending that there are “many sides” to this one. Anti-semitism, for instance, doesn’t really lend itself to a “pro or con” analysis. It’s wrong. It’s just flat wrong. White supremacist terrorism is wrong. And that’s not just a personal view, although it is also that; it’s a precondition for doing the work we do every single day.

rb

 

August 14, 2017 in Employment Discrimination, Labor and Employment News, Public Employment Law, Religion, Workplace Trends | Permalink | Comments (2)

Friday, August 11, 2017

COSELL Registration Closing ... Register Now!

TamuMichael Green (TAMU Law) sends this update of the registration deadline for the upcoming COSELL conference:

This is a final notice about registration for the 12th Annual Colloquium on Scholarship in Employment and Labor Law (COSELL) to be held at Texas A&M University School of Law September 14-16, 2017. If you have not registered, please do so as soon as possible as the deadline for registration is August 16, 2017. Please go to the following website page to register and find additional information about the COSELL conference: http://law.tamu.edu/cosell or http://law.tamu.edu/faculty-staff/news-events/conferences-and-symposia/cosell.

Although we have reserved a block of hotel rooms at the Sheraton, that block is getting close to being full. And although we have listed a number of other hotels in the area, it is most convenient to be at the Sheraton, which is right next door to the law school where most activities will occur. Also, we are discovering that if you are trying to stay an extra day after the conference ends, with check-out on September 17th, even the Sheraton is no longer able to accommodate that request and a number of other hotels seem booked on the September 17th date as well.

Again, we suggest you register by the August 16 deadline and make your hotel reservations as soon as you can if you have not already done so. Once registration closes on August 16, we will put together the program based upon your submissions. As previously noted, there may be publication opportunities with the Texas A&M Law Review or the Employee Rights and Employment Policy Journal for some of the papers presented at the conference. We look forward to seeing you at the 12th Annual COSELL. Do not hesitate to contact me at mzgreen@law.tamu.edu or 817-212-4140 if you have any questions.

rb

August 11, 2017 in Conferences & Colloquia | Permalink | Comments (0)

Herbert & Freeman on the Taylor Law at 50

Herbert Josh-freemanBill Hebert (Hunter College) and Joshua Freeman (Queens College and CUNY Graduate Center) appeared on New York Public Radio's Brian Lehrer Program on Wednesday to discuss New York's public sector collective bargaining law, which is celebrating its 50th anniversary on September 1, 1967. The segment is tied with a program that will be taking place at Hunter College's Roosevelt House Public Police Institute in Manhattan on September 26. The program is being co-sponsored by Roosevelt House, the National Center for the Study of Collective Bargaining in Higher Education and the Professions, and the Joseph S. Murphy Institute for Worker Education and Labor Labor Studies. Other participants in the Taylor Law program will be Marty Malin, Joe McCartin, Kim Philips-Fein and Marilyn Sneiderman.

rb

August 11, 2017 in Labor Law | Permalink | Comments (1)

Wednesday, August 9, 2017

Bisom-Rapp, Bodie Cited in WSJ Article Re: Fired Google Engineer

GYesterday, Jeff posted on Google Engineer Files NLRB Complaint Regarding Post-Memo Termination. Today's Wall Street Journal quotes Susan Bisom-Rapp (TJSL) and Matt Bodie (SLU) extensively on the viability of the engineer's claims. Here's an excerpt:

Thomas Jefferson School of Law Prof. Susan Bisom-Rapp, who researches employment discrimination law, said while she disagreed with Mr. Damore’s views, she could envision potential legal arguments he could make to invoke the NLRA.

That Mr. Damore’s letter doesn’t appear to be drafted in concert with other Google employees doesn’t in itself mean the law cannot be invoked. Protections can be triggered by a single employee trying to rally colleagues around a wider workplace issue.

Mr. Damore could try to argue that he’s “protected in expressing himself in an effort to engage in dialogue with co-workers about Google’s diversity efforts,” said Prof. Bisom-Rapp.

However, “an employee gripe or complaint standing alone, without that call to fellow employees to gather together, is not enough,” said Julie Totten, an employment defense lawyer with Orrick, Herrington & Sutcliffe LLP in Sacramento.

Labor law also forbids employers from firing a worker for alleging an unfair labor practice, making the timing of Mr. Damore’s formal complaint potentially relevant in a legal dispute, said Prof. Bisom-Rapp.

Legal experts said federal antidiscrimination law could offer Mr. Damore another possible, albeit narrow, legal avenue. His memo suggested Google is engaging in reverse discrimination, citing “special treatment for ’diversity’ candidates.” Title VII of the 1964 Civil Rights Act bans employers from retaliating against workers for complaining about unlawful workplace discrimination.

“You would have to show what Google is doing is illegal. That would be difficult,” said Prof. Matt Bodie, an employment law scholar at Saint Louis University Law School and a former NLRB field attorney.

The NLRB generally doesn’t impose remedies beyond reinstatement of employment and back pay, Mr. Bodie said.

The full WSJ article is available at Jacob Gershman & Sara Randazzo, Fired Engineer Likely to Face Obstacles in Challenging Google, WSJ 8/9/17.

August 9, 2017 in Employment Discrimination, Faculty News, Labor Law | Permalink | Comments (1)

Tuesday, August 8, 2017

Google Engineer Files NLRB Complaint Regarding Post-Memo Termination

This case has managed to hit a bunch of labor and employment issues: A Google engineer first released a memo criticizing Google's diversity efforts and, among other things, arguing that women were biologically less suited to be engineers. It was reported within the last 24 yours that the engineer has now been fired and is exploring legal options. What those might be are questionable. Because Google is a private employer, there are no constitutional free speech rights. However, the engineer will want to explore any company policies or rules that might be interpreted as establishing contractual rights to speak one's mind or enjoy certain procedures before discipline (Google, in contrast, is already alleging that the engineer has violated its corporate conduct policies). The engineer might also have a Title VII retaliation claim if he can argue that he was objecting to illegal activity by Google, but without more facts, that seems a stretch at this point.

Interestingly, the one claim I've seen thus far is under the NLRA. There are two complaints really. First, the engineer apparently filed a complaint with the NLRB prior to his termination. I'm not sure what adverse action he's alleging, but presumably, he's also arguing that his memo was concerted and protected conduct. He does seem to be talking about workplace issues, but whether there was concerted action is less clear. It sounds like he released the memo on a company listserv, so he might be viewed as trying to instigate group action or there might have been follow-up conversations that establish concerted action, but it's not clear at present. And even if it was, Google can still argue that the memo was disruptive enough to overcome the engineer's NLRA rights. Second, the engineer alleges that his termination was in retaliation for the initial complaint. If it could prove that was Google's motivation, then it's a pretty clear violation of the NLRA. But I suspect Google won't have trouble showing that the memo--not the NLRB complaint--was the cause of the termination.

All interesting issues, so watch out for what comes next. Of course, some sort of settlement may be the most likely, as Google would probably prefer that everyone be talking about other things.

-Jeff Hirsch

August 8, 2017 in Labor and Employment News, Labor Law | Permalink | Comments (0)

You're [Not] Fired!

NotYesterday's Wall Street Journal reports that the U.S. has hit a historical low point for firings and layoffs:

Americans are less likely to be laid off than at any point in at least 50 years. For every 10,000 people in the workforce, 66 claimed new unemployment benefits in July, trending at the lowest point on record going back to 1967. The previous low point, 83 per 10,000, was touched in April 2000, at the height of a tech boom. Separate Labor Department data shows the rate of layoffs and other discharges as a share of total employment this year is at the lowest level on records back to 2000.

The steep fall in layoffs is mainly a result of a vastly improved labor market. It means Americans have more job security than they may realize less than a decade after dismissals spiked in the 2007-2009 recession. But other factors with more mixed implications are at play, including elevated levels of long-term unemployment, an aging workforce, a decline in manufacturing work and more risk-averse businesses, which also point to a less dynamic economy.

For the full story, see Eric Morath, You're Fired! No, Wait, Keep Working.

rb

August 8, 2017 in Workplace Trends | Permalink | Comments (1)

Wednesday, August 2, 2017

Kaplan Confirmed to NLRB; Emanuel Vote Pushed Back

Today, the Senate confirmed Marvin Kaplan as the newest member to the National Labor Relations Board by a 50-48 vote, bringing the Board an even Democratic/Republican split. Reports are that the vote on William Emanuel, which will produce a Republican-majority NLRB will occur after the August recess.

-Jeff Hirsch

August 2, 2017 in Labor and Employment News, Labor Law | Permalink | Comments (0)

Central States Law Schools Association 2017 Scholarship Conference

Kara Bruce (Toledo), writes about the upcoming Central States Law Schools Association 2017 Scholarship Conference: 
 
Registration is Open for the CSLSA 2017 Conference
 
Registration is now open for the Central States Law Schools Association 2017 Scholarship Conference, which will be held on Friday, October 6 and Saturday, October 7 at Southern Illinois University School of Law in Carbondale, Illinois. We invite law faculty from across the country to submit proposals to present papers or works in progress.

CSLSA is an organization of law schools dedicated to providing a forum for conversation and collaboration among law school academics. The CSLSA Annual Conference is an opportunity for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment. More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. Scholars from member and nonmember schools are invited to attend. 

Please click here to register. The deadline for registration is September 2, 2017.  

For more information about CSLSA and the 2017 Annual Conference please subscribe to our blog.
 
-Jeff Hirsch

August 2, 2017 in Conferences & Colloquia | Permalink | Comments (0)

Monday, July 31, 2017

Call for Papers - The Taylor Law at 50

Friend-of-blog Lise Gelernter (SUNY Buffalo) sends along the following CALL FOR PAPERS:

The Taylor Law at 50: Bright Spots and Pressure Points .The New York State Public Employment Relations Board (PERB) and the Taylor Law 50th Anniversary Committee are pleased to invite submissions for a special conference recognizing New York’s Taylor Law and its substantial influence on public sector labor relations over the past 50 years. The conference will take place May 10-11, 2018 in Albany, NY.  Practitioners and scholars interested in presenting their work at the conference should submit an abstract of a proposed paper or session by September 15, 2017. Abstracts should be no longer than 1,000 words and should include a detailed description of the focus of the proposed paper or session, its relevance to the conference, and its contribution to the study or practice of public sector labor relations. In addition, session abstracts should also include a list of invited participants and their proposed presentations.  Prospective contributors are encouraged to contact PERB Chair John Wirenius (JWirenius@perb.ny.gov), Lise Gelernter (gelernt@buffalo.edu), William Herbert (wh124@hunter.cuny.edu), or Ariel Avgar (aca27@cornell.edu) with any question or inquiries regarding this call for papers. Paper and session abstracts should be submitted via email to taylorlaw50@cornell.edu. Authors will be notified by December 15 if their paper or session has been accepted to the conference. 

For this conference we especially welcome submissions that shed new light on key aspects of the Taylor Law, its application, and its consequences for public sector labor relations. We also encourage submissions that provide a comparative perspective based on evidence from other states or countries. We welcome submissions from practitioners, scholars, policy makers across a wide array of disciplinary domains including, but not limited to, law, history, economics, sociology, political science, labor relations, and human resources.

This looks like a great conference and I strongly encourage anyone interested to apply! 

- Joe Seiner

July 31, 2017 in Conferences & Colloquia, Labor Law, Labor/Employment History | Permalink | Comments (0)

Friday, July 28, 2017

Class, Race, & Corporate Power: A Labor Symposium

LaborMany thanks to Kim Scipes (Sociology - Purdue Northwest) for sending news of the most recent issue of the academic journal Class, Race and Corporate Power.  The journal focuses on the politics of corporate power, including an analysis of capital, labor, and race relations within nation-states and the global economy. The journal encourages contributions that explore these issues within holistic frameworks that borrow from a range of scholarly disciplines.

The particular issue Kim pointed me to is volume 5, issue 2 (2017), with the theme of U.S. Labor and Social Justice. The articles in that issue are listed below; PDFs of each article can be found here at the Journal's website.

  • Introduction to Section on Labor and Social Justice, by Section Editor Kim Scipes
  • John L. Lewis and His Critics: Some Forgotten Labor History That Still Matters Today, by Staughton Lynd
  • Time to Tackle the Whole Squid: Confronting White Supremacy to Build Shared Bargaining Power, by Erica Smiley
  • The Good, the Bad, the Ugly: A Lifetime with Labor, by Vincent Emanuele
  • The Epic Failure of Labor Leadership in the United States, 1980-2017 and Continuing, by Kim Scipes

rb

July 28, 2017 | Permalink | Comments (0)

Thursday, July 27, 2017

DOJ to En Banc 2nd Circuit: Sexual Orientation NOT protected by Title VII

We recently blogged here about the Second Circuit's recent decision to take en banc the issue of whether or not sexual orientation discrimination is protected by Title VII.  The Second Circuit case, Zarda v. Altitude Express, will re-consider a panel's earlier decision that sexual orientation is not protected. Oral arguments in the case are scheduled for the fall (see article in the New York law journal here), and it will be interesting to see if the court follows the decision of the en banc Seventh Circuit in Hively v. Ivy Tech., that "a person who alleges that she experienced employment dis-crimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes."

Yesterday, the Department of Justice filed an amicus brief in the case. DOJ is taking the position that sexual orientation is not protected under Title VII.   This position is obviously creating a lot of controversy, and there are already articles in numerous news outlets on the issue, including CNN and the New York Times. It will be interesting to see what other amicus briefs are filed in the case and the positions taken by other groups and organizations on this important issue. Again, this will likely be an issue that is ultimately resolved by the Supreme Court. 

-- Joe Seiner

July 27, 2017 | Permalink | Comments (0)

Tuesday, July 25, 2017

CALL FOR PAPERS: New and Emerging Voices in Workplace Law Session at 2018 AALS Annual Meeting

The AALS Section on Employment Discrimination Law and AALS Section on Labor Relations and Employment Law is inviting submissions for a joint program, New and Emerging Voices in Workplace Law, at the AALS 2018 Annual Meeting in San Diego, California on Thursday, January 4, 2017, from 3:30-4:45 p.m.  

About.  This works-in-progress session will give emerging workplace law scholars the opportunity for engagement on a current project with leaders in the field.  Each selected scholar will present a work-in-progress and receive comments from an assigned commentator, as well as from an audience of scholars in the field.  The session will provide new scholars a supportive environment in which to receive constructive feedback.

Eligibility.  Full-time faculty members of AALS member and fee-paid law schools are eligible to submit proposals. This call for papers is targeted to scholars with seven or fewer years of full-time teaching experience.  Visitors (not full-time on a different faculty) and fellows are eligible to apply to present at this session.

Submission Format.   Please submit an abstract, précis, and/or introduction of the article that is sufficiently developed to allow the reviewers to evaluate the thesis and proposed execution of the project.  

Submission Instructions.  To be considered, proposals should be submitted electronically to Professor Naomi Schoenbaum, George Washington University Law School, at nschoenbaum@law.gwu.edu, and Professor Danielle Weatherby,  University of Arkansas School of Law, at dweath@uark.edu.  The deadline for submission is Friday, September 1, 2017.  

Selection.  Presenters will be selected after review by the Chairs of both sections.  Selected authors will be notified by September 29, 2017.  Presenters will be responsible for paying their annual meeting registration fee and travel expenses.  To facilitate valuable feedback at the session, presenters should provide a substantial draft by December 4, 2017.   

Questions.  Any inquiries about the Call for Papers should be submitted to the Chair for the Section on Employment Discrimination Law, Professor Naomi Schoenbaum, at nschoenbaum@law.gwu.edu and/or the Chair for the Section on Labor Relations and Employment Law, Danielle Weatherby, at dweath@uark.edu.

CAS

July 25, 2017 in Conferences & Colloquia | Permalink | Comments (0)

Wednesday, July 19, 2017

NPR: Huge Convictions in Thai Human Trafficking Trial

ThaiNPR  reports:

A Thai army general and local politicians are among the dozens of people found guilty at a Bangkok court Wednesday in one of Thailand's largest human trafficking trials.

Thailand has faced international criticism for years over human trafficking in the country, and the rights group Fortify Rights called this trial an "unprecedented effort by Thai authorities to hold perpetrators of human trafficking accountable."

"The conviction of a senior Army officer was an extremely rare event in junta-ruled Thailand," according to Thai newspaper The Nation. Lt. Gen. Manas Kongpan was found guilty of trafficking and taking bribes, The Associated Press reported.

The case involved more than 100 defendants, and the judge spent all day reading a 500-page verdict to the court, The Nation reported. The full breakdown of convictions was not immediately available, and the sentences have not been announced.

This is a huge step toward developing meaningful low-wage labor standards in Southeast Asia.

rb

July 19, 2017 | Permalink | Comments (0)

New Edition of Labor Law: A Problem-Based Approach

LLCongratulations to Paul Secunda, Jeff Hirsch, and Mike Duff on the publication of the second edition of Labor Law: A Problem-Based Approach (2d ed. 2017). Here's the publisher's description:

The problem-based approach of Labor Law: A Problem-Based Approach moves beyond lectures, the Socratic teaching model, and the casebook method, while developing the critical reasoning skills required to be a successful attorney. The problem-based pedagogical method will directly help students by synchronizing the way labor law is taught with the way it is typically tested. The book is updated through the end of 2016 and features the most important cases, documents, and articles for students to become proficient in the practice of American private-sector labor law.

rb

July 19, 2017 in Book Club, Books, Labor Law | Permalink | Comments (0)

Sunday, July 16, 2017

Textualism Gone Mad?

BlogimageA district court in Minnesota recently held that retaliation against a prospective hire for requesting an accommodation wasn’t actionable under §704(a). At issue in EEOC v. N. Mem'l Health Care was a claim on behalf of an applicant whose conditional offer of employment was revoked after she requested an accommodation, even though she later indicated she was willing to meet the employer’s requirements. 

The court gave short shrift to both the participation and opposition clauses of §704(a). There had been no filing before the revocation of the offer, so participation was not implicated. As for the opposition clause, the court reasoned that the statute required opposition to what the plaintiff in good faith believed to be unlawful discrimination, and there was no evidence that the applicant believed that North Memorial was acting unlawfully: “In other words, merely requesting a religious accommodation is not the same as opposing the allegedly unlawful denial of a religious accommodation.” The court cited several other district court decisions to similar effect.

It dismissed ADA authority to the contrary on the basis of differences between the statute, especially 42 U.S.C.S. § 12203(b) (which declares it unlawful “to coerce, intimidate, threaten, or interfere” with the exercise or enjoyment of any right under the statute). But, in the process, it cited Eighth Circuit dicta to the effect that, even under the parallel language of the ADA, “it might be thought that [plaintiff’s claim of retaliation for requesting an accommodation] never gets out of the starting gate.” Kirkeberg v. Canadian Pac. Ry., 619 F.3d 898, 907 (8th Cir. 2010).

In short, Memorial Health Care may be more than a one-court anomaly and but may reach beyond Title VII’s duty of religious accommodation to threaten what many view as the core protection of the ADA.

One response to this is the Supreme Court’s decision in Robinson v. Shell Oil Co., 519 U.S. 337 (1997), which read “employee” in the statute to bar retaliation in job references against a “former employee,” in part “because to hold otherwise would effectively vitiate much of the protection afforded by § 704(a).” Similarly, since employers are generally said not to have a duty to accommodate unless the employee requests one, to permit discharge of individuals for requesting accommodation would essentially read the duty out of both statutes. Interesting, Robinson wasn’t cited in either North Memorial or Kirkeberg.  

But it’s also true that Justice Thomas’s opinion for the Court in Robinson looked to larger purposes and consequences only after finding “employee” to be ambiguous to begin with. So a committed textualist might find no ambiguity in the reach of the retaliation proscription and so deem irrelevant the resultant torpedoing of the duty of accommodation.

Maybe the whole problem under Title VII can be avoided by not looking to retaliation law in the first place. The conditional employee’s offer was rescinded after she had indicated that she would “make it work” by coming in on Friday night if she could not find a replacement. That would seem to fit directly within the definition of religious discrimination announced by the Court in EEOC v. Abercrombie & Fitch: “an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.” Thus, an employer that fires someone (or revokes an offer) for asking for an accommodation would seem to be guilty of discrimination in the first place under Title VII. (For unexplained reasons, the EEOC denied the applicant’s claim of religious discrimination and pursued only the retaliation one). Similar reasoning might apply to the ADA although another way out of the textualist box under that statute is the hitherto underutilized § 12203(b).  

CAS

Hat tip to my RA, Henry Klimowicz, Seton Hall Law ’19

July 16, 2017 in Employment Discrimination | Permalink | Comments (0)

Friday, July 14, 2017

En Banc Second Circuit to Consider Whether Sexual Orientation Protected by Title VII

Marcia recently had a wonderful blog post here about the U.S. Court of Appeals for the Seventh Circuit's decision en banc which held that sexual orientation was covered under Title VII.  In Hively v. Ivy Tech., the Seventh Circuit specifically ruled that "a person who alleges that she experienced employment dis- crimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes."  The Second Circuit, also siting en banc, will now consider the same question.  

The Second Circuit case, Zarda v. Altitude Express, will re-consider a panel's decision that Sexual Orientation is not protected under Title VII.  Oral arguments in the case are scheduled for the fall, and it will be interesting to see if the court follows the decision of the Seventh Circuit.  There is a great article on the pending case in the New York Law Journal, which is available here.

My guess is that the Supreme Court will ultimately be faced with the decision as to whether sexual orientation discrimination is covered by federal law.   It would not be surprising, however, if the Court waited until a few more appellate courts (like the Second and Seventh Circuits) weighed in before addressing the issue.

-- Joe Seiner

July 14, 2017 | Permalink | Comments (1)