Tuesday, October 13, 2015

Call for Proposals: New and Emerging Voices in Workplace Law at AALS 2016

Here is the call: 

The AALS Section on Employment Discrimination Law and AALS Section on Labor Relations and Employment Law will host a joint program, New and Emerging Voices in Workplace Law, during the AALS 2016 Annual Meeting in New York City.  They are soliciting proposals for presentations now.  

Submissions should be in the form of a draft that is near or substantially completed relating to emerging issues in workplace law.  If the author would rather submit an Abstract and the Introduction of the article in response to this call for papers that is acceptable, to the extent it is sufficiently developed and detailed to offer the reviewers’ enough information to engage the thesis and organization of the project.  To facilitate valuable feedback at the session, we ask that the selected presenter(s) provide a substantial draft to the assigned readers by December 7. 

 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.

To be considered, drafts and/or proposals must be submitted electronically to Professors Jason Bent, Stetson University College of Law, at jbent@law.stetson.edu and Professor Natasha Martin, Seattle University School of Law, at nmartin@seattleu.edu.  The deadline for submission is Friday, October 30, 2015. Authors of selected papers will be notified by November 9.  Call for Paper participants will also be responsible for paying their annual meeting registration fee and travel expenses.

 Presenters will be selected after review by the Program Chairs of both sections.  Additional presenters may be solicited by the Program Chairs to insure a diverse panel.  Any inquiries about the Call for Papers should be submitted to: the Chair for the Section on Labor Relations and Employment Law, Jason Bent, Stetson University College of Law, 727. 562. 7339 or jbent@law.stetson.edu and/or the Program Chair for the Section on Employment Discrimination Law, Professor Natasha Martin, Seattle University School of Law, 206. 398. 4039 or nmartin@seattleu.edu amford.edu.

October 13, 2015 | Permalink | Comments (0)

Monday, October 12, 2015

Cornell Symposium on the Restatement of Employment Law

I have just learned that the Cornell Law Review has published a symposium issue which is dedicated to the Restatement of Employment Law.  The issue is full of wonderful scholarship on this important topic, and includes the work of a number of renowned employment law scholars. 

Full access to this issue is available here, which includes scholarship from Sam Estreicher, Matt Bodie, Michael Selmi, Michael Harper, Stewart Schwab, Deborah DeMott, Robert Hillman, Charles Sullivan, and Steven Willborn, as well as a panel transcript from Judge Marsha Berzon, Justice Christine Durham, & Judge Lee Rosenthal.

This is a unique opportunity to review some of the scholarship from many of the leaders in the employment law field, and I highly recommend taking a look if you have the chance.

- Joe Seiner

October 12, 2015 | Permalink | Comments (0)

Friday, October 9, 2015

The Restorative Workplace

Deborah Thompson Eisenberg just posted her piece on The Restorative Workplace:  An Organizational Learning Approach to Discrimination. Here's the abstract:

On the fiftieth anniversary of Title VII of the Civil Rights Act, many employers continue to search for ways to implement the law’s antidiscrimination and equal opportunity mandates into the workplace. The current litigation-based approach to employment discrimination under Title VII and similar laws focuses on weeding out “bad apples” who are explicitly prejudiced. This “victim-villain” paradigm may fail to correct the complex, nuanced causes of workplace discrimination, or exacerbate the problem. This article explores an alternative approach — restorative practices — that may integrate the policy goals of antidiscrimination laws into the practical realities of managing an organization. Restorative practices engage everyone in the organization with a sense of ownership in and commitment to the mission of building an inclusive, egalitarian workplace. 

Merging research from the fields of employment law, organizational management, and cognitive psychology, this article analyzes how restorative practices can facilitate an organizational learning approach to workplace discrimination. Proactively, restorative dialogue helps to build social capital, reduce explicit and implicit biases, and cultivate a shared commitment to egalitarian norms. Reactively, restorative practices can manage defensive routines often triggered by discrimination complaints and provide a process that can transform conflict into greater understanding and change. A restorative approach makes it more likely that the individuals involved — and the larger organization — can repair the harms caused by discrimination, correct systemic issues underlying the problem, and learn to prevent inequities in the future.

 I'm looking forward to reading it!




October 9, 2015 in Workplace Trends | Permalink | Comments (0)

Thursday, October 8, 2015

Obergefell and Employment

ObergefellFollowing up on Charlie's post yesterday on The Next Gay Rights Battle, I had the pleasure yesterday of seeing Jim Obergefell speak at Bowling Green (OH) State University. He is speaking widely these days, telling his (very moving) story, and making the same point that Keith Cunningham-Parmeter makes in his article -- that marriage equality is only one battle in the much larger fight for nondiscrimination. If you have a chance to see Mr. Obergefell speak, I highly recommend it; better yet, bring him to your campus.


October 8, 2015 in Employment Discrimination | Permalink | Comments (0)

Wednesday, October 7, 2015

Student Opportunities in Employee Benefits Law

AcebcKatie Kennedy (John Marshall--Chicago) and Israel Goldowitz (Pension Ben. Guar. Corp.), members of the American College of Employee Benefits Counsel (ACEBC) Law Student Outreach Committee have written to tell us of a couple of exciting opportunities for law students to help foster interest in employee benefits as a practice area.

The committee has developed:

  • A mentorship program that connects interested law students with ACEBC Fellows to learn what day-to-day practice is like as an attorney who is either in-house, government, law firm, not-for-profit or teaching; and
  •  A writing competition on an employee benefits topic that opens each January and closes in May/June.

Information on both of these programs is available at http://www.acebc.com.  Check it out!


October 7, 2015 in Labor and Employment News, Pension and Benefits, Teaching | Permalink | Comments (0)

The Next Gay Rights Battle

Keith Cunningham-Parmeter just posted  Marriage Equality,Workplace Inequality: The Next Gay Rights Battle.  The abstract:

Same-sex marriage is not the only civil rights issue impacting the gay community. Although the Supreme Court's decision in Obergefell v. Hodges represented a momentous victory on same-sex marriage, workplace protections affect far more people and remain a high priority for many lesbians and gay men. Today, even though the Supreme Court has invalidated state marriage restrictions across the country, federal law still makes it perfectly permissible to fire a gay man for telling a coworker about his sexuality or to discharge a woman for displaying her wife's picture at work.

This Article critically evaluates the relationship between same-sex marriage and workplace rights. Focused narrowly on case-by-case tactics, proponents of same-sex marriage won in court by selectively choosing gay couples who appeared “safe” and “ordinary” to judges. The decision to prioritize marriage over other gay civil rights-while utilizing reductive depictions of gay relationships in the process-raises distinct challenges for lawyers attempting to extend victories on the marriage front to other important legal realms such as employment protections.

Outlining a model for thinking about gay rights beyond marriage, this Article calls for renewed attention to the argument that sexual orientation discrimination constitutes a form of sex discrimination. The cultural imperative requiring individuals to desire only partners of the opposite sex constitutes American society's most enduring gender stereotype. Employers and states that punish sexual minorities for violating this norm engage in both sexual orientation discrimination and sex discrimination. By combating discrimination in employment, housing, and other civil rights areas, this refocused approach to gay rights applies to numerous legal contexts outside of marriage, thereby addressing the legal needs of a much larger segment of the gay community.

Sounds well worth a read!!


October 7, 2015 in Employment Discrimination | Permalink | Comments (0)

Monday, October 5, 2015

New ED Casebook by Seiner

SeinerCoverCongratulations to our own Joe Seiner on the publication of his casebook, Employment Discrimination: Procedure, Principles, and Practice. I have had a chance to look through it quickly and, as the title might suggest, it brings together two of Joe's areas of expertise: procedure and employment discrimination law. In addition to the usual cases, notes, and questions, the text also contains interactive problems, notes about newsworthy issues,  and exercises. From the news release: 

This text offers a fresh perspective on employment discrimination law, presenting a procedural-based approach to the topic with interactive materials throughout the book. While still providing the traditional employment discrimination casebook coverage, this text emphasizes the importance of procedural issues in workplace cases. It includes a unique “best practices” chapter which discusses the most effective ways to address workplace discrimination, from both a theoretical and legal perspective. Numerous exercises and problems foster classroom discussion. Practice tips situate students in the role of a practicing lawyer.

Cases are modern and cutting-edge, demonstrating the importance of employment discrimination law. Each chapter includes a chapter-in-review, and summary charts and graphs are used throughout the text to further student comprehension. Text boxes within cases, historical notes, and news events are all used to help bring the material to life in an innovative new way.  Instructors will have access to sample exam problems and answers, proposed syllabi, Teacher’s Manual with problem answers, and PowerPoint slides.

A great resource that's worth checking out, for sure. 


October 5, 2015 in Books, Employment Discrimination, Teaching | Permalink | Comments (0)

Saturday, October 3, 2015

More Class Action Litigation for Gig Workers

Cell phone

We have recently seen a flurry of class-action litigation brought against workers in the modern economy.  The recent case brought against Uber has continued to make headlines over the last few months.  This aggregate litigation trend has now found its way to the on-demand food sector.  As reported by the LA Times, class-action litigation was recently brought against GrubHub and DoorDash on the issue of worker misclassification for delivery drivers.  The worker classification issue continues to be a messy one to sort out for workers in the modern economy (we attempt to do so here). 

As co-blogger Sachin Pandya has done a wonderful job of pointing out in his recent posts, the employee/independent contractor question continues to generate differing opinions and viewpoints.

- Joe Seiner

October 3, 2015 | Permalink | Comments (1)

Friday, October 2, 2015

Szalai on Cert Grant in Arbitration Case

SzalaiI'm cross-posting here Imre Szalai's email out to the ADR Listserv:

Today, the Supreme Court granted cert in yet another FAA case.  In this
new case, MHN Government Services v. Zaborowski, the Supreme Court will have to deal with the broad scope of FAA preemption as set forth in

Concepción is much more than a class action case.  The preemption doctrine
from Concepción is changing how lower courts treat unconscionability
arguments in connection with individual, non-class disputes.  Judicial
review of arbitration agreements for fundamental fairness is shrinking and
more circumscribed as a result of Concepción (and as a result of other
cases like American Express and Rent-A-Center), which I find troubling,
especially in the consumer and employee contexts.

I plan to file an amicus brief supporting the employees in this case.  I
plan to criticize Concepción’s overly broad preemption doctrine, and I
also plan to critique the application of the FAA to the employment
setting.  I have uncovered historical evidence that was unknown at the
time Circuit City was decided in 2001, when the Supreme Court held that
the FAA applies to employment disputes.  This evidence confirms that the
FAA was never intended to apply in the employment setting, and I want to
bring this new historical research to the Court’s attention in the
amicus brief.

If you are interested in the amicus brief, please contact [Imre].

The new historical evidence Imre refers to is hot -- a complete game-changer, if SCOTUS is willing to admit it got Gilmer and Southland wrong. Stay tuned!


October 2, 2015 in Arbitration | Permalink | Comments (0)

Thursday, October 1, 2015

Spitko on the SCOTUS Evisceration of State Regulation of Arbitration Contracts

SpitkoGary Spitko (Santa Clara) has just posted on SSRN his article (just published -- 20 Harv. Nego. L. Rev. 1 (2015)) Federal Arbitration Act Preemption of State Public-Policy-Based Employment Arbitration Doctrine: An Autopsy and an Argument for Federal Agency Oversight. Here's the abstract:

This article examines the negative impact that the U.S. Supreme Court’s recent jurisprudence interpreting the Federal Arbitration Act (“FAA”) will have on the ability of states to promote the public interests that ground state employment regulation and argues for a reordering of the relationship between federal arbitration law and state public-policy-based employment arbitration doctrine. The article proceeds in three steps. First, the article demonstrates that the U.S. Supreme Court’s 2011 decision in AT&T Mobility LLC v. Concepcion and 2013 decision in American Express Co. v. Italian Colors Restaurant together extinguish the state effective-vindication and public policy exceptions to FAA application. In doing so, this case law preempts a significant amount of state employment arbitration regulation and, thus, enables employers to use employment arbitration agreements imposed on employees as a condition of employment as a means to evade the strictures of state employment regulation. Second, the article argues that, as a normative matter, the FAA should allow for consideration of the public interest in determining whether an employment arbitration agreement will be enforceable. Thus, in practice, the FAA should allow for consideration of the need for a worker to effectively vindicate her state statutory employment rights and for consideration of her ability to do so in arbitration. Finally, the article suggests a way forward. Specifically, the article proposes that Congress limit the FAA’s preemptive scope by carving out an exception to section 2 of the FAA that would allow states to regulate predispute employment arbitration agreements subject to the approval of the U.S. Department of Labor or a similar body. Pursuant to this reform, a state would be authorized to propose employment arbitration regulations tailored to the specifics of that state’s employment statutes. A federal overseer with expertise in employment law would be charged, however, with evaluating any such proposed employment arbitration regulation by balancing the federal interest in promoting arbitration agreements as written with the state interest in vindicating state statutory employment rights.


October 1, 2015 in Arbitration, Scholarship | Permalink | Comments (0)

On Worker Classification and Worker Flexibility

             The Uber litigation (O’Connor v. Uber Technologies) and its progeny have inspired many to tackle the employee-independent contractor puzzle as applied to the so-called “on-demand” economy.  We’ve highlighted some of this commentary before (e.g., Rogers 2015).  Here are two recent entries, both focusing on the role of worker flexibility:

            Benjamin Means and Joseph Seiner, “Navigating the Uber Economy” (here, forthcoming U.C. Davis Law Review), argue that worker classification under the Fair Labor Standards Act, among other laws, should turn primarily on “how much flexibility” the worker has in the work relationship: “Those who can choose the time, place and manner of the work they perform are more independent than those who must accommodate themselves to a business owner's schedule.”  Means and Seiner criticize the Department of Labor’s recent Administrator’s Interpretation -- on who counts as an “employee” under the Fair Labor Standards Act—for not affording enough weight to worker flexibility and, if courts follow it, making it “nearly impossible for on-demand businesses to argue that their workers are independent contractors.”  In today’s economy, worker flexibility deserves a lot more weight than other factors: “[W]hen the worker has significant discretion to decide when to work, the worker has, as a matter of economic reality, a greater degree of independence than a worker who must abide by a schedule set by the employer.”   

            Meanwhile, over at onLabor, Ben Sachs argues against the claim that “if Uber drivers were to be deemed employees – rather than independent contractors – the drivers would lose the flexibility that defines their jobs.”  This view, he writes, “gets the causal arrows backward,” because a judicial finding that a worker is or is not an “employee” is the result, not the cause, of how much control or flexibility a worker experiences on the job.  To be sure, it’s possible that, in response to a legal determination that their drivers are “employees”, Uber might decide to provide their drivers with less flexibility. Sachs calls this “entirely speculative" and "contrary to everything Uber has said about its business model.” Besides, that result would be “based on” Uber’s strategic decision--a choice--and not "the result of a legal determination of employee status.”  For prior commentary making this point, see here.


--Sachin Pandya

October 1, 2015 in Employment Common Law, Wage & Hour | Permalink | Comments (1)

Wednesday, September 30, 2015

Michael Duff Named

DuffCongratulations to Michael Duff, who has been appointed Associate Dean of Student Programs and External Relations at Wyoming College of Law.

Just a reminder to let us know of your good news so we can get the word out. I love celebrating the achievements of everyone in our LEL academic community!


September 30, 2015 in Faculty News | Permalink | Comments (1)

Tuesday, September 29, 2015

New Papers on Wage and Hour Regulation: Industrial Relations, vol. 54(4) (Oct. 2015)

            The most recent issue of the journal Industrial Relations -- a special issue in honor of the 75th anniversary of the Fair Labor Standards Act--includes these papers on pay secrecy, reporting pay, and proposed amendments to the Fair Labor Standards Act’s overtime provisions:

            In “Pay Secrecy and the Gender Wage Gap in the United States,” Marlene Kim studies the relationship between the gender pay gap and pay secrecy statutes.  From the abstract:

Using a difference-in-differences fixed-effects human-capital wage regression, I find that women with higher education levels who live in states that have outlawed pay secrecy have higher earnings, and that the wage gap is consequently reduced. State bans on pay secrecy and federal legislation to amend the FLSA to allow workers to share information about their wages may improve the gender wage gap, especially among women with college or graduate degrees.

            In “Underwork, Work-Hour Insecurity, and A New Approach to Wage and Hour Regulation,” Charlotte Alexander and Anna Haley-Lock discuss the reporting pay guarantee as a way to address fluctuating and unstable work schedules.  From the abstract:

We begin by examining the problem of work-hour insecurity, particularly employers’ practice of sending workers home early from scheduled shifts. We then move to a detailed assessment of state laws that require reporting pay, as well as reporting pay guarantees in union contracts and private-employer practices that attempt to address the problem of work-hour insecurity. We conclude by considering paths for strengthening such protections in law.

        In “FLSA Working Hours Reform: Worker Well-Being Effects in an Economic Framework,” Lonnie Golden models and predicts the effects of recently proposed FLSA amendments on workweek and overtime.  From the abstract:

The model contrasts allowing compensatory time for overtime pay for private nonexempt employees to “rights to request” reduced hours. Hours demanded are likely to rise for workers who request comp time, undermining the intention of family-friendliness and alleviating overemployment, unless accompanied by offsetting policies that would prevent the denied use or forced use of comp time and that resurrect some monetary deterrent effect. A unique survey shows that the preference for time over money and comp time is relatively more prevalent among exempt, long hours and women workers; thus, worker welfare is likely better served if comp time were incorporated into an individualized, employee-initiated right to request.


--Sachin Pandya

September 29, 2015 in Scholarship, Wage & Hour | Permalink | Comments (0)

Monday, September 28, 2015

Disability Law Student Writing Competition

Scholarly writing Friend of the blog Susan Bisom-Rapp (Thomas Jefferson) sends along exciting news of a new student writing competition:

Thomas Jefferson School of law is pleased to announce the second Jameson Crane III Disability and the Law Writing Competition. Made possible by the generous gift of Thomas Jefferson School of Law alumnus Jameson Crane III, the Crane Writing Competition seeks to encourage outstanding student scholarship at the intersection of law and medicine, or law and the social sciences. The competition promotes an understanding of these topics, furthers the development of legal rights and protections, and improves the lives of those with disabilities.

The competition is open to currently enrolled law students, medical students, and doctoral candidates in related fields who attend an accredited graduate program of study in the United States. Submitted papers may be on any topic relating to disability law, including legal issues arising with respect to employment, government services and programs, public accommodations, education, higher education, housing, and health care.

Submissions will be judged anonymously by an independent panel of experts. The winner of the competition will receive a $1,500 cash prize and the Thomas Jefferson Law Review (TJLR) will consider the paper for publication under the TJLR’s editorial standards. Two second place winners will each receive a $1,000 cash prize.  Preference for these additional winners will be given to submissions from disciplines not represented by the grand prize winner.

All submissions must be submitted electronically to: cranewritingcompetition@tjsl.edu. All entries must be received by midnight, Pacific Standard Time, January 15, 2016. Winning submissions will be announced by April 15, 2016.  

For further details, please consult the competition webpage: http://www.tjsl.edu/cranewritingcompetition. Please distribute this information broadly so that we may reach as many eligible students as possible. Questions may be directed to Professor Susan Bisom-Rapp, who will be coordinating the competition: susanb@tjsl.edu.

What a great opportunity!


September 28, 2015 in Disability, Scholarship, Teaching | Permalink | Comments (0)

Wednesday, September 23, 2015

Bidding Mike Farewell


I just learned what so many of Mike's worldwide family of friends will be devastated to learn -- that he passed away this morning.

Mike has been battling cancer for more than a year, always (and I mean always) with a positive spirit and a concern for those around him during this incredible passage.  

There will be a time for memorials -- and for the joy that Mike inspired in all around him. But for the moment, it's OK for those of us who loved him to simply be sad.


September 23, 2015 | Permalink | Comments (26)

Friday, September 18, 2015

Does the Uber Case Show that Employment Law is Outdated? An Invitation

    There’s now a lot of commentary about the Uber case and the “shared economy”—most of it on the role of the “employee/independent contractor” distinction (see, e.g., here).  Some of it goes further and takes the Uber case as an exemplar of what’s wrong with labor and employment law generally.  Take a recent example: In his New York Times “Deal Professor” column, Steven Davidoff Solomon criticized California’s employee-independent contractor test for likely classifying Uber drivers as “employees”, because that result “doesn’t work with the shared economy.”  He reasoned in part:

 Do [Uber drivers] really want to have less flexibility about who they work for? Do they want the inability to work for other people or to preselect their rides? And ultimately, given their ability to quit at any time and go to a competitor or even start their own service, do they need protection? Maybe, but probably not.

 He added that the Uber case “highlights the outdated nature of workers’ laws in America, not just around what it means to work for someone, but also what benefits and protections American workers need whether they are a contractor, employee or provider of services.”

             So, is that right?  The strongest version of this view: Labor and employment laws now cause a net decrease in social welfare or efficiency (however defined) for Uber drivers in particular or American workers generally, and are therefore “outdated” for today’s labor markets.  This isn’t so much a legal question, but a judgment about what’s good social policy.  And what you think about this policy question may strongly affect who you think should win the Uber lawsuits, regardless of the precise legal doctrines that apply.   To be fair (to Solomon and others), views on what’s good policy are easy to offer up but harder to actually unpack or back up in the space of a newspaper column or blog post.  Still, good policy arguments still need evidence and candor about tradeoffs—by how much will some people be better off, and some people be worse off, as a result, and why those tradeoffs are or are not okay.    

     So, dear reader, here’s an invitation.  Post in the comments section or email me your best policy argument (or parts thereof) about why Uber should win or lose in O’Connor v. Uber Technologies and similar lawsuits.  Make it short (500 words or less), but also point to evidence, identify the tradeoffs (the winners and losers), and justify them.  (If I get a lot of these, I’ll write them up in separate post.)

     To get you started, here are two observations.  First, on what Uber drivers need: Yes, in theory, Uber drivers can “quit at any time and go to a competitor or even start their own service.”  But in reality, labor markets are not perfectly competitive.  In any labor market—not just the “shared economy” (however defined) — a worker can quit, and thereby use the prospect of exit as leverage for higher wages or better working conditions.  But, a worker’s ability to do that depends in large part on how much an employer has to lose if the worker leaves to join a rival firm, how easy it is to do that, or how easy it is to set up shop on one’s own.  That ability varies a lot by type of work and where you work, among other things.  (See, for example, this report on differences between Uber and Lyft in average gross earnings per trip in different US cities.)  A complication here: According to this study (paid for by Uber), most Uber drivers have day jobs, and work for Uber on the side.

     Second, on what Uber drivers want: Labor and employment law often sets minimum standards, i.e., it removesfrom the bargaining table the option to bargain for conditions below those standards (or at least drives it under the table).  That’s why an employer who pays a worker below minimum wage or doesn’t provide her adequate safety equipment violates the law even if the worker would agree to work under those conditions.  To be sure, minimum standards entail tradeoffs.  There’s a social cost for a minimum wage--- employers may hire fewer workers --- though the best evidence suggests that the size of that effect is small, and a lot of folks think any such tradeoff is worth it.     

     In O’Connor, the plaintiff-workers want their “tips” and certain expenses reimbursed as California law requires of employees in general.  If plaintiffs win and Uber does nothing, Uber’s per-driver labor cost goes up.  How will Uber react?  Maybe Uber will respond by giving their drivers in California less on the items that they can bargain over—for example, by increasing Uber’s cut of each fare—and the drivers will be net worse off as a result.  Maybe.  Or maybe Uber won’t do that, lest drivers defect to Lyft or to other part-time work, and drivers will as a result earn more per ride without losing out on much else.  Maybe Uber will do very little, on the premise that a plaintiff victory here doesn’t mean that they’ll also get overtime pay (for more on this, see here).  Or maybe Uber’s response will vary by city, because in some cities, Uber lacks monopsony power, whereas in others, it’s really the dominant buyer of freelance-drivers’ labor.   Before we assign probabilities to these and all the other maybes out there, it might be nice to have some evidence about each one and then some reasoning about whether we should accept the resulting tradeoffs.



  --Sachin Pandya

September 18, 2015 | Permalink | Comments (2)

Thursday, September 17, 2015

Microsoft Sued for "Stack Ranking" System

Bell curvePaul Caron has the details here at Tax Prof Blog. I'm on the go, so if anyone has time to expand on this post, please feel free.



September 17, 2015 in Employment Discrimination, Labor and Employment News | Permalink | Comments (0)

Teaching Sex Stereotyping

CorrellI used this video clip by Shelley Correll (Stanford - Sociology) today to introduce the topic of sex discrimination and stereotyping, to terrific effect. Students are appropriately outraged by the facts of Price Waterhouse, but they also know that few employers these days are so stupid as to be as overtly discriminatory. Today's flavors of discrimination are much more subtle, and this 20-minute video does a nice job of illustrating that.

I followed the video by asking the students to describe sex stereotyping that they had observed at our law school, at our university, and in the law firms and courtrooms they were working and interning in. This generated an animated discussion, and wearing my decanal hat, gave me some ideas of things I can do to improve our law school environment. One of the many interesting directions our discussion took was that law student perceptions of the expertise of junior law professors can vary considerably by gender, and that that in turn may influence the "personas" that male and female law professors may adopt in the classroom.

Thanks to my colleague Dacy Wilcox for sending the video to me.


September 17, 2015 in Employment Discrimination, Teaching | Permalink | Comments (0)

Wednesday, September 16, 2015

Judge Bennett on Jurors and the Jury System

I have just learned that Federal District Court Judge Mark Bennett (N.D. Iowa) has posted on SSRN his fascinating article on the jury system which is forthcoming in the Arizona State Law Journal.  This wonderful piece provides a unique perspective on the jury system, with a particular emphasis on the jurors themselves.  This issue is important not only to labor and employment cases, but to all areas of the law.  The abstract is below, and I highly recommend taking a look at this article if you have the chance:

Juries are deeply enshrined by the U.S. Constitution and firmly embedded in our system of justice. Thus, it is surprising that jurors do not yet have something akin to their own widely adopted bill of rights. Regrettably, this is the result of too many trial judges failing to practice WWJW — “what would jurors want” — a jury centered approach to judging. The state of Arizona, with its launch in 1993 of the Arizona Jury Project, is the pioneering jurisdiction of a more jury-centered approach. If trial judges embraced WWJW it would engender greater respect for jurors and lead to trial innovations which would significantly enhance the juror experience. These innovations would also increase the fairness of jury trials. Adopting a bill of rights for jurors improves jurors’ positive experiences and feelings about trial by jury as they participate in the purest form of democracy in action. This article proposes five bill of rights that have been proven to achieve these goals. If adopted by courts and practiced by trial judges, jurors across the nation will exit courthouses as our greatest community ambassadors for the Sixth and Seventh Amendment rights to trial by jury. This is an important step to ensuring that vanishing civil jury trials are not, going, going, gone!

-- Joe Seiner


September 16, 2015 | Permalink | Comments (0)

Tuesday, September 15, 2015

Areheart on Accommodating Pregnancy


Friend-of-blog Brad Areheart has just posted his fascinating article on accommodations, the ADA and the PDA (forthcoming in the Alabama Law Review).  The article provides a great examination of this area of the law, and is definitely worth taking a look at if you are interested in these issues.  The abstract is below:

Courts have interpreted the Americans with Disabilities Act (ADA) and the Pregnancy Discrimination Act (PDA) not to affirmatively require accommodations for pregnant workers. This has generated protest and led all three branches of the federal government to address the issue of pregnancy rights. The Pregnant Workers Fairness Act is pending in Congress and has drawn strong vocal support from President Barack Obama. The U.S. Supreme Court recently decided Young v. UPS, which found the PDA does not affirmatively require pregnancy accommodations. Finally, many commentators have argued in support of considering pregnancy a disability under the ADA.

This Article agrees substantively with the end of accommodating pregnancy, but disagrees with the various proposals commentators have advanced. In contrast to those who favor a pregnancy-specific right to accommodations, this Article argues that such proposals create risks to women¹s long-term equality in the workplace. In particular, characterizing pregnancy as a ³disability² or pregnant women as a class in special need of accommodation poses a danger of expressive harms. Currently proposed measures may revitalize exclusionary and paternalistic attitudes toward pregnant employees, signal incapacity to work, or actually increase sex discrimination. We should thus consider the potential expressive impact of pregnancy accommodation schemes in light of current social norms in which pregnant women are generally seen as capable of productive work. This Article concludes by suggesting alternative approaches to securing pregnancy accommodations that would avoid expressive harms and employ a gender symmetrical approach.

This Article's critique and the question of how best to accommodate pregnancy resonate across several areas of the law. For those who study civil rights, Accommodating Pregnancy illustrates the expressive perils of rights claiming. For historians and scholars interested in gender issues, this Article provides a chance to reconsider the consequences of gender-asymmetrical laws. For family law scholars, Accommodating Pregnancy highlights the current capacity of the law to reshape work/family balance.

To assume that implementing gender-asymmetrical rights is the best way to help women in the workplace overlooks the potential of the law to ameliorate broader social issues. These include the way in which employment is typically structured to accommodate the most privileged employees and how everyone would benefit from more accommodating workplaces.

September 15, 2015 | Permalink | Comments (0)