Monday, July 21, 2014

Welcome Guest Blogger Rebecca Lee


Please welcome guest blogger Rebecca Lee, who teaches at Thomas Jefferson School of Law. Rebecca teaches Contracts, Employment Law, and Employment Discrimination.  From her faculty bio page:

Professor Rebecca K. Lee teaches in the areas of employment law, employment discrimination, and contracts. Her scholarship focuses on issues of antidiscrimination law and policy in the workplace concerning how to achieve substantive equality at work, particularly gender and race equity. She has written on the relationship between diversity goals and antidiscrimination objectives, and has further examined the importance of organizational leadership in achieving substantive diversity and equality. Her work in this area has been quoted in the amicus briefs for the State of California and other amici filed in the U.S. Supreme Court for Fisher v. University of Texas at Austin. More recently, her research has centered on questions of judicial decision making in order to reach impartial and fair outcomes, and also looks at judicial leadership as a significant but under-recognized aspect of a judge’s work. In addition to her scholarship and teaching, Professor Lee currently serves as the Chair of the Association of American Law Schools (AALS) Section on Labor Relations and Employment Law. In addition, she is a board member of the Conference of Asian Pacific American Law Faculty (CAPALF).


Before joining the faculty, Professor Lee was a Visiting Researcher at Georgetown University Law Center and practiced law at the international law firm of Crowell & Moring LLP in Washington, D.C. Her practice centered on employment and labor law, government contracts, and antitrust matters. She also worked at the Washington Lawyers' Committee for Civil Rights and Urban Affairs as a Crowell & Moring Public Interest Fellow. In law school, she served as editor-in-chief of the Georgetown Journal on Poverty Law and Policy and worked as a judicial intern for the Honorable Colleen Kollar-Kotelly in the U.S. District Court for the District of Columbia.


Prior to attending law school, Professor Lee earned a Master's degree in Public Policy from Harvard Kennedy School, where she received the Dean Albert Carnesale Fellowship and was co-managing editor of the Asian American Policy Review. Before pursuing her graduate studies, she joined Teach for America as a corps member and taught at an under-resourced middle school in Oakland, California. Professor Lee obtained her Bachelor of Arts degree in Public Policy Studies from the University of Chicago. At Chicago, she was awarded a University Prize for her senior thesis, which was selected as the best undergraduate paper written in the area of women's studies, feminist criticism, or gender studies and subsequently published in a law journal.

A couple of her recent articles include:

Judging Judges: Empathy as the Litmus Test for Impartiality, 82 U. Cin. L. Rev. 145 (2013)

Fisher v. University of Texas at Austing: Promoting Full Judicial Review and Process in Applying Strict Scrutiny, 4 Houston L. Rev. (HLRe): Off the Record 33 (2013).

Welcome aboard, Rebecca!


July 21, 2014 in About This Blog | Permalink | Comments (0) | TrackBack (0)

EEOC Update: Agency Files Disability Claim on Behalf of Cancer Victim


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The EEOC appears to be continuing its active efforts to enforce the Americans with Disabilities Act.  The agency recently filed suit against a health care provider that terminated (and failed to re-employ) a nurse who worked for the employer for over a decade.  The employee required additional medical leave after finishing her treatment for cancer. From the EEOC's press release on the case:

“Francisca Lee had worked as a nurse at [Dialysis Clinic, Inc. (DCI)]’s Sacramento Southgate location for 14 years when she was diagnosed with breast cancer. Lee took medical leave in order to have mastectomy surgery and chemotherapy treatments. Four months later, DCI notified Lee by mail that she was being terminated for exceeding the time limit dictated by its medical leave policy, the EEOC said. This was done despite Lee being on approved medical leave and cleared by her doctor to return to work without restrictions in less than two months. Lee was told that she would have to reapply for open positions. However, when Lee did apply over two months later, she was rejected, and not long after, DCI hired a newly licensed nurse.”

These allegations of disability discrimination, if true, are quite unfortunate. This will be an interesting case to follow in the courts…

- Joe Seiner


July 21, 2014 | Permalink | Comments (0) | TrackBack (0)

Saturday, July 19, 2014

Gleeson on Immigration Status and Labor Enforcement Agencies

If Salas v. Sierra Chemical has you thinking more about inquiries into a plaintiff-worker’s immigration status in workplace rights enforcement, you might be interested in a recent paper on the labor enforcement agency’s views on this question:  Shannon Gleeson, “Means to an End: An Assessment of the Status-blind Approach to Protecting Undocumented Worker Rights,” Sociological Perspectives (published online April 3, 2014) (here).  Here’s the abstract:

This article applies the tenets of bureaucratic incorporation theory to an investigation of bureaucratic decision making in labor standards enforcement agencies (LSEAs), as they relate to undocumented workers. Drawing on 25 semistructured interviews with high-level officials in San Jose and Houston, I find that bureaucrats in both cities routinely evade the issue of immigration status during the claims-making process, and directly challenge employers’ attempts to use the undocumented status of their workers to deflect liability. Respondents offer three institutionalized narratives for this approach: (1) to deter employer demand for undocumented labor, (2) the conviction that the protection of undocumented workers is essential to the agency’s ability to regulate industry standards for all workers, and (3) to clearly demarcate the agency’s jurisdictional boundaries to preserve institutional autonomy and scarce resources. Within this context, enforcing the rights of undocumented workers becomes simply an institutional means to an end.


  --Sachin Pandya

July 19, 2014 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, July 18, 2014

Call for Papers: Stetson Symposium on Inequality, Opportunity, and the Law of the Workplace

The Stetson Law Review seeks written submissions for a symposium to be held at the Stetson University College of Law in Gulfport, Florida on Friday, March 6, 2015.

This symposium will be an interdisciplinary exploration of questions about growing economic inequality in the United States, changes in the available opportunities for upward social mobility, and the proper role for labor and employment laws in ensuring adequate opportunities for mobility.  Featured speakers at the symposium will include former Chairperson of the NLRB, Wilma Liebman, and MSNBC journalist and author of The Great Divergence, Timothy Noah.  Accepted essays will be published in the Stetson Law Review, and the authors of accepted essays will be invited to present their work at the symposium.  Invited participants will receive travel and lodging for the symposium.  Academics, practitioners, and others working in the field are invited to submit abstracts for consideration and are welcome to attend the event.  Interested applicants should submit an abstract (1 to 4 pages in length) and a curriculum vitae to no later than Friday, September 5, 2014.  Authors of accepted essays will be notified by October 1, 2014.  Completed drafts must be submitted for circulation to the symposium participants by Friday, February 6, 2015.

Questions regarding the symposium should be directed to the Stetson Law Review Editor-in-Chief, Erin Hoyle ( 


July 18, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, July 17, 2014

Hiring Discrimination and Religion: Recent Studies

    Although hiring discrimination by employers is infrequently litigated, audit studies—using fictional resumes—continue to show that it persists.   A recent contribution to this literature focuses on religious affiliation: Michael Wallace, Bradley R.E. Wright,  and Allen Hyde, “Religious Affiliation and Hiring Discrimination in the American South: A Field Experiment,” Social Currents 1(2) (2014): 189-207 (here).  Here’s the abstract:

This article describes a field experiment in which we sent fictitious résumés to advertised job openings throughout the American South. We randomly altered the résumés to indicate affiliation in one of seven religious groups or a control group. We found that applicants who expressed a religious identity were 26 percent less likely to receive a response from employers. In general, Muslims, pagans, and atheists suffered the highest levels of discriminatory treatment from employers, a fictitious religious group and Catholics experienced moderate levels, evangelical Christians encountered little, and Jews received no discernible discrimination. We also found evidence suggesting the possibility that Jews received preferential treatment over other religious groups in employer responses. The results fit best with models of religious discrimination rooted in secularization theory and cultural distaste theory. We briefly discuss what our findings suggest for a more robust theory of prejudice and discrimination in society.

For a companion study, see Bradley R.E. Wright et al., “Religious Affiliation and Hiring Discrimination in New England: A Field Experiment,” Research in Social Stratification and Mobility 34 (Dec. 2013): 111-126.


--Sachin Pandya

July 17, 2014 in Employment Discrimination, Scholarship | Permalink | Comments (0) | TrackBack (0)

Don't Stop at the Stop Sign

New ImageThis post could be subtitled: Misadventures in Legal Research.  

Anyhow, a mildly amusing Case of the Disappearing Opinion.  The case, Foglia v. Renal Ventures Mgmt., LLC, is to be found at 2014 U.S. App. LEXIS 10549.  It's not an uninteresting decision in any event -- adopting the "nuanced" branch of the circuit split on pleading a False Claims Act case -- but that's not the point of the present posting.

The opinion is dated June 6, 2014 but has a Lexis stop sign to the left, suggesting a BIG PROBLEM. Clicking the "subsequent history" link takes one to an order, dated June 10th, stating:

It is hereby ORDERED that the Opinion filed on June 6, 2014 is vacated and an amended opinion shall be filed simultaneously with this Order. The revised opinion does not alter the June 6, 2014 judgment.

So far so good, except that there is no opinion dated June 10th and filed simultaneously with the order. 

With the June 6th opinion vacated, and nothing substituted, Foglia, which was intended to be a precedential opinion, has in effect disappeared from Lexis.

Not to worry. Further sleuthing (entailing the assistance of two colleagues and two research assistants) determined that the June 6th opinion posted on Lexis was in fact the amended opinion referred to in the June 10th order.  So all's well but for the stop sign.

A call to Lexis, hopefully, set the wheels in motion to correct that problem. Apparently, Westlaw simply posted the amended opinion, so there was no confusion there. 

If you're wondering, the reason for the amendment was the misidentification of one of the circuits in the split -- a single word change.

There are a few lessons to be learned from this:

1. Researchers should be wary of stop signs.

2. Courts maybe shoudn't simply swap out opinions -- any problem would have been obviated if the amended opinion had been dated June 10th.

3.  Law professors have an awful lot of time on their hands in the summer.


Thanks to my colleagues Ed Hartnett and Michael Risinger and my RAs John Dumnich and Angela Raleigh for their help.

UPDATE, July 18: I received a very gracious call today from Lexis but the bottom line is that the red stop sign remains in place. Even though the caller acknowledged that the opinion that one is cautioned to beware of is actually an uncriticized, precedential opinion.  The effect will be to mislead anyone researching on Lexis, but apparently that's OK. This has gone from being mildly amusing to being frustrating.

July 17, 2014 in Teaching | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 16, 2014

EEOC Issues Updated Pregnancy Discrimination Guidance


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Earlier this week, the EEOC issued updated guidance on pregnancy discrimination and other related issues.  The EEOC also issued a fact sheet and a question and answer document that are further related to these issues.  From the EEOC's press release:

"Among other issues, the guidance discusses:

  • The fact that the PDA covers not only current pregnancy, but discrimination based on past pregnancy and a woman's potential to become pregnant;
  • Lactation as a covered pregnancy-related medical condition;
  • The circumstances under which employers may have to provide light duty for pregnant workers;
  • Issues related to leave for pregnancy and for medical conditions related to pregnancy;
  • The PDA's prohibition against requiring pregnant workers who are able to do their jobs to take leave;
  • The requirement that parental leave (which is distinct from medical leave associated with childbearing or recovering from childbirth) be provided to similarly situated men and women on the same terms;
  • When employers may have to provide reasonable accommodations for workers with pregnancy-related impairments under the ADA and the types of accommodations that may be necessary; and
  • Best practices for employers to avoid unlawful discrimination against pregnant workers."

The guidance is definitely worth taking the time to read, as it updates the Commission's position in several important areas.  It will be interesting to see if the guidance holds up in light of the Supreme Court's pending decision in Young v. United Parcel Service.

-- Joe Seiner

July 16, 2014 | Permalink | Comments (0) | TrackBack (0)

On the Origins of Title VII's Sex Amendment

    In the most recent issue of The New Yorker, Louis Menand has this essay on how “sex” got added to the list of protected characteristics in Title VII of the Civil Rights Act of 1964.  The standard story: The “sex” amendment was an unsuccessful attempt to defeat the entire bill—a failed poison pill.  In contrast, Menand emphasizes how that amendment was partly the result of vigorous efforts by women activists—in particular, Alice Paul of the National Women’s Party—and some female House representatives, especially Michigan Democrat Martha Griffiths.

    Menand is openly borrowing here from scholars, including Carl Brauer, “Women Activists, Southern Conservatives, and the Prohibition of Sex Discrimination in Title VII of the 1964 Civil Rights Act, “ Journal of Southern History 49(1) (1983): 37-56, and Jo Freeman, We Will Be Heard: Women’s Struggles for Political Power in the United States (Rowan & Littlefield, 2008) (chapter 12).  On the origins and durability of the “failed poison pill” story, see Rachel Osterman, “Origins of a Myth: Why Courts, Scholars, and the Public Think Title VII’s Ban on Sex Discrimination Was an Accident,” Yale Journal of Law and Feminism 20 (2009): 409-440.  In the courts, a fleeting recent reference to this literature appears in Nelson v. James H. Knight DDS, 834 N.W.2d 64, 74 n.8 (Iowa 2013) (Cady, J., concurring specially).


---Sachin Pandya

July 16, 2014 in Employment Discrimination, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, July 14, 2014

Eighth Circuit Upholds Professor’s Discharge

8th Cir

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The US Court of Appeals for the Eighth Circuit recently issued an interesting opinion which concluded that a physics professor at the University of South Dakota could be discharged for violating the university’s “civility code.”  After sending an inflammatory e-mail to his department head, the professor was discharged under a policy which provided that,

“Faculty members are responsible for discharging their instructional, scholarly and service duties civilly, constructively and in an informed manner. They must treat their colleagues, staff, students and visitors with respect, and they must comport themselves at all times, even when expressing disagreement or when engaging in pedagogical exercises, in ways that will preserve and strengthen the willingness to cooperate and to give or to accept instruction, guidance or assistance.”

The plaintiff in the case sued the university for his discharge alleging, in part, that the policy was unconstitutionally vague.  The District Court agreed with the plaintiff, but the Eighth Circuit reversed, holding that:

“While the district court focused exclusively on the policy’s use of the term “civility,” the civility clause articulates a more comprehensive set of expectations that, taken together, provides employees meaningful notice of the conduct required by the policy. The outer contours of the civility clause perhaps are imprecise, but many instances of faculty misconduct would fall clearly within the clause’s proscriptions, thus precluding the conclusion that the policy is facially unconstitutional.”

This decision presents a number of fascinating issues.  The intersection between the First Amendment and civility-type codes is one that often comes up in the employment context. It is particularly interesting to see the issue arise in the academic setting.

- Joe Seiner

July 14, 2014 | Permalink | Comments (0) | TrackBack (0)

Pushing Up the Law

NewimageMany of our readers are familiar with Lanning v. SEPTA, 308 F.3d 286 (3d Cir. 2002), involving an unsuccessful challenge to a police force physical fitness test on the ground that it had a disparate impact on women. The Third Circuit ultimately held that, despite its impact, the test was justified by business necessity.  

Contrast that with a recent district court faced with another challenge to a law enforcement physical fitness test, this time by a male against the FBI, and plaintiff won: Bauer v. Holder held that the FBI’s physical fitness test with different minimum requirements for men and women violates Title VII by discriminating on the basis of sex. 

Jay Bauer, a 35-year-old man at the time he entered into the FBI New Agent Trainee class, took the challenged test seven times. Each time, save for once, Bauer failed the push-up segment, which required men to do a minimum of thirty push-ups while women had a minimum of fourteen. On his seventh test and after twenty-two weeks of training, Bauer completed only twenty-nine push-ups, leading to his forced resignation as a Special Agent (although he continued to be employed by the Bureau as an analyst).

The FBI implemented its physical fitness test in 2004 as a mandatory requirement for all New Agent Trainees (NATs). It set the minimum standards by using a pilot study of 260 male and 64 female NATs, finding the average of the scores for both men and women, and then setting the passing score for each tested skill at one standard deviation below the average performance for each sex. In order to pass the overall test, an NAT must achieve the minimum standard on each part.

While this structure had its own complication, critical to the court’s holding was that each segment had different minimum standards for men and women NATs.   In all categories, men had to outperform women in absolute terms. Thus, passing males had to perform three more sit-ups and sixteen more push-ups, complete a 300 meter run 12.5 seconds faster, and complete a 1.5 mile run one minute and seventeen seconds faster than women.

For the court, this facial difference went a long way towards dictating its result.  Since the physical fitness test facially treated men and women differently it was prima facie unlawful under well-established precedents, notably City of Los Angeles Dep't of Water & Power v. Manhart, and Auto Workers v. Johnson Controls.  It’s true that  physiological differences exist between the sexes, but that was true in both Supreme Court cases (longer life expectancy for women in Manhart and female reproductive role in Johnson Controls). And not only did the governing precedents suggest that such differences didn't affect the initial discrimination question but  42 U.S.C. § 2000e–2(l), also specifically prohibits employers from discriminating when conditioning employment on the passage of a test. 

For the court, there was one potential out for the FBI: proving a BFOQ for the differential standards, which would allow otherwise-prohibited discrimination.  The FBI attempted to do so by justifying the physical fitness test (in particular, the push-up portion) in terms of the skills required for Special Agents; however, it failed to sufficiently link push-ups to any duty actually performed by such agents. The court was especially concerned by the fact that the fitness requirements applied only in training new Special Agents; there was no testing of Special Agents throughout their employment, thus the court did not believe that passage was actually essential to successful performance of job tasks. This argument had not cut a lot of mustard in Lanning as applied to the business necessity defense, but it seemed dispositive in Bauer.

That seemed to leave the FBI with two choices:

The Bureau could lower the minimum standard for both sexes to that of the standard for women, probably the legally safest option. In light of physiological differences between men and women, that would result in less physically fit men passing the test. Assuming no job relation between physical fitness and being an FBI Special Agent, that’s not necessarily problematic, but if there are only a certain number of positions available, the net result might be fewer women Special Agents simply because there are more men in the pool. 

Second, the Bureau could raise the minimum standard for both sexes to one that is higher than the current minimum standard for women. By definition, this would create a disparate impact on women and, while Lanning upheld the test used there as a business necessity, the Bauer court's analysis suggests that the FBI might not be so lucky.

Is there a third alternative?  Could the Bureau revise the physical skills tested test in order to reflect the actual job-related skills needed to be a Special Agent while retaining different standards for men and women?  The court recognized that possibility since it did not purport to be striking down all gender-normed physical fitness tests: a possibly permissible test would more closely test the applicant’s actual ability to do the job. For example, instead of merely testing upper-body strength by doing push-ups, the test would focus on actual Special Agent tasks such as “carrying objects weighing a certain number of pounds for a certain period of time.”   But how could a fitness test that holds women to a lesser physical fitness standard than men can truly measure the “job-related skills and aptitudes”  unless the FBI were to assign male and female agents to different duties – and try to also justify that assignment as a BFOQ?

In any event, the case raises a number of interesting doctrinal issues. First, the BFOQ defense seems an awkward fit. As the court recognized, it’s typically been used to entirely exclude one sex (or workers over a certain age) from certain positions. Further, the standard formulation doesn’t fit this scenario very well: either (1) “all or substantially all” members of one sex can’t perform as well as members of the other sex or (2) members of one sex as a group are less able to do the job as well as members of the other sex as a group and it is highly impractical to determine which of them can). On the other hand, there doesn't seem to be any logical reason why the BFOQ would require total exclusion, and, if the standards in fact produced better Special Agents, it would seem odd to rule out the statutory defense. Still, so conceived, BFOQ sounds a lot like business necessity, and Title VII explicitly rules out business necessity as a defense to disparate treatment. 42 USC 2000e-2(k)(2).

And then there's 2000e-2(l).  While it's true that the FBI “use[d]  differential cutoff scores . . . on the basis of . . . sex,”  a strict reading of the language might suggest that the prohibition (which continues "or otherwise alter the results of, employment related tests")  reaches only alterations of scores, rather than differential scores to begin with. Ricci v. DeStefano, however, seemed to take a broad view of the provision. 

But speaking of Ricci, what about justifying the test as the FBI's effort to avoid disparate impact against women?  Sachin Pandya pointed out to me the possible application of the "strong basis in evidence" justification for the Bureau's rules. Given the FBI's own studies, setting the passing score above the female minimum would have had such an impact, and, given the court's analysis, there was no business necessity -- or, certainly, a strong basis in evidence that none existed.

Pretty interesting stuff, and it'll be especially interesting to see what the Bureau does.


Thanks to to Sachin Pandya for his thoughts on some of these issues and to Angela R Raleigh, Seton Hall class of ’16 for her assistance on this. 

July 14, 2014 | Permalink | Comments (1) | TrackBack (0)

Saturday, July 12, 2014

In the News - Hiring Practices at Google

There was an interesting piece at the Business Insider today about the hiring practices at Google. The article discusses how the technology giant is moving away from its practice of asking difficult and bizarre questions of potential applicants, such as “how many golf balls can fit in a school bus?” or “how many gas stations are there in Manhattan?”  From the article:

"'We found that brainteasers are a complete waste of time,'" Laszlo Bock, Google's senior vice president of people operations told The New York Times last year . . . ‘They don’t predict anything. They serve primarily to make the interviewer feel smart.’"

The article goes on to address the type of hiring practices now employed at the company. Hiring practices have long been an important aspect of labor and employment law, and it is interesting to see the struggles one major player in the corporate world has experienced in trying to attract qualified people to fill its ranks.

- Joe Seiner



July 12, 2014 | Permalink | Comments (0) | TrackBack (0)

Friday, July 11, 2014

Block to be Nominated Again for NLRB

NLRBThe White House announced today that it intends to nominate Sharon Block to the NLRB, probably to replace Nancy Schiffer, whose appointment expires on December 12, 2014.  Much of the news will play up the fact that she was one of the Noel Canning recess appointees, which the Supreme Court help to be unconstitutional last week.  Given that timing, one might interpret this announcment as a White House attempt to show its displeasure with the decision and Republican opposition that led to the initital recess appointments.

Not to be lost in this political story line is that Block really knows her stuff and already served admirably, albeit in vain, on the NLRB (full disclosure: I used to work with her on the NLRB).  I  think, despite that personal connection, that it's fair to say that she got a bit of a raw deal in the nuclear option aftermath when the Senate Democrats and White House threw Republicans a bone by refusing to renominate her (and RIchard Griffin, although he was soon nominated as GC).  So, it's nice to see her finally back to the NLRB, assuming her nomination is acted on before any potential changes in the Senate majority.

One final thought.  As the above link shows, much of the supposed criticism of Block was that she stayed on the Board while her nomination was being challenged.  I've written before that I think it's silly for a political appointee to resign in a situation like that.  However, I'll also mention that it's even more silly when you consider what the D.C. Circuit held and the conservative four Justices would've held in Noel Canning--that virtually all recess appointments over the last 150 years were unconstitutional.  Until conservatives, who supported that view, start demanding that all the Republican judges and other recess appointees over the years should've never accepted their appointments and should give back the salaries they received, I'm not going to take their objections to Block seriously.

Hat Tip: Patrick Kavanagh


July 11, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

UAW to Open Office in Chattanooga

VWThe UAW just announced that it will continue to organize VW's Chattanooga plant by opening up a nearby office.  This makes perfect sense.  Given VW's support for the union and the interest from a large number of VW employees (note that although the UAW lost the election, they still got remarkably close given the geography and political pressure against them), maintaining a presence in the area could be helpful.  This also allows the union to assist employees, thereby possibly showing holdouts how the union might benefit them.

One side note:  many articles, including the one linked above, still have headlines stating that the union office will be inside the VW plant.  I saw this in some early, pre-announcement stories, which made me scratch my head due to the potential 8(a)(2) problems.  It was no surprise that these early reports were not accurate, but beware of headlines that seem to be picking up these early, erroneous rumors.


July 11, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

Thursday, July 10, 2014

EEOC update – – Pregnancy Discrimination Settlement


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As those that follow employment discrimination closely know, discrimination issues often come in waves. Pregnancy discrimination claims appear to be grabbing substantial attention recently. Of particular note, the Supreme Court granted cert in a case (Young v. United Parcel Service) that will help define the PDA and Title VII.  The case will address the accommodation requirements that must be given to pregnant workers in certain circumstances.

The EEOC also continues to enforce pregnancy discrimination claims. In a press release issued today, the agency announced a settlement that it reached in a case alleging pregnancy  discrimination. The case alleged that an employer had terminated a worker “immediately after she advised her store manager of her pregnancy.”  From the press release:

“In addition to the $15,000 monetary relief, the three-year consent decree settling the lawsuit prohibits [the employer ] from future discriminat[ion] against employees on the basis of sex or pregnancy. The decree requires that [the employer] maintain an anti-discrimination policy and train employees on rights under Title VII. The decree also requires the company to post a notice to all employees about protections under Title VII that provides the EEOC's contact information.”

As pregnancy discrimination continues to make headlines, it will be interesting to follow the Supreme Court's ruling which will help define this issue under Title VII.

-- Joe Seiner

July 10, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 8, 2014

9th Circuit Prison Guard BFOQ Decision Issued

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In an interesting decision out of the Ninth Circuit Court of Appeals, the appellate court recently ruled that a city and county's policy of prohibiting male guards from overseeing female inmates in the jail system could run afoul of Title VII.  The lower court had concluded that the policy was a valid BFOQ and entered summary judgment for the employer. The Ninth Circuit reversed, reasoning that -- at least for purposes of summary judgment -- the county had failed to establish sex as a BFOQ. The court further concluded that there may be alternative practices with less discriminatory impact that could still serve the employer's goals in the case, including background checks and psychological tests. From the court's decision:

"the County has not met its burden of showing that there is no genuine dispute over whether excluding men from supervisory positions in female housing units is a legitimate proxy for requiring that deputies in those positions not pose a threat to the safety of female inmates...

the County is also unable to show that there is no genuine dispute as to whether it is impossible or highly impractical to insure by individual testing that a male deputy does not have a propensity to perpetrate sexual misconduct."

This case certainly calls to mind the facts of the Supreme Court's decision in Dothard v.  Rawlinson, which is often distinguished on the basis  of the "jungle like  atmosphere" involved in that case.  This is a very interesting decision and certainly worth a quick read… 

--  Joe Seiner

July 8, 2014 | Permalink | Comments (0) | TrackBack (0)

Call for Papers: 2015 Marco Biagi Conference

Scholarly writingSusan Bisom-Rapp (Thomas Jefferson) writes to let us know that the Marco Biagi Foundation has put out calls for papers for the 2015 annual conference on labor relations March 19-20, 2015, in Modena Italy.

There is a general call for papers  Download MARCO BIAGI CONFERENCE MARCH 2015, and a call for papers from newer scholars  Download Call YSW 2015. The topic of the conference is Employment Relations and Transformation of the Enterprise in the Global Economy, and for the general call for papers, the foundation invites papers focusing on one of four tracks:

  1. Organisational structure of the enterprise and the fragmentation of the employer’s role and responsibilities
  2. Employment relations in ‘special’ enterprises
  3. Small and medium-sized enterprises in a global context: relations, interests, protection
  4. Collective solidarity and the representation of interests in the context of recent developments in regulatory provisions and the dematerialisation of the enterprise

Participants who intend to contribute a paper to one of the conference sessions should submit an abstract (maximum 1500 words) no later than 31 October 2014, and fill in the form that will be made available from September 2014 on the Marco Biagi Foundation website:

Abstracts should include an indication of the related track. However, the Academic Advisory Board reserves the right to assign papers to the track they consider to be most appropriate.

Abstracts and papers may be submitted either in English or in Italian.

In order to be included in one of the conference sessions, full papers need to be submitted to the conference organisers no later than 13 February 2015. 

Download the call for papers or visit the website for more details.

The Young Scholars Workshop will take place on the afternoon of March 18. 

Abstracts should describe research projects that fall within the field of Labour relations from one of the following disciplinary perspectives: law, industrial relations, labour economics, organization theory, human resources management. Special consideration will be given to those topics and original research projects that allow for an interdisciplinary dialogue involving two or more of these disciplines, and that show a specific concern for international and/or comparative issues.

Scholars willing to participate in the workshop should submit a 1,000 word abstract along with a resume, including educational and academic career, publications, and contact information, no later than 31 October 2014.

Please submit the abstract electronically (in English). The preferred format for submission is Microsoft Word.

Abstracts should include the paper title and a bibliography, and should make specific reference to disciplinary field, academic affiliation of the author, research question(s), methodology and main results achieved.

The working language of the workshop will be English, some authors may be selected for a poster presentation instead, and some conference expenses will be covered for one author of papers and posters accepted. See the call for more details.


July 8, 2014 in Conferences & Colloquia, Faculty Presentations, International & Comparative L.E.L., Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, July 7, 2014

Call for Papers

AalsRebecca Lee, Chair of the AALS Section on Labor Relations and Employment Law sends along the following call for papers:

AALS Section on Labor Relations and Employment Law

"Emotions at Work: The Employment Relationship During an Age of Anxiety"

2015 AALS Annual Meeting

January 2-5, 2015

Washington, DC

The Executive Committee of the AALS Labor Relations and Employment Law Section is seeking abstracts for papers to be presented at the 2015 Annual Meeting in Washington, DC. The section program is entitled Emotions at Work: The Employment Relationship During an Age of Anxiety. The papers will be published in the Employee Rights and Employment Policy Journal, a multidisciplinary peer-reviewed journal published by ITT Chicago-Kent College of Law.

The program will focus on the emotional aspects of the employment relationship during uncertain economic times. Many individuals are currently experiencing a greater range and intensity of emotions at work, both as employees and as employers, due to heightened anxiety and pressures. Are these emotions in the workplace openly recognized and managed, and if so, how? In what ways should employment law or workplace policy address these concerns?

A panel of leading scholars already committed to present will provide a multidisciplinary perspective on these questions. We are seeking one additional speaker who will present on a relevant topic, and we particularly encourage new voices to submit a paper abstract.

The Labor Relations and Employment Law Section program will take place on Monday, January 5, 2015 from 10:30am to 12:15pm. The program is co-sponsored by the Section on Socio-Economics.

Please submit an abstract of no more than 400 words and a resume to Section Chair Rebecca Lee at by September 1, 2014. Authors of selected abstracts will be notified before October 1, 2014.

Looks like a great opportunity and a good program.


July 7, 2014 in Conferences & Colloquia, Faculty Presentations, Labor and Employment News, Scholarship, Workplace Trends | Permalink | Comments (0) | TrackBack (0)

After Salas (Part II)

In a previous post, I described the California Supreme Court’s decision Salas v. Sierra Chemical. Now, here are four guesses about what happens next because of Salas.

First, despite SB 1818, more defense lawyers will inquire in litigation as to whether the plaintiff-employee is actually an “unauthorized alien” under 8 U.S.C. § 1324a(a)(2), because proving that is a necessary condition for the Salas preemption defense.  To be sure, SB 1818 provides that in “proceedings or discovery” to enforce “state labor, employment, civil rights, and employee housing laws,” no one may inquire about a person’s immigration status except to show “by clear and convincing evidence that the inquiry is necessary in order to comply with federal immigration law.” Cal. Gov’t Code § 7285(b).  One question is whether this “clear and convincing” standard affects how easily a defendant may prove the Salas preemption defense.

Second, more lawyers will now fight about when an employer “know[s]” the plaintiff’s unauthorized status under 8 U.S.C. § 1324a(a)(2).  Current law holds employers not only to actual knowledge but also constructive knowledge of that status, that is, “knowledge which may fairly be inferred through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know about a certain condition.” 8 C.F.R. § 274a.1(l)(1); see Aramark Facility Services v. Services Employees International Union, 530 F.3d 817, 825-32 (9th Cir. 2008).  An employer is typically keen to deny that it knew of a worker’s unauthorized status (to avoid IRCA employer sanctions).  After Salas, though, an employer has a reason to show that it did constructively know the plaintiff’s unauthorized status, so long as after it knew, the plaintiff was no longer in its employ.  In trying to prove this, however, the employer’s attorney should worry about inadvertently letting in, or opposing counsel who respond by bringing in, evidence tending to prove employer IRCA violations---for example, that the employer constructively knew of the plaintiff’s unauthorized status some time before the plaintiff stopped working for it, or that the employer constructively knew of the unauthorized status of some of its other employees that it nonetheless continued to employ.

Third, in some cases, it may be hard to pursue both the Salas preemption defense and the McKennon defense for the same worker misconduct.  Although a defendant-employer can also raise a McKennon defense based on a plaintiff-worker’s use of false documents to conceal his actual immigration status, to succeed on the a McKennon defense, the employer must prove that it would have fired the plaintiff for concealing that status. To defeat that would-have-fired showing, plaintiffs’ lawyers may seek evidence of what and when the defendant-employer knew about the immigration status of its other workers and how that employer responded once it knew. After all, they’ll argue, the employer’s past practices with undocumented workers count as relevant, because such practices tend to show what the employer wouldhave done to the plaintiff.  Or they’ll argue that since SB 1818 precludes inquiries into anyone’s immigration status except where necessary to “comply with federal immigration law,” it precludes such inquiries in support of a FEHA after-acquired-evidence defense or an unclean-hands defense—both creatures of State law.   In contrast, for the Salas preemption defense, the “post-discovery period” seems to start when the duty under section 1324a(a)(2) triggers, even if the employer’s past practices suggests that it in fact would have ignored section 1324a(a)(2) and continued to employ the plaintiff.

Fourth, many lawyers will be puzzled by the Salas Court’s application of the “impossibility” prong of conflict preemption.  The Court reasoned that it is impossible for an employer to obey section 1324a(a)(2)—by not continuing to employ a worker it knows to be unauthorized---and obey a judgment requiring it to pay the plaintiff an amount that in part covers lost wages for the time the plaintiff would have been employed after the employer learned that the plaintiff was an unauthorized alien.  The puzzle is this: Even if Mr. Salasis an “unauthorized alien,” if on remand Mr. Salas wins his FEHA claims and the court orders Sierra to pay him all lost wages, he would not thereby be employed by Sierra at that time, so section 1324a(a)(2) simply would not apply at the time Sierra’s legal duty to pay the award arises.  So long as the judgment does not actually order Sierra to reinstate Salas, it is not impossible to obey ICRA and a court order to pay Salas all the lost wages otherwise owed to him under FEHA.  In ruling otherwise, perhaps the Court mistook counterfactual employment—how long Sierra would have employed Salas if it had not violated FEHA—for actualemployment—how long Sierra really did employ Sierra.

To be sure, it’s easy to imagine an alternative ground for precluding lost wages for the “post-discovery” period: Sierra proves that if it had not violated FEHA, it wouldhave hired Salas; it still would have learned that Salas used another man’s Social Security number; and (if this amounts to constructive knowledge of unauthorized status under IRCA) it still would have fired Salas to obey section 1324a(a)(2).  If so, a State law award of full lost pay would actually over-compensate Salas—it assumes that Sierra would have paid Salas some wages during a period in which Sierra would not have employed Salas at all.  That’s not federal conflict-preemption analysis.  That’s just the idea under State law that, in general, an award for lost pay must be limited only to the pay the plaintiff would have received if, all else equal, the defendant had not committed the wrongful act.  Whatever its merits—including whether it requires inquiries into immigration status that SB 1818 prohibits, see Cal. Gov’t Code § 7285(b)—this alternative reasoning would have been less favorable to Sierra.  According to the Salas opinion, when Salas asserted his Fifth Amendment privilege in his FEHA lawsuit, that “led” Sierra to investigate further, after which it found the apparent Social Security number mismatch.  If that causal connection is undisputed, then absent the FEHA violation, Sierra would not have investigated and discovered the mismatch, and thus would not have even arguably known of any unauthorized status.

These are all guesses, of course.  Thanks to the blog for letting me share them and thanks in advance for your comments.

 Sachin Pandya

July 7, 2014 | Permalink | Comments (1) | TrackBack (0)

Thursday, July 3, 2014

Post-Hobby Lobby, Court Says Religious Non-Profit Need Not Notify Insurer that It Objects to Coverage

ScotusThe Court has taken a number of actions already since issuing its decision in Hobby Lobby that suggest future directions on the issue in that case.  First, the Court acted on six cert. petitions. As Lyle Denniston notes on ScotusBlog, the court remanded three cases to the courts of appeal, and denied cert in three. All six cases involved employers who objected to coverage for all forms of contraception, as well as sterilization for women, and pregnancy counselling. In the three won by employers, the Court denied cert. In the three won by the government, the Court ordered the courts of appeal to reconsider in light of the Hobby Lobby decision.

And today, the Court issued an additional order. In Wheaton College v. Burwell, the Court granted an injunction to this religious educational institution against enforcement of the women's preventive care provisions objected to, absolving the College from filling out the government's form and delivering notice to its insurer. The government's brief in opposition is here.

Particularly notable was a dissent by Justice Sotomayor, joined by Justices Ginsburg and Kagan. In it, the three justices note that the Court had indicated in Hobby Lobby that the accommodation which required an employer to notify its insurer that it objected to certain coverage was less restrictive, implying that it would satisfy RFRA. As Justice Sotomoayor noted, 

After expressly relying on the availability of thereligious-nonprofit accommodation to hold that the contraceptive coverage requirement violates RFRA as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might . . . , retreats from that position. That action evinces disregard for even the newest of this Court’s precedents and undermines confidence in this institution.

The whole dissent is worth a read. 


July 3, 2014 in Beltway Developments, Employment Discrimination, Pension and Benefits, Religion | Permalink | Comments (0) | TrackBack (0)

Rosado Brief in Northwestern Case

NorthwesternCesar Rosado (Chicago-Kent) writes to let us know that he's writing an amicus brief in the NLRB's Northwestern case.  In case you've been in a cave for the year, that's the case in which a Regional Director concluded that collegiate football players on scholarship at Northwestern were employees under the NLRA and could seek to unionize.

You can see Cesar's brief here:   Download Northwestern Draft Brief.  This case is sure to be in the news for a while, so keep up with all the briefing on the Board's case page.


July 3, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)